The opinion of the court was delivered by: Charles P. Kocoras, District Judge:
This matter comes before the court on the motion of Defendant Millard Refrigerated Services, Inc. ("Millard") to dismiss Maximo Wilhelm-Munoz ("Wilhelm")'s one-count complaint for failure to state a claim. For the reasons set forth below, the motion is granted.
On July 16, 2008, Wilhelm filed the present action under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. This court has jurisdiction pursuant to 28 U.S.C. § 1343(4) and 42 U.S.C. § 2000e-5(f).
Millard employed Wilhelm, a Guatemalan, from May 17, 2005 to October 26, 2006. According to the allegations in the complaint, which we must accept as true for the purposes of this motion, Wilhelm resigned as a result of treatment he received from Millard's plant manager, Mike Polarkey. He specifically asserts that Polarkey treated him differently than he treated non-Guatemalan employees. Following his termination, Wilhelm timely filed a discrimination charge against Millard with the Illinois Department of Human Rights (IDHR) and the Equal Employment Opportunity Commission (EEOC). In his charge, Wilhelm alleged that Polarkey: (1) issued Wilhelm a written disciplinary warning for acquiring greater than five excused absences within a year; and (2) suspended Wilhelm for being late to work on two or more occasions. Wilhelm asserts that Polarkey's actions forced him to leave his employment with Millard. After investigating his claim, the IDHR dismissed Wilhelm's discrimination charge; the EEOC adopted those findings.
On February 8, 2008 Wilhelm filed a Petition for Review of the IDHR decision in the Second District Illinois Appellate Court; he voluntarily dismissed the petition on April 17. Moving the court for dismissal, Wilhelm's counsel filed an affidavit swearing "At this time, based upon consultation with Maximo F. Wilhelm-Munoz and attorney Lindsay E. Dansdill for the Appellee, the Joint Stipulation to Dismiss has been entered into voluntarily by each party to terminate this appeal process." (Pl. Resp. Ex. G at 3.) Wilhelm also filed the joint stipulation stating "Now Comes the Petitioner/Appellant, Maximo F. Wilhelm-Munoz by and through his attorney, Michael T. Smith, and by an agreement and a joint stipulation, dismisses this action with prejudice, each party bears their own costs." (Def. Mot. Dismiss. Ex. B.) The court entered the final order on April 22 declaring "THE ORDER IS FINAL AND SHALL STAND AS THE MANDATE OF THIS COURT.[sic]" (Def. Mot. Dismiss. Ex. C.)
On April 7, 2008, the EEOC adopted the findings of the IDHR. On April 19, Wilhelm received notice of the EEOC decision and his right to sue, and he subsequently filed this lawsuit. Wilhelm seeks the following relief: a declaration that Millard violated his civil rights, reinstatement or front pay, lost wages and benefits, statutory liquidated damages for willful conduct, and attorney's fees and costs.
In response to Wilhelm's complaint, Millard filed the instant motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that Wilhelm's complaint fails to state a cause of action upon which relief can be granted.
A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the plaintiff, construe allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). To be cognizable, the factual allegations contained within a complaint must raise a claim for relief "above the speculative level." Bell Atlantic Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955, 1965 (2007). However, a pleading need only convey enough information to allow the defendant to understand the gravamen of the complaint. Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999).
A complaint's legal sufficiency is not compromised simply because it does not anticipate or otherwise preemptively address potential defenses. Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). If the complaint so unmistakably establishes the presence of a defense that the suit is rendered frivolous, the affected allegations can be dismissed before a responsive pleading is filed. Walker v. Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002).
With these principles in mind, we consider the instant motion.
In its motion, Millard requests dismissal on several grounds. First, it claims that res judicata bars Wilhelm from filing the present discrimination claim. Next, it asserts that Wilhelm waived his right to file this action by dismissing his petition for appellate review with prejudice. Finally, it contends that Wilhelm failed to file ...