In the

United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 06-3394

G ERALDINE K ING,
                                                  Plaintiff-Appellant,
                                  v.

B URLINGTON N ORTHERN & S ANTA F E R AILWAY C OMPANY,

                                                 Defendant-Appellee.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 05 C 4794—Rebecca R. Pallmeyer, Judge.
                          ____________

    A RGUED F EBRUARY 20, 2008—D ECIDED A UGUST 19, 2008
                          ____________



  Before E ASTERBROOK, Chief Judge, and B AUER and W OOD ,
Circuit Judges.
  W OOD , Circuit Judge. Plaintiff Geraldine King worked
as a ticket clerk for Defendant Burlington Northern &
Santa Fe Railway Company (“Burlington”). Following a
theft incident, Burlington filed a criminal complaint
against King and fired her. The criminal proceedings,
however, terminated in King’s favor. After what she saw
as her vindication, she filed a civil suit against Burlington
2                                              No. 06-3394

for malicious prosecution. This time she was unsuccessful:
the district court granted summary judgment in favor
of Burlington. We find that King failed to satisfy her
burden on summary judgment with respect to at least one
element of her claim. Because she cannot establish the
date when Burlington filed its criminal complaint, she is
also unable to show that Burlington lacked probable
cause as of the time of the filing of charges. For that
reason, we affirm.


                             I
  In March 2003, Sue Walker, the Chief Clerk for
Burlington, noticed a discrepancy in the ticket inventory
at the Aurora Station. One hundred 10-ride tickets were
missing. After a thorough search, Burlington concluded
that the tickets had been stolen, and on March 17 it
launched an investigation, for which Special Agent Dale
Lange was responsible. On March 26, Lange located a
passenger whose ticket matched one of the missing num-
bers; the ticket showed that it had been issued on March
24. A hole-punch on the ticket revealed that it had first
been used on a 5:25 a.m. train out of Aurora on that
same day. Lange testified that the passenger identified
King as the person who sold him the ticket. Four of the
missing tickets were eventually tracked down after
Burlington employees were told to be on the lookout for
certain serial numbers. The first punch on each one oc-
curred at times when only King was on duty selling tickets.
 Lange filed a criminal complaint in the Circuit Court of
Kane County, Illinois, accusing King of stealing the
No. 06-3394                                               3

missing tickets. The date of the filing is disputed: King
asserts that it was on March 24, 2003 (and thus before the
date when Lange found the first missing ticket), while
Burlington says that Lange filed the complaint after the
passenger holding the suspect ticket identified King.
The district court observed that neither side submitted a
date-stamped copy of the criminal complaint as an exhibit.
  At the same time, Burlington commenced proceedings
under the collective bargaining agreement (“CBA”) it had
with King’s union, the Transportation Communications
Union Local No. 781. It held an initial hearing on April 10,
2003, to determine what role, if any, King had in the
alleged theft of the ticket that Lange had recovered on
March 26. King was present and represented by the union.
A second hearing took place on May 2, 2003, by which
time two additional missing tickets had been recovered
and linked to King. One of those tickets was stamped as
sold on January 29, 2003, and the deposit slip for the
check used in payment was written in King’s handwriting.
The other was sold on March 7, 2003, and once again
the first punch was for a very early train (the 4:47 a.m.).
King was working at the relevant times on both January 29,
2003, and March 7, 2003, but she reported no revenue
that would have corresponded with the sale of the two
tickets.
  In light of the information presented at the hearings,
Burlington fired King. She exhausted the administrative
appeal process, which culminated in a review by the
System Board of Adjustment, an arbitration panel con-
vened pursuant to the Railway Labor Act (“RLA”), 45
4                                              No. 06-3394

U.S.C. § 151 et seq. The Board upheld King’s discharge,
finding that Burlington was
    able to establish a convincing case that [King] was
    the individual who sold and benefitted from the sale
    of the missing tickets. The circumstantial evidence
    is strong that she was the only person who could
    have done so. While a question about [King’s] role
    might have been raised when one missing ticket
    appeared, the presence of additional missing tickets
    all connected to Ms. King make for a compelling case.
In the meantime, on November 16, 2004, Burlington’s
criminal complaint was dismissed because the com-
plaining witness, Lange, did not present himself for the
trial (even though he was in the courtroom that morning).
The criminal case was thus terminated in King’s favor,
laying the groundwork for King’s current suit for
malicious prosecution.
  Before any discovery took place, Burlington moved for
summary judgment on the basis of collateral estoppel. It
claimed that the System Board of Adjustment had already
made a finding on the question whether Burlington had
cause to believe that King stole the tickets, and that this
finding precludes King from relitigating the issue of
probable cause, a necessary element in her malicious
prosecution claim. King objected, claiming that she
needed discovery to adduce facts about the prior pro-
ceedings in order to demonstrate why the condi-
tions necessary for collateral estoppel were not satisfied.
She also wanted to depose Lange to support the merits of
her claim for malicious prosecution. She hoped to show
No. 06-3394                                                 5

that Burlington had acted in bad faith or with malice
(another element of malicious prosecution), because its
investigation focused solely on King.
  The district court thought that the facts relevant to the
issue of collateral estoppel were not really in dispute. It
instructed King to submit Requests for Admission, and
after that, the court indicated it would decide whether
discovery was necessary. Eventually the court was
satisfied that it could rule on the motion for summary
judgment even taking as true King’s contentions. It denied
the request for discovery and granted summary judg-
ment in favor of Burlington on grounds of issue preclusion.
King filed this appeal, claiming that the district court
abused its discretion in denying discovery and erred
in holding that her claim was precluded by the arbitra-
tion proceedings.


                              II
  We review the district court’s decision to deny King’s
Rule 56(f) motion for abuse of discretion, Kalis v. Colgate-
Palmolive Co., 

, 1055-56 (7th Cir. 2000), and its
decision to grant summary judgment de novo, Sound of
Music Co. v. 3M, 

, 914 (7th Cir. 2007). We may
affirm a grant of summary judgment on any ground that
finds support in the record. Wallace v. Greer, 

, 1277 (7th Cir. 1987). The district court’s jurisdiction
was based on diversity (King is a citizen of Illinois, and
Burlington is a citizen of Texas and Delaware). The
parties agree that the substantive law of Illinois applies
here.
6                                                  No. 06-3394

  Illinois requires a plaintiff suing for malicious prosecu-
tion to show:
    (1) the commencement or continuance of a criminal or
    civil judicial proceeding by the defendant; (2) a termi-
    nation of that proceeding in favor of the plaintiff;
    (3) the absence of probable cause for the proceeding;
    (4) the presence of malice; and (5) damages to the
    plaintiff resulting from the commencement or con-
    tinuance of that proceeding.
Burghardt v. Remiyac, 

, 1051 (1991) (empha-
sis removed). The parties to this suit contest only ele-
ments (3) and (4).
  In its motion for summary judgment, Burlington
argued that King cannot prevail on her claim for
malicious prosecution because the SBA’s finding—that
Burlington had made a “convincing” and “compelling”
case that King was guilty of theft—is more than sufficient
to meet the lower “probable cause” threshold that would
defeat King’s civil claim. This finding, it continued, was
entitled to preclusive effect in King’s civil lawsuit.
  We begin with the question of preclusion. The district
court noted that the parties disputed which law (federal
or state) governed the preclusive effect of the Board’s
ruling, but that the choice made no difference to the
outcome here. The Supreme Court recently reviewed the
requirements for issue preclusion in Taylor v. Sturgell, 

(2008), where it noted that “[i]ssue preclusion . . .
bars successive litigation of an issue of fact or law
actually litigated and resolved in a valid court deter-
mination essential to the prior judgment, even if the
No. 06-3394                                                7

issue recurs in the context of a different claim.” 

(quotation marks omitted). In University of Tennessee
v. Elliott, 

(1986), the Supreme Court held in
an analogous setting that “when a state agency ‘acting in
a judicial capacity . . . resolves disputed issues of fact
properly before it which the parties have had an adequate
opportunity to litigate,’ Utah Construction & Mining 

, 384 U.S., at 422, federal courts must give the
agency’s factfinding the same preclusive effect to which
it would be entitled in the State’s 

.
We see no reason why the System Adjustment Board’s
findings would be entitled to any less deference than
those of a state administrative agency. For present pur-
poses, however, it is enough to assume for the sake of
argument that the Board is the type of tribunal whose
findings may receive preclusive effect, because there is a
different problem that prevents us from relying on this
theory.
  As Taylor held, issue preclusion applies only when
(among other things) the same issue is involved in the two
proceedings and the determination of that question is
“essential” to the prior judgment. Here, that requirement
is not met. The Board waffled a bit in its finding: rather
than saying out-and-out that King was a thief, it held only
that Burlington had established a convincing case for
that position. We cannot tell from the Board’s decision
whether the strength of evidence that it found “convinc-
ing” would be the same as the amount and quality of
evidence needed to establish probable cause in a crim-
inal prosecution. Burlington was not required to limit its
own management discretion so severely that employee
8                                                  No. 06-3394

misconduct had to qualify as criminal behavior (or even
probable cause to find such behavior) before it could fire
someone. In addition, the Board had nothing to say about
when Burlington’s probable cause fell into place and
whether it was before Lange filed the criminal charges.
Thus, even if we assume that the Board unambiguously
found that Burlington had probable cause to believe that
King had stolen the tickets, Burlington needs more
before it is entitled to prevail.
   Burlington did not, however, put all of its eggs in the
“issue preclusion” basket before the district court. It also
argued that King had not presented enough evidence on
the merits to defeat summary judgment. It is here that the
absence of evidence about the date when the criminal
complaint against King was filed becomes important. King
herself admitted in her reply brief in this court that “[t]he
time of the filing of the charge is crucial to plaintiff’s proof
of lack of probable cause.” She complains that she was
never given the opportunity to investigate through dis-
covery what information Lange had at the time of his
filing of the criminal complaint, and that her attempt to
ascertain the time of the filing through a Request for
Admission was stymied by Burlington’s response that it
did not know the precise date.
  King is correct insofar as she recognizes that the date on
which the criminal complaint was filed is crucial to her
case. Without some evidence that the date preceded
Burlington’s discovery of the incriminating evidence,
King cannot establish that Burlington lacked probable
cause to file charges against her for the theft. There is no
No. 06-3394                                               9

doubt that it had ample evidence to support probable
cause for the criminal charges by the time it fired her.
  The problem for King is that it was her burden—not
Burlington’s—to raise a material question of fact on each
element of her malicious prosecution claim. Among
other things, she had to establish by competent evidence
the date of the filing of the criminal charges. This infor-
mation could have been obtained without depositions or
other discovery, as it is publicly available. And if for
some reason King could not learn through normal chan-
nels when the case was filed, she could have explained
the problem to the district court and asked for an oppor-
tunity to pursue alternate avenues. King, however, said
nothing to the district court about any inability to fix the
date of the charges. Instead, she argued that she needed
discovery to help her show what really happened during
the grievance procedure and why it lacked enough pro-
cedural safeguards to permit issue preclusion to apply.
  We realize that, in addition to seeking to depose various
Burlington officials about the adequacy of the grievance
procedure, King informed the district court that she
wanted to depose Lange to prove that “[Burlington]
focused only on [King] . . . .” But this is a far cry from
letting the court know that she wanted to ask Lange
when he filed the complaint on Burlington’s behalf. It
also fails to alert the court to her interest in verifying
that Burlington had probable cause as of that time it
commenced the criminal proceeding. Indeed, King’s oral
remark about Burlington’s singular focus was in response
to the following question posed by the district court:
10                                              No. 06-3394

“What’s the evidence—in her mind, what shows that
they treated her with bad faith?” King replied that she
wanted to prove bad faith by showing that Burlington
ignored other possible suspects, and the court assured
her that it was “prepared to assume that they focused
only on her.”
  Bad faith or malice, for purposes of the fourth element
of a malicious prosecution case in Illinois, is not the same
thing as probable cause (or its absence), for purposes of
the third element. Probable cause is an objective stan-
dard. If a police officer focuses on a suspect, for example
by conducting surveillance on her and only her, and
through that surveillance accumulates enough evidence
to give rise to probable cause to arrest her, it would not
matter whether he had done so out of ill will or the
purest motives.
   Thus, the district court did not abuse its discretion in
denying King’s request for a continuance to conduct
discovery, because King failed to inform the court about
the only factual dispute on which discovery might have
made a difference to her claim, namely, the date of the
filing of charges and what evidence was known to
Burlington as of that date. Indeed, even had she let the
court know that this was what she wanted to explore,
the court might have denied her request on the theory
that the case did not need to be delayed for the sake of
publicly available information.
                          * * *
  As the record stands, King has not submitted evidence
that would allow a trier of fact to conclude that Burlington
No. 06-3394                                              11

lacked probable cause to file criminal charges against King.
Therefore, we A FFIRM the judgment of the district court.




                           8-19-08