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September 30, 2005.

Alvaro Cazares Plaintiff,
Chicago Magnesium Casting Company, Inc. Defendant.

The opinion of the court was delivered by: DAVID COAR, District Judge


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 omitted).

  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 judgment.*fn2

  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, ...

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