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YOHANNAN v. PATLA

June 23, 1997

K.P. YOHANNAN, Plaintiff,
v.
ANN PATLA, Director of the Illinois Department of Mental Health & Developmental Disabilities; ILLINOIS DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES; MANUEL DURAN; JACKIE CRILLY; and DALE AWICK, Defendants.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff K.P. Yohannan brings this three-count complaint under 42 U.S.C. §§ 1981, 1983, 1985(3), alleging that the defendants unlawfully discriminated against him based on his race and national origin when he was fired from the Illinois Department of Mental Health and Developmental Disabilities (the Department). Presently before this court is the defendants' motion for summary judgment. For the reasons discussed below, we grant the motion.

 I. Background1

 Next, Crilly forwarded her recommendation to Kiley Facility Director Dale Awick, who maintains that he concurred with Crilly's recommendation based on the same nondiscriminatory factors upon which she relied. Defs.' 12(M) P 16. In November 1994, Awick sent his recommendation to Labor Relations Administrator David Himpelmann, who was Kiley's liaison with Yohannan's union. Defs.' 12(M) P 19. Pursuant to the collective bargaining agreement at Kiley, Pl.'s 12(N), Ex. I, Agreement art. IX, § 4, Himpelmann held a "pre-disciplinary meeting" on November 29, 1994, Defs.' 12(M) P 20. At the meeting, Yohannan and his union representative, Ralph Coari, presented one side of the story while Yolaine Ayala, the Acting Unit 1 Administrator, and Manuel Duran represented management; Duran, however, was not actually present at the meeting but later met with Himpelmann, Ayala, and Coari. Pl.'s 12(N)(3)(b) P 53.

 After the pre-disciplinary meeting, Yohannan was suspended for 30 days pending discharge, that is, he was suspended effective December 9, 1994 until his discharge on January 7, 1995. Defs.' 12(M), App. A, Ex. 10. It appears that the next step was to send the discharge recommendation to the Director of the Department of Central Management Services, Kiley Policy P II(A)(4)(a), which is the state agency charged with administrative oversight of Illinois state employees, 20 ILCS 415/3; 415/8b.16. On January 5, 1995, the Director approved the discharge and notified Yohannan that he could appeal to the Civil Service Commission or file a grievance pursuant to the collective bargaining agreement. Defs.' 12(M), App. A, Ex. T (decision of Director Stephen B. Schnorf). Yohannan filed a grievance, Pl.'s 12(N)(3)(b) P 58, and a "Step 3" hearing was convened on February 15, 1995, before Hearing Officer Robert Cellini, who is an employee of the Department, Defs.' 12(M) P 21. At the Step 3 hearing, Yohannan testified and presented arguments with the help of a union representative, and it appears that Duran and Solomon represented the Department. On March 27, 1995, Cellini denied the grievance, finding that Yohannan's discharge was for "just cause." Defs.' 12(M), App. A, Ex. 11.

 Finally, the plaintiff invoked the next level of grievance procedure, which resulted in a proposed settlement negotiated by the union representative and the Department. Defs.' 12(M) App. A, Ex. 12 (Resolution Prior to Arbitration dated May 1995). However, Yohannan refused to sign the proposal, which called for him to resign in exchange for the purging of any mention of the discharge from personnel records, because he felt the discharge was grounded in discrimination. Pl.'s 12(N) P 24. In 1996, Yohannan filed the instant suit, and we now consider the pending summary judgment motion.

 II. Standard for Reviewing Motions for Summary Judgment

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact, and . . . the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The movant bears the initial burden to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting FED. R. CIV. P. 56(c)) Material facts are those determinative of the outcome of an issue as determined by the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Once the movant has done this, the non-movant "must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party, see Anderson, 477 U.S. at 255, and refrain from making credibility determinations, see Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992).

 III. Discussion

 A. Claim or Issue Preclusion

 A threshold issue raised by the defendants is whether claim or issue preclusion bar Yohannan's suit in its entirety or at least in part. According to the defendants, we should give res judicata effect to the Department's decision because it was generated pursuant to a grievance procedure akin to "a quasi[-]judicial forum conducted by an administrative hearing officer." Defs.' Br. at 7. For the reasons that follow, we deny summary judgment on this basis.

 First, the defendants waived the affirmative defense by failing to include it in their Answer to the Complaint. See Docket Entry 11 (Defs.' Answer at 13) (November 12, 1996). Rule 8(c) of the Federal Rules of Civil Procedure requires that, "in a pleading to a preceding pleading, a party shall set forth affirmatively . . . res judicata." Although Rules 12(g) and (h) only expressly provide for waiver of Rule 12(b) defenses when omitted from a motion or responsive pleading, Rule 8(c) affirmative defenses are also waived if not included in the defendant's Answer. See Johnson v. Sullivan, 922 F.2d 346, 355 (7th Cir. 1990) (statute of limitations defense waived ...


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