                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                  Currie v. Wisconsin Central, Ltd., 2011 IL App (1st) 103095




Appellate Court            KOREY CURRIE, Plaintiff-Appellant, v. WISCONSIN CENTRAL,
Caption                    LTD., Defendant-Appellee.



District & No.             First District, Sixth Division
                           Docket No. 1-10-3095


Filed                      September 30, 2011


Held                       Plaintiff’s action alleging racial discrimination based on the conditions
(Note: This syllabus       of his employment by defendant railroad was properly dismissed on res
constitutes no part of     judicata grounds where plaintiff’s claims were precluded by the consent
the opinion of the court   decree entered in a federal class action against several related railroads,
but has been prepared      including the railroad named herein, since plaintiff’s claims were
by the Reporter of         included in the class action complaint and the “Release” section of the
Decisions for the          consent decree and plaintiff failed to opt out of the class action.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-L-11505; the
Review                     Hon. Bill Taylor, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  John C. Kreamer and Susan J. Best, both of Best, Vanderlaan &
Appeal                      Harrington, of Chicago, for appellant.

                            Noah G. Lipschultz, of Littler Mendelson, P.C., of Minneapolis,
                            Minnesota, and Shanthi V. Gaur, of Littler Mendelson, P.C., of Chicago,
                            for appellee.


Panel                       PRESIDING JUSTICE R. GORDON delivered the judgment of the court,
                            with opinion.
                            Justice Cahill concurred in the judgment and opinion.
                            Justice Garcia specially concurred, with opinion.



                                              OPINION

¶1          Plaintiff, Korey Currie, is appealing the decision of the circuit court which granted
        defendant’s motion to dismiss plaintiff’s complaint based on res judicata. The trial court
        found that the claims were precluded by the federal class action decree in Barnes v. Canadian
        National Railroad, No. 04-1249, Final Approval Order (N.D. Ill. Jan. 7, 2010) (Barnes class
        action).
¶2          On appeal, plaintiff contends, first, that his claims were unique from the discrimination
        claims in the Barnes class action. Second, plaintiff argues that, because the evidence of
        discrimination in his lawsuit would not have been sufficient proof for the Barnes class
        action, he seeks a remedy which was not included in the class action. Third, plaintiff argues
        that he did not receive adequate notice of the class action; therefore, he could not have opted
        out of the class. Finally, plaintiff contends that, by applying the doctrine of res judicata, the
        circuit court created an unjust and inequitable result. For the following reasons, we affirm.

¶3                                       I. BACKGROUND
¶4                                  A. The Barnes Class Action
¶5          A class action was filed on February 18, 2004, against Canadian National Railway and
        a number of its “indirect U.S. operating subsidiaries (including Wisconsin Central, Ltd.
        (hereinafter, CN defendants) by named plaintiffs, Melvin Barnes, Tracy Steele, and Jeremy
        Williams. The lead plaintiff was Barnes. The plaintiffs’ complaint proposed a class
        consisting of “current, former, and future African-American employees of CN Defendants
        who, from approximately February 18, 2000[,] to the present, have been subjected to one or
        more aspects of the racial discrimination described in [the] Complaint.”
¶6          The complaint in the Barnes class action alleged “race discrimination with respect to a
        number of different employment-related practices and policies, as well as a racially hostile

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       working environment and retaliation.” The third amended complaint in the Barnes action
       contained three counts. The first two counts were class counts and the third count contained
       an individual claim by Barnes for retaliation. Barnes alleged that he had been fired in
       retaliation for bringing this class action. This third count stated that it was brought solely by
       Barnes “in his individual capacity.”
¶7         On October 21, 2009, the class filed a motion for preliminary approval of a consent
       decree, which established a settlement, and advocated for approval of the class. The
       preliminary consent decree was approved on October 26, 2009.
¶8         The consent decree included a section devoted to the means of notifying the absent class
       members of their rights in relation to the class. Specifically, each individual who fell into the
       class of “[a]ll African-American employees of the Railroad from February 18, 2000[,] to the
       date of Preliminary Approval of the Consent Decree” were to be mailed a form which
       included information on how to “seek exclusion from the class” and “the binding effect of
       the class judgment.” The proposed method of delivery for the notices was via first-class mail
       and was handled by the claims administrator. If a class member wished to opt out of the
       settlement, that intention was to be “set forth in writing, mailed via First Class Mail *** on
       or before December 9, 2009,” and was required to “be personally signed by the class
       member.” The date for returning the opt-out form was later extended to January 22, 2010.
       On January 7, 2010, the federal district court issued its “Final Approval Order” accepting the
       consent decree.

¶9                                    B. Plaintiff’s Lawsuit
¶ 10       Plaintiff is an African-American who worked as a trackman for defendant, Wisconsin
       Central, for six weeks during June and July of 2008. The plaintiff’s allegations of
       discrimination arise from his employment with the defendant.

¶ 11                                       1. Complaint
¶ 12       Plaintiff’s complaint alleges that he worked as a trackman for defendant for six weeks
       during June and July of 2008. During this period, plaintiff alleges that he experienced
       discrimination as an African-American. Specifically he alleges that he was forced to do work
       that non-African-American employees were not asked to do and that the work environment
       was hostile. He alleges that other employees hung nooses on machinery and made
       inappropriate racial comments and that he reported the conduct to his superiors and nothing
       was done to remedy the situation. After repeatedly reporting the discriminatory conduct,
       plaintiff was discharged in July 2008. Plaintiff’s complaint states that he was discharged in
       retaliation for filing complaints of discriminatory conduct with his superiors. Plaintiff’s
       complaint states that, following his discharge, plaintiff filed a charge of discrimination with
       the Illinois Department of Human Rights (IDHR). His IDHR complaint was investigated for
       a year; and on September 10, 2009, the investigation was closed. Plaintiff alleges that IDHR
       determined not to file charges. Plaintiff then appealed that decision to the circuit court of
       Cook County in September 2009.


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¶ 13                                      2. Motion to Dismiss
¶ 14        Defendant filed a motion to dismiss under section 2-619(a) of the Code of Civil
       Procedure claiming that plaintiff’s claims are “barred by res judicata” and “specifically
       released by virtue of his failure to opt out” of Barnes v. Illinois Central Railroad, No. 04-
       1249, Final Approval Order (N.D. Ill. Jan. 7, 2009). See 735 ILCS 5/2-619(a) (West 2010).
       Barnes was a class action lawsuit filed in the federal district court for the Northern District
       of Illinois. Plaintiff did not opt out of the class. However, plaintiff claims he did not receive
       adequate notice to opt out by the indicated deadline.
¶ 15        In the case at bar, the trial court held an evidentiary hearing on September 16, 2010, to
       determine whether plaintiff was adequately notified of the class action. Steven Platt, a claims
       administrator, testified concerning the system used to notify class members, the steps taken
       when a notification was returned, and the entire process of notification to potential class
       members. Platt stated that the administrator can “track who was mailed what and when.”
       Platt testified that the records indicated that notice was mailed to plaintiff on October 28,
       2009.
¶ 16        Plaintiff testified that he “received [the notice] in December, approximately *** 3 days
       before Christmas,” and that the notice was not received in time for him to opt out of the
       class. Plaintiff also testified that when he read the notice he did not believe it was relevant
       for him since “the common nucleus of fact in Barnes does not include those supporting
       [plaintiff’s] claims of wrongful termination and retaliation on the basis of race” and that the
       relief the class was requesting was different from what he was requesting in his lawsuit.
¶ 17        In his complaint, plaintiff requested the following relief:
                “damages *** including but not necessarily limited to reinstatement, back pay, front
                pay, wage differential, lost benefits, out of pocket pecuniary losses, reasonable
                attorney’s fees, severe emotional distress, pain and suffering, *** compensatory
                damages, punitive damages, *** and such other and further relief as this court may
                deem appropriate.”
¶ 18        The Barnes class action requested:
                “(1) a declaratory judgment that s [sic] have engaged in systematic racial
                discrimination ***; (2) a permanent injunction against such continuing systematic
                discrimination; (3) a restructuring of the CN Defendants’ selection and training
                procedures ***; (4) a restructuring of CN Defendants’ workforce ***; (5) elimination
                of the hostile working environment; (6) the implementation of a non-discriminatory
                posting and bidding procedure; and (7) damages, backpay and other equitable
                remedies necessary to make the named Plaintiffs and putative class members whole
                from CN Defendants’ past discrimination.”
¶ 19        At the end of the evidentiary hearing on September 16, 2010, the trial court found that
       plaintiff did have adequate notice and granted defendant’s motion to dismiss under section
       2-619, based on res judicata.
¶ 20        Plaintiff then filed this timely appeal.



                                                 -4-
¶ 21                                         II. ANALYSIS
¶ 22       On appeal, plaintiff contends, first, that his claims were unique from the discrimination
       claims in the Barnes class action. Second, plaintiff argues that, because the evidence of
       discrimination in his lawsuit would not have been sufficient proof for the Barnes class
       action, he seeks a remedy which was not included in the class action. Third, plaintiff argues
       that he did not receive adequate notice of the class action; therefore, he could not have opted
       out of the class. Finally, plaintiff contends that, by applying the doctrine of res judicata, the
       circuit court created an unjust and inequitable result. For the following reasons, we affirm.

¶ 23                                    A. Standard of Review
¶ 24        Defendant filed a section 2-619 motion to dismiss claiming plaintiff’s cause of action
       was barred by a prior judgment. 735 ILCS 5/2-619(a)(4) (West 2008). Because a motion to
       dismiss under section 2-619 accepts as true the facts alleged in the complaint and asks a
       question of law, the standard of review is de novo. Sheffler v. Commonwealth Edison Co.,
       2011 IL 110166, ¶ 23; see also Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.
       2d 558, 579 (2006). De novo consideration means we perform the same analysis that a trial
       judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 25        “When reviewing ‘a motion to dismiss under section 2-619, a court must accept as true
       all well-pleaded facts in plaintiffs’ complaint and all inferences that can reasonably be drawn
       in plaintiffs’ favor.’ ” American Service Insurance Co. v. City of Chicago, 404 Ill. App. 3d
       769, 776 (2010) (citing Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008)). The trial
       court may consider pleadings, depositions, and affidavits when ruling on a section 2-619
       motion to dismiss. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 262
       (2004). However, if a genuine disputed question of fact is present, “the court may either: (1)
       deny the motion without prejudice to the right to raise the subject matter of the motion by
       answer; or (2) hear and determine the merits of the dispute based upon the pleadings,
       affidavits, counteraffidavits, and other evidence offered by the parties.” Kirby v. Jarrett, 190
       Ill. App. 3d 8, 13 (1989) (citing Etten v. Lane, 138 Ill. App. 3d 439, 443 (1985)). The trial
       court below took the second approach with respect to the question of the adequacy of the
       notice. “When the second approach is taken, the reviewing court must review not only the
       law but also the facts, and may reverse the trial court order if it is incorrect in [applying the]
       law or against the manifest weight of the evidence.” Kirby, 190 Ill. App. 3d at 13. “The issue
       of whether plaintiff was provided proper notice is a question of law. As a result, the standard
       of review is de novo.” Hwang v. Department of Public Aid, 333 Ill. App. 3d 698, 703 (2002)
       (citing Hormel Foods Corp. v. Zehnder, 316 Ill. App. 3d 1200, 1204 (2000)).

¶ 26                            B. Requirements for Res Judicata
¶ 27       Under section 2-619, “[d]efendant may, within the time for pleading, file a motion for
       dismissal of the action or for other appropriate relief upon any of the following grounds,”
       including “[t]hat the cause of action is barred by a prior judgment,” in other words, for res
       judicata. 735 ILCS 5/2-619(a)(4) (West 2008).
¶ 28       The Illinois Supreme Court has held that “[f]or the doctrine of res judicata to apply, three

                                                  -5-
       requirements must be met: (1) there was a final judgment on the merits rendered by a court
       of competent jurisdiction; (2) there was an identity of causes of action; and (3) there was an
       identity of parties or their privies.” Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 335
       (1996). In addition, res judicata “extends not only to what was actually decided in the
       original action, but also to matters which could have been decided in that suit.” Rein, 172 Ill.
       2d at 334-35. The party seeking to apply res judicata has the burden of proof. Therefore, the
       defendant must “show with clarity and certainty the parties, the precise issues, and the
       judgment of the former action.” Best Coin-Op, Inc. v. Paul F. Ilg Supply Co., 189 Ill. App.
       3d 638, 650 (1989).
¶ 29       As stated above, the first requirement for res judicata is a final judgment on the merits.
       Although plaintiff does not address the issue of a “final judgment on the merits,” we cannot
       find that the first requirement is satisfied. There is a split between courts in Illinois on the
       question of whether a settlement agreement operates as a final judgment on the merits. See
       Jackson v. Callan Publishing, Inc., 356 Ill. App. 3d 326, 340 (2005) (noting split of
       authority). We agree with the cases that do not view a settlement agreement as a final
       judgment on the merits and therefore cannot find the settlement agreement in Barnes to
       satisfy the first requirement for res judicata. Goodman v. Hanson, 408 Ill. App. 3d 285, 300
       (2011). “[A]n agreed order is not a judicial determination of the parties’ rights, but rather is
       a recordation of the agreement between the parties.” Kandalepas v. Economou, 269 Ill. App.
       3d 245, 252 (1994). Since there was not a final decision on the merits in the Barnes class
       action, we cannot find that it precludes the plaintiff’s claims under a theory of res judicata.

¶ 30                          C. Binding Effect of the Consent Decree
¶ 31        In addition to arguing that plaintiff’s claims were barred by res judicata, defendant’s
       motion to dismiss also argued that plaintiff’s “claims under the Illinois Human Rights Act
       were specifically released by virtue of his failure to opt out of that litigation.” Although the
       trial court granted the motion on the sole basis of res judicata, we can affirm on any basis
       found in the record. Studt v. Sherman Health System, 2011 IL 108182, ¶ 48 (recognizing that
       “an appellate court may affirm a trial court’s judgment on any grounds which the record
       supports [citation], even where those grounds were not argued by the parties”).

¶ 32                        1. Properly Considered Under Section 2-619
¶ 33        The defendant’s motion to dismiss under section 2-619(a) does not specify a subsection
       of section 2-619(a) to support its claim that plaintiff’s claims were released by failing to opt
       out of the Barnes class action. Section 2-619(a) does contain a subsection which includes the
       claim that defendant made, in its motion to dismiss that, by failing to opt out of the class,
       plaintiff released his ability to sue defendant. That section is section 2-619(a)(6). The Illinois
       Appellate Court has held that a settlement can include a release when it is properly indicated
       through the use of the words “ ‘release,’ ‘discharge,’ or ‘payment in full.’ ” Iloh v. Stein, 226
       Ill. App. 3d 644, 648 (1992) (finding that in order for a settlement to be considered a release
       “words of completeness, such as ‘any and all claims’ ” must be present).
¶ 34        Section 2-619(a)(6) allows for dismissal when “the claim set forth in the plaintiff’s

                                                  -6-
       pleading has been released, satisfied of record, or discharged in bankruptcy.” 735 ILCS 5/2-
       619(a)(6) (West 2010). Defendant argues in its motion to dismiss and then in its appellate
       brief that, by not opting out of the class, plaintiff released his ability to sue defendant for
       discrimination, because the consent decree included a waiver of the ability to sue in the
       future. Illinois case law holds that “a release or covenant may be set aside under certain
       circumstances if the agreement was entered into through a mutual mistake of fact.” Meyer
       v. Murray, 70 Ill. App. 3d 106, 111 (1979) (citing Martin v. Po-Jo, Inc., 104 Ill. App. 2d 462,
       467 (1969), and Welsh v. Centa, 75 Ill. App. 2d 305, 311-12 (1966)). “Once the defendant
       establishes the existence of the document, legal and binding on its face, the burden shifts to
       the plaintiff to prove it invalid by clear and convincing evidence.” Meyer, 70 Ill. App. 3d at
       111. Here, defendant has established the existence of the Barnes consent decree, which was
       the settlement agreement entered by the United States District Court for the Northern District
       of Illinois. Thus, the burden shifts to the plaintiff to prove it invalid by clear and convincing
       evidence.
¶ 35        Plaintiff opposes the validity of the consent decree for three reasons: (1) there is not an
       identity of causes of action and, therefore, the claims in plaintiff’s complaint were not
       included in the class and not waived through the consent decree, (2) the notice sent to
       plaintiff was inadequate, and (3) plaintiff’s individual lawsuit was effectively notice of his
       intent to opt out of the class. We address each of his arguments below. If plaintiff’s claims
       were part of the Barnes class action, included in the consent decree as claims that were
       released, and he failed to properly opt out of the class, then his claims are released under the
       terms of the consent decree. See Iloh, 226 Ill. App. 3d at 648 (holding that a settlement can
       operate as a release when it clearly indicates intent to do so).

¶ 36                              2. No Identity of Causes of Action
¶ 37       As noted above, plaintiff argues, first, that his lawsuit does not stem from the same group
       of facts as the Barnes class action because he focused on a claim of retaliation while the class
       action claims were about a pattern and practice of discrimination in promotion and training.
       Second, plaintiff claims that his individual experience with retaliation and discharge did not
       arise from the same events and facts as Barnes’ individual discharge.
¶ 38       Plaintiff’s complaint alleges that defendant (1) “discriminated *** against [plaintiff] ***
       with respect to training, discharge, privileges and conditions of employment on the basis of
       his race,” (2) retaliated against plaintiff through “escalation of *** hostile work environment
       through hostility and ostracization *** and ultimately, termination,” and (3) allowed plaintiff
       to be “subject to pervasive and continuous unwelcome harassment.”
¶ 39       In response, defendant argues that the Barnes complaint included retaliation in discipline
       and other terms and conditions of employment. The Barnes third amended complaint stated,
       in paragraph 36 of its “Common Allegations” section:
                “On February 18, 2004[,] Barnes filed this federal class action lawsuit seeking
                redress for a class of African-American employees of CN Defendants that were
                victims of CN Defendants’ racial discrimination, retaliation, and hostile environment,
                including but not limited to, discrimination and retaliation in appointments, selection

                                                 -7-
                decisions, job assignments, promotions, training, discipline, testing, compensation
                benefits, evaluations, service ratings, and other terms and conditions of
                employment.” (Emphasis added.)
¶ 40        In addition, the Barnes complaint included an individual claim for retaliation (count III)
       due to the fact that Barnes, the lead plaintiff in the class action, was fired by one of the
       defendants after filing the Barnes class action. Count III was entitled “Unlawful Retaliation
       and Termination,” and stated “[t]his count is brought by Melvin Barnes in his individual
       capacity.”
¶ 41        The complaint contained a total of three counts. As stated, count III was for an individual
       claim. Only counts I and II were class claims, and they were for violation of title VII of the
       Civil Rights Act of 1964 (count I) and for violation of the Civil Rights Act of 1866 (count
       II). Except for incorporating by reference the “Common Allegations,” neither count referred
       to retaliation.
¶ 42        Based on both the “Common Allegations” and count III, defendant argues that the Barnes
       complaint included a class claim for retaliation. Plaintiff urges this court to view the class
       action to include only the claims that are common to all class members and, therefore,
       because Barnes’s additional count was not pursued to benefit the class, the class settlement
       should not preclude other individuals, besides Barnes, from bringing claims of retaliation.
       In Robinson v. Toyota Motor Credit Corp., 315 Ill. App. 3d 1086, 1093 (2000), we reasoned
       that “an individual claim, not common to the class, that could not have been raised [in the
       class action]” is not barred. While recognizing that the Illinois Supreme Court in River Park
       determined that a bar “extends to what was actually decided in the first action, as well as
       those matters that could have been decided in that suit,” this court in Robinson determined
       that one of plaintiff’s claims was not common to the class and thus could not have been
       brought in the first lawsuit. River Park, 184 Ill. 2d at 302; Robinson, 315 Ill. App. 3d at
       1093.
¶ 43        However, the third amended complaint in the Barnes class action does include a claim
       for retaliation that is common to the class. Both counts I and II include a paragraph including
       all previous paragraphs as a part of the count. Count I states that “[p]laintiffs restate and
       incorporate by reference Paragraphs 1 through 60, above as part of this Count of the
       Complaint,” and count II includes “Paragraphs 1 through 71.” As stated above, with
       paragraph 36 quoted in full, the third amended complaint included a “Common Allegations”
       section which listed claims common to the class including claims of “racial discrimination,
       retaliation, and hostile environment.” Therefore, both class counts (counts I and II) include
       by reference paragraph 36 in which the common claim of retaliation is alleged.
¶ 44        Plaintiff’s allegations of a hostile work environment, discrimination with respect to
       training, privileges, and conditions of employment, and retaliation are in identity with the
       claims included in the Barnes class action complaint. Plaintiff’s three counts are for
       “unlawful discrimination–race,” “retaliation,” and “hostile work environment.” Each of those
       three claims is listed in paragraph 36 of the “Common Allegations” section of the Barnes
       third amended complaint, which lists claims for “racial discrimination, retaliation, and
       hostile environment,” and is later incorporated into both of the class counts (counts I and II).


                                                 -8-
       Both plaintiff’s and the Barnes class action complaints include claims for racial
       discrimination, retaliation, and a hostile work environment and, therefore, the two lawsuits
       have an identity of causes of action.
¶ 45       Plaintiff is correct that his individual claim of retaliation arises out of a different series
       of events than the events underlying Barnes’s individual claim. However, since we find that
       plaintiff’s claim was included in the class claims, this does not affect our holding.

¶ 46                                     3. Insufficient Notice
¶ 47        Although plaintiff’s argument focuses on the release not being adequate because the
       Barnes class action and his complaint did not have an identity of causes of action, defendant
       argues that the consent decree is the document that demonstrates plaintiff’s claims were
       released. Illinois law requires the defendant to establish a document that is legal and binding
       on its face before the burden shifts to plaintiff to prove the document invalid. Meyer, 70 Ill.
       App. 3d at 111. Defendant presented a consent decree which was accepted by the United
       States District Court for the Northern District of Illinois, which is a legal and binding
       document. As noted above, the burden now switches to the plaintiff to prove it is invalid.
       Meyer, 70 Ill. App. 3d at 111.
¶ 48        Defendant argues that, by not opting out of the settlement agreement, plaintiff has
       released his claims against the defendants because each of plaintiff’s claims is included in
       the consent decree. The Barnes consent decree disclosed what the class was settling for, how
       a class member could opt out of the settlement, and what rights the class member was waving
       by failing to opt out. The consent decree stated, in the section entitled “Release”:
                “Once the Court enters its Final Approval Order, all Class Members who have not
                opted out, will be bound by the terms of the proposed Settlement with regard to these
                claims and will have released and forever discharged [CN Defendants] for any
                employment discrimination claims based on race that were made in the Third
                Amended Complaint. This release includes all claims of racial discrimination,
                retaliation and hostile working environment including but not limited to
                discrimination and retaliation in appointments, selection decisions, job assignments,
                promotions, training, discipline, testing, compensation, benefits, evaluations, service
                rating, termination, racial harassment, intimidation and other terms and conditions
                of employment.” (Emphasis added.) Barnes v. Canadian National Railway Co., No.
                04-C-1249, Proposed Notice of Class Action Settlement and Hearing (Oct 21, 2009).
       The consent decree specifically stated that it included “all claims of *** retaliation in ***
       termination.” Therefore, plaintiff is bound by the settlement made in the decree if he failed
       to opt out of the class.
¶ 49        The consent decree itself–and the notice sent to all class members, and received by
       plaintiff–stated that the defendants were willing to settle and comply with an injunction
       requiring equality in notice of training and advancement possibilities, prohibiting retaliation
       against members of the class, and prohibiting harassment based on race. In consideration for
       the injunction, the class members were bound by the consent decree and prohibited from
       filing lawsuits in the future regarding the same claims as those included in the Barnes class

                                                  -9-
       action. The above-quoted section of the notice included each of the claims the members are
       precluded from bringing in the future. Even if a claim of retaliation was not specifically
       included as a class count in the Barnes class action, it was specifically listed in the consent
       decree as a claim that was released. The list of claims included in the “Release” section of
       the notice of consent decree indicates that plaintiff’s claim was waived by his not opting out
       of the class.
¶ 50        Since defendant has established the existence of a legal and binding document, the
       burden is on the plaintiff to demonstrate that the document is invalid. Plaintiff argues that
       the consent decree is invalid because he did not receive adequate notice of the settlement or
       of the fact that his right to sue individually would be waived. Plaintiff testified that he did
       not receive the notice until a few days before Christmas, which was after the deadline for
       opting out. However, because the parties extended the deadline for opting out to January 22,
       2010, plaintiff could still have opted out of the settlement after receiving the notice at the end
       of December 2009.
¶ 51        Plaintiff urged the circuit court to find that in order for the notice to be adequate the
       defendants should have been required to notify him through his attorney because at the time
       of the notification it was known to defendants that plaintiff had representation and that the
       rules of practice and procedure in the United States District Court for the Northern District
       of Illinois require that an individual who is represented by counsel be contacted through
       counsel. N.D. Ill. Loc. R. 83.54.2 (valid through June 1, 2011) (amended by N.D. Ill. Loc.
       R. 83.50). Defendant refutes the application of the rule saying that plaintiff was not
       represented by counsel in regards to the Barnes class action.
¶ 52        The United States District Court Rules for the Northern District of Illinois, where the
       Barnes class action was heard, require that “[d]uring the course of representing a client a
       lawyer shall not communicate or cause another to communicate on the subject of the
       representation with a party the lawyer knows to be represented by another lawyer in that
       matter unless the first lawyer has obtained the prior consent of the lawyer representing such
       other party or as may otherwise be authorized by law.” N.D. Ill. Loc. R. 83.54.2 (valid
       through June 1, 2011) (amended by N.D. Ill. Loc. R. 83.50 (following Ill. Rs. Prof’l Conduct
       R. 4.2 (2011)). The rules for the United States District Court for the Northern District of
       Illinois specify that the requirement of notice on an attorney may be waived if there is
       another method which is “authorized by law.” The district court in the Barnes class action
       instructed the defendants on how to carry out the notice process and specifically required that
       a copy of the consent decree and waiver form be mailed to each individual class member at
       his or her last known address. The district court did not require the defendants to determine
       which class members had attorneys before sending the notice of the consent decree and this
       court will not read that requirement into the notice process.
¶ 53        Plaintiff also argues that notice of the consent decree required actual notice on his person,
       claiming that in a class action, absent class members seeking nonincidental money damages
       “are entitled to personal notice and opportunity to opt out.” (Internal quotation marks
       omitted.) Gates v. Towery, 456 F. Supp. 2d 953, 963 (N.D. Ill. 2006). Plaintiff received
       notice at his current address and was provided with an opportunity to opt out of the class.
       The notice received by plaintiff was adequate because the Illinois Supreme Court has held

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       that due process does not require individual notice to every member of the class in all
       circumstances. People ex rel. Wilcox v. Equity Funding Life Insurance Co., 61 Ill. 2d 303,
       312 (1975); see also People ex rel. Hartigan v. Illinois Commerce Comm’n, 148 Ill. 2d 348,
       416 (1992) (Freeman, J., concurring in part and dissenting in part) (stating “it is well
       established, as a matter of due process, individual notice to every class member is not
       required in all circumstances”). The Illinois Code of Civil Procedure also does not require
       notice on an individual in class action cases. See 735 ILCS 5/2-803 (West 2010). The Illinois
       Code of Civil Procedure requires only “notice as the court deems appropriate.” 735 ILCS
       5/2-803 (West 2010).
¶ 54       Defendant’s claims administrator testified to providing notice in the exact manner
       required by the district court, which did not require actual notice. The district court has also
       held that an individual “is bound by the terms of the settlement because notice to the class
       was reasonable.” Purnell v. Sheriff of Cook County, No. 07 C 7070, 2009 U.S. Dist. LEXIS
       37302, at *7-8 (N.D. Ill. May 4, 2009) (citing Fontana v. Elrod, 826 F.2d 729, 731-32 (1987)
       (“While the notice must be adequate, it is not necessary that each member of the class
       actually receive that notice.”)). The federal district court determined in the Barnes class
       action that notice by first-class mail to the most recent address of each class member was
       adequate notice, and the circuit court of Cook County agreed after holding an evidentiary
       hearing regarding the system of notice.
¶ 55       Based on the testimony of the claims administrator at the evidentiary hearing, it is
       apparent that the system of notice was designed to ensure the most success in notice delivery.
       The claims administrator testified that the notices were mailed “to the most up-to-date
       address that [they had] for the class members” “by way of First Class mail,” and when
       notices were returned because they were undeliverable the claims administrator “update[d]
       the address and then remail[ed] the notice.” According to the records of the claims
       administrator, plaintiff was sent the “notification on October 28” and the notice was not
       returned. Due process and the Federal Rules of Civil Procedure require that notice be “the
       best notice that is practicable under the circumstances.” Fed. R. Civ. P. 23(c)(2)(B). Due to
       the large scale of the class action, the system of the claims administrator to determine the
       most up-to-date address and resend any returned notices was the “best notice that [was]
       practicable under the circumstances.” Although plaintiff testified that he did not receive the
       mailed notice until after the date had passed to opt out of the consent decree, the testimony
       provided to the circuit court concerning the system of notification indicates that the
       procedure was proper and therefore notice was adequate.
¶ 56       This is not a case where a member of a class claims that he never received notice of a
       class action settlement. Here the plaintiff claims that the notice came to him late via the
       United States Post Office and there was no time to opt out of the class. He claims that he
       received the notice approximately three days prior to Christmas and the opt-out was to be
       postmarked on or before December 9, 2009. However, the opt-out date was extended to
       January 22, 2010 and plaintiff made no attempt to contact any of the attorneys representing
       the class or the claims administrator and totally disregarded the notice. By doing so he would
       have found that he had more than sufficient time to opt out of the class.


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¶ 57                       4. Plaintiff’s Lawsuit Was a Substitute for Notice
¶ 58        Plaintiff’s final argument is that, although he did not officially opt out of the class action,
       the fact that he had filed an individual lawsuit against defendant was evidence of his “intent
       to pursue remedies independently and not as a part of the class.” In re Brand Name
       Prescription Drugs Antitrust Litigation, 171 F.R.D. 213, 216 (N.D. Ill. 1997) (allowing for
       an individual lawsuit filed before the opt-out date to replace the formal opt-out requirement).
       Defendant argues that, in order to properly opt out of the class, plaintiff had to complete the
       opt-out form. Defendant also argues that, even if filing an individual lawsuit was enough to
       signal the intent to opt out, plaintiff’s lawsuit was not officially served on defendant until
       after the deadline for opting out had passed. “[T]he prevailing view [adopted by this court]
       is that pending litigation is not a substitute for compliance with judicially ordered exclusion
       procedures in a class action.” Robinson v. Toyota Motor Credit Corp., 315 Ill. App. 3d 1086,
       1094-95 (2000) (finding that “[j]udicially ordered exclusion procedures and opt-out
       deadlines ensure that class defendants can rely on the membership of a class becoming fixed
       by a certain date and that such members will be bound by the resulting outcome of the class
       action”). The district court in the Barnes class action had decided what the proper system for
       notice should be and how an individual would be able to opt out of the class. Plaintiff was
       notified by the method required by the district court and failed to comply with the opt-out
       procedure as specified in the notice. Illinois law indicates that a pending litigation is not a
       substitute for judicially ordered exclusion and therefore plaintiff’s individual lawsuit was not
       sufficient to indicate his intent to opt out and he is bound by the terms in the consent decree.
¶ 59        Plaintiff released his claims by not opting out of the Barnes class. First, the consent
       decree was binding and included plaintiff’s individual claims. Second, the notice was
       adequate. Third, filing an individual lawsuit is not a substitute for properly opting out of the
       class.

¶ 60                                            D. Equity
¶ 61       Plaintiff also argues that, because res judicata must be consistent with theories of justice
       and equity, precluding him from completing his suit against defendant would provide him
       with no means for relief since he received no portion of the Barnes monetary settlement and
       does not benefit from the injunction entered in that case. We previously explained in this
       case that we find that plaintiff is not precluded because of res judicata; plaintiff is precluded
       because he did not opt out of the class action. The class action in Barnes was settled with an
       injunction which required defendants to initiate equal hiring and promotion practices and to
       make training opportunities available to African-American employees which had previously
       been provided only to white employees. Since plaintiff is no longer with the railroad, the
       injunction will not help him. As for the monetary award, the consent decree indicates that
       “[t]he amount from the Settlement Fund to be paid to each Class Member [who file timely
       and valid claim forms] shall be calculated based on the total number of days each Class
       Member was employed by Railroad between February 18, 2000 and the Preliminary
       Approval Date.” Plaintiff argues that the monetary award would not have adequately
       compensated him because he sought “lost wages from the time of his wrongful termination


                                                  -12-
       through the present, until such time as he obtains a position which adequately mitigates his
       wages from Defendant.” Despite the fact that plaintiff does not benefit from the injunction
       and does not believe he could have been adequately compensated by his portion of the
       monetary settlement, he did have an opportunity to file a claim form to receive some portion
       of the settlement or to opt out of it, or to object to the settlement itself.
¶ 62        After the consent decree, plaintiff claims he is left with no ability to sue or to collect
       adequate compensation for his claimed discrimination, retaliation, and hostile work
       environment if his case is dismissed. The Seventh Circuit has discussed the purposes of
       claim preclusion and the equitable goals of the court system in an attempt to find a balance.
       See Jones v. City of Alton, 757 F.2d 878, 885 (7th Cir. 1985) (stating “ ‘while the purpose
       of the doctrine is to prevent a party from litigating the same issue twice, it should not be used
       to preclude a party from litigating the matter at all’ ” (quoting Gay v. Open Kitchens, Inc.,
       100 Ill. App. 3d 968, 972 (1981))).
¶ 63        In Jones, the Seventh Circuit determined that the defendant had not met its burden of
       “showing with clarity and certainty that the issue was or could have been determined by the
       prior judgment.” Jones, 757 F.2d at 886. The court further held that “the Illinois courts have
       a policy not to apply claim or issue preclusion under circumstances where to do so would be
       inequitable or unjust–either because the party against whom the prior judgment is asserted
       did not have a fair opportunity to litigate the issue or because the basis of the prior court
       judgment is not clear and convincing.” Jones, 757 F.2d at 886. In this case, the consent
       decree was clear and convincing about which issues were decided and what the members of
       the class were waiving by failing to opt out. Plaintiff did not opt out, attempt to opt out, or
       petition the court for an extension to the opt-out period. Therefore this case is distinguishable
       from Jones, where the plaintiff was prevented from presenting particular evidence. Jones,
       757 F.2d at 886 (finding that “plaintiff was prevented from presenting his evidence on the
       mistaken theory that racial discrimination was irrelevant to his discharge”). In the case at bar,
       plaintiff had an opportunity to object to the class or opt out and did not.
¶ 64        This case is also distinguishable from Gay v. Open Kitchens, Inc., 100 Ill. App. 3d 968,
       (1981), cited by plaintiff. Gay involved a personal injury action against two defendants,
       Gullo International (Gullo) and Open Kitchens. Gay, 100 Ill. App. 3d at 969. After the trial
       court granted summary judgment in favor of Gullo, Open Kitchens filed a third-party
       indemnification complaint against Gullo to recover the amount that it owed Gay. Gay, 100
       Ill. App. 3d at 970. Gullo attempted to use collateral estoppel, or issue preclusion, to argue
       that the third-party complaint was precluded by the trial court’s grant of summary judgment,
       which dismissed Gay’s claims against Gullo. Gay, 100 Ill. App. 3d at 970. The trial court
       granted Gullo’s motion to dismiss under the theory of collateral estoppel and this court
       reversed. We found that, because defendants were not previously adversaries, they had no
       prior opportunity to bring claims against one another for indemnity. Gay, 100 Ill. App. 3d
       at 971. We stated if “summary judgment were to collaterally estop Open Kitchens as to its
       claims against Gullo, then Open Kitchens’ rights against Gullo were adjudicated with no
       right of review, which would clearly be an unjust result.” Gay, 100 Ill. App. 3d at 971. Here,
       unlike in Gay, plaintiff was not unable to bring his claims. Instead, plaintiff did not opt out,
       object to the settlement, or request an extension to opt out of the class.

                                                 -13-
¶ 65      Thus, we do not find persuasive plaintiff’s claims that he is entitled to some type of
       equity.

¶ 66                                      III. CONCLUSION
¶ 67       Plaintiff’s claims were released by the consent decree under section 2-619(a)(6) because
       plaintiff’s claims of racial discrimination, retaliation, and hostile work environment were all
       included in both the Barnes complaint and the “Release” section of the Barnes class action
       consent decree. Plaintiff was thus a member of the Barnes class and failed to opt out.

¶ 68       Affirmed.

¶ 69        JUSTICE GARCIA, specially concurring:
¶ 70        I differ with the majority on the reason the circuit court correctly dismissed the plaintiff’s
       complaint. If, as the majority finds, the consent decree entered in the class action settlement
       included all of the plaintiff’s claims, then I submit the plaintiff’s complaint is barred by res
       judicata as the circuit court ruled. See Wiencek v. Woodfield Ford Sales, Inc., 232 Ill. App.
       3d 471 (1992). I find the instant appeal falls within all fours of Wiencek.
¶ 71        In Wiencek, the plaintiff filed a complaint against the auto dealership individually and on
       behalf of others similarly situated. The circuit court ruled the Wiencek complaint “was barred
       by a settlement and judgment reached in an earlier class action suit.” Id. at 472. The circuit
       court dismissed the entire complaint, including plaintiff’s individual claim, as “barred by the
       settlement and judgment [reached in the first suit].” Id. at 473. We affirmed the dismissal
       based on res judicata. Id.
¶ 72        I agree with the majority “that plaintiff’s claim was included in the class claims.” Supra
       ¶ 46. I also agree that “the consent decree [entered in the Barnes class] was binding [on the
       plaintiff].” Supra ¶ 61. Given those two findings, I submit res judicata applies. Wiencek, 232
       Ill. App. 3d at 475.




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