                         NONPRECEDENTIAL DISPOSITION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



                                 Argued April 11, 2013
                                Decided August 13, 2013

                                             Before

                           FRANK H. EASTERBROOK, Chief Judge

                           DANIEL A. MANION, Circuit Judge

                           ILANA DIAMOND ROVNER, Circuit Judge

No. 12-3452

ANDRE HARRISON,                                       Appeal from the United States District
                      Plaintiff-Appellant,            Court for the Central District of Illinois.
      v.
                                                      No. 11-CV-4067
DEERE & COMPANY, a corporation,
              Defendant-Appellee.                     Sara Darrow, Judge.




                                        ORDER

       Andre Harrison worked in a management position for Deere & Company, but
Deere fired him after it determined that he was engaged in sexual misconduct with
subordinates. Harrison filed this suit and alleged that his termination was based on his
race, and not his sexual misconduct. But this is the third time Harrison has sued Deere
about his termination. Therefore, based on res judicata, Deere moved for judgment on
No. 12-3452                                                                         Page 2

the pleadings under Federal Rule of Civil Procedure 12(c). The district court granted
Deere’s motion and dismissed the case. Harrison appealed, and argues that his previous
litigation does not preclude this suit. We disagree, and affirm the district court’s
dismissal.

                                         I. Facts

        On September 2, 2011, Harrison filed a complaint alleging that Deere &
Company had terminated his employment because he was black. The complaint
described Harrison’s job as an Operations Manager at the John Deere Seeding Group
facility in Moline, Illinois. Harrison alleged that his job performance met Deere’s
reasonable expectations, but he was accused of sexually assaulting the daughter of a
Deere employee and also of sexually harassing a female subordinate named Heather
Thielbert. Harrison claimed that these accusations were false, but Deere nonetheless
launched an investigation into Harrison’s behavior.

        As a result of its investigation, Deere learned that Harrison’s marriage was
falling apart and that Harrison had not been living with his wife for several months.
Instead, he had been dating Thielbert during that time. Harrison denied that he had
sexually harassed Thielbert or had pursued a relationship with her during work hours,
and he asserted that his relationship with Thielbert did not cause Deere to suffer any
financial liability.

        Nonetheless, on September 3, 2009, Deere fired Harrison. Deere stated that it
fired Harrison because he had violated the company’s policy that prohibited managers
from engaging in sexual relationships with subordinate employees. Deere had stated
that it had “zero tolerance” for violations of this policy. But Harrison claimed that Deere
had previously looked the other way and had not enforced its policy when a white
manager allegedly engaged in an extramarital affair with a married subordinate.
Because Deere allegedly had not enforced its policy for white managers, Harrison stated
that he had been terminated because he is black. He therefore alleged that Deere’s
decision to fire him had violated 42 U.S.C. § 1981, and he sought a variety of remedies
from Deere.

      Deere’s answer denied Harrison’s allegations and asserted that Harrison had
been “terminated for legitimate, non-discriminatory reasons, and not because he is
African-American.” But more importantly, Deere stated that Harrison’s allegations
were based on facts that had already been litigated in two prior cases, and his § 1981
No. 12-3452                                                                             Page 3

claim was therefore barred by res judicata. Deere’s answer specifically referenced the
two prior cases: Harrison v. Addington, No. 09-L-136 (Rock Island Co., Ill., Cir. Ct. filed
Oct. 2, 2009), and Harrison v. Deere & Co. (Deere I), No. 10-L-75 (Rock Island Co., Ill., Cir.
Ct. filed June 16, 2010).

        Harrison v. Addington began on October 2, 2009, when Harrison filed a complaint
in Illinois state court against three Deere managers who had investigated Harrison’s
sexual conduct and had decided to fire him.1 Compl. at 1-2, Addington, No. 09-L-136.
The complaint was later amended (twice), and the third complaint alleged that eight
Deere managers had defamed Harrison and intentionally interfered with his
employment. Third Am. Compl. at 1-25, Addington, No. 09-L-136. The trial court
allowed the case to proceed to discovery, then ruled in favor of the eight Deere
managers on summary judgment. Addington, 955 N.E.2d 700, 702-03 (Ill. App. Ct. 2011).
Harrison appealed. Id.

       On September 6, 2011, an Illinois appellate court affirmed the trial court’s ruling
and thoroughly recounted the facts underlying its decision. Id. at 703-05. Harrison had
started working for Deere in 1999, and Deere had promoted him five times and had
increased his salary on more than ten occasions. Id. at 703. But on August 30, 2009, a
Deere employee informed a Deere administrator that Harrison had raped his daughter.
Id. The employee also reported that Harrison was forcing Heather Thielbert to have a
sexual relationship with him by threatening her job if she refused his advances. Id.

        The Deere managers talked to Harrison about the accusations, then decided to
launch a formal investigation into his behavior “due to the concern for potential
workplace harassment and violence.” Id. at 704. A Deere investigator then interviewed
at least five people involved in Harrison’s case, and the investigation revealed that
Harrison had been involved in sexual relationships with at least three Deere employees.
Id. at 704-05. Based upon these revelations, Harrison emailed a Deere manager: “I
understand the seriousness of the situation. I wanted to assure you I have taken all the
steps to end those relationships to better ensure that no future issues arise. … It was far
below the professional standard I expect for myself.” Id. at 705. Deere managers then
reviewed the investigation’s results, and the managers decided to terminate Harrison’s


       1
        Harrison also sued the Deere employee who had accused him of sexual assault
and harassment, but the claims against that employee do not affect this appeal. See
Complaint at 1, Addington, No. 09-L-136.
No. 12-3452                                                                            Page 4

employment. Id. This decision was not unusual for an employee who had engaged in a
sexual relationship with a subordinate; indeed, Deere regularly fired employees for
engaging in conduct that was less offensive than Harrison’s. Id. On September 3, 2009,
two Deere managers told Harrison that he was fired “due to the information discovered
in the investigation.” Id.

       The Illinois appellate court then considered Harrison’s legal arguments, and
ruled against him across the board. Id. at 706-13. It affirmed the trial court’s decision to
grant summary judgment in favor of the Deere managers. Id. Significantly, at the end of
the opinion, the court wrote: “The record clearly establishes that [Harrison’s] conduct in
having relationships not only with subordinates, but also with wives and a daughter of
employees created a risk of workplace violence as well as a risk of financial liability for
Deere. We find this appeal to be totally devoid of merit.” Id. at 713.

        Harrison v. Deere began on June 16, 2010, when Harrison filed a new complaint in
Illinois state court about his termination at Deere. Compl. at 1, Deere I, No. 10-L-75.
Unlike in Addington, Harrison only sued Deere, and not its managers. Id. Harrison later
amended his complaint, and alleged that Deere had violated the Illinois Personnel
Records Review Act (“IPRRA”), invaded his privacy, and wrongfully terminated his
employment. Second Am. Compl. at 1-16, Deere I, No. 10-L-75. The trial court first
considered Harrison’s claims for invasion of privacy and wrongful termination, then
dismissed them with prejudice for failing to state a claim. Op. and Order on Deere’s
Mot. to Dismiss Count II at 6, Deere I, No. 10-L-75; Op. and Order on Deere’s Mot. to
Dismiss Count III at 8, Deere I, No. 10-L-75. Later, after the Illinois appellate court issued
its ruling in Addington, the trial court in Deere I ruled that a portion of Harrison’s IPRRA
claim was barred by res judicata. Tr. of Hr’g on Nov. 22, 2011, at 3-8, Deere I, No. 10-L-
75. The remaining portion of the IPRRA claim is about Deere’s handling of Harrison’s
personnel records, and is not relevant to this appeal.

        After referencing Addington and Deere I in its answer to Harrison’s § 1981 claim,
Deere moved for judgment on the pleadings under Federal Rule of Civil Procedure
12(c). Deere argued that because Addington and Deere I had already addressed the
underlying facts of Harrison’s § 1981 claim, res judicata barred this case from
proceeding. On September 28, 2012, the district court determined that the final
No. 12-3452                                                                            Page 5

judgment in Addington met the requirements of res judicata under Illinois state law.2
Additionally, it determined that Harrison had a full and fair opportunity to litigate his
§ 1981 claim in the Addington proceeding. The district court therefore granted Deere’s
motion for judgment on the pleadings under Rule 12(c) and dismissed Harrison’s suit.
Harrison filed a timely notice of appeal.

                                       II. Discussion

       Harrison argues that the district court was wrong to conclude that res judicata
barred a ruling in this case. Because the district court resolved this case by granting
Deere’s motion for judgment on the pleadings under Rule 12(c), we treat all well-
pleaded allegations in Harrison’s complaint as true, and draw all inferences in his
favor.3 Forseth v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). Additionally, res
judicata is an affirmative defense, and the defendant therefore has the burden of
establishing it. See Rooding v. Peters, 92 F.3d 578, 580 (7th Cir. 1996).

        The Supreme Court has ruled that “a federal court must give the same preclusive
effect to a state-court judgment as another court of that State would give.” Parsons Steel,
Inc. v. First Ala. Bank, 474 U.S. 518, 523 (1986) (applying the Full Faith and Credit Act, 28
U.S.C. § 1738). Therefore, to determine that a state-court judgment precludes a case filed
in federal court: (1) res judicata must apply under state law; and (2) the defendant must

       2
         The district court did not rely on Deere I in its res judicata analysis. The trial
court’s orders in Deere I about Harrison’s claims for invasion of privacy and wrongful
termination were apparently still appealable when the district court issued its decision.
The district court stated that “there exists a split of authority in Illinois as to whether an
appealable order is final for purposes of res judicata,” and rather than address that
issue, the district court simply relied on Addington.
       3
         As a preliminary matter, Harrison argues that we should reverse the district
court’s opinion because it considered facts outside the pleadings (as expressed in
Addington and Deere I) on a motion for judgment on the pleadings under Rule 12(c).
Addington and Deere I, Harrison reminds us, are not pleadings. But the district court did
not err because Deere specifically referenced these two cases in its answer to Harrison’s
complaint, and we have ruled that “the district court may take into consideration
documents incorporated by reference to the pleadings” and “may also take judicial
notice of matters of public record.” United States v. Wood, 925 F.2d 1580, 1582 (7th Cir.
1991); see also Williamson v. Curran, 714 F.3d 432, 441-43 (7th Cir. 2013).
No. 12-3452                                                                            Page 6

have had an opportunity to fully and fairly litigate the federal claims in state court.
Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481-82 (1982); Garcia v. Vill. of Mount Prospect,
360 F.3d 630, 634-35 (7th Cir. 2004). Harrison only challenges the district court’s rulings
on the first element, and does not contest the district court’s conclusion that he had a
full and fair opportunity to litigate the § 1981 claim in the Addington proceedings.

        We therefore only need to determine whether res judicata would apply under
state law (here, Illinois). Under Illinois law, res judicata applies when: “(1) there was a
final judgment on the merits rendered by a court of competent jurisdiction, (2) there is
an identity of cause of action, and (3) there is an identity of parties or their privies.”
River Park, Inc. v. City of Highland Park, 703 N.E.2d 883, 889 (Ill. 1998). “[T]he doctrine of
res judicata extends not only to every matter that was actually determined in the prior
suit but to every other matter that might have been raised and determined in it.”
Torcasso v. Standard Outdoor Sales, Inc., 626 N.E.2d 225, 228 (Ill. 1993). Harrison only
challenges the district court’s resolution of the second and third elements of res judicata,
and does not contest the district court’s conclusion that Addington was a final judgment
for purposes of the first element.

       The second element of res judicata requires courts to determine whether separate
cases have “an identity of cause of action.” River Park, 703 N.E.2d at 889. To make this
determination, the Supreme Court of Illinois has adopted the “transactional test,” which
examines whether separate claims “arise from a single group of operative facts,
regardless of whether they assert different theories of relief.” Id. at 893. We therefore
examine claims based on their “factual terms,” and disregard “the number of
substantive theories, the variant forms of relief flowing from those theories, and the
variations in evidence needed to support the theories.” Garcia, 360 F.3d at 637.

        Both Addington and this case are based on Harrison’s sexual misconduct that led
to the termination of his employment with Deere. Harrison argues that Addington did
not address the racial issues of the § 1981 claim, but the § 1981 claim is merely a
different theory of relief for the same underlying facts. Harrison also argues that the
district court would have had to examine facts going back to the early 2000s to
determine whether Deere had a history of racial discrimination for the § 1981 claim.
These facts, Harrison claims, were not relevant in Addington. But this argument
exaggerates the differences between Addington and this case; both cases are essentially
about Harrison’s termination, and any facts about racial discrimination in the past are
marginally relevant to the operative facts of these cases. Additionally, Harrison’s third
amended complaint in Addington alleged that Deere had failed to enforce its sexual
No. 12-3452                                                                           Page 7

harassment policy back in the early to mid-2000s, which means that the two cases
actually do cover the same time period. Third Am. Compl. at 24-25, Addington, No. 09-
L-136. Therefore, the claims in Addington and the § 1981 claim arise from “a single
group of operative facts” and meet the “identity of cause of action” element for res
judicata.

        The third element of res judicata requires courts to determine whether separate
cases have “an identity of parties or their privies.” River Park, 703 N.E.2d at 889. “A
determination regarding whether privity exists is to be conducted on a case-by-case
basis.” Agolf, LLC v. Vill. of Arlington Heights, 946 N.E.2d 1123, 1132 (Ill. App. Ct. 2011).
Illinois courts often find that privity exists when “a person is so identified in interest
with another that he represents the same legal right.” Jackson v. Callan Publ’g, Inc., 826
N.E.2d 413, 428 (Ill. App. Ct. 2005). Parties’ interests are often aligned when one party is
an agent of the other, and for this reason, employees can be in privity with their
employers. E.g., Garcia, 360 F.3d at 636 (“[T]he Board is an agent of the Village, and the
Village, therefore, is in privity with the Board.”); Ross Adver., Inc. v. Heartland Bank &
Trust Co., 969 N.E.2d 966, 976 (Ill. App. Ct. 2012) (“[A]s an employee of Heartland,
Shafer is in privity with Heartland for purposes of res judicata.”).

       The defendants in Addington were eight managers working for Deere, while the
defendant in this case is Deere itself. The eight managers operated within the scope of
their employment when they investigated Harrison’s sexual misconduct and decided to
terminate his employment. See Addington, 955 N.E.2d at 708-13. Because the managers
were acting as agents for Deere, the Illinois appellate court observed that Deere “would
have been liable for all of the actions taken by its employees” when they terminated
Harrison’s employment. Id. at 708. Additionally, the managers’ interests were aligned
with Deere’s interests because Harrison’s conduct “created a risk of workplace violence
as well as a risk of financial liability for Deere.” Id. at 713. The eight managers and
Deere shared an interest in preventing such violence and liability. Therefore, because
the managers were acting as Deere’s agents and they all had closely aligned interests,
Addington and this case meet the “identity of parties or their privies” element for res
judicata.

                                      III. Conclusion

      The district court conducted a thorough analysis of the preclusive effect that
Addington had on this case, and it determined that Addington required the court to
dismiss this case because of res judicata. Harrison only appealed two issues for our
No. 12-3452                                                                       Page 8

review, and we reject his arguments on both. First, Addington and this case share the
same set of facts, which provides the “identity of cause of action” necessary for res
judicata. Second, the eight managers in Addington were agents working on behalf of
Deere, which provides the “identity of parties or their privies” necessary for res
judicata. We therefore AFFIRM the district court’s ruling dismissing this case.
