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CITY OF CHICAGO a municipal corporation the DEPARTMENT OF POLICE a division of the City of Chicago MATT RODRIGUEZ Superintendent of Police and the POLICE BOARD OF THE CITY OF CHICAGO Defendants.
No. 96 C 6342
February 11 1997 Decided
For JAMES A BAGNOLA plaintiff: Conrad Orrmal Duncker Counselor At Law Chicago IL. Alphonse A. Talarico Talarico & Talarico P.C. Chicago IL.
For CITY OF CHICAGO a Municipal Corporation defendant: Jennifer Anne Naber Michael John Crowley City of Chicago Law Department Corporation Counsel Chicago IL. Susan S. Sher Corporation Counsel City of Chicago Chicago IL.
Wayne R. Anderson UNITED STATES DISTRICT JUDGE Sitting by designation. Paul E. Plunkett Judge
The Hon. Justice Wayne R. Anderson

James A. Bagnola ("Bagnola") sued defendants City of Chicago (the "City") the Department of Police ("Department") Matt Rodriguez ("Rodriguez") who is Superintendent of Police and the City's Police Board ("Board") for violation of the Americans with Disabilities Act ("ADA") 42 U.S.C. Sec. 12101 et seq. in connection with his termination. Defendants have moved under Fed. R. Civ. P. ("Rule") 12(b)(6) to dismiss the complaint. For the reasons set forth in this memorandum opinion and order the motion is granted.


Bagnola became a Chicago police officer on February 29 1973. On November 9 1988 he entered a chemical dependency program for inpatient treatment of alcohol and drug addiction. Defendants were aware of this because they approved his participation in the program and a portion of its cost was paid by them as part of Bagnola's employee benefits.

On July 19 1991 while off-duty the City ordered Bagnola to report to the Medical Services Section for a urinalysis. The test result came back positive for cocaine. Nearly fourteen months later on September 23 1992 Defendants suspended Bagnola without pay and administratively charged him with violating the Department's rules prohibiting the use of illegal drugs. They also sought his dismissal before the Board. During the administrative proceedings Bagnola argued that the urinalysis results were not reliable because of breaks in the chain of custody and the opportunity for tampering with the specimen and he presented expert testimony that the results were physiologically impossible.

On March 11 1993 the Board dismissed the charges against Bagnola and ordered him reinstated with back pay. Defendants appealed to the Circuit Court of Cook County ("Circuit Court"). [*3] On April 22 1993 the Circuit Court ordered that Bagnola be permitted to return to work which he did on April 27 1993. He also submitted to two urinalysis tests which came back negative. From April 27 1994 to July 8 1994 Bagnola performed his duties as a police officer and received commendations from his superiors.

On February 9 1994 the Circuit Court reversed the Board's decision and remanded the matter back to the Board. On July 8 1994 Bagnola was re-suspended based on the original urinalysis. At the new administrative hearing he again presented evidence of breaks in the chain of custody the opportunity for tampering with the specimens and expert testimony that the results were physiologically impossible. In addition several of his superior officers testified regarding his excellent performance during the reinstatement period. On November 27 1995 the Board terminated Bagnola's employment. Bagnola appealed that decision to the Circuit Court. Bagnola v. Rodriquez et al. 95 CH 12389 (Circuit Court of Cook County).

Bagnola alleges that he has not knowingly taken illegal drugs since he entered the chemical dependency program in November 1988. He also alleges on information and belief that the City and the Department employ many recovering alcohol and drug addicts. Bagnola filed this action on September 30 1995 asserting a single claim under the ADA.

Defendants' memorandum in support of their motion to dismiss references several exhibits assertedly attached including among others the Board's findings as to Bagnola's termination (Ex. 4). However there is no indication from either the court file or the docket sheet that those exhibits were ever actually filed. Accordingly this Court has not considered them in deciding the motion. Nonetheless with their reply brief the defendants did submit a copy of a December 3 1996 order from the Circuit Court denying Bagnola's complaint in administrative review and upholding the Board's decision of which this Court takes judicial notice. See Doherty v. City of Chicago 75 F.3d 318 325 n.4 (7th Cir. 1996).


On the defendants' Rule 12(b)(6) motion all well-pleaded allegations in the Complaint must be credited with all reasonable inferences drawn in the plaintiff's favor. See e.g. Sherwin Manor Nursing Center Inc. v. McAuliffe 37 F.3d 1216 1219 (7th Cir.1994). Dismissal is proper only if it is clear from the Complaint that no set of facts consistent with its allegations would entitle the plaintiff to relief. Hishon v. King & Spalding 467 U.S. 69 73 81 L. Ed. 2d 59 104 S. Ct. 2229 (1984) citing Conley v. Gibson 355 U.S. 41 45-46 2 L. Ed. 2d 80 78 S. Ct. 99 (1957).

Defendants raise a number of issues as grounds for dismissal including among others that Bagnola's claim is barred by res judicata that it is untimely and that he cannot state a claim under the ADA. This Court addresses the res judicata argument first for if it is well-founded the case must be dismissed with prejudice.

The gist of Bagnola's case is that his termination was improper because it was based upon an unreliable urinalysis result. He alleges that he presented to the Board evidence of breaks in the chain of custody of the specimen of the opportunity for tampering and expert testimony that the results were physiologically impossible. He also alleges that the urinalysis result should now be considered unreliable in this action for the same reasons. Significantly he does not allege either that he possesses newly discovered evidence of the unreliability of the urinalysis or that he was not permitted to present his evidence to the Board. Rather he challenges the Board's decision in light of that evidence.

When defendants filed this motion Bagnola's appeal of the Board's decision to terminate him was pending in the Circuit Court. As a result defendants argued that the Board's findings were sufficient to bar Bagnola's ADA claim under the doctrine of res judicata. Bagnola countered that among other things the Board's decision did not have preclusive effect. But on December 3 1996 (the day Bagnola filed his brief in opposition) the Circuit Court denied his Complaint in Administrative Review and upheld the Board's decision. As previously noted the defendants have submitted the order with their reply brief. Bagnola has neither requested nor filed a sur-reply to address the effect of that judgment.

The proper analysis now is the effect of the Circuit Court judgment rather than the Board's decision. As the Illinois Appellate Court explained in Powers v. Arachnid Inc. 248 Ill. App. 3d 134 617 N.E.2d 864 867 187 Ill. Dec. 407 (Ill. App. 2d Dist. 1993) (citations omitted):

Res judicata and collateral estoppel apply to administrative decisions that are adjudicatory judicial or quasi-judicial in nature. After review of an administrative decision the reviewing court's judgment is res judicata as to all issues raised before it and all issues which could have been raised before it on the record but were not are deemed waived.

Federal courts must give state court judgments the same preclusive effect a state court would have given them as long as the party against whom the earlier decision is asserted as a bar was given a full and fair opportunity to litigate the claim. 28 U.S.C. Sec. 1378. Thus the analysis here has two steps. First would Illinois law bar a subsequent state court action by Bagnola based on the Circuit Court's decision? And second did Bagnola have a full and fair opportunity to litigate his claim in state court?

Consequently Bagnola could have raised his ADA claim there. Illinois gives preclusive effect to a state court's final judgment entered on the merits where there is both identity of the cause of action and of the parties or their privies. Downing v. Chicago Transit Auth. 162 Ill. 2d 70 642 N.E.2d 456 458 204 Ill. Dec. 755 (Ill. 1994). Where those requirements are met "the 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. 157 Ill. 2d 484 626 N.E.2d 225 228 193 Ill. Dec. 192 (Ill. 1993).

In contesting the preclusive effect of the Board's decision Bagnola conceded that the Board had reached a final judgment on the merits. (Pl.'s Br. at 11.) He has not argued otherwise regarding the Circuit Court's decision. Because the Circuit Court's order explicitly upheld the Board's decision it is clear that the Circuit Court proceedings also involved a final judgment on the merits. That there was identity of the parties in the administrative proceeding and here has also been conceded by Bagnola and there is no evidence that the same is not true of the Circuit Court action. (Id.) The only disputed issue is whether there is an identity of causes of action.

Bagnola argued that there was no identity of causes of action as to the Board's proceedings because the Board had to determine only the discipline to impose on him and lacked the power to hear his discrimination claim. But state courts have concurrent jurisdiction with the federal courts over ADA claims Piquard v. City of East Peoria 887 F. Supp. 1106 1118-19 (C.D. Ill. 1995); Jones v. Illinois Central R. Co. 859 F. Supp. 1144 1145 (N.D. Ill. 1994) and Bagnola could have raised his ADA claim in the Circuit Court but failed to do so. Moreover as the Illinois Supreme Court has explained the test for res judicata purposes is:

A cause of action consists of a single group of facts giving the plaintiff a right to seek redress for a wrongful act or omission of the defendant. Although a single group of operative facts may give rise to the assertion of more than one kind of relief or more than one theory of recovery assertions of different kinds or different theories of relief arising out of a single group of operative facts constitute a single cause of action. The test generally employed to determine the identity of causes of action for purposes of res judicata is whether the evidence needed to sustain the second action would have sustained the first. If the same facts are essential to maintain both proceedings or the same evidence is necessary to sustain the two there is identity between the causes of action asserted and res judicata bars the latter one.

Torcasso 626 N.E.2d at 228 (citations omitted). Thus the resolution of this issue depends upon one of two things: whether the same facts are essential to both the administrative proceedings and this case or whether Bagnola would present the same evidence here as he did there.

Bagnola asserted in the administrative proceeding that his suspension (and later his termination) was improper because the urinalysis upon which the disciplinary action was based was unreliable. He asserted three reasons for its unreliability: first that there were breaks in the chain of custody; second that there had been opportunity for tampering; and third that his experts testified that the results were physiologically impossible. His Complaint in Administrative Review before the Circuit Court merely appealed the Board's decision to terminate him and so that proceeding involved the same facts and evidence as had been before the Board. Here he again asserts that his termination was improper because the urinalysis was unreliable and he cites the same three reasons. That he ascribes the Board's action to discrimination based on an asserted disability makes no difference for that is merely a new theory of recovery not a new cause of action. See Majeske v. Fraternal Order of Police 94 F.3d 307 313 (7th Cir. 1996). It is patently clear that Bagnola's claim here is based upon the same facts and the same evidence as Bagnola's claim before the Board and the Circuit Court.

Having found that res judicata is applicable here the next step is whether Bagnola had a full and fair opportunity to litigate his claim in the Circuit Court action. This issue is complicated slightly by the fact that Bagnola's arguments address only the Board proceedings not the Circuit Court case. Bagnola makes two arguments in this regard. First he asserts that the City exercises substantial power over the Board creating a bias by the Board in favor of the City. (Pl.'s Br. at 9.) Additionally he contends that the right of the Police Superintendent to be present at all meetings and take part in the discussions and deliberations (but not to vote) makes the Board "nothing more than a puppet of the Superintendent." (Id. at 10.) However he acknowledges that he litigated in the Circuit Court "the numerous constitutionally-defective procedures engaged in by the [] Board and the Superintendent in the administrative hearing ..." (Pl.'s Br. at 10 n.2.) Second he argues that the laboratory that performed the crucial urinalysis destroyed the specimen denying him access to important evidence.

Bagnola's claims of bias and destruction of evidence must fail because he acknowledges that he presented them before the Circuit Court which nonetheless entered a final judgment against him on the merits. There is no evidence that Bagnola did not have a chance to litigate both claims fully and fairly in that proceeding. By its nature his claim of bias as to the Board cannot be read to apply to the Circuit Court and he has not asserted that the Circuit Court denied him a fair hearing. Moreover he concedes raising the issue of the destruction of evidence which the Circuit Court rejected. In short Bagnola was given an opportunity to fully and fairly litigate his claims in the Circuit Court and its decision against him therefore serves to bar his claim here under principles of res judicata.


Because res judicata bars the plaintiff's claim the defendants' motion to dismiss is granted and this case is dismissed with prejudice. This order is final and appealable.


Wayne R. Anderson