                         In the
 United States Court of Appeals
              For the Seventh Circuit
                      ____________

No. 05-2961
AUDREY GOODWIN,
                                        Plaintiff-Appellant,
                            v.

THE BOARD OF TRUSTEES OF THE UNIVERSITY
OF ILLINOIS; and RANDY KORNEGAY and
KIP MECUM, in their individual capacities,
                                     Defendants-Appellees.
                      ____________
          Appeal from the United States District Court
                for the Central District of Illinois.
      No. 04 C 2026—Michael P. McCuskey, Chief Judge.
                      ____________
  ARGUED FEBRUARY 22, 2006—DECIDED MARCH 31, 2006
                   ____________


  Before FLAUM, Chief Judge, and WILLIAMS and SYKES,
Circuit Judges.
  FLAUM, Chief Judge. Audrey Goodwin, a building ser-
vice worker foreman for the University of Illinois at
Urbana-Champaign, claims that she was demoted as a
result of unlawful race- and sex-based discrimination. She
has sued the Board of Trustees of the University of Illi-
nois under Title VII and the supervisors who she claims
demoted her under 42 U.S.C. § 1983. The district court
granted summary judgment to the defendants on all counts.
Goodwin now appeals. Because we conclude that Goodwin
2                                              No. 05-2961

has successfully established a prima facie case under
McDonnell Douglas indirect method of proof and
has created a genuine issue of fact as to whether the
University’s proffered reasons for her demotion were
pretextual, we reverse the district court’s summary judg-
ment ruling and remand for further proceedings consistent
with this opinion.


                     I. Background
   Audrey Goodwin is a black female. She has worked for the
University of Illinois at Urbana-Champaign since 1978,
first as a building service worker (“BSW”) and then as a
BSW foreman. During the time period relevant to
this lawsuit, Goodwin’s supervisors included Randy
Kornegay, the superintendent of building services, and
Kip Mecum, the director of operations and transportation
services. Kornegay is a black male, and Mecum is a
white male. Goodwin’s immediate supervisor was Charles
Hassell, the assistant superintendent of the day shift.
  From the time she was hired until 1998, Goodwin worked
“deep nights,” first as a BSW and then as a BSW foreman.
Her supervisors, including Kornegay and Mecum, eventu-
ally promoted her to the day shift as foreman of the moving
crew. Goodwin claims that throughout her tenure at the
University, her work record was well-regarded before
January 2002—a claim that the defendants do not dispute
on appeal.
  The events leading to this lawsuit began on January 17,
2002, in Goodwin’s office. Goodwin’s office was located
in the corner of a large space dedicated to the moving crew.
It contained the time clock for the BSWs, and, every day at
the beginning and end of each shift, the BSWs and the
truck drivers who reported to Goodwin would clock in and
out there. Near the end of her shift, Goodwin was checking
her e-mail while employees were waiting to clock out. The
No. 05-2961                                              3

employees in the vicinity of Goodwin’s desk were James
Gillin, Elijah Green, Jack Hall, Jim McConkey, Donna
Rokos, and Donald Wisehart. Goodwin opened an e-mail
that had been sent to her university e-mail account. The e-
mail contained an image of at least three scantily-clad
women, each weighing over 1,000 pounds, eating. Their
naked breasts were resting on a table.
  Goodwin claims that when she saw this e-mail, she made
an involuntary exclamation in the nature of “That’s so
terrible!” She claims that she was then distracted by a
work-related phone call and left the image on the
screen as she spoke on the telephone. As she was attending
to business, she claims that the employees around her
office, whose curiosity had been aroused by her exclama-
tion, walked around her desk and looked at the image on
her computer screen.
  The defendants claim that Goodwin’s “involuntary excla-
mation” was actually a comment intended to draw
the employees’ attention to the image, and that she
turned the computer screen around so that the employees
could better view the picture. The defendants also claim
that three of the employees, Hall, Rokos, and Wisehart,
heard Goodwin comment that if her breasts were that big,
she would cut them off. Only one employee, Rokos, claims
to have been offended by the picture.
  Rokos reported the incident to Ron Burwell, a transporta-
tion foreman. Both Burwell and Rokos had previously
complained about Goodwin in her capacity as a manager.
Burwell advised Rokos to file a complaint against Goodwin.
The next day, Rokos contacted Goodwin’s immediate
supervisor, Charles Hassell, and set up a meeting for the
next day.
  Goodwin claims that Hassell called her the day after the
incident, January 18, and asked if she knew why Rokos
4                                                No. 05-2961

wanted to see him. Goodwin claims that after thinking
about what might have prompted Rokos’s request, she
told Hassell about the e-mail incident. According to Good-
win, she was honest about the contents of the e-mail, and
after she finished telling Hassell about the incident, he
replied, “That’s not so bad.” Hassell has testified that he
does not recall this conversation.
   Hassell and Rokos met as planned on January 18, and
after the meeting, Hassell discussed the incident with his
supervisor, Kornegay. Kornegay and Hassell decided that
it would be necessary to conduct an investigation.
  On January 24, Goodwin met with Hassell and Tracy
Osby, the department’s public functions supervisor. During
this meeting, Goodwin admitted that she had received the
vulgar e-mail, denied that she had invited others to look
at it, and was given a paper with the heading “E-Mail
Etiquette.” Goodwin testified that Hassell told her that
he believed that she likely drew attention to the e-mail
through an involuntary exclamation or gesture, and asked
her to try to control her emotions better. Goodwin also
testified that at the end of that meeting, she asked, “Is that
it?” and Hassell replied, “Yes.” Goodwin claims that at the
close of the meeting, she was under the impression that the
matter had been resolved.
  The defendants claim that on January 25, Goodwin
approached James Gillin, one of the employees under her
supervision who was present during the e-mail incident.
They allege that Goodwin asked Gillin if he had seen the e-
mail picture. When he responded that he had, Goodwin
allegedly told him that if he told supervisors that he
had seen it, “it would hurt [him] in the long run in trying to
become a supervisor or foreman or anything.” According to
the defendants, Gillin told Rokos and another BSW, Donald
Wisehart, about Goodwin’s comment on the same day.
No. 05-2961                                                 5

  As part of their investigation into the incident, Hassell,
Kornegay, and Osby interviewed Rokos, Hall, Gillin, Green,
and McConkey regarding the incident on January 17.
During her interview, Rokos informed Kornegay that she
believed that Goodwin had threatened Gillin. Kornegay
asked Gillin about these alleged threats during his inter-
view. Gillin agreed that Goodwin had told him to deny that
the e-mail incident occurred if he was interested in advanc-
ing within the department.
  Throughout the proceedings in this case, Goodwin has
denied mentioning the e-mail incident to Gillin or threaten-
ing him in any way. She claims that Gillin did not discuss
any desire to be promoted with her until after January 25,
and that even if he had, she would not have been in a
position to make recommendations or decisions about
promotions. She points out that by the time the alleged
intimidation occurred, she had already voluntarily dis-
cussed what happened on January 17 during the meeting
on January 24 with Hassell and Osby and, she claims, when
Hassell called her to discuss the reason that Rokos had
requested a meeting. In addition, she has testified that by
the date that Gillin alleges that she intimidated him, she
believed that the entire matter had been resolved. She
notes that Gillin had already been disciplined for lying to
supervisors at the time he made these accusations, and that
Gillin could not name the date of the alleged intimidation
until he consulted with Rokos and another personnel
service employee.
  Goodwin claims that as part of Hassell and Kornegay’s
investigation, Hassell came to her office in early Feb-
ruary to see if he could locate the vulgar e-mail in her
computer’s deleted e-mail folder. Goodwin alleges that
Hassell told her that it was rumored that she was “trying to
be more than what [she was.]” She testified that she then
asked Hassell what she was doing wrong. She claims that
Hassell replied, “People don’t like you because, historically,
6                                               No. 05-2961

this is a white male position. You are a strong black female,
and people don’t like that. You dress profession[ally], you
are strict and you enforce the rules, and people don’t like
that.” Hassell testified that he does not remember making
that statement and, in response to a leading question,
testified that he “would not make that kind of statement.”
  Kornegay testified that he believed Gillin’s intimida-
tion accusation was credible. He initiated a pre-disciplinary
meeting with Goodwin. Two pre-disciplinary meetings were
held during the month of February. On March 8, 2002,
Kornegay signed and delivered to Goodwin an intent to file
notice of demotion. The same day, he placed Goodwin on
administrative leave with pay. On March 13, a civil service
reconciliation meeting was held, but nevertheless, Goodwin
was demoted effective March 15, 2002. The reasons given
for the demotion were abuse of authority, intimidation of an
employee to withhold or misrepresent information, which
creates a hostile work environment, and poor
judgment/conduct unbecoming a supervisor.
  The parties dispute who was responsible for the deci-
sion to demote Goodwin. All parties agree that Kornegay
was involved, but Goodwin claims that Kip Mecum could
have overridden Kornegay’s decision. The defendants
claim that Kornegay was solely responsible for the demotion
and that, although Kornegay did consult Mecum when
deciding whether to demote Goodwin, Kornegay had the
final authority in the matter. Although neither party claims
that Hassell had the authority to demote Goodwin, Goodwin
claims that Hassell was integral to Kornegay’s investigation
and that he recommended that Kornegay demote Goodwin.
  Goodwin filed a grievance with the State University
Civil Service System. A hearing officer conducted an
administrative hearing on April 24, 2002. On May 31, 2002,
the hearing officer issued his findings of fact. The hearing
officer found that Gillin’s intimidation claim was not
No. 05-2961                                                7

credible, that Goodwin had made an involuntary exclama-
tion when she viewed the e-mail, and that the employees
needed to walk around Goodwin’s desk to view the image;
the hearing officer further stated that the incident had been
“blown totally out of proportion.” On September 18, 2002,
the University Civil Service Merit Board (“the Merit
Board”) issued a final decision and order. The Merit Board
determined that the University had failed to establish just
cause for Goodwin’s demotion and ordered that she be
immediately reassigned to perform the duties of her former
classification without loss of compensation.
   Goodwin was reinstated to BSW Foreman by the end
of September, and received the difference in pay between a
BSW and a BSW Foreman for the period of her demotion.
Although Goodwin received her former title of BSW Fore-
man, her position changed from foreman of the moving crew
to foreman of the cleaning crew. Her job was later reclassi-
fied as an office job, and she no longer directly supervises
BSWs. The defendants claim that the latter job switch was
because the University was concerned that the union was
targeting Goodwin, and so she was moved for her own well-
being. Goodwin complains that neither of the new job
assignments provides the same opportunities for overtime
pay as her old job; she argues that she loses $10,000 to
$15,000 per year in overtime pay. She also claims that the
cleaning crew position was not as prestigious as the moving
crew position.
  The defendants have produced no evidence that any other
employee has ever been disciplined for receiving personal e-
mail or vulgar e-mail. Goodwin has identified three employ-
ees whom she considers to be similarly situated to herself,
and who had not received as severe a punishment for what
she believes to be similar offenses. Those employees, their
offenses, and their punishments will be discussed below
with more specificity.
8                                                No. 05-2961

  In February 2004, Goodwin filed suit against the Board of
Trustees of the University of Illinois (“the University”),
Kornegay, and Mecum, alleging that the University had
discriminated against her on the basis of her race and sex
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-2000e-17 (“Title VII”), and her age, in
violation of the Age Discrimination in Employment Act, 29
U.S.C. §§ 621-634, and that Mecum and Kornegay had
denied her right to equal protection of the law in viola-
tion of § 1983 of the Civil Rights Act of 1865, 42 U.S.C.
§ 1983 (“§ 1983”). The district court dismissed the age
discrimination claim, finding it barred by the Eleventh
Amendment, in August 2004. That decision is not appealed.
  At issue in this case is the district court’s July 2005 grant
of summary judgment to the defendants on the Title VII
and § 1983 claims. The district court reasoned that because
Goodwin had not alleged direct or circumstantial evidence
of discrimination, and had failed to indirectly prove discrim-
ination using the burden-shifting method outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the
defendants were entitled to judgment as a matter of law.
Goodwin now appeals that decision, claiming that she has
proven discrimination through direct or circumstantial
evidence, and that she has also indirectly proven discrimi-
nation through the McDonnell Douglas indirect burden-
shifting method.


                      II. Discussion
A. McDonnell Douglas analysis
  In order to indirectly establish proof of discrimination in
her Title VII claim, Goodwin must first establish the prima
facie elements set out in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Those elements are: (1) she is a
member of a protected class; (2) she was performing her job
satisfactorily; (3) she suffered an adverse employment
No. 05-2961                                                  9

action; and (4) similarly situated employees outside of her
protected class were treated more favorably. Traylor v.
Brown, 295 F.3d 783, 788 (7th Cir. 2002).
   If Goodwin successfully establishes each element of the
prima facie case, the burden shifts to the University to
assert a legitimate, nondiscriminatory reason for the
challenged action. Simmons v. Chi. Bd. of Educ., 289 F.3d
488, 492 (7th Cir. 2002). If it does so, the burden then shifts
back to Goodwin to present evidence that would allow the
trier of fact to conclude that the University’s proffered
reason is pretextual. Id. This method can also be used to
establish discrimination for the § 1983 action against
Kornegay and Mecum. Friedel v. City of Madison, 832 F.2d
965, 971-72 (7th Cir. 1987) (citing Am. Nurses Assoc. v.
State of Ill., 783 F.2d 716, 722-23 (7th Cir. 1986); Yarbrough
v. Tower Oldsmobile, Inc., 789 F.2d 508, 511 (7th Cir. 1986);
Ramsey v. Am. Air Filter Co., 772 F.2d 1303, 1307 (7th Cir.
1985)).
  The district court ruled that Goodwin did not meet the
fourth prong of the McDonnell Douglas test because she did
not show a similarly situated individual outside of
her protected class who was not disciplined as severely.
Although Goodwin suggested three individuals that
she believed satisfied this prong of the test, the district
court found that each was distinguishable.
  First, Goodwin offered defendant Mecum himself as
a similarly situated employee. Mecum admitted that he had
received vulgar jokes on his university e-mail account.
Goodwin notes that he has never been demoted. We agree
with the district court that Mecum is not similarly situated
to Goodwin. Mecum was in a more senior position, and thus
did not “deal with the same supervisor” as Goodwin. Peele
v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002)
(quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-
18 (7th Cir. 2000)); see also Adams v. Wal-Mart Stores, Inc.,
324 F.3d 935, 940 (7th Cir. 2003). Assuming at this point
10                                                 No. 05-2961

that Mecum was involved in the decision to demote
Goodwin, which we must since that is what Goodwin herself
alleges in her § 1983 claim against him, Goodwin can argue
at best that Mecum was hypocritical in not disciplining
himself for similar conduct.
  Goodwin next suggests that Charles Elder, a white male
BSW, is a similarly situated individual who was treated
more favorably. Elder was caught using university com-
puters to access pornography on the internet. He received
only a letter of warning for his conduct. The district
court ruled that Elder was not similarly situated because he
was not a supervisor and had not been accused of showing
the pornography to other co-workers.
   Goodwin cites this court’s opinion in Ezell v. Potter, 400
F.3d 1041 (7th Cir. 2005), to support her position that Elder
is similarly situated. In that case, a postal worker who lost
certified mail was deemed similarly situated to the plaintiff,
who was accused of taking a long lunch hour. The panel
dismissed the postal service’s claim that the plaintiff had
not produced evidence to show that misplacing mail was a
“serious matter.” The court reasoned, “This is a curious
claim from an entity whose primary business is delivering
mail. Misplacing certified mail, that is, mail that has been
designated as especially important by its sender, would
seem to be a serious matter. . . . [W]e may infer [from the
termination of another employee for merely delaying mail]
that losing mail would . . . be a serious offense, at least as
serious as taking a long lunch.” Ezell, 400 F.3d at 1050.
  Here, however, it is not so obvious that accessing pornog-
raphy affected Elder’s job performance that we may “infer
that [it] would . . . be a serious offense.” We believe that this
case is distinguishable from Ezell, as accessing pornography
has nothing to do with the University’s “primary business.”
The University could quite legitimately believe that allow-
ing subordinate employees to see a vulgar image negatively
No. 05-2961                                              11

affects job performance much more than accessing such an
image in private. Moreover, unlike Ezell, the record does
not reflect that another employee was terminated for a
similar offense. Like the district court, we also do not
believe that Elder and Goodwin are similarly situated.
  We are, however, persuaded that Ray Northway, the final
employee that Goodwin has proffered, is similarly situated
to Goodwin within the meaning of the McDonnell Douglas
test. Northway, a white, male BSW foreman, threw a bottle
cap at a female BSW foreman and told her to “shove it up
[her] ass.” He received a written letter of warning, but was
not demoted. The district court found that Northway was
not similarly situated to Goodwin because the incident had
occurred during a heated argument and did not involve an
adverse interaction with one of the employees that
Northway supervised.
  With respect to this individual, we respectfully disagree
with the district court’s analysis. While it is true that
Northway’s conduct involved insulting a co-worker who was
not under his supervision, we believe that requiring
Goodwin to show a supervisor/supervisee interaction in
order to satisfy the McDonnell Douglas test would be
applying the indirect method of proof too narrowly. As we
stated in Ezell, “the other employees must have engaged
in similar—not identical—conduct to qualify as similarly
situated.” Ezell, 400 F.3d at 1050. We believe that
Northway’s comment was both vulgar and potentially
threatening, which is the essence of the charges against
Goodwin. Although the two situations are not identical,
they are sufficiently similar, which is all that McDonnell
Douglas requires.
  Because the district court did not address the other
prongs of the McDonnell Douglas test, we will briefly do
so here. It is undisputed that Goodwin meets the first
prong, as she is a black female. And although the Univer-
12                                               No. 05-2961

sity makes a brief argument that Goodwin did not suffer an
adverse employment action, a demotion, even if it is later
rescinded, clearly meets the third prong of the test. See
Ezell, 400 F.3d at 1049; Molnar v. Booth, 229 F.3d 593, 600-
01 (7th Cir. 2000).
  Defendants also briefly argue that Goodwin was not
meeting her employer’s legitimate expectations because
of her actions on January 17, 2002, and that she there-
fore fails the second prong of the McDonnell Douglas
test. This argument assumes its conclusion. The entire
purpose of the McDonnell Douglas test is to determine
whether the action in question was a legitimate reason
for demotion. Goodwin had a satisfactory work record before
January 17, 2002, which is the relevant time frame here.
She has met all prongs of the McDonnell Douglas test and
has successfully shifted the burden of showing legitimate,
nondiscriminatory reasons for her demotion onto the
University.
  Naturally, the University has argued that Goodwin’s
conduct in January 2002, i.e., showing University employ-
ees a vulgar e-mail and threatening an employee under
her direct supervision, was a legitimate, nondiscrimina-
tory reason to demote her. The burden is then shifted
back to Goodwin to show that this reason is merely a
pretext, and that her demotion was actually prompted by
discriminatory motives.
  We conclude that Goodwin has created a material issue of
fact as to whether the e-mail incident and Gillin’s allegation
that Goodwin threatened him were pretextual reasons for
her demotion. The strongest evidence of pretext is Hassell’s
alleged statement that she was “trying to be more than
what [she is]” and that “people” didn’t like her because she
was a strong black female. Although Hassell was not the
final decisionmaker in her demotion, he was involved with
Kornegay’s investigation into the e-mail incident, and
Kornegay has admitted consulting with Hassell before
No. 05-2961                                                13

making his decision to demote. A race-based comment by a
person close to the decisionmaking process can be thought
suspect, though it is not dispositive.
  Adding to Goodwin’s pretext argument are the circum-
stances surrounding Gillin’s accusation. Gillin had already
been disciplined for lying to supervisors, and the substance
of his allegation is questionable. Arguably, Goodwin, who
had already admitted that the incident occurred and
believed that her “punishment” was a light talking-to and
a handout called “E-mail Etiquette,” would not risk her job
to keep Gillin from discussing the incident.1 Further, if
Kornegay actually believed Gillin, the question arises why
he did not ask other employees if they had been similarly
threatened. Questions such as these apparently led the
Merit Board hearing officer, viewing the evidence as a
whole, to specifically find that Gillin’s allegations were not
credible. It is reasonable to assume that a jury might
conclude that Kornegay similarly doubted Gillin’s veracity.
This goes to the heart of Goodwin’s pretext argument. It is
our judgment that Goodwin has raised a material issue of
fact regarding Kornegay’s subjective belief in Gillin’s
allegations.


B. Collateral estoppel
  Having decided that Goodwin’s claims can be tried under
the McDonnell Douglas standard, the question remains
whether the defendants have been collaterally estopped
from arguing during trial facts that are inconsistent
with the Merit Board hearing officer’s findings of fact.
Goodwin argues that the defendants should not be allowed



1
  We are viewing the evidence in the light most favorable to
Goodwin when making this assessment, as we must at the
summary judgment stage of the proceedings.
14                                                No. 05-2961

to re-litigate the hearing officer’s findings of fact, including
that the allegations against Goodwin were incredible.
Because we believe that this issue could affect the way the
pretext dispute plays out at trial, we will address it.
  In University of Tennessee v. Elliott, 478 U.S. 788, 797-99
(1986), the Supreme Court held that in § 1983 claims, state
administrative factfinding should be given preclusive effect
on subsequent federal proceedings. The Court held that
“when a state agency acting in a judicial capacity resolves
disputed issues of fact properly before it which the parties
have had adequate opportunity to litigate, federal courts
must give the agency’s factfinding the same preclusive
effect to which it would be entitled in the State’s courts.”
Elliott, 478 U.S. at 799 (internal quotation marks and
citations omitted).
  We believe that the Merit Board was acting in a judicial
capacity. The Merit Board was created by Illinois law, 110
ILL. COMP. STAT. 70/36o, and is subject to the Illinois
Administrative Review Law, 735 ILL. COMP. STAT. 5/3-101-
5/3-113. A hearing officer presided over an administra-
tive hearing, during which counsel questioned and cross-
examined witnesses who were under oath. At the conclusion
of the hearing, the hearing officer issued findings of fact.
The Merit Board issued a final decision and order thereaf-
ter. Therefore, our inquiry must focus on whether Illinois
courts would deem the Merit Board hearing officer’s
factfinding or the Merit Board’s final order to be issue-
preclusive in the current cause of action.
  Under Illinois law, “fact issues finally decided in an
administrative proceeding that is judicial in nature pre-
cludes litigation of those same fact issues in a subsequent
proceeding.” Vill. of Oak Park v. Ill. Dep’t of Employment
Sec., 772 N.E.2d 951, 953 (Ill. App. 2002) (citing Osborne v.
Kelly, 565 N.E.2d 1340 (Ill. App. 1991)). Collateral estoppel,
also known as issue preclusion, applies when: (1) a material
No. 05-2961                                                15

fact issue decided in the earlier adjudication is identical to
the one in the current proceeding; (2) there was a final
judgment on the merits in the earlier adjudication; and (3)
the party against whom estoppel is asserted was a party or
was in privity with a party in the earlier adjudication. Id.
at 953 (citing Midland Hotel Corp. v. Dir. of Employment
Sec., 668 N.E.2d 82 (Ill. App. 1996)); Gumma v. White, 833
N.E.2d 834, 843 (Ill. 2005); Am. Family Mut. Ins. Co. v.
Savickas, 739 N.E.2d 445, 451 (Ill. 2000).
  Even if these threshold requirements are met, the
doctrine should not be applied unless it is clear that no
unfairness will result to the party that would be estopped
from re-litigating the issue. Savickas, 739 N.E.2d at 451. In
determining whether unfairness results, courts should look
to the party’s incentive to litigate the issue in the prior
action. Id.; see also Talarico v. Dunlap, 685 N.E.2d 325 (Ill.
1997) (holding that criminal guilty plea did not collaterally
estop civil claim issue that medication caused criminal
defendant to commit the crime, because defendant did not
have motivation to argue that issue during the criminal
proceedings).
  In this case, the hearing officer decided material issues of
fact. Namely, the hearing officer found that Gillin’s accusa-
tions were not credible and that Goodwin had not, as
defendants claim, intentionally shown the vulgar e-mail to
the employees near her office. These facts are relevant to
the pretext inquiry under McDonnell Douglas.
  However, we conclude that the hearing officer’s find-
ings of fact cannot constitute a final decision by the
Merit Board. The hearing officer’s findings of fact were
entered on May 31, 2002. Goodwin has not argued, nor have
we found, any statutory authority that binds the Merit
Board to the hearing officer’s findings of fact.
 In contrast, the “Decision and Order” of the Merit
Board, dated September 18, 2002, is a final order, yet it did
16                                                No. 05-2961

not incorporate the hearing officer’s findings of fact. It
merely held that the proceeding had been conducted in
compliance with Illinois law, that the Merit Board had
jurisdiction over the matter, that the “transcript of evidence
and Hearing Record” did not “support and sustain charges
of the Employer,” and that “said Employer has failed to
establish just cause for demotion.” Although the issue of
whether the evidence “supported and sustained the charges
of the Employer” is similar to the issues addressed in the
McDonnell Douglas pretext argument and the hearing
officer’s findings of fact, they are not identical, as required
for collateral estoppel to apply. Therefore, collateral
estoppel stemming from either stage of the Merit Board
proceedings is inappropriate, and Goodwin’s argument fails.
  Goodwin has also sued under Title VII, but, as we stated
in Buckhalter v. Pepsi-Cola Gen. Bottlers, Inc., 820 F.2d 892
(7th Cir. 1987),
     [G]eneral rules of preclusion bar relitigation of adminis-
     trative fact finding unless there is Congressional intent
     to the contrary. The court in Elliott analyzed Title VII
     and the history of the 1972 amendments and found that
     Congress intended that employees have the right to
     trial de novo following administrative proceedings when
     contesting a discharge under Title VII[.]
Buckhalter, 820 F.2d at 894; see also Richmond v. St.
Joseph Care Center West, 190 F.3d 500 (7th Cir. 1999). With
Goodwin unable to prevail on her collateral estoppel
argument regarding her § 1983 claim, so too she cannot
succeed in the same regard with her Title VII claim.
  Thus, the proceedings before the Merit Board have not
collaterally estopped defendants from arguing any issue
at trial.
No. 05-2961                                          17

                 III. Conclusion
  We REVERSE the judgment of the district court and
REMAND for further proceedings consistent with this
opinion.

A true Copy:
      Teste:

                     ________________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




                USCA-02-C-0072—3-31-06
