MARJORIE REILEY MAGUIRE, Complainant

MARQUETTE UNIVERSITY, Respondent

On October 1, 1980, Complainant filed a complaint with the Equal Employment Opportunity Commission, alleging that Respondent had refused to hire her because of her sex. A copy of the complaint was forwarded to the Equal Rights Division of the Department of Industry, Labor and Human Relations. After the completion of an investigation by the EEOC, the Equal Rights Division conducted an investigation into the allegations in the complaint. On June 25, 1985, an Initial Determination was issued in which it was concluded that there was probable cause to believe that Respondent had discriminated against Complainant because of sex in regard to hire, in violation of the Wisconsin Fair Employment Act. The matter was not successfully conciliated, and was set for hearing.

At the same time Complainant's complaint was being processed on the state administrative level, Complainant was pursuing an action in federal court under Title VII of the Civil Rights Act of 1964 . The United States District Court for the Eastern District of Wisconsin dismissed Complainant's action in its entirety, holding essentially that the First Amendment precluded the court from inquiring into Respondent's stated reason for not hiring Complainant, namely, that her theological beliefs were hostile to the traditional teachings of the Catholic Church . See Maguire v . Marquette University, 40 FEP Cases 167 (E . D . WI 1986) . As a result of various motions by both sides, the Administrative Law Judge ultimately placed the state proceeding in abeyance pending the outcome of Complainant's appeal to the Seventh Circuit Court of Appeals from the decision of the district court .

On March 20, 1987, the Seventh Circuit issued its decision in the appeal. Maguire v. Marquette University, 814 F.2d 1213, 43 FEP 578 (7th Cir. 1987). The court affirmed the district court's dismissal of Complainant's Title VII claim. However, the Seventh Circuit resolved Complainant's Title VII claim on what it termed a "much narrower ground" than the district court's First Amendment ground. The court held that "the plaintiff . . . failed to make out a valid claim of sex discrimination under Title VII" since her own complaint and evidence established that she was not hired because of her views on abortion, rather than because she was a woman. Id. at 581.

On June 12, 1987, after the Seventh Circuit's decision, Complainant requested the Equal Rights Division to return the above-captioned matter to active status and schedule it for hearing.

In July, 1987, Respondent filed a Motion to Dismiss, arguing that the Seventh Circuit's decision barred the state administrative proceeding, under the doctrine of res judicata, and, alternatively, that further proceedings would impermissibly infringe upon Respondent's constitutional rights under the Free Exercise clause of the First Amendment.

Notice was issued that a hearing would be held in the matter on October 29, 1987. Respondent thereafter renewed its Motion to Dismiss on both res judicata and constitutional grounds. Both parties submitted briefs on Respondent's motion to the Administrative Law Judge assigned to conduct the hearing.

On September 11, 1987, the Administrative Law Judge issued an order dismissing Complainant's complaint and cancelling the hearing on the ground that the Division lacked jurisdiction over the employment decision Complainant challenged, for the reason that the Fair Employment: Act could not be applied to the employment decision at issue without infringing upon Respondent's constitutional rights under the Free Exercise clause of the First Amendment. Complainant timely filed a petition for Commission review of the Administrative Law Judge's decision.

Based upon a review of the record in its entirety, and for the reasons stated in the following opinion, the Labor and Industry Review Commission issues the following:

That the complaint in this matter be dismissed.

Dated and mailed August 18, 1988

/s/ Hugh C. Henderson, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

The Commission has decided that Complainant Maguire's complaint is barred under the doctrine of res judicata, by the Seventh Circuit's decision dismissing her complaint. The Commission also has concluded, however, contrary to the conclusion of the Administrative Law Judge, that the Department would have subject matter jurisdiction to hear Complainant's case if it were not barred by res judicata. The basis for this latter conclusion is that the United States Supreme Court's decision in Dayton Christian Schools v. Ohio Civil Rights Commission, 477 U.S. 619, 106 S.Ct. 2718, 41 FEP 78 (1986), opened the door to considering the validity of a claim such as Complainant Maguire's.

In Dayton Christian Schools, supra, a religious school claimed that a teacher was discharged solely for a religious reason. The teacher claimed that she was discharged because of her sex, in violation of Ohio's fair employment law. She filed a sex discrimination complaint with Ohio's counterpart to Wisconsin's Equal Rights Division. After an investigation and initial finding of no probable cause to believe that the school had violated the fair employment law, a hearing was scheduled on the teacher's complaint. The school then commenced an action in federal court contending that the exercise of jurisdiction over it by the state administrative body violated its First Amendment rights. The Sixth Circuit Court of Appeals agreed and enjoined the Civil Rights Commission from proceeding with the hearing. However, the teacher appealed to the Supreme Court and the Court granted certiorari to hear the appeal.

On appeal, the Supreme Court applied the abstention doctrine (a doctrine which permits a federal court to relinquish jurisdiction where it is deemed necessary, to avoid needless conflict with the administration by a state of its own affairs) and reversed the court of appeals. The effect of the Court's decision not to enjoin the pending state proceeding was to allow the administrative hearing to go forward. Although the Court did not decide the case directly on the basis of the First Amendment question, its decision allowed the Commission to continue with the proceeding and, furthermore, the Court made the following key statement:

Even religious schools cannot claim to be wholly free from same state regulation. Wisconsin v. Yoder, 406 U.S. 205, 213 (1972). We therefore think that however Dayton's constitutional claim should be decided on the merits, the Commission violates no constitutional rights by merely investigating the circumstances of Hoskinson's discharge in this case, if only to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge. Id. at 82-83.

Similarly, Justice Stevens, writing for the four concurring justices, stated that "neither the investigation of certain charges nor the conduct of a hearing on those charges is prohibited by the First Amendment." Id. at 84. (emphasis added)

The majority decision in Dayton Christian Schools did not address the questions of whether First Amendment issues might arise at a later point in the process or, specifically, whether the Ohio Civil Rights Commission could impose any remedial sanction without violating constitutional religious freedoms. The concurring opinion, however, alluded to these issues in the following footnote:

In permitting the [Commission] to exercise jurisdiction over the instant controversy, the Court has in no way determined either that the full force of (the Co mission's] jurisdiction under [Ohio Revised Code] Chapter 4112 can be brought to bear on [Dayton Christian Schools] without impermissibly burdening [appellees'] first amendment rights or, even with respect to the present controversy, that any remedy deemed appropriate by the [Commission] should they find [Dayton Christian Schools] liable, would necessarily present no further first amendment problems.

It is clear that the Supreme Court decision has raised important questions about how far into the process one may proceed before one runs squarely into serious First Amendment issues and violations. Nevertheless, the fact remains that the Court applied the abstention doctrine to allow the administrative hearing to go forward and specifically stated that a state administrative body violates no constitutional rights by investigating and determining whether a religious employer's asserted religious reason for its alleged discriminatory action was the real reason.

In any event, the Commission does not reach those issues for, although we have concluded that as a result of Dayton Christian Schools, the Department has subject matter jurisdiction to hold a hearing in this matter, we have also concluded that Maguire's state administrative action is barred by the doctrine of res judicata, and, as indicated above, have dismissed it on that basis.

Res Judicata

In her brief to the Administrative Law Judge, Complainant Maguire raised a number of reasons why the doctrine of res judicata should not apply in this case. Although the administrative law judge stated in his decision that he was "inclined to agree" with Maguire "for reasons ably stated in Complainant's brief," that res judicata did not bar Maguire's state administrative action, the Judge did not formally decide the question. Instead, he dismissed the complaint on constitutional grounds. Consequently, he did not specifically address Maguire's arguments regarding res judicata. As the Commission has dismissed Maguire's complaint on res judicata grounds rather than on the constitutional grounds employed by the Judge, the Commission will address Maguire's res judicata arguments at this time, as well as explain the basis for its decision.

The general rule of the doctrine of res judicata is that a valid and final judgment which is rendered "on the merits" in favor of the defendant, bars another action by the plaintiff on the same cause of action. Restatement of Judgments 2d, Chapter 3, § 19, p. 161. Harper Plastics, Inc. v. Amoco Chemical Corp., 657 F.2d 939, 944-45 (7th Cir. 1981). The doctrine is founded on a public policy against reopening that which has previously been decided. For the doctrine of res judicata to apply, there must be (1) a judgment on the merits; (2) an identity of parties; and (3) an identity of causes of action. There is no question here that the parties are the same. Rather, the issues revolve around whether the federal decision constitutes a judgment "on the merits," and whether the causes of action are the same in the federal and administrative proceedings. 
 

Was There a Judgment "on the Merits?"

Maguire's complaint was dismissed in both the federal district court and the court of appeals. The district court dismissal was based on a holding by Judge Reynolds that the court lacked the subject matter jurisdiction to judge the hiring practices in the theology department of a Catholic university.

The court of appeals' dismissal, however, involves a more complicated question. The court of appeals decision was not the result of a jury trial. It was a dismissal which was based upon the content of the pleadings. Is such a dismissal considered to be "on the merits" for purposes of determining res judicata? Maguire argues in her brief to the Administrative Law Judge that "For purposes of res judicata, a pleading dismissal is not 'on the merits' unless the dismissed plaintiff is afforded the opportunity to replead and fails to do so." Next, Maguire asserts that "The Seventh Circuit decision not only failed to afford Dr. Maguire the opportunity to replead but also ignored the fact that she had in fact alleged sex discriminatory motivation. (Slip Opinion at p. 9, n.3)" As authority for her assertion Maguire cites O'Brien v. Hessman, 16 Wis. 2d 455, 459, 114 N.W. 2d 834 (1962), and the Restatement of Judgments, § 19, comment d.

The Commission rejects this argument in its entirety.

First, the Commission has read O'Brien v. Hessman, supra. In that case, the court held that a judgment on the pleadings was a judgment on the merits and that under the doctrine of res judicata, a second action by the plaintiff-appellant was barred. While the court noted that the plaintiff had the opportunity, but failed, to replead, neither the holding nor any dicta stated the proposition for which Maguire cites the case, namely, that a judgment on the pleadings is not considered "on the merits" unless a party is afforded the opportunity to replead and fails to do so. The court in O'Brien v. Hessman placed no such qualification on its holding that the judgment for the defendant on the pleadings was a judgment on the merits. To assert that it did is clearly inaccurate. This case does not lend credence to Maguire's theory and, indeed, was inappropriately cited by her.

Second, the section which Maguire cites in the Restatement of Judgments does not, as Maguire's argument implies, impose the strict requirement that a plaintiff must be afforded the opportunity to replead and then fail to do so, before a pleading dismissal will be considered "on the merits." Rather, the Restatement section which she cites states that the doctrine of res judicata applies to a "Judgment for defendant on insufficiency of the complaint." The Restatement then discusses ability to easily amend the pleadings as a justification for applying res judicata in these situations, noting that the application of res judicata ". . . is warranted by the ease with which pleadings may be amended, normally at least once as a matter of course and by the unfairness of requiring the defendant to submit to a second action . . . when no such amendment is sought, or when no appeal has been taken from an erroneous denial of leave to amend." Thus, contrary to the statement in Maguire's brief, opportunity to replead is not an absolute prerequisite to applying the doctrine of res judicata. A consideration, yes -- a prerequisite, no. And even at that, it is not the only consideration. Fairness to the defendant is also a consideration, one which, of course, always weighs in favor of applying the doctrine.

Third, and most important, the Restatement section that Maguire cites as authority for her proposition concerning a "pleading dismissal" is directed not to pleading dismissals in general, but to the much narrower dismissal for "insufficiency of the complaint." However, a dismissal for insufficiency of complaint was not the basis for the Seventh Circuit's decision in Maguire. While the decision was based on Maguire's admission in her supplemental complaint and other related proof she presented, it was not the result of an insufficient complaint. The court did not hold that Maguire's complaint was insufficient. It held that in view of her admission and proof about the role which her views on abortion played in Marquette's decision not to hire her, her initial claim that 'Marquette failed to hire her because of her sex must fail. Maguire's case clearly was dismissed on substantive grounds. Her admission and related proof constituted evidence which established a basis other than sex for Marquette's refusal to hire her. The fact that the admission appeared in the complaint and the proof was not offered in a trial setting does not indicate that it was a procedural rather than a substantive dismissal. The sole basis of the court's decision, evidence going to the substantive question of Maguire's claim, clearly established that the decision was "on the merits" and not merely procedural. Indeed, as noted above, Maguire could not have remedied her complaint by repleading, once she had alleged and submitted proof on the abortion issue.   That fact alone strongly suggests that Maguire's complaint was not the problem, that Maguire's problem went deeper than that. It went to the substance of her allegation of sex discrimination and even though the court of appeals decision was based in part on the content of Maguire's pleadings, at the same time it clearly was "on the merits." The two are not mutually exclusive, as Maguire seems to imply. Therefore, this Restatement section is not applicable to Maguire's Seventh Circuit decision. Thus, even if Maguire is right, that application of res judicata to a procedural dismissal is predicated on the plaintiff having been afforded the opportunity to replead, it makes no difference here since Maguire's complaint was not dismissed due to a defect in the complaint or on same other related ground which an amended pleading could have corrected.

Finally, Maguire is simply wrong with respect to her charge that the court's decision "ignored" the fact that she had alleged sex discrimination. The court specifically addressed the substance of Maguire's sex discrimination claim and found that Marquette had not failed to hire her because of her sex. However, whether the court resolved that matter is not really relevant, since, under the doctrine of res judicata, a final judgment on the merits is conclusive in all subsequent actions between the same parties as to all matters which were litigated or which might have been litigated in the former proceedings. DePratt v. West Bend Mutual Ins. Co., 113 Wis. 2d 306, 310, 334 N.W. 2d 883 (1983). Thus, the Seventh Circuit's decision would be binding for purposes of the state administrative proceeding, even if the court's holding had not specifically reached that issue.

Maguire makes a second argument to support her position that the Seventh Circuit decision cannot bar her state administrative action. Her argument is that ". . . the federal decision's determination that Dr. Maguire admitted that sex was not the real reason behind Marquette's refusal to hire her was directed to failures of hire in 1984, not the instant failure to hire in 1980. It was Dr. Maguire's submission of four letters by Marquette's agents concerning 1984 failures to hire her that the Seventh Circuit considered to be essential to its conclusion that she 'admitted' that 'her controversial beliefs regarding abortion' were the real reason she wasn't hired. (Slip Opinion at pp. 8-9 and n.2)" Maguire's brief, p. 4.

Maguire is wrong. There is no reference anywhere in either the district court or court of appeals decisions to a specific failure to hire, either in 1984 or any other year. Both decisions refer to an eight year period, from 1976-1984, during which time Marquette failed to hire Maguire numerous times. The Seventh Circuit used the following language to describe the alleged discriminatory acts and the time frame in which they occurred:

Between 1976 and 1984 the plaintiff, who holds a Ph.D. in Religious Studies from the Catholic University of America. in Washington, D.C., repeatedly applied for and was each time denied a position as an associate professor of theology at Marquette University in Milwaukee, Wisconsin. In 1984 the plaintiff brought suit under Title VII of the Civil Rights Act of 1964 alleging that Marquette had refused to hire her because she is a woman. 42 U.S.C. § 2000e-2(a)(1). Maguire, supra at 579.

The Commission does not believe there is any implication in the above language that either Maguire's allegations or the court's decision are limited to the 1984 failure to hire.

Nor does the Commission accept Maguire's argument that the four 1984 letters which the court made reference to, in its discussion of Marquette's reaction to Maguire's abortion views, were "essential" to its conclusion that Maguire had "admitted" that her views on abortion were the real reason she was not hired. First, when the court referred to Maguire's "admission," it was not referring to the letters. It was referring to Maguire's statement in her complaint and to a lesser degree to a written argument she submitted to the court in which she stated again that her views on abortion were the reason she was not hired. The letters were the proof she offered to establish the truth of her "admission." They were not the admission, nor were they "essential" to the court's determination that she had made an admission. Indeed, the court's language in introducing the four letters strongly implies that it considered the language in Maguire's supplemental complaint and her written argument sufficient to constitute an admission. After reviewing the language in the complaint and the written argument Maguire submitted, the court stated, "If this were not enough, the plaintiff herself submitted as exhibits attached to her affidavit in support of her memorandum four letters written by Marquette faculty members . . ." Id. at 582. (emphasis supplied)

But even if one assumes for the sake of argument, that the letters were essential to the court's determination, the fact that the letters were dated 1984 does not mandate the conclusion that the abortion issue was related only to the 1984 failure to hire, especially in view of the fact that Maguire's supplemental complaint alleges that her abortion views were a factor during the entire eight-year period from 1976-1984. Maguire's problem is that in her complaint she specifically applied the crucial allegation/ "admission" concerning her views on abortion to the entire eight-year period, during which she, was rejected for a number of positions at Marquette. Since it was this admission that resulted in her action being dismissed, she understandably is trying to back off from it or limit its effect. She cannot, however, change the plain meaning of her allegation/admission. Her attempts to do so are weak and unpersuasive.

Maguire makes another assertion in support of her argument that her abortion views prevented her from being hired only for the 1984 position, not the 1980 position to which her administrative complaint was limited. Specifically, she argues that ". . . at the time of the failure of hiring in the instant case, plaintiff's 'views on abortion' had been neither fully developed nor published and thus could hardly have been the basis for Marquette's decision. Thus, because the 1980 failure to hire neither was nor could have been disposed of on the basis of Dr. Maguire's 'admission' in the federal case, . . . it cannot be barred by res judicata." (Maguire's brief p. 5)

If Maguire is telling the truth now, that her views on abortion were not known in 1980 and could not have been the basis of Marquette's decision not to hire her, then she makes a compelling argument. However, the language in her supplemental complaint concerning her views on abortion directly contradicts the argument in her brief that her views on abortion were not known in 1980 and could not have influenced Marquette in its decision not to hire her in 1980. Again, paragraph IX-A of her supplemental complaint reads as follows:

During the period of time between November, 1976 and the present (Maguire filed this complaint on July 25, 1984) agents of the defendant Marquette University, who have been responsible for the denial of hiring of the plaintiff, have made subjective statements indicative of their intention to preclude plaintiff ever from being hired by the defendant Marquette University due to their perceptions and/or misperceptions of plaintiff's views respecting the moral theology of abortion and/or the public policy of abortion in a pluralistic society and the relationship between the two. (emphasis supplied)

Clearly, Maguire alleges in her complaint that her views were known by Marquette, were commented upon by Marquette's hiring authorities, and were the reason Marquette would not "ever" hire her, beginning in 1976 and continuing through 1984. The inescapable conclusion remains that either Maguire's complaint, or the statements in her brief, are incredible. At this point in the process it is not necessary to determine beyond doubt which one is truthful. The relevant point is that Maguire's present statement, one of her asserted bases for rejecting Marquette's Motion to Dismiss, is completely contradicted by the plain language of her supplemental complaint. Therefore, the statement is not a valid basis upon which to reject Marquette's res. judicata argument. It appears to the Commission that it is merely an attempt to nullify the damage done by Maguire's supplemental complaint. Maguire, however, presumably made a deliberate tactical decision to submit the allegation in her supplemental complaint concerning the role her views on abortion played in Marquette's refusal to hire her. The Commission does not consider her present attempts to back off from that allegation/admission to be credible.

Maguire makes a final argument in support of her contention that res judicata is not a bar to her state administrative action. She states that ". . . Wisconsin recognizes that the application of res judicata is dependent upon an assessment as a matter of law that such bar is fair under the particular circumstances." She then cites the case of Kichefski v. American Fam. Mut. Ins., 132 Wis. 2d 74 (Ct. App. 1986) for the proposition that "a party sought to be barred must have had 'her day in court."'

With respect to the fairness issue, Maguire is correct that fairness is a consideration with respect to the application of res judicata. However, while fairness to the plaintiff is a factor in some cases, it is more often the case that fairness to the defendant is a pivotal factor. Indeed, fairness to the defendant is one of two fundamental bases underlying the doctrine of res judicata: "The rule that a defendant's judgment acts as a bar to a second action on the same claim is based largely on the ground that fairness to the defendant, and sound judicial administration, require that at some point litigation over the particular controversy come to an end. These considerations may impose such a requirement even though the substantive issues have not been tried . . ." (emphasis added) Restatement (Second) of Judgments, § 19, comment a. See also DePratt v. West Bend Mut. Ins. Co., supra at 311.

An example of the concept of justice and fairness to the plaintiff being unequivocally rejected can be found in Federated Department Stores v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L. Ed. 2d 103 (1981). In that case seven plaintiffs filed antitrust actions in federal court. Their actions were dismissed and two of them refiled their actions in state court. The state actions were removed to federal court where they were dismissed as barred by res judicata. The Ninth Circuit Court of Appeals reversed, feeling that res judicata must give way to "public policy" and "simple justice." As the court of appeals interpreted these concepts, they are similar to the fairness ground which Maguire urges should be the basis for not applying res judicata here. On appeal, however, the Supreme Court reversed the Ninth Circuit, strictly enforcing the doctrine of res judicata:

The Court of Appeals also rested its opinion in part on what it viewed as "simple justice." But we do not see the grave injustice which would be done by the application of accepted principles of res judicata. "Simple justice" is achieved when a complex body of law developed over a period of years is evenhandedly applied. The doctrine of res judicata serves vital public interests beyond any individual judge's ad hoc determination of the equities in a particular case. There is simply "no principle of law or equity which sanctions the rejection by a federal court of the salutary principle of res judicata." Heiser v. Woodruff, 327 U.S. 726, 733, 66 S.Ct. 853, 856, 90 L.Ed. 970 (1946). The Court of Appeals' reliance on "public policy", is similarly misplaced. This Court has long recognized that "[p]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties." Baldwin v. Traveling Men's Assn., 283 U.S. 522, 525, 51 S.Ct. 517, 518, 75 L.Ed. 1244 (1931). We have stressed that "[the] doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, 'of public policy and of private peace,' which should be cordially regarded and enforced by the courts. . . ." Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299, 37 S.Ct. 506, 507, 61 L.Ed. 1148 (1917). Id. at 401. (emphasis added)

In view of the supreme court's directive that the doctrine of res judicata should be strictly enforced, the law's clear and long-standing emphasis on fairness to the defendant, the law's recognition that endless litigation leads to confusion and chaos, and the fact that in this particular case, Marquette has been defending itself in litigation over this matter at either the state or federal level, continuously since 1980, the Commission finds Maguire's argument concerning fairness to herself to be self-serving and unpersuasive.

With respect to Maguire's reference to Kichefski v. American Fam. Mut. Ins., supra, for the proposition that Maguire "must have 'her day in court,"' a reading of Kichefski discloses that it is not relevant to this case. The facts in Kichefski which compelled the court to hold that the plaintiff was entitled to pursue her action were different from and inapposite to, the facts in this case. In Kichefski, a man pushed the female plaintiff off his porch resulting in serious injury to the plaintiff. The man was insured with the defendant American Family Insurance. The man was charged with and convicted of aggravated battery. The insurance company sought to apply an exception to the identity of parties requirement of the collateral estoppel (not res judicata) doctrine and prevent the plaintiff from suing the defendant in a third party civil action for the man's act in negligently pushing her off the porch. The court held that even though the action was based on the same conduct as the aggravated battery action, the collateral estoppel doctrine could not be invoked to prevent the plaintiff from pursuing her negligence action because neither the plaintiff nor the defendant insurance company were parties to the criminal action and the plaintiff, therefore, had not had a full and fair opportunity to litigate her negligence claim. Clearly, the facts and even the doctrine of collateral estoppel (issue preclusion) are not "on all fours" with the Maguire case. In Kichefski, the plaintiff literally never got "her day in court." The only issue which was litigated was the state's claim of aggravated battery. It should come as no surprise that the court recognized this and allowed her to pursue her action. On the other hand, Maguire has had two chances in federal court to litigate her claim herself. Nothing about Kichefski is really relevant to this case. Maguire's reliance on it is inappropriate.

Even if we consider, by itself, the proposition that Maguire appears to be advancing with Kichefski, namely, that the phrase "her day in court," entitles Maguire to a trial, the Commission believes that she is taking the phrase too literally. She does not have unequivocal entitlement to a trial, before res judicata can be applied to preclude subsequent actions. She is merely entitled to a judgment on the merits. In Harper Plastics v. Amoco Chemicals Corp., 657 F.2d 939, 943 (7th Cir. 1981), the court stated that, "For the purpose of res judicata, the definition of a judgment on the merits is one which 'is based on legal rights as distinguished from mere matters of practice, procedure, jurisdiction, or form.' Fairmont Aluminum Co. v. Comm'r., 222 F.2d 622 (4th Cir.), cert. denied, 350 U.S. 838, 76 S.Ct. 76, 100 L. B3. 748 (1955). Traditionally, a judgment is on the merits if it completely disposes of the underlying cause of action, Cromwell v. County of Sac, 94 U.S. 351, 24 L. Ed. 195 (1877), or determines that the plaintiff has no cause of action, Restatement of the Law of Judgments § 49, comment a at 193 (1942). Its effect is that of an absolute bar to a subsequent action."

Closer to home, the Wisconsin Supreme Court, in DePratt v. West Bend Mut. Ins. Co., supra at 311, stated without qualification, that "A judgment on the merits may be entered without a trial." (Footnote omitted) Clearly, judgment "on the merits" is not synonymous with a trial.

The Commission concludes that the Seventh Circuit's resolution of Maguire's case satisfies the court's definition in Harper Plastics of a judgment on the merits -- i.e., it "completely" disposed of the "underlying cause of action," namely, the allegation of sex discrimination. The court's decision not only addressed Maguire's claim of sex discrimination, but it assumed for the sake of argument that she had made a valid sex discrimination claim, then went on to analyze the substance of that claim and disposed of it on that basis, too. The following portion of the decision represents a clear disposition of Maguire's sex discrimination claim:

Marquette's position is that sex had nothing to do with its decision not to hire the plaintiff. It maintains that the plaintiff's credentials were not competitive with those of other applicants, and even if they were, she would have been rejected because of "her perceived hostility to the institutional Church and its teachings, and to the goals and missions of Marquette." Far from disputing this latter consideration, the plaintiff adopted it as the basis of her pendent state law claim alleging a breach of the Wisconsin law of academic freedom. In fact, in her memorandum opposing Marquette's motion for summary judgment, the plaintiff not only conceded but affirmatively argued that the undisputed record in the case revealed that her views concerning "the moral theology of abortion and the public policy of abortion in a pluralistic society and the relationship between the two . . . substantially motivated" Marquette in its refusal to hire her. If this were not enough, the plaintiff herself submitted as exhibits attached to her affidavit in support of her memorandum four letters written by Marquette faculty members to the chairman of the theology department evaluating the plaintiff's application for the position of associate professor of theology and all recommending that she not be hired because of her views on abortion.

Even if we were to assume arguendo that the plaintiff's sex played some role in Marquette's refusal to hire the plaintiff, it is clear, by the plaintiff's own admission and proof, that her sex was not "the motivating or substantial factor" behind the employment decision. Sherkow, 630 F.2d at 502. Given the plaintiff's controversial beliefs regarding abortion, Marquette would have reached the same decision even if she were a man. Maguire, supra at 581-82.

For the reasons discussed above, the Commission concludes that the Seventh Circuit's decision in Maguire constitutes a judgment on the merits and that Maguire's arguments to the contrary have no basis. 
 

Are the Causes of Action the Same?

Once Maguire realized the consequence of her supplemental claim for violation of Wisconsin's law of academic freedom, she argued in federal court that her academic freedom claim was an alternative cause of action to her sex discrimination claim, not a supplement to her sex claim. The Seventh Circuit rejected this theory in the following footnote:

Recognizing her error in supplementing her complaint with the state law academic freedom claim, the plaintiff in her reply brief in this Court attempts to argue that she was merely pleading alternative causes of actions as permitted by Federal Rule of Civil Procedure 8(e)(2). First, both the language of the complaint and the plaintiff's arguments to the district court indicate that she intended the state law claim to be a supplemental, and not an alternative, basis for relief. That the plaintiff misunderstood the law of causation in Title VII cases does not allow her now to turn around and argue that the claims were really meant to be pleaded in the alternative. Second, the plaintiff here has done far more than merely to plead that her pro-abortion stance motivated Marquette in its decision not to hire her. Rather to oppose Marquette's motion for partial summary judgment and in support of her state law claim, the plaintiff has submitted proof, in the form of the letters set out in n.2 supra, to bolster her contention in her memorandum that the undisputed record in the case revealed that her views on abortion "substantially motivated" Marquette in its decision not to hire her. Id. at 582, n.3.

In the brief Maguire submitted to the Administrative Law Judge, she alludes again to the theory of alternative actions by attempting to separate her supplemental complaint and the admission which resulted in the dismissal of her complaint in federal court, from her state administrative complaint. To the extent that she was or is asserting that the two are separate causes of action and that a decision on one is not res judicata on the other, the Commission rejects that theory.

The federal courts as well as the Wisconsin Supreme Court, have adopted the "transactional" view of a cause of action. In DePratt v. West Bend Mut. Ins. Co., supra at 311, the court explained the "transactional" view of a claim or cause of action, as stated in the Restatement (Second) of Judgments, § 2, comment a:

The present trend is to see claim in factual terms and to make it coterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; regardless of the number of primary rights that may have been invaded, and regardless of the variations in the evidence needed to support the theories or rights. The transaction is the basis of the litigative unit or entity which may not be split.

Also, in Harper Plastics, supra at 944, the court, while leaving open the possibility that one transaction could lead to more than one cause of action, nevertheless stated that ". . . the primary test for determining if two suits are based on the same cause of action is whether both suits arise out of the same basic factual situation."

Applying the transactional view to Maguire's federal complaint and her state administrative complaint, it is clear that Maguire's state claim arose out of the same set of facts that formed the basis for the federal claim. In both claims Maguire has alleged a continuing failure on the part of Marquette to hire her for the position of associate professor of theology. In both claims Maguire has alleged that less qualified white males were hired instead of her. In both claims Maguire has charged that her sex was the reason she was not hired. Although she also alleged a violation of academic freedom in her federal claim, that is merely an alternative theory of relief -- not a separate cause of action.  It is clearly based on the same factual situation -- Marquette's failure to hire Maguire for an associate professorship of theology. Maguire's allegations regarding her views on abortion in paragraph IX-A of her federal complaint do not constitute a different factual situation. Rather, they constitute "variations in the evidence needed to support" the academic freedom theory of relief, as defined in the Restatement quoted in DePratt. Maguire apparently is under the erroneous assumption that a cause of action is the same as a theory of relief. It is not. A cause of action is a group of facts. The law may recognize these facts under any number of theories of relief, but the set of operative facts is a single cause of action. And where, as here, the federal and state complaints allege the same set of operative facts, there is but one cause of action, regardless whether there may be multiple theories of relief. Juneau Square Corp. v. First Wis. Nat. Bank, 122 Wis. 2d 673, 683-84, 364 N.W. 2d 164 (Ct. App. 1985). Thus, the presence of the academic freedom theory of recovery in Maguire's federal complaint does not turn the federal complaint into a different cause of action from the state complaint. Obviously, both the federal and state claims arise out of the same transactions and occurrences. They are simply two alternative ways of seeking redress for the conduct which Maguire found objectionable. The conclusion is inescapable that there is but one cause of action, and that that element for the application of res judicata is satisfied.

In sum, the Commission believes that all three elements necessary to the application of res 1udicata -- identity of parties, identity of causes of action and a valid judgment on the merits -- have been satisfied here. It appears to the Commission that Maguire made a tactical decision to amend her supplemental complaint to include the paragraph pertaining to her views on abortion. It turned out to be a mistake. The result was that Maguire stepped on her own toes in the federal court contest. She must, however, accept the consequences of her mistake. Maguire got one full and fair opportunity to litigate her cause of action in the forum of her choice. That she took a chance and lost does not offend the Ccmmission's sense of justice and certainly would not justify a decision ignoring the principles of res judicata. Under the circumstances present in this case, the Commission adopts the policy articulated by the United States Supreme Court in Reed v. Allen, 286 U.S. 191, 198-99, 52 S.Ct. 532, 76 L. ED. 1054 (1921) and reaffirmed recently in Federated Department Stores, supra at 401-02:

The predicament in which respondent finds himself is of his own making . . . . [W]e cannot be expected, for his sole relief, to upset the general and well-established doctrine of res judicata, conceived in the light of the maxim that the interest of the state requires that there be an end to litigation -- a maxim which comports with common sense as well as public policy. And the mischief which would follow the establishment of precedent for so disregarding this salutary doctrine against prolonging strife would be greater than the benefit which would result from relieving some case of individual hardship.

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