In the
United States Court of Appeals
For the Seventh Circuit

No. 98-1009

Kathy Carver and Fred H. Kientzle,

Plaintiffs-Appellants,

v.

Sheriff Robert Nall, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Central District of Illinois, Springfield Division.
No. 96-C-3216--Richard Mills, Judge.


Argued October 30, 1998--Decided April 2, 1999



  Before Cummings, Kanne, and Diane P. Wood, Circuit
Judges.

  Diane P. Wood, Circuit Judge. Plaintiffs Kathy
Carver and Fred Kientzle work as deputy sheriffs
for the Adams County, Illinois, Sheriff’s
Department. Each of them was suspended without
pay for a brief period of time. Those suspensions
led their union to file a grievance on their
behalf before the Illinois State Labor Relations
Board ("ISLRB"), claiming that they had been
suspended in retaliation for their union
activities. That proceeding was ultimately
settled. Eight months before the settlement,
Carver and Kientzle filed the present suit under
42 U.S.C. sec. 1983, claiming that the way their
suspensions were handled violated their
constitutional rights to procedural due process.
The district court dismissed the case, believing
that the proceedings before the ISLRB were res
judicata for the sec. 1983 case. We disagree for
several reasons and remand the case for further
consideration.

  Sheriff Robert Nall and Chief Deputy Jon McCoy
suspended Carver for ten days without pay on May
6, 1996. They suspended Kientzle for three days
without pay at the same time. Neither plaintiff
received a pre-suspension hearing, nor was either
given an opportunity to respond to the
allegations made against him or her. In addition,
even though both Carver and Kientzle asked for a
post-suspension hearing before the Adams County
Merit Commission, neither was granted one.

  Their union, believing the suspensions were in
retaliation for Carver’s and Kientzle’s union
activities, filed the unfair labor practice
charges against Sheriff Nall with the ISLRB. That
led to a settlement on March 25, 1997. The
settlement agreement provided that Carver’s
suspension would be reduced to three days and
Kientzle’s would be expunged, and each plaintiff
would receive back pay for the entire duration of
the original suspension. It also stated that the
union would withdraw its charges against Sheriff
Nall. Most importantly for present purposes, it
finally stated that "Deputies Kientzle and Carver
hereby expressly waive any and all other claims
for said backpay arising from these disciplinary
actions."

  Some eight months before the settlement
agreement was signed, on July 26, 1996, Carver
and Kientzle had filed the present action
alleging due process violations in their
treatment. Their second amended complaint
requested back pay and an injunction against the
Sheriff’s Department that would prohibit it from
imposing suspensions without hearings. The suit
named Sheriff Nall, Chief Deputy McCoy, and five
members of the Adams County Merit Commission as
defendants. After the March 25, 1997, settlement
was signed, the defendants moved for judgment on
the pleadings, arguing that the sec. 1983 action
was now barred by res judicata. The district
court agreed and dismissed the action.

  The Supreme Court has held that the preclusive
effect of a state court judgment in a later
federal court action must be determined using the
principles of the full faith and credit statute,
28 U.S.C. sec. 1738. See Matsushita Elec. Indus.
Co. v. Epstein, 516 U.S. 367, 373 (1996); Marrese
v. American Acad. of Orthopaedic Surgeons, 470
U.S. 373, 380 (1985). Here, of course, we are met
with the initial obstacle that there is neither
a state court judgment nor even a state
administrative agency’s formal resolution of the
matter, so there is no underlying state decision
of any kind that might preclude the federal suit.
Furthermore, to the extent that it is
tangentially relevant, we note that our decision
in Majeske v. Fraternal Order of Police, Local
Lodge No. 7, 94 F.3d 307 (7th Cir. 1996), does
not stand for the proposition that res judicata
effects can spring from settlements. Majeske held
only that the fact that a court judgment may have
had its roots in a settlement (and thus be a
consent decree), rather than in full-blown
litigation, makes no difference for the
application of sec. 1738. But the fundamental
point remains that res judicata cannot operate in
the absence of a judgment. A settlement agreement
that has not been integrated into a consent
decree is not a judgment and cannot trigger res
judicata.

  Open and shut as this point is, for some reason
it is not the ground that Carver and Kientzle
argued in their opening brief on appeal.
Ordinarily, this would mean that they have waived
this ground for relief. In this case, however,
the appellees specifically addressed the sec.
1738 point in their responsive brief. They have
thus waived the chance to argue that Carver and
Kientzle forfeited this argument, and we regard
the point as fairly before us. The appellees
suggest that even though the ISLRB decision is
not entitled to full faith and credit, it still
has preclusive effects under the federal common
law of claim preclusion, citing University of
Tennessee v. Elliott, 478 U.S. 788 (1986). But
the Elliott Court did no more than recognize that
traditional, federal common law principles of
preclusion apply to state administrative actions
in sec. 1983 cases. Id. at 797. It directed
federal courts to give state administrative
factfinding the same preclusive effect it would
have in state courts. Id. at 799.

  In our case, unlike in Elliott, the
administrative case before the ISLRB was settled,
the charges were withdrawn, and the ISLRB never
took any action. No preclusion doctrines,
statutory or common law, operate in the absence
of an underlying judgment or administrative
finding. Illinois, like every other jurisdiction
of which we are aware, requires at a minimum an
administrative determination before it will apply
preclusion doctrines. E.g., Marco v. Doherty, 657
N.E.2d 1165, 1168 (Ill. App. 1995); Godare v.
Sterling Steel Casing Co., 430 N.E.2d 620, 623
(Ill. App. 1981). The absence of any such
determination here from the ISLRB means that
there is no preclusion under Elliott either.

  The general inapplicability of claim preclusion
in the present situation makes it unnecessary for
us to discuss in detail the other reasons for
reversal Carver and Kientzle have presented on
appeal. They have argued that preclusion should
not apply because (1) the ISLRB lacked
jurisdiction to adjudicate a due process
violation, (2) the ISLRB could not award the full
measure of relief they sought, and (3) there was
no identity of causes of action between the labor
violation before the ISLRB and the due process
claim before the district court. The first of
these is also sufficient reason to reverse the
district court’s judgment. This court has held
that, where a plaintiff has a set of claims
arising from one series of events, and where she
has an unconstrained choice to proceed in a forum
with jurisdiction to hear all her claims or a
forum with limited jurisdiction, if she chooses
to proceed in the latter, the claims that fall
outside its jurisdictional reach will be barred.
Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 864-
65 (7th Cir. 1996). Here, however, Carver and
Kientzle had no such unconstrained choice. On the
one hand, the ISLRB has exclusive jurisdiction to
hear unfair labor practice grievances of Illinois
state employees. See Stahulak v. City of Chicago,
684 N.E.2d 907, 911 (Ill. App. 1997); Foley v.
AFSCME Council 31, Local 2258, 556 N.E.2d 581,
583-84 (Ill. App. 1990). On the other hand, the
ISLRB is not empowered to hear a civil rights
claim. Thus, because the federal court could not
hear the unfair labor practice grievance and the
state tribunal could not hear the civil rights
claim, Carver and Kientzle were forced to split
their claims as they did. Claim preclusion does
not operate so harshly as to bar whichever set of
claims the chosen forum could not hear. Waid, 91
F.3d at 865, discussing Restatement (Second) of Judgments
sec. 26 cmt. c.

  Although we are reversing the district court’s
decision to dismiss the case on res judicata
grounds, we wish to emphasize that this ruling
does not mean that the settlement agreement was
a nullity. On remand, it will be open to the
parties to debate the effect of the contractual
release contained in the agreement on Carver’s
and Kientzle’s sec. 1983 suit. Because this has
not been explored in the proper context, we offer
no further opinion on it at this time.
  The judgment of the district court is Reversed and
the case is Remanded for further proceedings
consistent with this opinion.
