The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
On September 13, 2004, Alvaro Cazares ("Plaintiff" or
"Cazares") filed suit against his former employer, Chicago
Magnesium Casting Company ("Defendant" or "CMCC") alleging that
he was subject to discrimination on the basis of his disability
and was wrongfully terminated for filing a prior discrimination
complaint. Cazares brings this action under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq, and under
the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et
seq. On January 31, 2005, Defendant filed its motion to dismiss.
This motion has been fully briefed.
Factual and Procedural Background*fn1
Beginning in November 1999 and continuing until December 12,
2001, Plaintiff suffered from severe back pain which prevented
him from performing all of the duties stemming from his
employment as a "melter" for Defendant. Then, on or about
February 12, 2001, Plaintiff underwent surgery for a hernia injury. He was assigned to light
housekeeping duties for the six weeks following the surgery.
Defendant termed him a "molder helper" and reduced his hourly pay
starting February 12, 2001. After six weeks, Plaintiff's treating
physician for the hernia surgery gave him permission to return to
regular duties. He remained on light duty, however, because of
his pre-existing severe back pain.
Eventually, as a result of Plaintiff's inability to do more
than light duty work, Defendant changed Plaintiff's job title and
position from that of melter to that of airset core/mold maker.
Then, on December 12, 2001, Defendant demanded that Plaintiff
resume work as a melter. Plaintiff refused to do so because of
his back pain. The next day, Defendant fired Plaintiff, alleging
that his refusal to perform the regular melter duties was
tantamount to insubordination and misconduct.
On or about December 13, 2001, Plaintiff filed charges against
Defendant with the Illinois Department of Human Rights. First, he
alleged that by denying his request for "light duty," CMCC failed
to accommodate his physical handicap, a back disorder. Second, he
alleged that CMCC indefinitely suspended him due to his physical
handicap. Third, he alleged that CMCC indefinitely suspended him
in retaliation for filing his previous discrimination complaint.
Those charges were cross-filed with the United States Equal
Employment Opportunity Commission (the "E.E.O.C") on December 20,
2001. The E.E.O.C. issued a right-to-sue letter on June 15, 2004.
In its motion, Defendant moves to dismiss because Cazares' ADA
claims are barred by res judicata. As support, it attaches a
state court judgment to its 12(b)(6) pleadings. Res judicata is an affirmative defense. Fed.R.Civ.P. 8(c). The
Seventh Circuit has recently noted that there is a distinction
between failing to raise a claim the basis for a successful
12(b)(6) motion and failing to overcome an affirmative defense.
See, e.g., Xechem, Inc. v. Bristol-Myers Squibb Co.,
372 F.3d 899, 901 (7th Cir. 2004) (citations omitted) ("Orders under
Rule 12(b)(6) are not appropriate responses to the invocation of
defenses, for plaintiffs need not anticipate and attempt to plead
around all potential defenses. Complaints need not contain
any information about defenses and may not be dismissed for that
omission.") Moreover, the Seventh Circuit has noted that when a
court decides to grant a motion to dismiss on the basis of an
affirmative defense, "[a]ppropriate caution in its exercise is
assured by the requirement that the validity of the defense be
both apparent from the complaint itself . . . and unmistakable,
so that the suit is fairly describable as frivolous. Walker v.
Thompson, 288 F.3d 1005, 1010 (7th Cir. 2002) (citations
On the face of Plaintiff's complaint, it is clear that he
initiated a state administrative proceeding by filing his case
with Illinois Department of Human Rights (the "IDHR"). It does
not necessarily follow based on those facts that Plaintiff then
took his case to Illinois state court, that the state court
issued a judgment that had preclusive effect against the claims
asserted in his federal action, and that the state proceedings
satisfied minimum due process requirements.
Defendant, however, contends that there is much more to the
story than Plaintiff has revealed in his complaint. Defendant
points to a summary order from an Illinois Appellate Court,
Cazeres (sic) v. Illinois Dept. of Human Rights, No. 1-04-1421,
at 5 (Ill.App. Ct. Dec. 22, 2004), that it claims has preclusive
effect. Given that an affirmative defense is more appropriately
raised on a motion for summary judgment and that Defendant raises
a matter outside the pleadings in its motion, this Court hereby converts
Defendant's motion to dismiss into a motion for summary
Summary judgment is appropriate only "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.Pro.
56(c); see also Schmidt v. Ottawa Medical Center, P.C.,
322 F.3d 461, 463 (7th Cir. 2003). When evaluating a motion for
summary judgment, this Court views the evidence in the light most
favorable to the non-moving party and makes all reasonable
inferences in her favor. Haywood v. Lucent Technologies,
323 F.3d 524, 529 (7th Cir. 2003).
A court ruling on a converted motion must be certain that all
parties had "reasonable opportunity to present all material made
pertinent to such a motion by Rule 56." General Electric Capital
Corp. v. Lease Resolution, 128 F.3d 1074, 1080 (7th Cir.
1997). The Advisory Committee Notes to Rule 12(b)(6) clarify that
reason for such notice is so that parties are not taken by
surprise. Plaintiff's response to Defendant's motion certainly
indicates that he is not surprised by mention of the issue of the
state court judgment: rather than objecting to the inclusion of
the judgment as a part of the motion to dismiss or raising any
factual issues connected to the judgment, he devotes a significant amount of his
response to offering legal explanations for why, state court
decision notwithstanding, res judicata does not bar his suit.
Plaintiff's response does not even hint at the possibility of any
other material facts that would be pertinent to the res judicata
argument raised by Defendant. Instead, he argues that this Court
is not, as a matter of law, precluded from deciding his claim.
Given that no dispute of material facts exists, this Court will
decide the legal issues in this case.*fn3
This Court applies Illinois law when determining whether res
judicata bars suit. See 4901 Corporation v. Town of Cicero,
220 F.3d 522, 529 (7th Cir. 2000) (citations omitted) ("Because an
Illinois state court rendered the [first] order at issue, we must
apply Illinois law to determine whether res judicata bars
[subsequent federal] claims . . . we must give the [state order]
the res judicata effect an Illinois court would give it."). "The
doctrine of res judicata provides that a final judgment, rendered
on the merits by a court of competent jurisdiction, is an
absolute bar to a subsequent action involving the same claim,
demand or cause of action between the parties." Saxon Mortgage,
Inc. v. United Financial Mortgage Corporation, 728 N.E.2d 537,
542 (Ill.App.Ct. 2000) (citing River Park, Inc. v. City of
Highland Park, 703 N.E.2d 883, 889 (Ill. 1998)). The three
elements res judicata are: "(1) a final judgment on the merits
rendered by a court of competent jurisdiction; (2) an identity of
cause of action; and (3) an identity of parties or their
privies." Saxon Mortgage, 728 N.E.2d at 542 (quoting People ex
rel. Burris v. Progressive Land Developers, ...