Inc., 49 F.3d 337, 338 (7th Cir. 1995). Res judicata is appropriate when three elements are met:
(1) identity of parties or privies in the two suits; (2) identity of the causes of actions in both suits;
and (3) a final judgment on the merits in the earlier action. Jd. (citations omitted).

ISP claims that all three elements for the application of res judicata are satisfied. Ms.
Bethea argues that the second and third elements are not met. Specifically, Ms. Bethea contends
that she could not have brought her Title VII claim in the first lawsuit, and that a final judgment
on the merits was not rendered in Bethea I because the court dismissed the suit for lack of
jurisdiction. This Court will proceed with consideration of whether the two lawsuits comprise
identical causes of actions and whether the judgment in Bethea I constituted a final judgment on
the merits.

A. Identity of the Causes of Action

“A claim has identity with a previously litigated matter if it arises out of the same core of
operative facts as that earlier action.” Brzostowski, 49 F.3d at 338-39 (internal quotations
omitted). Two claims are identical for the purpose of res judicata if they are based on the same,
or nearly the same, factual allegations. /d. at 339. All claims arising out of the same core of
operative facts must be alleged in the same proceeding, or else these claims will be precluded in
the future. Shaver y. FW. Woolworth Co., 840 F.2d 1361, 1365 (7th Cir. 1988). Put another
way, a mere change in legal theory does not create a new cause of action. Alexander v. Chi
Park Dist., 773 F.2d 850, 854 (7th Cir. 1985). See also Harper Plastics, Inc. v. Amoco Chems.
Corp., 657 F.2d 939, 945 (7th Cir. 1981).

In this case, the Court concludes that the allegations made in Bethea I and Bethea II arise
out of the same core of operative facts. In both complaints, Ms. Bethea claims that ISP

subjected her to discriminatory treatment during her tenure as an employee. Both complaints


accelerate the administrative process or asked the district court in Bethea I to stay proceedings
until the exhaustion of the administrative process. See Herrmann, 999 F.2d at 225. Instead, Ms.
Bethea and her lawyers chose to do nothing to join her § 1981 and Title VII claims with her
other cause of action. As noted by the Seventh Circuit, it is inefficient for a plaintiff to file all
but the Title VII claim in one action and then bring another suit charging violations of Title VII
alone. Jd. In short, Ms. Bethea cannot file a second lawsuit against ISP and allege a new basis
of jurisdiction that was available to her during the first lawsuit. See Magnus, 830 F.2d at 1402.

Finally, Ms. Bethea could have appealed the Bethea I dismissal, especially the failure to
show pretext ruling that dooms any Title VII claim that Ms. Bethea might have brought. See
10A Charles Alan Wright, Arthur K. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 2715 (3d ed. 2002). Instead, Ms. Bethea and/or her lawyers chose to file duplicative litigation.
Therefore, for all of the foregoing reasons, Ms. Bethea’s claims are barred under the doctrine of
res judicata.

CONCLUSION

Although the Court’s decision in this case has grave implications for Ms. Bethea’s
claims, we urge the parties to reflect on the policy behind the doctrine of res judicata. Res
judicata prevents a prevailing party from being dragged into court on the same or related claims
and also conserves judicial resources. See Warren v. McCall, 709 F.2d 1183, 1184 (7" Cir.
1983). Ms. Bethea had the opportunity in Bethea I to litigate all her claims against ISP,
including those arising out of her termination. As such, the doctrine of res judicata applies and

Ms. Bethea is barred from bringing a second lawsuit.


Lal

constitutional violations. In addition, the court found that in light of ISP’s legitimate
nondiscriminatory reason for terminating Ms. Bethea, Ms. Bethea failed to establish a genuine
issue of material fact that ISP’s reason was a pretext for discrimination.
II. Ms. Bethea’s Second Lawsuit

On December 13, 2001, Ms. Bethea filed the instant lawsuit against ISP (“Bethea II”). In
the second complaint — brought under 42 U.S.C. § 1981 and § 1983 and Title VII — Ms. Bethea
alleges that while she was employed by ISP she was disciplined more harshly than other
employees, denied access to the Peer Review Program, discriminated against on the basis of her
race and discriminated against in retaliation for speaking out against ISP. Bethea II also contains
allegations of wrongful termination. Currently before this Court is ISP’s motion to dismiss for
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

LEGAL STANDARDS

A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit.
Autry y. Northwest Premium Servs., 144 F.3d 1037, 1039 (7th Cir. 1998). When considering a
motion to dismiss, this Court views all facts, as well as any inferences reasonably drawn from
those facts, in the light most favorable to Plaintiff. Jd. We will grant a motion to dismiss only if
Plaintiff can prove no set of facts entitling her to relief. Venture Assocs. Corp. v. Zenith Data
Sys. Corp., 987 F.2d 429, 432 (7th Cir. 1993). With these standards in mind, we now evaluate
Defendant’s motion to dismiss.

ANALYSIS

I. Res Judicata

Res judicata, or claim preclusion, bars relitigation of issues that were actually decided in

a prior lawsuit or that could have been raised in that action. Brzostowski v. Laidlaw Waste Sys.


allege that Ms. Bethea was disciplined more harshly than other employees for making mistakes

and denied access to the Peer Review Program because she spoke out against ISP’s allegedly
discriminatory employment practices.

Although the complaint in Bethea II includes allegations of wrongful termination that
were absent from the complaint in Bethea I, Ms. Bethea could have and should have raised these
claims in Bethea I. See Shaver, 840 F.2d at 1365. As noted by Judge Holderman in Bethea I,
Ms. Bethea was terminated on November 9, 2000 — long before the May 1, 2001 deadline to
amend pleadings in the first lawsuit. While Ms. Bethea is correct to point out that exhaustion of
administrative remedies is a pre-condition to bringing a lawsuit under Title VII, exhaustion is
complete when a Notice of Right to Sue is issued. EEOC v. CNA Ins. Cos., 96 F.3d 1039, 1042
(7th Cir. 1996). Ms. Bethea received notice from the EEOC authorizing suit on September 15,
2001, and Bethea I was dismissed on October 9, 2001. Thus, Ms. Bethea had twenty-four days
to amend her complaint to add a Title VII claim but she failed to do so. See Fed. R. Civ. P. 15(a)
(stating that amendments by leave of court shall be freely given as justice requires). See also
Daugherity v. Traylor Bros., Inc., 970 F.2d 348, 351 (7th Cir. 1992). As such, the Court finds
that there is identity of the causes of action in Bethea I and Bethea II.'

B. Final Judgment on the Merits

A ruling granting a motion for summary judgment is on the merits and, therefore, has full
res judicata effect. See Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir. 1987). See also

Restatement (Second) of Judgments § 19 cmt. g (1982). In contrast, a judgment dismissing a

''Ms. Bethea also argues that she should be able to bring a second lawsuit because she adhered to
the time guidelines required by Title VII. Ms. Bethea’s timely filing of her Title VII claim,
however, will not prevent the Court from applying res judicata. See Herrmann v. Cencom Cable
Assocs. Inc., 999 F.2d 223, 225 (7" Cir. 1993).


Therefore, the Court grants ISP’s motion to dismiss. (R. 8-1.) The Clerk of the Court is

instructed, pursuant to Federal Rule of Civil Procedure 58, to enter judgment in favor of

Defendant ISP and against Plaintiff Webelene Bethea.

Judge Ruben Castillo
United States District Court

Dated: July 18, 2002


- .

Minute Order Form (06/97)

Ale b United States District Court, Northern District of Illinois
Name of Assigned Judge Ruben Castillo Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C9518 DATE /18/2002
CASE Webelene Bethea vs. IL State Police
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented. ]

MOTION:

DOCKET ENTRY:

a) Oo Filed motion of [ use listing in “Motion” box above.]

Q) Oo Brief in support of motion due

(3) Oo Answer brief to motion due . Reply to answer brief due

4 oO Ruling/Hearing on set for at.

(5) o Status hearing[held/continued to] [set for/re-set for]on__—_—sset ffor__— at

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_— saat.
q) oO Trial[set for/re-set for]on__—at_

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) General Rule21 COFRCP41(a)\(1) 0 FRCP41(a)(2).

(10) || [Other docket entry] Enter Memorandum Opinion and Order, Defendant’s motion to dismiss [8-1]
is granted. Judgment is entered in favor of the Defendant and against the Plaintiff. Defendant’s agreed
motion to stay discovery is denied as moot. This case is dismissed with prejudice.

dl) [For further detail see order attached to the original minute order.]

No notices required, advised in open court. ‘Document

Number

No natices required. number of nolices

Notices mailed by judge’s staff. JUL 19 2007

Notified counsel by telephone.

date dockered

pr

ocketing deputy initials

Y | Docketing to mail notices

ov Mail AO 450 form.

Copy to judge/magistrate judge. : Bes iy

date mailed notice
courtroom

RO deputy's
initials

OL Gaiitledectl ah in

central Clerk’s Office mailing deputy initials



suit for lack of jurisdiction is not on the merits, and its res judicata effect is limited to the issues
decided, namely the issue of jurisdiction. Perry v. Sheahan, 222 F.3d 309, 318 (7th Cir. 2000).

The Court finds that the disposition of Bethea I was a final judgment on the merits
because — in addition to the jurisdictional rulings — Judge Holderman concluded that Ms. Bethea
failed to establish a genuine issue of material fact that ISP violated her constitutional rights and
that ISP’s reason for her termination was pretext. (See R. 8-1, Mot. To Dismiss, Ex. B.)
Furthermore, it is well established that a motion for summary judgment is on the merits. See,
e.g., Marques v. FRB, 286 F.3d 1014, 1016 (7th Cir. 2002).

Even if we treat Bethea I as a dismissal for lack of jurisdiction and not as a final
judgment on the merits — as Ms. Bethea urges us to do — the Court would bar the current lawsuit
because Ms. Bethea was aware of certain facts before the dismissal of her first lawsuit (i.e., her
termination) that would have cured the jurisdictional deficiencies of that lawsuit. See Magnus
Elecs., Inc. v. La Republica Arg. , 830 F.2d 1396, 1401-02 (7th Cir. 1987). As noted by the
Seventh Circuit in Magnus, “it does not make sense to allow a plaintiff to begin the same suit
over and over again in the same court, each time alleging additional facts that the plaintiff was
aware of from the beginning of the suit, until it finally satisfies the jurisdictional requirements.”
Id. at 1401. Only facts arising after the dismissal of the first lawsuit, or at least the last
opportunity to present facts to the court, will defeat preclusion. Perry v. Sheahan, 222 F.3d 309,
318 (7th Cir. 2000).

In this case, Ms. Bethea and her lawyers could have avoided the jurisdictional
deficiencies of the first complaint by bringing all of her claims, including the § 1981 and Title
VII claims, in a single lawsuit. When Ms. Bethea filed her Title VII charge with the EEOC on

June 14, 2001, her first lawsuit against ISP was still pending. She could have asked the EEOC to


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
WEBELENE BETHEA, )
)
Plaintiff, )
) _No.01 C9518
v. )
) Judge Ruben Castillo
ILLINOIS STATE POLICE, )
) nq
Defendant. ) DOCKEi Bhs
MEMORANDUM OPINION AND ORDER JUL 19 2002

Plaintiff Webelene Bethea sues Defendant Illinois State Police (“ISP”) for race
discrimination and for retaliation based on her opposition to discrimination, pursuant to 42
US.C. § 1981 and § 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et
seq. Currently before the Court is ISP’s motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. ISP argues that
Ms. Bethea should be barred from bringing this lawsuit on the basis of res judicata. For the
reasons that follow, ISP’s motion to dismiss is granted. (R. 8-1.)

RELEVANT FACTS
I. Ms. Bethea’s First Lawsuit

On October 4, 2000, Ms. Bethea filed a § 1983 complaint against ISP and several ISP
employees in federal court in the Northern District of Illinois (“Bethea I”). Bethea v. Illinois
State Police et al., No. 00 C 6110. At the time the first complaint was filed, ISP employed Ms.
Bethea as a chemist. Ms. Bethea alleged that ISP disciplined her more harshly than other
employees for making mistakes on the job because of personal animus and because she spoke

out against ISP’s alleged discriminatory practices. More specifically, Ms. Bethea claimed that


>

ISP denied her access to the Peer Review Program without justification. Ms. Bethea maintained
that ISP’s actions violated her First and Fourteenth Amendment rights to free speech and to be
free from arbitrary and unequal treatment. Ms. Bethea sought a declaration that the defendants’
conduct violated her constitutional rights and an injunction prohibiting the defendants from
treating her differently from other chemists.

On June 14, 2001, Ms. Bethea filed a charge of race discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging violations of Title VII of the Civil
Rights Act of 1964. She received a Notice of Right to Sue on September 15, 2001, which
indicated that she had ninety days to file a civil action against ISP and the individual defendants.
At no time did Ms. Bethea seek to amend her first complaint to add claims of discrimination
under § 1981 or Title VII. Judge James Holderman, presiding over the suit, set May 1, 2001 as
the deadline to amend pleadings.

On August 20, 2001, ISP filed a motion for summary judgment in Bethea I. On October
9, 2001, the district court granted ISP’s motion for summary judgment. The minute order stated
that the defendants’ motion for summary judgment was granted and that the action was
dismissed in its entirety with prejudice. (See R. 8-1, Mot. To Dismiss, Ex. B.) The
memorandum attached to the minute order indicated that the court lacked jurisdiction, and that
Ms. Bethea failed to raise any genuine issues of material fact to support her claims.

The Bethea I Court concluded that they lacked jurisdiction on two grounds. First, the court
dismissed ISP from the suit on the grounds that the state agency was entitled to Eleventh
Amendment immunity. Second, the court held that it lacked jurisdiction over all of Ms. Bethea’s
claims because she failed to allege an actual case or controversy. Finally, the court proceeded to

conclude that there were no genuine issues of material fact because there was no evidence of any