                         NONPRECEDENTIAL DISPOSITION
                          To be cited only in accordance with
                                   Fed. R. App. P. 32.1




              United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                               Submitted January 27, 2012*
                                 Decided March 27, 2012

                                         Before

                            WILLIAM J. BAUER, Circuit Judge

                            JOHN DANIEL TINDER, Circuit Judge

                            DAVID F. HAMILTON, Circuit Judge

No. 11-3243

BEVERLY E. ROBINSON,                              Appeal from the United States District
     Plaintiff-Appellant,                         Court for the Northern District of Illinois,
                                                  Eastern Division.
      v.
                                                  No. 06 C 5158
MORGAN STANLEY, et al.,
    Defendants-Appellees.                         James F. Holderman,
                                                  Chief Judge.

                                       ORDER

       Beverly Robinson appeals from the grant of summary judgment to her former
employer and several of its employees on her claim that she was fired in retaliation for
whistleblowing. In a prior appeal we upheld the Department of Labor’s determination that
Robinson was fired because of poor job performance and not whistleblowing activity


      *
         This appeal is successive to No. 10-1587 and has been submitted to the original
panel under Operating Procedure 6(b). After examining the briefs and the record, we have
concluded that oral argument is unnecessary. Accordingly, the appeal is submitted on the
briefs and the record. See FED. R. A PP. P. 34(a)(2).
No. 11-3243                                                                             Page 2

protected by the Sarbanes-Oxley Act, see 18 U.S.C. § 1514A. Robinson v. U.S. Dep’t of Labor,
406 F. App’x 69, 74 (7th Cir. 2010). In this action Robinson repackages her claim, contending
that her firing violated Illinois law. But because Robinson’s retaliation claim is precluded
by collateral estoppel and because the other claims she raises in this appeal are either time-
barred or undeveloped, we affirm the district court’s judgment.

       Robinson began working in 2000 as a senior auditor for Discover Financial Services,
a wholly owned subsidiary of Morgan Stanley. Because of health problems, she went on
leave the following year under the Family and Medical Leave Act, 29 U.S.C. §§ 2601–54.
When she returned to full-time work in early 2002, her title had changed, but her pay and
benefits remained the same; Robinson nonetheless considered the change a demotion
because she lost some of her responsibilities. She testified at her deposition that an
employee in Discover’s human-resources department told her in “early spring 2003” that
she had been demoted the previous year because of her FMLA leave.

        In February 2004, Robinson submitted a memo to Discover’s president and its chief
financial officer, reporting what she viewed as “financial, operational, regulatory, and legal
risks” that the company faced. Her memo included an allegation that the company was
inflating its assets by not “charging off” its customers’ bankruptcies quickly enough. Six
months later, Discover terminated Robinson, purportedly for poor job performance.

       Robinson then filed an administrative complaint with the U.S. Department of Labor
alleging that she was fired not because of poor performance, but in retaliation for her
submission of the memo, an activity she asserted was protected by Sarbanes-Oxley. After a
10-day hearing at which both sides were represented by counsel, an administrative law
judge concluded that Robinson had engaged in protected activity under Sarbanes-Oxley
but that poor performance, not the protected activity, caused her termination. The
Department of Labor’s Administrative Review Board affirmed, ruling that the record
supported the ALJ’s determination that Robinson was fired for poor performance.

       Robinson then petitioned for review in this court. See 18 U.S.C. § 1514A(b)(2);
49 U.S.C. § 42121(b)(4)(A). We denied her petition, concluding that the Board’s ruling was
not arbitrary or capricious given the “mountain of evidence” that demonstrated her history
of “unabated poor performance.” Robinson, 406 F. App’x at 74.

        In August 2006, while the administrative complaint was pending in the Department
of Labor, Robinson filed the complaint in this case, alleging that her termination violated
Illinois law on retaliatory discharge and that the defendants retaliated against her in
unspecified ways under the Illinois Whistleblower Act, see 740 ILCS 174/20. She also
claimed that her change in job title and duties violated the FMLA and that Discover
No. 11-3243                                                                              Page 3

violated the Illinois Personnel Record Review Act, see 820 ILCS 40/4, 40/9, by introducing
certain records from her employment during the Sarbanes-Oxley hearing before the ALJ
and by keeping records of her activities outside of work.

        In granting summary judgment to the defendants, the district court first ruled that
Robinson’s retaliatory-discharge claim was precluded by collateral estoppel. The ALJ’s
resolution of the factual dispute over why Robinson was fired was essential to the
judgment on the Sarbanes-Oxley complaint, the court concluded, and Robinson had the
opportunity to litigate the issue fully with assistance of counsel. See Matrix IV, Inc. v. Am.
Nat’l First Bank & Trust Co. of Chi., 649 F.3d 539, 547 (7th Cir. 2011). The court then
determined that Robinson had not produced evidence of a triable issue on the
Whistleblower Act claim. Finally, the court ruled that Robinson’s FMLA claim was time-
barred and that her claim under the Personnel Record Review Act failed because she had
not exhausted her administrative remedies.

        On appeal, Robinson first contends that collateral estoppel should not bar her
retaliatory-discharge claim. Though Robinson concedes that the ALJ’s ruling on her
Sarbanes-Oxley claim can have preclusive effect because he was acting in a “judicial
capacity,” see Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107–08 (1991); Hamdan
v. Gonzales, 425 F.3d 1051, 1059 (7th Cir. 2005), she nonetheless contends that collateral
estoppel is inapplicable because the ALJ’s opinion addressed her retaliation claim under
only federal, not Illinois, law.

        But as the district court recognized, the application of collateral estoppel depends on
whether a factual issue in dispute has been resolved in prior litigation, not on whether the
legal theory of recovery is the same. See Montana v. United States, 440 U.S. 147, 153 (1979);
Firishchak v. Holder, 636 F.3d 305, 308 (7th Cir. 2011), cert. denied, 80 U.S.L.W. 3379 (2012).
The crux of the ALJ’s decision was that poor job performance, not Robinson’s memo to
Discover’s executives, led to her ouster; she may not relitigate that issue under the guise of
a state-law claim for retaliatory discharge.

       Next Robinson asserts that the district court erred in concluding that her FMLA
claim was time-barred. A willful violation of the act is subject to a three-year limitations
period, see 29 U.S.C. § 2617(c)(2), and Robinson filed her complaint in August 2006, more
than four years after her change in job title and more than three years after a Discover
employee allegedly told her that she had been demoted because of her FMLA leave.
Robinson maintains that her claim is timely because she continued to suffer negative
consequences from her alleged demotion until the day of her termination. But a discrete act
that occurs outside of the limitations period—such as the alleged demotion here—is time-
No. 11-3243                                                                               Page 4

barred, see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110–11 (2002); Groesch v. City of
Springfield, Ill., 635 F.3d 1020, 1027 (7th Cir. 2011), and the “lingering effect of an earlier,
distinct” wrong does not make a violation continuing, see Pitts v. City of Kankakee, Ill., 267
F.3d 592, 595 (7th Cir. 2001).

        Robinson’s remaining arguments require little discussion. Her challenges to the
district court’s rulings on her claims under the Whistleblower Act and the Personnel
Record Review Act are undeveloped. See FED. R. A PP. P. 28(a)(9). And neither of her two
remaining arguments, which address procedural rulings by the district court, has merit.

                                                                                   AFFIRMED.
