The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant The Board of Education of the City of Chicago's (BOE) motion to dismiss. For the reasons stated below, the motion to dismiss is granted.
Plaintiff Harriet Walczak (Walczak) allegedly began working for BOE as a teacher in 1970. In 1993, Walczak allegedly began work at Wells Community Academy High School (Wells). In the fall of 2006, Wells allegedly hired Nichole Jackson (Jackson) as the principal of Wells. According to Walczak, after Jackson became principal, student misbehavior was not consistently disciplined or enforced and Jackson stripped teachers of disciplinary mechanisms available to discipline students. Walczak claims that due to the lack of discipline, she was accosted by students on several occasions.
Walczak also alleges that Jackson showed her disapproval of Walczak's age and referred to Walczak and other teachers over the age of 40 as "dinosaurs." (Compl. Par. 2, 21). Jackson also allegedly unfairly criticized Walczak's ability to control her classes and, without justification, placed Walczak in a remediation plan under the "Fresh Start" program. As part of the "Fresh Start" program, Walczak was allegedly mentored by Ellen Kelly, who Walczak contends was not qualified to be a mentor.
Jackson also allegedly scheduled Walczak's English classes in a science lab, which was inconvenient, and gave Walczak older textbooks for her classes. Jackson also allegedly made various false statements indicating that Walczak's work performance was poor. Jackson also allegedly attempted to pressure Walczak to retire. After the remediation period, Jackson allegedly concluded that Walczak had not satisfactorily completed the remediation plan, and Walczak was reassigned to the Area Office. In June 2008, Walczak was discharged by BOE. Beginning in March 2009, a hearing was conducted before the Office of Labor and Employee Relations, and the hearing officer allegedly recommended that Walczak be reinstated. In February 2010, BOE allegedly decided not to reinstate Walczak. Walczak sought an administrative review of BOE's decision in Illinois state court and the state court upheld BOE's decision. Walczak appealed that ruling, and the appeal is currently pending. Walczak includes in her complaint an age discrimination claim brought under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. BOE now moves to dismiss the instant action.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court."
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that "[t]o survive a motion to dismiss, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," and that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged")(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations omitted).
BOE argues that Walczak chose to pursue an administrative review in state court and now has recast the same operative facts as an age discrimination claim, and that the instant action is thus barred under the doctrine of res judicata. Although the doctrine of res judicata is an affirmative defense, "when an affirmative defense is disclosed in the complaint, it provides a proper basis for a Rule 12(b)(6) motion." Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008)(stating that "a plaintiff can plead himself out of court" and "[n]o purpose would be served by compelling the defendant to file an answer rather than proceed by motion when the plaintiff has pleaded the answer himself"). In determining whether the doctrine of res judicata is applicable, a district court applies the preclusion law of the state that rendered the prior judgment. Arlin-Golf, LLC v. Village of Arlington Heights, 631 F.3d 818, 821 (7th Cir. 2011). Under Illinois law, the doctrine of res judicata applies when: "(1) there was a final judgment on the merits rendered by a court of competent jurisdiction, (2) there is an identity of cause of action, and (3) there is an identity of parties or their privies." Id. (internal quotations omitted)(quoting Nowak v. St. Rita High Sch., 757 N.E.2d 471, 477 (Ill. 2001)).
There is no dispute that there is an identity of the causes of action and an identity of the parties in this case. Although the precise legal claim in this case is not the same claim as in the administrative review, Illinois applies the transactional test under which "[s]eparate claims will be considered the same cause of action for purposes of res judicata if they arise from a single group of operative facts, regardless of whether they assert different theories of relief . . . ." Id. (quoting River Park, Inc. v. City of Highland Park, 703 N.E.2d 883, 893 (Ill. 1998)(internal quotation omitted). There is no dispute that this case and the administrative review involve the same operative facts. Walczak contends that there is no final judgment on the merits. Walczak also argues that BOE waived the res judicata defense and that the application of the doctrine of res judicata in this case would not be consistent with the principles underlying the doctrine.
I. Final Judgment on the Merits
Walczak argues that there was no final judgment on the merits as to the instant dispute. Walczak argues that the collective bargaining agreement (CBA) for the unit that represented her did not contain any provision for the arbitration of age discrimination claims. Walczak contends that since the CBA did not clearly call for the arbitration of age discrimination claims, the decisions resulting from an arbitration could not serve as a final adjudication on the merits of Walczak's claims. However, BOE decision for which Walczak sought an administrative appeal was not the arbitration of a grievance under the CBA. According to the terms of the CBA, which Walczak has attached to her response to the instant motion, any grievance would proceed before an arbitrator, not in Illinois state court. (CBA Art. 3). The CBA also indicates that the dismissal of tenured teachers, which Walczak alleges that she was, are not subject to the grievance procedure and the subsequent arbitration. (CBA Art. 38-5-8). As BOE points out, the review sought by Walczak was an administrative review before the Illinois State Board of Education conducted pursuant to Section 34-85 of the Illinois School Code. BOE resolution, dated February 24, 2012, which is a matter of public record, makes it clear that Walczak sought review under Section 34-85 of the Illinois School Code, and was not pursuing a grievance. Thus, Walczak's reliance on what types of disputes are covered under the arbitration clause of the CBA are inapplicable. ...