In this case, Marriott confuses newly alleged facts with newly alleged claims. A comparison between Slavov's EEOC charge and his Amended Complaint reveals that Slavov is simply supporting his discriminatory discharge claim with the factual events giving rise to the claim. Slavov alleged in his EEOC complaint that he "was discharged because of his national origin, Bulgarian." Slavov further averred that the pretextual reasons for his termination were "insubordination and refusal to do an assigned task." Similarly, Slavov asserted in his Amended Complaint that Marriott terminated him "for unlawful and pretextual reasons . . . due to his national origin and/or ancestry." Moreover, nowhere in the Amended Complaint does Slavov plead a new basis of discrimination.
Thus, the allegations in Slavov's Amended Complaint regarding Marriott's disciplinary actions, work assignments, and performance evaluations are simply the "pretexual and unlawful reasons" for his discriminatory discharge claim. They are not offered as independently actionable claims. As the Seventh Circuit noted in Taylor and Jenkins,
the failure of the EEOC charge to memorialize the same factual allegations contained in the Amended Complaint does not preclude later consideration by a court. Accordingly, the allegations do not exceed the scope of the EEOC charge.
Marriott next argues that res judicata bars consideration of Slavov's Amended Complaint. Marriott contends that the dismissal of Slavov's state court complaint on March 10, 1997, triggers the procedural bar and prevents this court from addressing the merits of Slavov's Title VII claim. The court agrees.
The doctrine of res judicata, or more precisely, claim preclusion, bars a subsequent suit in federal court when there exists: "(1) an identity of the causes of actions; (2) an identity of the parties or their privies; and (3) a final judgment on the merits." Kratville v. Runyon, 90 F.3d 195, 197 (1996). If all elements are satisfied, a plaintiff is precluded from raising not only those claims brought in a previous suit, but claims which could have been brought. Richards v. Jefferson County, 517 U.S. 793, 803, 116 S. Ct. 1761, 1765, 135 L. Ed. 2d 76 (1996). Because Slavov concedes the "identity of the parties" element, the court only will address the remaining two factors.
Slavov argues that the language of the order dismissing the state court complaint does not constitute a final judgment on the merits because it did not expressly state that the dismissal was "with prejudice." However, for purposes of res judicata, it was not necessary for the dismissal order to contain such a phrase.
Marriott moved to dismiss Slavov's state complaint pursuant to 735 ILCS § 5/2-615. A grant of dismissal under this statutory provision constitutes an "involuntary dismissal." Leow v. A & B Freight Line, Inc., 175 Ill. 2d 176, 676 N.E.2d 1284, 1287, 222 Ill. Dec. 80 (Ill. 1997) (recognizing that dismissal under § 5/2-615 and § 5/2-619 is involuntary); Zurich Ins. Co. v. Baxter Int'l Inc., 173 Ill. 2d 235, 670 N.E.2d 664, 667, 218 Ill. Dec. 942 (Ill. App. Ct. 1996). "An involuntary dismissal of an action . . . operates as an adjudication upon the merits," Ill. Sup. Ct. Rule 273, and is considered a final and appealable order. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 665 N.E.2d 1199, 1204, 216 Ill. Dec. 642 (Ill. 1996) ("Rule 273 . . . operates as a final judgment on the merits for purposes of res judicata."); Local 336 v. Angelacos, 144 Ill. App. 3d 1060, 495 N.E.2d 626, 629, 99 Ill. Dec. 179 (Ill. App. Ct. 1986) ("Rule 273 . . . is considered as an adjudication upon the merits of a cause constituting a final, appealable order and a bar to subsequent suits between the parties . . . .") Therefore, the dismissal of Slavov's state court complaint was a final judgment upon the merits.
Finally, Slavov argues that the "identity of claims" prong has not been satisfied because the state and federal complaints arise out of different facts. Slavov asserts that the state court complaint sought recovery for breach of contract, based on one isolated incident of insubordination; whereas, the federal complaint advanced a Title VII claim based on "unlawful and discriminatory employment practices which occurred throughout the one year preceding [Slavov's] termination." Pl.'s Resp. Br. at 8. The court concludes that the pleading language of both complaints belie the assertion that such a distinction exists.
It is well settled that "[a] claim is deemed to have 'identity' with a previously litigated matter if it is based on the same, or nearly the same, factual allegations arising from the same transaction or occurrence." Kratville v. Runyon, 90 F.3d 195, 198 (7th Cir. 1996). "Even though one group of facts may give rise to different claims for relief upon different theories of recovery, there remains a single cause of action." Prochotsky v. Baker & McKenzie, 966 F.2d 333, 335 (7th Cir. 1992). Therefore, claims arising out of the same events must be brought together or be forever barred. Id.
Here, both the state and federal complaints aver that Slavov was wrongfully discharged based on his national origin. In addition, both complaints allege that Slavov was asked to perform additional job duties. When Slavov was unable to satisfactorily complete all his assigned tasks, the complaints conclude that he was wrongfully terminated. Thus, although Slavov may have plead different theories of recovery in the state and federal complaints, both arose from the same common nucleus of operative facts. Therefore, the Title VII claim could have been brought in the state proceedings. See Yellow Freight Systems, Inc. v. Donnelly, 494 U.S. 820, 825, 108 L. Ed. 2d 834, 110 S. Ct. 1566 (1990) (holding that state and federal courts share concurrent jurisdiction over Title VII claims). Slavov's failure to raise his discriminatory discharge theory in state court, precludes its consideration in federal court. See Richards, 116 S. Ct. at 1765 (holding that claim preclusion embraces all claims asserted as well as all claims which could have been asserted); see also Perkins v. Bd. of Trustees, 116 F.3d 235, 237 (7th Cir. 1997) ("Various ways of contesting the same [discriminatory practice]--breach of contract, violation of Title VII . . . violation of state law--must be consolidated in a single suit."); Sanders v. Venture Stores, Inc., 899 F. Supp. 387, 388 (N.D. Ill. 1995) (holding that plaintiffs' breach of contract and Title VII claim arose out of defendant's decision to terminate plaintiffs). Accordingly, all elements of res judicata are present in this case.
For the foregoing reasons, Defendant's Motion to Dismiss is granted.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court