Eyiowuawi v. John H. Stroger's Hospital of Cook County

Filing 34

ENTER MEMORANDUM OPINION AND ORDER: the Court denies Defendant's motion to dismiss 28 . Plaintiff is given 14 days from the date of this order to file an amended complaint (1) naming the proper defendant and (2) attaching or incorporating an y exhibits or allegations contained in his original complaint but omitted from the current operative complaint that he wishes to carry forward in this suit. Plaintiff is reminded that an amended complaint supersedes all other complaints and must be c omplete on its own. If Plaintiff wishes to amend his complaint beyond the two grounds stated above, he must file a motion seeking leave to do so and attach to that motion the proposed amended complaint. The parties are directed to appear for a status hearing February 18, 2014 at 9:00 a.m. Signed by the Honorable Robert M. Dow, Jr on 2/3/2014. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GBOLAHAN R. A. EYIOWUAWI,
Plaintiff,
v.
JOHN H. STROGER’S HOSPITAL OF
COOK COUNTY,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 12 CV 6492
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Pro se Plaintiff Gbolahan R. A. Eyiowuawi has filed an amended complaint alleging that
his former employer, Defendant John H. Stroger’s Hospital of Cook County, discriminated
against him on the basis of his sex and national origin, and retaliated against him for filing
discrimination complaints and a lawsuit, all in violation of 42 U.S.C. § 1981 and 42 U.S.C. §
2000e. Defendant has moved under Rule 12(b)(6) to dismiss the amended complaint on res
judicata and statute of limitations grounds. [28]. For the reasons stated below, the Court denies
the motion. Plaintiff is given 14 days from the date of this order to file an amended complaint as
specified below. The parties are directed to appear for a status hearing on February 18, 2014 at
9:00 a.m.
I.

Background
For purposes of the instant motion to dismiss, the Court construes the amended complaint

[27] in the light most favorable to Plaintiff, accepting as true all well-pleaded facts and drawing
reasonable inferences in his favor. E.g., McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 879
(7th Cir. 2012). In addition, because Plaintiff is proceeding pro se, the Court construes his

amended complaint liberally and holds it to a less stringent standard than if it had been drafted
by a trained lawyer. See, e.g., Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009); Kaba v.
Stepp, 458 F.3d 678, 687 (7th Cir. 2006). The Court also will consider additional facts alleged in
Plaintiff’s briefing [32] to the extent that they are consistent with the allegations of his
complaint. See Geinosky v. City of Chi., 675 F.3d 743, 746 n.1 (7th Cir. 2012); Help at Home,
Inc. v. Med. Capital, L.L.C., 260 F.3d 748, 752-53 (7th Cir. 2001). The Court takes judicial
notice of Plaintiff’s relevant previous federal cases, Eyiowuawi v. John H Stroger Jr, No. 03-cv09435 (N.D. Ill. Dec. 24, 2003), and Eyiowuawi v. County of Cook, No. 05-cv-5213 (N.D. Ill.
Sept. 13, 2005). See Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 108081 (7th Cir. 1997).
Plaintiff is a male of Nigerian descent.

[27] ¶ 4.

Plaintiff was hired to work in

Defendant’s Inpatient Transportation Department as an inpatient transporter in April 1998. [27]
¶ 9. At some point he became a Scheduler/Dispatcher. See [27] ¶¶ 9, 31, 35. According to
Plaintiff, his job performance at all times met Defendant’s legitimate expectations. [27] ¶¶ 9, 51,
54. Yet, Plaintiff alleges, starting in 2003 through his termination on June 29, 2005, supervisors
Martha Jones, an African-American female, [27] ¶¶ 19-20, and Dennis Chevalier subjected
Plaintiff to a barrage of disparate treatment on the basis of his sex and national origin. See [27]
¶¶ 17-70.
Plaintiff specifically alleges that Jones favored Plaintiff’s co-worker, Erma Brandy, also
an African-American female, [27] ¶ 20, such that she offered Brandy more and better overtime
opportunities despite Brandy’s lower seniority rank and neglected to reprimand Brandy when she
left the work area without permission. See [27] ¶¶ 20-24, 30, 32. Plaintiff, in contrast, was both
verbally and formally reprimanded for similar infractions, [27] ¶¶ 26, 32, and also was called out

2

for his work attire when his co-workers were not. See [27] ¶¶ 19, 46. Jones also is alleged to
have wrongfully reprimanded Plaintiff for using profanity, an infraction for which he incurred a
29-day suspension, [27] ¶ 47, and to have asked patients to complain about him. [27] ¶ 70. On at
least two occasions, Chevalier refused to sign forms authorizing payment for overtime work that
Plaintiff already had completed but approved overtime for two of Plaintiff’s female co-workers.
[27] ¶ 17. Plaintiff called the disparate treatment to Jones’ attention on several occasions, and
also communicated to her his suspicions that it was predicated on his sex and national origin.
See [27] ¶¶ 18, 33, 34.
On September 17, 2003, Plaintiff filed a complaint with the EEOC. [27] ¶ 6. The
complaint alleged that Jones and Chevalier had discriminated against him on the basis of his sex
and national origin. See [27] ¶¶ 6, 63, 69. In late 2003, Plaintiff filed a lawsuit in which he
named as defendants Jones, Chevalier, and Defendant. See [27] ¶ 63; [32] at 7; Eyiowuawi v.
John H Stroger Jr, No. 03-cv-9435 (N.D. Ill. Dec. 24, 2003). The court dismissed that suit for
want of prosecution on April 21, 2004. [32] at 7; Eyiowuawi v. John H Stroger Jr, No. 03-cv9435 (N.D. Ill. Apr. 21, 2004), aff’d sub nom., Eyiowuawi v. John H. Stroger, Jr. Hosp. of Cook
Cnty., 146 F. App’x 57 (7th Cir. 2005). Plaintiff filed a second complaint with the EEOC and
the Illinois Department of Human Rights on April 23, 2004. [27] ¶¶ 6, 51.
Plaintiff’s co-worker Brandy left Defendant’s employ in late 2004 and was replaced with
Sandra Bright, another African-American female.

[27] ¶ 50.

Plaintiff alleges that Bright

performed her job in an unsatisfactory manner, [27] ¶ 55, though Jones did not subject Bright’s
work to the scrutiny that she did Plaintiff’s. [27] ¶ 56. Plaintiff personally informed Bright
about some mistakes that she had made on at least one occasion. [27] ¶¶ 55, 60. After Bright
failed to correct or continued to make errors on the job, Plaintiff reported Bright to supervisor

3

Jones on May 26, 2005. [27] ¶ 55. In early June, Bright in turn falsely reported an alleged error
of Plaintiff’s to Jones. [27] ¶ 59. On June 7, 2005, Plaintiff attempted to call a truce with Bright.
See [27] ¶¶ 61-62. He rolled his chair near her to talk to her and jokingly asked her for a bite of
her sandwich. [27] ¶¶ 61-62. Bright became angry and, at the behest of Chevalier and Jones,
filed a false report with Jones in which she alleged that Plaintiff had sexually harassed and
physically threatened her. See [27] ¶¶ 54, 63, 65, 66, 68, 69. The next day, Plaintiff was placed
on off-duty status (i.e., suspended) pending a pre-disciplinary meeting. [27] ¶ 7. Plaintiff was
informed of Bright’s report for the first time at the June 17, 2005 pre-disciplinary meeting, at
which he denied all allegations against him and asked for but did not receive copies of
surveillance camera footage that recorded the alleged incident between him and Bright. [27] ¶¶
8, 54, 70. Plaintiff was discharged on June 29, 2005. [27] ¶ 8. He filed a third charge alleging
discrimination and retaliation with the EEOC on July 7, 2005. [32] ¶ 4 & Ex. 1.1
Plaintiff filed a second federal lawsuit against Defendant on September 12, 2005. [27] ¶
71; [32] at 7. (The suit was recaptioned to reflect that Cook County was the true party in
interest. See Eyiowuawi v. Cnty. of Cook, No. 05-cv-5213, Dkt. 6 (N.D. Ill. Sept. 13, 2005)).
The court granted Defendant’s motion to dismiss for failure to exhaust on November 2, 2005, but
granted Plaintiff leave to reinstate the suit upon exhaustion of his administrative remedies. [27] ¶
71; Eyiowuawi v. Cnty. of Cook, No. 05-cv-5213, Dkt. 19 (N.D. Ill. Nov. 2, 2005). In September
2007, Plaintiff filed a complaint with the Illinois Human Rights Commission. See [31] Ex. C;
[32] Ex. 3.

Plaintiff pursued his administrative remedies with the Illinois Human Rights

Commission through January 2012, when he belatedly learned that the matter had been resolved

1

Plaintiff’s July 7, 2005 EEOC charge, 21B-2005-02523, which alleged only retaliation, actually was his
fourth formal charge of discrimination. Plaintiff filed charge number 210-2005-06628, which alleged
discrimination and retaliation, on July 5, 2005, see Eyiowuawi v. Cnty. of Cook, No. 05-cv-5213, Dkt. [7]
Ex. 1, (N.D. Ill. Sept. 13, 2005).

4

against him in a November 2011 decision by an administrative law judge. See [27] ¶¶ 72-91;
[28] Ex. C; [32] at 11. He moved to reopen his federal case on April 9, 2012. [27] ¶ 95. After
that motion was denied, [27] ¶ 95; [32] Ex. 2 at 2, Plaintiff sought and obtained from the
Department of Justice a Right to Sue letter pertaining to his July 7, 2005 allegations of
retaliation. [1] Ex. 1; [27] ¶ 97. He then “refiled” the instant suit on August 16, 2012. [27] ¶
98. 2 Defendant has filed a motion to dismiss Plaintiff’s amended complaint. [28].
II.

Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chi., 910 F.2d
1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first
must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that
the pleader is entitled to relief,” such that the defendant is given “‘fair notice of what the * * *
claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the
claim must be sufficient to raise the possibility of relief above the “speculative level,” assuming
that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc.,
496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers
‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not
do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). The Court reads the complaint and assesses
2

Plaintiff also notes in his amended complaint, in bold, that “[t]his case has been going on for the last
seven (7) years between Federal Court and Illinois Department of Human Rights Commissions.” [27] at
1.

5

its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); cf. Scott
v. City of Chi., 195 F.3d 950, 952 (7th Cir.1999) (“Whether a complaint provides notice,
however, is determined by looking at the complaint as a whole.”).
Complaints are not required to anticipate and attempt to plead around affirmative
defenses. Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012); Brooks v. Ross, 578 F.3d 574,
579 (7th Cir. 2009). However, “[a] plaintiff whose allegations show that there is an airtight
defense has pleaded himself out of court, and the judge may dismiss the suit on the pleadings
under Rule 12(c),” which essentially “comes to the same thing as a dismissal under Rule
12(b)(6).” Richards, 696 F.3d at 637; see also Brooks, 578 F.3d at 579. Where a plaintiff has
pleaded facts that arguably establish an affirmative defense and both sides have briefed the issue,
practical considerations—such as discovery costs, attorneys’ fees, and judicial efficiency—
provide courts with ample reasons to resolve a dispositive point of law early in a case, whether
the parties have briefed the question as a 12(b)(6) or a 12(c) issue. In either case, the Court’s
decision rests on the pleadings and whether a plaintiff has affirmatively pled himself out of court.
See Walczak v. Chi. Bd. Of Educ., --- F. 3d ---, 2014 WL 92234, at *3 n.2 (7th Cir. Jan. 10,
2014).

Finally, because Plaintiff is proceeding pro se, the Court construes his amended

complaint liberally and holds it to a less stringent standard than if it had been drafted by a trained
lawyer. See, e.g., Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009); Kaba v. Stepp, 458 F.3d
678, 687 (7th Cir. 2006).
III.

Analysis
Defendant makes three arguments in support of its motion to dismiss. None of these

arguments is persuasive at this juncture of the case.

6

A.

Non-Suable Entity

Defendant first contends – in a single sentence – that the lawsuit should be dismissed
because Defendant as named is a non-suable entity. See [28] at 4. Although it appears to be true
that the hospital is not a separate, suable entity from Cook County, see Eyiowuawi v. John H.
Stroger, Jr. Hosp. of Cook Cnty., 146 F. App’x 57, 58 n.1 (7th Cir. 2005), the Court declines to
dismiss the case on this basis. As the Seventh Circuit explained in Smith v. Knox County Jail,
666 F.3d 1037, 1040 (7th Cir. 2012), “a pro se plaintiff who makes a pleading gaffe in a
complaint” should not automatically face dismissal with prejudice as a result. The normal course
in such instances is for the Court to grant the plaintiff “an opportunity to offer a curative
amendment.” Id. The Court finds this remedy particularly appropriate here, where there has
been no prejudice to true Defendant Cook County; its attorneys have been involved in
conceptually related litigation with Plaintiff since 2005. Accordingly, the Court grants Plaintiff
14 days to file an amended complaint that names as Defendant the appropriate suable entity,
Cook County.
B.

Statute of Limitations

Defendant’s more fully developed arguments rest upon the affirmative defenses of res
judicata and the statute of limitations. See Fed. R. Civ. P. 8(c)(1) (identifying res judicata and
statute of limitations as affirmative defenses); see also Harrison v. Deere & Co., 533 F. App’x
644, 647 (7th Cir. 2013) (noting that res judicata is an affirmative defense that defendants bear
the burden of establishing). Both of these affirmative defenses may provide grounds for
dismissal at the pleading stage only if the plaintiff has pleaded facts that prove the defense. See
Richards, 696 F.3d at 637 (statute of limitations); Muhammad v. Oliver, 547 F.3d 874, 878 (7th
Cir. 2008) (res judicata). The Court cannot conclude that Plaintiff has done so.

7

The statutes of limitations that apply to Title VII claims are fairly stringent. 42 U.S.C. §
2000e-5(e)(1) requires plaintiffs to file a charge of discrimination with the EEOC “within three
hundred days after the alleged unlawful employment practice occurred.” “If a plaintiff fails to
file a timely charge concerning a discrete act of discriminatory conduct, his claim is timebarred.”

Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 633 (7th Cir. 2013). A plaintiff’s

claim also is time-barred if he fails to file a suit within 90 days of receiving a right-to-sue letter
from the EEOC. See 42 U.S.C. § 2000e-5(f)(1); Lee v. Cook Cnty., Ill., 635 F.3d 969, 971 (7th
Cir. 2011).
Defendant contends that “it is apparent from his earlier court filings that the EEOC
provided Plaintiff’s ‘Notice of Right to Sue’ on September 24, 2003.” [28] at 7. Defendant then
asserts that “[p]resumably, this notice followed with Plaintiff’s first federal lawsuit under case
number 03 C 09345, which was ultimately dismissed by the district court and affirmed on
appeal.” Id. Because “Plaintiff does not provide any evidence that he filed another charge with
the EEOC within 300 days of any subsequent discrimination or retaliation practices, separate and
apart from his first federal lawsuit,” Defendant argues that this suit, initiated approximately 7
years after Plaintiff’s termination, must be untimely.
This argument not only misapprehends the pleading standards but also the factual basis
and legal proceedings underlying this action. As noted above, complaints are not required to
anticipate and attempt to plead around affirmative defenses.

Richards, 696 F.3d at 637.

Plaintiffs, particularly those proceeding without counsel, need not provide at the pleading stage
“proof to the contrary” of even anticipated defenses. [28] at 8. The allegations contained in
Plaintiff’s amended complaint do not conclusively establish that this suit is time-barred. To the
contrary, it is reasonable to infer from Plaintiff’s allegations concerning his 2005 lawsuit (of

8

which Defendant is fully aware) that he filed a charge of discrimination (and retaliation) with the
EEOC in 2005, see [27] ¶¶ 71-73, and Plaintiff included in his response brief a copy of the 2005
charge at issue in this suit. See [32] Ex. 1. Plaintiff’s amended complaint also alleges that he
sought and received a right to sue letter after Judge Gettleman declined to reinstate his other
case, see [27] ¶¶ 96-97, and he included the June 28, 2012 letter as an exhibit to his original
complaint. See [1] Ex. 1. (He also attached a copy of the charge itself. See Id. Ex. 2.) Pro se
Plaintiff may have been unaware that his amended complaint stands on its own and does not
incorporate the allegations or exhibits of his original complaint, see, e.g., Chasensky v. Walker, -- F.3d ---, 2014 WL 228693, at *3 (7th Cir. Jan. 22, 2014); any allegations or exhibits from his
original complaint that he wishes to rely on going forward should be included in the amended
complaint that he is given 14 days to file. Moreover, it is clear from Plaintiff’s other cases – in
which Defendant was involved and of which the Court takes judicial notice – that Plaintiff filed
charges with the EEOC in July 2005.
C.

Res Judicata

Defendant’s final argument is that the instant suit is barred by res judicata. Defendant
contends that Plaintiff’s claims already have been resolved by the November 18, 2011 decision
of the Illinois Human Rights Commission hearing officer, or, alternatively, in his 2003 federal
suit.

(Defendant does not argue that Plaintiff’s 2005 federal suit should be given preclusive

effect.) See [28] at 4-6. Although the claims previously resolved by the Illinois Human Rights
Commission were in substance very similar to the claims that Plaintiff presents here, the Court
cannot conclude that res judicata bars Plaintiff from pursuing the instant federal suit. The Court
likewise cannot conclude that Plaintiff’s 2003 federal suit precludes him from pursuing his
instant claims.

9

Res judicata, also known as claim preclusion, is a doctrine that protects the finality of
previous judgments by preventing parties from relitigating previously resolved claims. Palka v.
City of Chi., 662 F.3d 428, 437 (7th Cir. 2011). Res judicata can operate to give preclusive
effect to state court judgments. Indeed, 28 U.S.C. § 1738 requires federal courts to give a
judgment of a state court the same full faith and credit that judgment would receive in the
rendering state’s courts, so long as the judgment in question satisfied constitutional due process
requirements. “[W]hen a state court judgment has been rendered in a state whose laws would
give the judgment preclusive effect, the Supreme Court has held section 1738 applicable to
preclude claims under * * * Title VII * * * *” Welch v. Johnson, 907 F.2d 714, 719 (7th Cir.
1990); see also Palka, 662 F.3d at 438 (“Title VII claims enjoy no special immunity from res
judicata.”). Res judicata also may operate to preclude Title VII claims that could have been
brought in a judicial proceeding but were not. See Dookeran v. Cnty. of Cook, Ill., 719 F.3d 570,
577 (7th Cir. 2013).
The same is not necessarily true of claims brought (or not) in administrative proceedings,
however.

In Kremer v. Chemical Construction Corp., 456 U.S. 461, 470 n.7 (1982), the

Supreme Court stated in dictum that it is “clear that unreviewed administrative determinations by
state agencies * * * should not preclude [federal court] review even if such a decision were to be
afforded preclusive effect in a State’s own courts.” Four years later, in University of Tennessee
v. Elliott, 478 U.S. 788, 795-96 (1986), the Supreme Court expressly held that Congress did not
intend for unreviewed state administrative proceedings to have preclusive effect on Title VII
claims; it concluded that a plaintiff who pursues a Title VII action in federal court following an
unreviewed state administrative decision is entitled to a de novo examination of his Title VII
claims. See also Alexander v. Gardner-Denver Co., 415 U.S. 36, 48 (1974) (“[T]he legislative

10

history of Title VII manifests a congressional intent to allow an individual to pursue
independently his rights under both Title VII and other applicable state and federal statutes.”).
The Seventh Circuit has echoed these holdings in its own jurisprudence, holding as early as 1987
that an unreviewed decision by the Illinois Human Rights Commission is not entitled to
preclusive effect in federal courts under Elliott. See Buckhalter v. Pepsi-Cola Gen. Bottlers,
Inc., 820 F.2d 892, 895 (7th Cir. 1987); see also Czarniecki v. City of Chi., 633 F.3d 545, 551
(7th Cir. 2011); Goodwin v. Bd. of Trs. of Univ. of Ill., 442 F.3d 611, 621-22 (7th Cir. 2006);
Brye v. Brakebush, 32 F.3d 1179, 1182 (7th Cir. 1994).
Here, the decision by the Illinois Human Rights Commission is the sort of unreviewed
decision that is not entitled to preclusive effect. Defendant contends that Plaintiff nonetheless
had the opportunity to challenge this decision – and assert his federal claims – in state circuit
court. See [28] at 5 (citing Dookeran, 719 F.3d at 575-78 & n.4). That may have been true if
Plaintiff had filed his complaint with the Illinois Human Rights Commission after January 1,
2008, the effective date of amendments to the Illinois Human Rights Act that permitted plaintiffs
to file complaints alleging violations of the Illinois Human Rights Act directly in state circuit
court. See Alexander v. Ne. Ill. Univ., 586 F. Supp. 2d 905, 910 (N.D. Ill. 2008); 775 ILCS
5/7A-102; 775 ILCS 5/8-111(A). (The Illinois Human Rights Commission is not empowered to
adjudicate federal civil-rights claims, but the state circuit courts are. See Dookeran, 719 F.3d at
578 n.4; Blount v. Stroud, 904 N.E.2d 1, 15-17 (Ill. 2009).)

But when Plaintiff filed his

complaint in 2007, the only forum in which he could seek relief on his state law claims was the
Illinois Human Rights Commission. And the only option to obtain judicial review of claims
pursued before the Illinois Human Rights Commission was (and is) to seek review from the
Illinois Appellate Court, see 775 ILCS 5/8-111(B), a forum in which it generally is improper to

11

initially raise previously unasserted claims. It is clear that state circuit courts have original
jurisdiction over federal civil-rights claims, see Blount, 904 N.E.2d at 17, but not clear that state
appellate courts share that same original jurisdiction. Cf. People v. Johnson, 803 N.E.2d 442,
455 (Ill. 2003); Ill. Sup. Ct. Rule 335(d) (defining “the record on review” as “[t]he entire record
before the administrative agency”); Hayes v. City of Chi., 670 F.3d 810, 815 (7th Cir. 2012)
(“The Illinois Supreme Court [has] outlined six scenarios where the application of res judicata
would be inequitable,” among which is that “‘the plaintiff was unable to obtain relief on his
claim because of a restriction on the subject-matter jurisdiction of the court in the first action.’”
(quoting Rein v. David A. Noyes & Co., 665 N.E.2d 1199, 1207 (Ill. 1996)). For all of these
reasons, the Court concludes that Plaintiff’s federal claims should be not precluded by the
Illinois Human Rights Commission decision.
Defendant asserts in the alternative that “[t]o the extent that Plaintiff’s complaint in this
case raises issues previously advanced in his first federal lawsuit in Eyiowuawi v. John Stroger
Jr. Hospital of Cook County, 03 C 9345, this matter is barred under the doctrine of res judicata
as the decision in that case is final.” [28] at 6. Defendant does not further elaborate on this
argument, such as by explaining why the 2003 suit meets the three criteria required to apply res
judicata. See Bernstein v. Bankert, 733 F.3d 190, 226 (7th Cir. 2013). Res judicata is an
affirmative defense, and Defendant has not made any affirmative effort to demonstrate its
applicability here. See Harrison v. Deere & Co., 533 F. App’x 644, 647 (7th Cir. 2013) (noting
that res judicata is an affirmative defense that defendants bear the burden of establishing).
Moreover, from the Court’s own review of Plaintiff’s complaint in the 2003 action, see [28] Ex.
A, it does not appear that the requisite “identity of the causes of action” is present. Bernstein,
733 F.3d at 226. “[A] claim is deemed to have ‘identity’ with a previously litigated matter if it is

12

based on the same, or nearly the same, factual allegations arising from the same transaction or
occurrence.” Id. (quotation omitted). There is no formalistic test for determining whether suits
arise out of the same transaction or occurrence; courts must look at the “totality of the claims,
including the nature of the claims, the legal basis for recovery, the law involved, and the
respective factual backgrounds.” Id. at 227 (quotation omitted).
Under this totality of the circumstances test, the Court cannot conclude at this time that
the 2003 suit implicated the same “transaction or occurrence” as the current suit. Although
Plaintiff’s 2003 suit is like this one in that it alleged disparate treatment predicated on his sex and
national origin, it differs in the events complained of. The focus of the instant suit is Plaintiff’s
allegedly wrongful termination in June 2005, an event that occurred two years after his 2003 suit
was filed and more than a year after the case was dismissed. The discriminatory conduct
Plaintiff complains of this suit also largely post-dates that alleged (and adjudicated) in the 2003
suit. Accordingly, the Court concludes that that the 2003 suit does not preclude the instant suit.
IV.

Conclusion
For the reasons stated above, the Court denies Defendant’s motion to dismiss [28].

Plaintiff is given 14 days from the date of this order to file an amended complaint (1) naming the
proper defendant and (2) attaching or incorporating any exhibits or allegations contained in his
original complaint but omitted from the current operative complaint that he wishes to carry
forward in this suit. Plaintiff is reminded that an amended complaint supersedes all other
complaints and must be complete on its own. If Plaintiff wishes to amend his complaint beyond
the two grounds stated above, he must file a motion seeking leave to do so and attach to that
motion the proposed amended complaint. The parties are directed to appear for a status hearing
February 18, 2014 at 9:00 a.m.

13

Dated: February 3, 2014

___________________________________
Robert M. Dow, Jr.
United States District Judge

14