Perkins et al v. County of Cook, IL et al

Filing 40

MEMORANDUM Opinion and Order signed by the Honorable Andrea R. Wood on 9/24/2014. Mailed notice (ac, )

IN UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DARNEZ PERKINS
and MICKIN S. PERKINS,
Plaintiffs,
v.
THE COUNTY OF COOK, et al.,
Defendants.

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No. 13-cv-02430
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Plaintiffs Darnez Perkins and Mickin S. Perkins (“Plaintiffs”) are employed by the Cook
County Sheriff (the “Sheriff”) as Correctional Officers. The Sheriff filed a complaint with the
Cook County Sheriff’s Merit Board (the “Merit Board”) seeking to have Plaintiffs suspended for
violations of Sheriff’s Office rules and regulations arising out of misdemeanor charges for
animal cruelty. The Merit Board sanctioned each Plaintiff with a 60-day unpaid suspension.
Plaintiffs subsequently filed this lawsuit against Cook County; Thomas Dart, in his official
capacity as the Sheriff; the Merit Board; and the individual members of the Merit Board 1 under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”),
alleging that the Sheriff’s charges against them and the discipline they received from the Merit
Board were based on their race. For the reasons explained below, the Court sua sponte dismisses
Plaintiffs’ complaint as barred by the doctrine of res judicata.

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The individual Merit Board members named as Defendants are James P. Nally, Byron Brazier, Robert F.
Hogan, John Dallcandro, Brian J. Riordan, Lance C. Tyson, Kim R. Widup, John R. Rosales, and Vincent
T. Winters. In their brief opposing the motions to dismiss, Plaintiffs concede that the individual Merit
Board members are not proper defendants in this case and that the claims against them should be
dismissed. (Pls.’ Resp. Br. at 10-11, Dkt. No. 24.)

Background
Plaintiffs, a married couple, are both employed as Correctional Officers for the
Department of Corrections (“DOC”) in Cook County, Illinois. (Compl. ¶ 1, Dkt. No. 1; Mot. to
Dismiss Ex. A at 8-9, Dkt. No. 20.) On January 2, 2009, they were arrested by the Chicago
Police Department and charged with misdemeanor animal cruelty. (Compl. ¶ 15.) The charges
were dismissed by a Cook County Circuit Court Judge on April 22, 2009. (Id.) Shortly thereafter,
however, the DOC notified Plaintiffs that it believed the conduct alleged in the misdemeanor
charge violated the rules and regulations of the DOC and the Merit Board. (Id. ¶ 16.) Plaintiffs
were then referred to the Merit Board for a Loudermill Hearing. 2 (Id.)
On June 10, 2011, Dart, in his official capacity as the Sheriff, signed a complaint against
each of the Plaintiffs based on the same facts as the misdemeanor animal cruelty charge and
citing Merit Board rules and regulations that the Sheriff alleged had been violated. (Id. ¶¶ 17–
18.) The Merit Board complaints were prosecuted by the Cook County State’s Attorney. (Id. ¶
19.) After an evidentiary hearing before the Merit Board, Plaintiffs were found to have violated
the rules and regulations cited in the complaints. (Id. ¶ 20.) On October 24, 2012, the Merit
Board issued decisions to that effect and sanctioned each Plaintiff with a 60-day unpaid
suspension. (Id. ¶ 21.) The DOC later informed Plaintiffs that their suspensions would be
effective from January 20, 2013 through March 20, 2013. (Id. ¶ 22.) Plaintiffs claim that as a
result of being suspended in excess of three days, they have been disqualified from bidding for

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The name of the proceeding is taken from Cleveland Board of Education v. Loudermill, 470 U.S. 532
(1985), in which the U.S. Supreme Court considered the due process requirements for termination of a
tenured, public employee. The Court stated that “[t]he essential requirements of due process . . . are notice
and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why
proposed action should not be taken is a fundamental due process requirement. . . . The tenured public
employee is entitled to oral or written notice of the charges against him, an explanation of the employer's
evidence, and an opportunity to present his side of the story.” Id. at 546.
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preferable positions or shifts and from qualifying for promotions for a period of five years
following the imposition of the suspension. (Id. at ¶ 25.)
On December 18, 2012, Plaintiffs filed a complaint for administrative review of the Merit
Board’s decisions in the Circuit Court of Cook County (“Circuit Court”), naming Cook County,
the Sheriff, and the Merit Board as defendants. (Pls.’ State Ct. Compl., Dkt. No. 20-1.) In their
complaint, Plaintiffs claimed that the Merit Board’s decisions “[were] against the manifest
weight of the evidence, [were] arbitrary and capricious, [were] legally erroneous, and [did] not
constitute sufficient cause for discipline.” (Id. at 2.) They sought “an order setting aside and
reversing the [Merit Board] Decisions” and “to be made whole for all time served for the
suspension including any back pay and benefits, and for any other relief that this Court deems
just and equitable.” (Id. at 2–3.) The Circuit Court complaint did not mention race discrimination
as a basis for challenging the Merit Board decisions.
On January 3, 2013, Darnez Perkins received his right-to-sue notice from the EEOC.
(Compl. ¶ 16.) Mickin Perkins received her right-to-sue notice on March 22, 2013. (Id. ¶ 22.)
Approximately one week later, on April 1, 2013, Plaintiffs filed their Complaint in this Court
alleging violations of Title VII. In the Complaint, Plaintiffs claim that the “practice of the Sheriff
and the Merit Board in deciding whether to file a complaint for misconduct, what penalty will be
sought, whether the complaint will be sustained and what penalty will be imposed is based on the
racial characteristics of the employee.” (Id. ¶ 30.) As evidence of this discriminatory practice,
Plaintiffs provide examples of eleven Caucasian Sheriff employees who Plaintiffs claim were
subjected to lesser penalties for similar or more egregious misconduct, and three AfricanAmerican employees who were subjected to harsher penalties than their Caucasian counterparts
for similar or less egregious conduct. (Id. ¶¶ 26–27.) Plaintiffs seek relief from this Court

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including “[a]ll wages and benefits Plaintiffs would have received but for the discriminatory
conduct of the Defendants,” compensatory damages of $100,000 or greater, attorney’s fees and
costs, and a “permanent injunction barring the Defendants from engaging in similar
discriminatory conduct and requiring the Defendants to adopt employment practices and policies
in accord and conformity with the requirements of Title VII.” (Id. ¶ 8.)
All of the Defendants have moved to dismiss Plaintiffs’ Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim. After the motions to dismiss were
fully briefed, however, the Circuit Court issued a final judgment in favor of Defendants on
Plaintiffs’ complaint for administrative review of the Merit Board’s decision. 3 Plaintiffs did not
appeal the final judgment. 4 As a result of the state court’s judgment, the arguments raised in the
parties’ briefs are now largely moot, as it is apparent to this Court that Plaintiffs’ claims are
barred by the doctrine of res judicata.
Discussion
“A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief
may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a
complaint must include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must “plead[ ] factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The “[f]actual allegations must be enough

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According to the electronic docket in Perkins v. Dart, et al., 12-CH-44617, pending in the Circuit Court
of Cook County, a judgment was entered in favor of the defendants in a final and appealable order on
September 26, 2013. This case was reassigned to this Court after the motions to dismiss were fully briefed
and the final judgment was entered in the state proceeding. After the reassignment, the parties appeared
before this Court for a status hearing yet neither counsel saw fit to inform the Court about the state court
judgment.
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The docket in the Circuit Court case shows that no notice of appeal was filed.
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to raise a right to relief above the speculative level.” Bell Atl. v. Twombly, 550 U.S. 544, 555
(2007). At the motion to dismiss stage, the Court construes a complaint in the light most
favorable to the plaintiff and accepts all well-pled facts as true. Justice v. Town of Cicero, 577
F.3d 768, 771 (7th Cir. 2009).
In their briefs, Defendants argue that this lawsuit is barred by the abstention doctrine
outlined in Younger v. Harris, 401 U.S. 37 (1971). The Younger abstention doctrine requires
federal courts to “abstain from taking jurisdiction over federal constitutional claims that involve
or call into question ongoing state proceedings.” Freeeats.com, Inc. v. Indiana, 502 F.3d 590,
595 (7th Cir. 2007). Courts apply a three-part test to determine whether to abstain under
Younger: (1) the judicial or judicial in nature state proceedings must be ongoing; (2) the
proceedings must implicate important state interests; and (3) there must be an adequate
opportunity in the state court proceeding to raise constitutional challenges. Trust & Inv. Advisers,
Inc. v. Hogsett, 43 F.3d 290, 296 (7th Cir. 1994). In performing the Younger analysis here,
however, the Court need not proceed beyond the first step. Shortly after Defendants’ motions to
dismiss were fully briefed, the Circuit Court of Cook County issued a final judgment in favor of
Defendants. Thus, the state court proceedings are no longer “ongoing” and, as a result,
Defendants’ arguments concerning Younger abstention do not apply.
With the state court proceedings complete, this Court applies the principles of res
judicata to determine whether this lawsuit may proceed. 5 Exxon Mobil Corp. v. Saudi Basic Ind.

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Res judicata is an affirmative defense. Although the usual procedure would be for Defendants’ to raise
res judicata by moving for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), the
defense may be raised at the motion to dismiss stage as well, if the judge “ha[s] before h[er] all [s]he
needed in order to be able to rule on the defense.” Walczak v. Chicago Bd. of Educ., 739 F.3d 1013, 1016
(7th Cir. 2014). Here, many of the arguments that Defendants raised in support of Younger abstention
weigh in favor of a res judicata finding now that there is a final state court judgment. As Plaintiffs have
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Corp., 544 U.S. 280, 293 (2005) (“Disposition of the federal action, once the state-court
adjudication is complete, would be governed by preclusion law.”). The Full Faith and Credit Act,
28 U.S.C. § 1738, “requires federal courts to give the same preclusive effect to state court
judgments that those judgments would be given in the courts of the State from which the
judgments emerged.” Walczak v. Chicago Bd. of Educ., 739 F.3d 1013, 1016 (7th Cir. 2014)
(quoting Kremer v. Chem. Const. Corp., 456 U.S. 461, 466 (1982)). Once a final judgment on
the merits has been reached by a court of competent jurisdiction, it bars “any subsequent actions
between the same parties or their privies on the same cause of action.” Walczak, 739 F.3d at
1016 (quoting Rein v. David A. Noyes & Co., 172 Ill.2d 325, 665 N.E.2d 1199, 1204 (1996)).
Thus, if a state court judgment would be granted preclusive effect under state law and the party
against whom preclusion is being sought enjoyed a full and fair opportunity to raise his or her
federal claim in the state court proceeding, then a federal court must afford that judgment
preclusive effect. Abner v. Ill. Dep’t of Transp., 674 F.3d 716, 719 (7th Cir. 2012).
In Illinois, res judicata applies when three prerequisites are met: (1) a final judgment on
the merits by a court of competent jurisdiction; (2) an identity of the causes of action; and (3) an
identity of parties or their privies. Walczak, 739 F.3d at 1016. In this case, there can be no doubt
that the first and third criteria are satisfied. The final judgment by the Circuit Court sitting in
review of the Merit Board decision clearly constitutes a final judgment on the merits that has the
same preclusive effect as any other judgment rendered by a state court. Abner, 674 F.3d at 719.
Moreover, the same plaintiffs and defendants are present in both the Circuit Court case and this
federal court action. Thus, the question to be decided is whether there is an identity of the causes
of action here and in the state court proceeding.

already responded to these arguments in the Younger context, the Court deems it appropriate to address
the res judicata issue sua sponte without further briefing.
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Causes of action are considered the same if they satisfy the “transactional test, which
provides that separate claims are considered the same cause of action for claim-preclusion
purposes if they arise from a single group of operative facts, regardless of whether they assert
different theories of relief.” Walczak, 739 F.3d at 1016-17 (internal citations and quotations
omitted). As such, res judicata applies to matters that could have been decided in the original
action, not just matters that were decided in the original action. Id. at 1017.
The Seventh Circuit has held that res judicata applies to Title VII claims raised in federal
court proceedings where a state court final judgment was entered on the underlying adverse
employment action, even if no discrimination claims were raised in the state court case. In Welch
v. Johnson, 907 F.2d 714 (7th Cir. 1990), a former employee of the Illinois Department of
Children and Family Services was terminated for misuse of her position. She filed a complaint in
federal court asserting claims under 42 U.S.C. § 1983 and Title VII, and also challenged her
termination at the state level by filing a complaint for administrative review with the Circuit
Court. Id. at 716-17. The state court issued a final judgment in favor of the defendants, and the
Seventh Circuit subsequently determined that res judicata applied to bar the federal suit:
In both actions, the focus was on proving either the legality or the illegality of DCFS’s
conduct and treatment of [the plaintiff]. Thus, we conclude that the proof required from
[the plaintiff] in the state and federal section 1983 actions was essentially the same.
Id. at 721. Similarly, in Abner v. Illinois Department of Transportation, a former employee of the
Illinois Department of Transportation attempted to file a federal lawsuit under Title VII after the
state court issued a final judgment affirming his termination. 674 F.3d at 717. The Seventh
Circuit noted that the discrimination claim was “in essence, an assertion that the Department’s
stated reason for his termination—disorderly conduct—is a pretext for discrimination. As such, it
could have been raised as a defense in the administrative proceeding.” Id. at 719.

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Other courts in this District have recently considered the issue in the context of Merit
Board proceedings in particular, and have reached the same result. For example, in Redmond v.
Cook County Sheriff’s Department, No. 11 C 8734, 2014 WL 551008 (N.D. Ill. Feb. 11, 2014), a
Deputy Sheriff was terminated due to attendance issues, and a complaint was filed against him
with the Merit Board alleging that his attendance issues constituted abandonment of his position.
Id. at *2. The Merit Board agreed with the allegations, and the plaintiff appealed the decision by
filing a complaint for administrative review with the Circuit Court of Cook County. The
plaintiff’s complaint in the Circuit Court included no claims of discrimination or retaliation. Id.
He then filed a federal lawsuit alleging violations of Title VII and the ADA based on the Merit
Board’s actions. Approximately three months after the federal lawsuit was filed, the Circuit
Court of Cook County upheld the Merit Board’s decision. Id. The district court concluded that
although the Circuit Court case did not raise discrimination claims, both suits arose “from the
same core of operative facts, i.e., the Merit Board’s ultimate decision to terminate Redmond.” Id.
at *3 (quoting Garcia v. Vill. of Mt. Prospect, 360 F.3d 630, 635 (7th Cir. 2004)). Essentially, the
two suits were “merely different factual sides of the same coin,” insofar as “either he was
properly discharged, or he was improperly discharged due to some form of discrimination and
his attendance issues were merely pretext.” Id. at *3-4. See also Atterberry v. Cook County
Sheriff, No. 09 C 6653, 2010 WL 680976 (N.D. Ill. Feb. 23, 2010) (finding that res judicata
barred the plaintiff’s federal lawsuit alleging discriminatory discharge where the plaintiff
pursued state court review of the Merit Board’s decision and the state court found for the
defendants).
To avoid succumbing to a similar outcome in this case, Plaintiffs should have raised their
Title VII claims in the state court proceeding. “Illinois litigants seeking circuit-court review of

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administrative proceedings implicating events that also give rise to a federal civil-rights claim
must join that claim with the judicial-review action in the circuit court.” Walczak, 739 F.3d at
1017. If there had been any issue with the timing of receipt of their EEOC right-to-sue letters,
Plaintiffs could have either requested that the state court postpone or stay the proceedings until
the charge was resolved, or they could have asked the EEOC to “accelerate the administrative
process.” Redmond, 2014 WL 551008, at *4 (quoting Walczak, 730 F.3d at 1019 n.3).
The final remaining question is whether Plaintiffs had a “full and fair opportunity to
litigate [their] claims” in the Circuit Court case. Pirela v. Vill. of N. Aurora, 935 F.2d 909, 911
(7th Cir. 1991). The Court finds that they did. Plaintiffs could have (and, indeed, should have)
joined their Title VII claims to their Circuit Court complaint. The Seventh Circuit has
determined that even if the state court review is “less than a de novo review [that] does not
undermine the preclusive effect of the state court judgment from a due process perspective.”
Welch, 907 F.2d at 725. As noted in Redmond, “Illinois courts have ‘a duty, under the
Administrative Review Act, to ensure that due process and an impartial adjudication were
afforded in the administrative hearing.’” 2014 WL 551008, at *5 (quoting Pirela, 935 F.2d at
915); see also Atterberry, 2010 WL 680976, at *5. Additionally, the Merit Board decision in this
case makes clear that Plaintiffs were “personally served with a copy of the Complaint and notice
of hearing and appeared before the Board with counsel to contest the charges contained in the
Complaint.” (Def. Mot. to Dismiss, Ex. A at 5, 12, Dkt. No. 16.) Thus, the record demonstrates
that the final requirement for res judicata is satisfied.

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Conclusion
For the foregoing reasons, the Court finds that Plaintiffs’ federal claims are barred by the
doctrine of res judicata. Defendants’ motions to dismiss the complaint (Dkt. Nos. 15, 20) are
denied as moot. This case is dismissed with prejudice.

ENTERED:

Dated: September 24, 2014

__________________________
Andrea R. Wood
United States District Judge

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