Judges: Per Curiam
Filed: Jun. 05, 2018
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 Submitted May 29, 2018* Decided June 5, 2018 Before FRANK H. EASTERBROOK, Circuit Judge DAVID F. HAMILTON, Circuit Judge AMY C. BARRETT, Circuit Judge No. 17-2508 JOHN E. COVINGTON, Appeal from the United States Plaintiff-Appellant, District Court for the Northern District of Illinois, Eastern Division. v. No. 16 C 10661 NATIONAL UNIV
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 Submitted May 29, 2018* Decided June 5, 2018 Before FRANK H. EASTERBROOK, Circuit Judge DAVID F. HAMILTON, Circuit Judge AMY C. BARRETT, Circuit Judge No. 17-2508 JOHN E. COVINGTON, Appeal from the United States Plaintiff-Appellant, District Court for the Northern District of Illinois, Eastern Division. v. No. 16 C 10661 NATIONAL UNIVE..
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NONPRECEDENTIAL DISPOSITION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
Submitted May 29, 2018*
Decided June 5, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17‐2508
JOHN E. COVINGTON, Appeal from the United States
Plaintiff‐Appellant, District Court for the Northern District
of Illinois, Eastern Division.
v.
No. 16 C 10661
NATIONAL UNIVERSITY,
Defendant‐Appellee. Virginia M. Kendall,
Judge.
O R D E R
John Covington appeals the dismissal of his federal complaint under Title VI of
the Civil Rights Act of 1964 and the Age Discrimination Act of 1975. See 42 U.S.C. 2000d;
42 U.S.C. § 6102. Because the district court properly concluded that claim preclusion
bars this lawsuit, we affirm.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 17‐2508 Page 2
Covington previously brought a federal suit against National University, its
president, and two employees in the financial aid department. In November 2015, he
filed a complaint alleging that the defendants revoked his financial aid because of his
age and race, in violation of the Fourteenth Amendment and the Age Discrimination
Act. He also alleged that the defendants discriminated against him in April 2015 by
fraudulently applying for twelve loans in his name. The district court dismissed the
Fourteenth Amendment claims without prejudice because National University, a
private institution, and its employees were not state actors subject to suit under 42
U.S.C. § 1983. The court also dismissed the age‐discrimination claim without prejudice
because Covington had not yet exhausted his administrative remedies as required by
the Age Discrimination Act, see 42 U.S.C. § 6104(f); 45 C.F.R. § 90.50(a).
Covington then filed an amended complaint that was nearly identical to the
original except that he omitted the age‐discrimination claim. Because he again had
failed to allege state action, the district judge dismissed this complaint with prejudice.
A year after filing his first action, Covington filed this suit against almost the
same defendants (he substituted the university’s financial aid director for the assistant
director). Covington again alleged the unlawful revocation of his financial aid, this time
asserting violations of Title VI and the Age Discrimination Act. He again claimed that
the defendants applied for twelve loans in his name (though now alleging they did so in
August, not April, 2015 and in retaliation for filing the administrative charge that
preceded his first lawsuit). He added state‐law claims for tortious interference with
contract, intentional and negligent infliction of emotional distress, and fraud.
Covington moved to proceed in forma pauperis. In his financial affidavit, he
alleged that he was unemployed and single, had not received more than $200 in income
from any source, and had no savings or assets. The judge noted that Covington’s
financial affidavit raised the question of how he could afford a single‐family residence
and life’s basic necessities. Based on this question, the judge ordered Covington to file a
new financial affidavit.
Instead, Covington filed a motion for recusal under 28 U.S.C. § 455(a), which
requires a judge to recuse herself if her “impartiality might reasonably be questioned.”
He argued that the judge’s decision to require an updated affidavit raised the question
of whether she was biased against low‐income individuals. The judge denied
Covington’s motion and ultimately dismissed his suit as barred by claim preclusion.
No. 17‐2508 Page 3
Covington filed an appeal and now apparently abandons his claims against all
defendants except National University.
Covington argues that claim preclusion does not apply to this suit alleging “a
continuing series of wrongful conduct.” Because his earlier suit was filed in federal
court, federal claim‐preclusion doctrine applies. Ross ex rel. Ross v. Bd. of Educ. of Twp.
High Sch. Dist. 211, 486 F.3d 279, 283 (7th Cir. 2007). So this suit is barred if there exists
(1) a final judgment on the merits in an earlier action, (2) an identity of the cause of
action in both the earlier and later suit (signified by a set of common “operative facts”),
and (3) identity of parties or their privies in the two suits. United States ex rel. Lusby v.
Rolls‐Royce Corp., 570 F.3d 849, 851 (7th Cir. 2009).
Covington first argues that there was not a final judgment on his
age‐discrimination claim in the first case because he omitted it from his amended
complaint, but this does not immunize him from the effects of claim preclusion. The
age‐discrimination claim was based on the same factual allegations as his other claims:
National University’s withdrawal of a portion of his financial aid. “Once a transaction
has caused injury, all claims arising from that transaction must be brought in one suit or
be lost.” Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589, 593 (7th Cir. 1986). Covington
replies that he was unable to bring the age‐discrimination claim in his first suit because
he had not finished exhausting his administrative remedies. But he could have delayed
filing of the first suit, asked the district court to stay it, or requested an expedited
administrative process. See Czarniecki v. City of Chicago, 633 F.3d 545, 551 (7th Cir. 2011).
Instead, he dropped his claim. Because the first suit was the appropriate avenue for
raising the age‐discrimination claim, the final judgment in that case applies to it.
Next, Covington argues that there is not an identity of claims because the events
giving rise to his retaliation claim did not occur until after he filed the first case. But this
assertion is inconsistent with the allegations in his complaint. There, Covington says
that National University retaliated against him for filing administrative charges by
applying for twelve new loans in his name in August 2015 – months before he filed his
the first lawsuit in November 2015. Covington cannot change his story on appeal to
avoid claim preclusion. See Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 555–56
(7th Cir. 2012) (recognizing that plaintiff appealing dismissal of complaint may
elaborate on factual allegations but that new facts must be consistent with assertions in
district court).
No. 17‐2508 Page 4
Covington also contends that there is no identity of parties because “the only
defendant[] in this case is National University.” But Covington’s omission of the
individual defendants does not affect our analysis. (And we note that in the district
court, he did not in fact omit the individuals as defendants, although he drops them on
appeal.) Because National University was a named defendant in the first case, the third
and final element for claim preclusion is satisfied. See Tartt v. Northwestern Comm. Hosp.,
453 F.3d 817, 822 (7th Cir. 2006). And we note that claim preclusion would apply even if
Covington had included the individual defendants in this appeal, because their legal
interests are identical to those of the university. See United States v. Egan Marine Corp.,
843 F.3d 674, 678–79 (7th Cir. 2016).
Covington also appeals the denial of his recusal motion. But the only support for
that motion is the judge’s order that he file an updated financial affidavit, and this is not
a sufficient basis for recusal. See Liteky v. United States, 510 U.S. 540, 555–56 (1994)
(explaining that judicial expressions and rulings will not support recusal “unless they
display a deep‐seated favoritism or antagonism that would make fair judgment
impossible”).
We have considered Covington’s remaining arguments and conclude that none
has merit. The judgment is AFFIRMED.