                                In the

    United States Court of Appeals
                 For the Seventh Circuit

No. 12-2808

HARRIET WALCZAK ,
                                                    Plaintiff-Appellant,

                                   v.

CHICAGO BOARD OF EDUCATION ,
                                                   Defendant-Appellee.


            Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
          No. 11 C 8409 — Samuel Der-Yeghiayan, Judge.



  ARGUED FEBRUARY 13, 2013 — DECIDED JANUARY 10, 2014



   Before BAUER, SYKES, and HAMILTON , Circuit Judges.
   SYKES , Circuit Judge. Harriet Walczak was in her fourth
decade of teaching in the Chicago Public School system when
her school’s new principal placed her in a performance-
remediation program during the 2007–2008 academic year. By
the end of that school year, she was facing discharge
proceedings. Walczak thought that the principal had it in for
2                                                  No. 12-2808

her based on her age (she was in her late fifties when the new
principal started in 2006), so she filed a charge with the Equal
Employment Opportunity Commission (“EEOC”) alleging a
violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621 et seq.
    While her EEOC charge was pending, Walczak was initially
successful in the discharge proceedings: The hearing officer
assigned to her case recommended that Walczak be reinstated
as a tenured teacher. But the Chicago Board of Education
rejected the hearing officer’s recommendation and terminated
her employment. Walczak filed a complaint in Cook County
Circuit Court seeking judicial review of the Board’s decision,
arguing that it was unlawful under the Illinois School Code
and that the Board had violated her right to due process. The
circuit court affirmed the Board’s decision, and the Illinois
Appellate Court recently affirmed that judgment.
    Shortly after the circuit court’s decision, Walczak received
a right-to-sue letter from the EEOC. She then sued the Board in
federal court alleging that she was discharged because of her
age in violation of the ADEA, 29 U.S.C. § 623(a)(1). The Board
moved to dismiss, arguing that Walczak’s ADEA claim was
precluded because she could and should have included it in
the state-court action. Walczak responded that the Board had
acquiesced in her decision to split her claims between the two
courts. The district court disagreed and dismissed the ADEA
suit on the basis of preclusion.
   We affirm. Walczak could have brought her ADEA claim in
conjunction with her state-court suit for judicial review of the
Board’s decision to terminate her employment. See Dookeran v.
No. 12-2808                                                       3

County of Cook, 719 F.3d 570, 577 (7th Cir. 2013); Garcia v. Village
of Mount Prospect, 360F.3d 630, 644 (7th Cir. 2004); Blount v.
Stroud, 904 N.E.2d 1, 17 (Ill. 2009). Her argument that applying
claim preclusion would be inequitable is unpersuasive. The
Board did not acquiesce to claim-splitting. To the contrary, the
Board raised its preclusion defense as soon as Walczak brought
her ADEA claim in the second suit. Because no exception
removes Walczak’s situation from the general rule against
claim-splitting, the district court correctly held that her ADEA
suit was precluded.


                         I. Background
    Walczak was hired as a teacher in the Chicago Public
School system in 1970. She obtained tenure and taught
continuously in the district through the 2007–2008 school year.
In 1993 Walczak began teaching at Wells Community
Academy High School. At the start of the 2006–2007 academic
year, a new principal took over at Wells. Walczak alleges that
the new principal was disdainful of the older teachers from the
outset, calling them “dinosaurs” in front of both faculty and
students.
    The following school year the principal placed Walczak in
a performance-remediation program. Among other aspects of
the program, the principal assigned a mentor, but Walczak
found the mentor ill-equipped to provide guidance. Walczak’s
complaint identifies several other ways in which the principal
treated her differently than the younger teachers, including
frequently interrupting her classes during the remediation
4                                                    No. 12-2808

period. She claims that the principal was trying to “force [her]
out.”
    In May 2008 the principal issued an evaluation of Walczak’s
performance indicating that she was not meeting expectations.
A few days later the principal concluded that Walczak had
failed to satisfactorily complete the remediation program and
recommended that her employment as a tenured teacher not
be renewed. On June 4, 2008, Walczak received a letter stating
that she’d been “reassigned to the Area Office,” and on June 12
she received a letter “discharg[ing her] from her tenured
position.” The June 12 letter notified her of the “charges and
specifications against her” and “stated that she would receive
a hearing on the charges.”
    In July 2008 Walczak filed a charge with the EEOC alleging
age discrimination in violation of the ADEA. Meanwhile,
Walczak’s hearing on the principal’s discharge determination
did not take place until the spring and summer of 2009. On
December 1, 2009, the hearing officer assigned to her case
issued a 240-page report making extensive factual findings and
recommending that Walczak be reinstated to her tenured
position. In February 2010, however, the Board rejected the
hearing officer’s recommendation and terminated her
employment. Walczak sought judicial review of the Board’s
decision in Cook County Circuit Court, arguing that the Board
violated both the Illinois School Code, see 105 ILL . COMP. STAT .
5/34-83 to -85c, and her right to due process. In June 2011 the
circuit court upheld the Board’s decision. Walczak appealed to
the Illinois Appellate Court, and on September 30, 2013, the
No. 12-2808                                                                5

appellate court affirmed. See Walczak v. Bd. of Educ., 2013 IL
App (1st) 111972-U (Ill. App. Ct. Sept. 30, 2013).
    On August 25, 2011—two months after the circuit court
upheld the Board’s decision and more than three years after
Walczak filed her EEOC charge—the EEOC issued a right-to-
sue letter notifying Walczak that it had ceased processing her
charge and she had 90 days to file suit. In November 2011
Walczak sued the Board in federal court alleging age
discrimination in violation of the ADEA, 29 U.S.C. § 623(a)(1).
The Board moved to dismiss, arguing that claim preclusion1
barred the ADEA suit because it arose out of the same set of
facts as the action in Cook County Circuit Court.
    Walczak responded with several arguments against
preclusion: (1) there was no final decision with preclusive
effect; (2) the Board acquiesced to the splitting of her claims
between state and federal court; (3) she did not have a full and
fair opportunity to litigate her claims; and (4) applying claim
preclusion would be inequitable and would not advance the
doctrine’s purposes. The district court rejected Walczak’s
arguments and granted the Board’s motion to dismiss. This
appeal followed.




1
 The parties and district court used the term “res judicata” rather than
“claim preclusion.” Because res judicata can refer to either claim preclusion
or issue preclusion, we use the more precise term. See Dookeran v. County of
Cook, 719 F.3d 570, 574 n.2 (7th Cir. 2013).
6                                                              No. 12-2808

                              II. Discussion
    The district court dismissed Walczak’s complaint under
Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure
to state a claim,2 so our review is de novo. Dookeran, 719 F.3d
at 575. The preclusion rules of Illinois apply; the Full Faith and
Credit Act, 28 U.S.C. § 1738, “requires federal courts to give the
same preclusive effect to state court judgments that those
judgments would be given in the courts of the State from
which the judgments emerged.” Kremer v. Chem. Const. Corp.,
456 U.S. 461, 466 (1982); see also Dookeran, 719 F.3d at 575.
     The doctrine of claim preclusion “provides that a final
judgment on the merits rendered by a court of competent
jurisdiction bars any subsequent actions between the same
parties or their privies on the same cause of action.” Rein v.
David A. Noyes & Co., 665 N.E.2d 1199, 1204 (Ill. 1996). In
Illinois the defense of claim preclusion has three prerequisites:
(1) a final judgment on the merits rendered by a court of
competent jurisdiction; (2) an identity of the causes of action;
and (3) an identity of parties or their privies. Cooney v. Rossiter,


2
 Claim preclusion is an affirmative defense, so the proper procedure is to
raise the defense and then move for judgment on the pleadings under
Rule 12(c) of the Federal Rules of Civil Procedure. See Carr v. Tillery, 591
F.3d 909, 913 (7th Cir. 2010); see also Forty One News, Inc. v. County of Lake,
491 F.3d 662, 664 (7th Cir. 2007). Here the Board brought its claim-
preclusion defense in a motion to dismiss under Rule 12(b)(6), which was
technically incorrect, “[b]ut the error is of no consequence.” Carr, 591 F.3d
at 913. The district judge “had before him all he needed in order to be able
to rule on the defense, and anyway the plaintiff does not complain about
the error.” Id. Nor does the error affect our standard of review. See
Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 619 (7th Cir. 2007).
No. 12-2808                                                      7

2012 IL 113227, ¶ 18, 986 N.E.2d 618, 621. The second element
is assessed by reference to the “transactional test,” which
provides that separate claims are considered the same cause of
action for claim-preclusion purposes “ ‘if they arise from a
single group of operative facts, regardless of whether they
assert different theories of relief.’ ” Id. ¶ 21, 986 N.E.2d at 622
(quoting River Park, Inc. v. City of Highland Park, 703 N.E.2d 883,
893 (Ill. 1998)). Claim preclusion applies not only to matters
that were actually decided in the original action but also to
matters that could have been decided. Id. ¶ 18, 986 N.E.2d at
621 (citing River Park, 703 N.E.2d at 889); contra Am. Family
Mut. Ins. Co. v. Savickas, 739 N.E.2d 445, 451 (Ill. 2000)
(explaining that issue preclusion, or collateral estoppel,
requires that “the party sought to be bound must actually have
litigated the issue in the first suit” and must have had “a full
and fair opportunity to present his case”).
    Although Walczak contended in the district court that there
was no final judgment that could bar her ADEA suit, the
district court correctly concluded that the circuit court’s
decision in the judicial-review proceeding constitutes a final
judgment on the merits. Walczak prudently doesn’t challenge
that conclusion on appeal. Similarly, Walczak no longer argues
that it was unclear whether she could have joined her federal
employment-discrimination claim with her complaint for
judicial review in Cook County Circuit Court. In 2009 the
Illinois Supreme Court clarified that the state circuit courts
have jurisdiction over federal civil-rights claims. See Blount,
904 N.E.2d at 17. We have held that Illinois litigants seeking
circuit-court review of administrative proceedings implicating
events that also give rise to a federal civil-rights claim must
8                                                      No. 12-2808

join that claim with the judicial-review action in the circuit
court. See Dookeran, 719 F.3d at 577; Abner v. Ill. Dep’t of Transp.,
674 F.3d 716, 722 (7th Cir. 2012); Garcia v. Village of Mount
Prospect, 360 F.3d 630, 643–44 (7th Cir. 2004); see also Dookeran,
719 F.3d at 578 n.4 (“[T]he Illinois circuit courts have
jurisdiction to hear federal civil-rights claims … [,] and they
may do so in tandem with judicial-review proceedings brought
pursuant to statute or common-law writ of certiorari, see, e.g.,
Stratton v. Wenona Cmty. Unit Dist. No. 1, 551 N.E.2d 640,
645–47 (Ill. 1990).” (parallel citations omitted)). So there is no
dispute that the three basic elements of claim preclusion are
satisfied here. Walczak could have joined her ADEA claim to
her action in Cook County Circuit Court for review of the
Board’s discharge decision.
    Walczak contends that her case nonetheless falls within an
exception to the general rule against claim-splitting. She argues
that the Board acquiesced to her pursuit of parallel tracks for
her state and federal claims by failing to object or move for a
stay of the proceedings in state court. In these circumstances,
she contends, it would be inequitable to apply the rule of
preclusion. Rein, 665 N.E.2d at 1206 (explaining that the “rule
against claim-splitting” is “an aspect of the law of preclusion”
and simply provides that a plaintiff may not sue for part of a
claim in one action and then sue for the remainder in another
action).
    In Illinois “[t]he rule against claim-splitting has been
relaxed … where it would be inequitable to apply the rule.” Id.
at 1207; see also Nowak v. St. Rita High School, 757 N.E.2d 471,
477 (Ill. 2001) (“Res judicata will not be applied where it would
No. 12-2808                                                      9

be fundamentally unfair to do so.”). Illinois looks to the
Restatement (Second) of Judgments to assess when it may be
inequitable to apply claim preclusion. See Rein, 665 N.E.2d at
1207 (citing RESTATEMENT (SECOND ) OF JUDGMENTS § 26(1)
(1982)). One such situation occurs where “[t]he parties have
agreed in terms or effect that the plaintiff may split his claim,
or the defendant has acquiesced therein.” RESTATEMENT
(SECOND ) OF JUDGMENTS § 26(1)(a) (1982). The comment
explains that when the plaintiff is “simultaneously maintaining
separate actions based upon parts of the same claim,” the
defendant’s failure to object to the claim-splitting “is effective
as an acquiescence in the splitting of the claim.” Id. § 26 cmt. a.
    To support her acquiescence argument, Walczak relies
heavily on Saxon Mortgage, Inc. v. United Financial Mortgage
Corp., 728 N.E.2d 537 (Ill. App. Ct. 2000). There, the plaintiff
contracted with the defendant for the purchase of mortgage
loans. Id. at 539. A few years later the plaintiff successfully
brought suit against the defendant in federal district court on
a claim that the defendant breached its contractual obligation
to sell only investment-quality loans. Id. at 540. While the
federal suit was pending, the plaintiff and defendant
exchanged correspondence regarding eight specific loans. Id.
The plaintiff explained that these loans had been paid off early
and demanded repayment based on a different provision of the
parties’ agreement regarding mortgage redemption. Id. at
539–40. More than a year of correspondence ensued in which
the defendant failed to pay but continued to insist that it would
work toward an informal solution to the dispute. When that
effort failed, the plaintiff brought suit against the defendant in
state court a few months after judgment was entered in the
10                                                   No. 12-2808

federal case. Id. at 539. The defendant moved to dismiss the
complaint, contending that the plaintiff’s claims were
precluded by the judgment in the plaintiff’s earlier federal suit.
Id. at 541. The state trial court granted the defendant’s motion
and dismissed the case. Id.
    The Illinois Appellate Court reversed. It first explained that
the cases didn’t involve the same causes of action because “the
claim at issue in the prior federal action was of an entirely
different nature from the claims set forth in the [state-court]
complaint.” Id. at 543. Specifically, the court noted that the
loans at issue in the state-court case “took place during
completely different time periods and could not have arisen
out of the same factual matters” that were at issue in the
federal suit. Id. Although the same underlying loan-purchase
agreement was involved in both cases, the court nonetheless
concluded that the cases involved “separate transactions.” Id.
at 544.
    That holding was sufficient to justify reversal, but the court
went on to discuss the equitable exceptions to the rule against
claim-splitting. Id. at 545. The court concluded that it would be
inequitable to apply the rule to preclude the plaintiff’s state-
court action because “the facts before the circuit court
demonstrated that [the defendant] agreed to the resolution of
the premium refund obligations separately from the dispute at
issue in the federal action.” Id. at 546. For support the court
pointed to the “series of letters” in which the plaintiff and
defendant not only discussed the issues that would eventually
become the basis for the state-court complaint, id., but engaged
in negotiations to permit the defendant to “attempt to reduce
No. 12-2808                                                    11

its indebtedness to [the plaintiff] based on future loans sales
between the parties,” id. at 540. Because the defendant had
continuously given the impression that it wanted to resolve the
eight loan-specific claims informally even as the federal
proceedings proceeded to judgment, the court refused to apply
claim preclusion.
     Saxon demonstrates the unremarkable proposition that
Illinois courts recognize acquiescence as an exception to the
rule against claim-splitting. But that principle doesn’t apply
here. Saxon’s application of the acquiescence exception was
premised on the fact that the plaintiff and defendant had been
negotiating toward an informal resolution of the eight loan-
specific claims during the pendency of the earlier-filed
lawsuit—claims that the defendant itself insisted on treating
separately and worked to settle in a mutually agreeable way.
The circumstances here are materially different. Nothing in the
record indicates that the Board acquiesced to Walczak’s claim-
splitting. The Board did not prolong the EEOC proceedings or
engage in any action that would induce Walczak to refrain
from bringing her ADEA claim before the state court. This is
significant because although the ADEA requires aggrieved
persons to file an administrative charge with the EEOC before
filing suit, see 29 U.S.C. § 626(d)(1), it permits suit as soon as
60 days after they do so, id. §§ 626(d)(1), 633; 29 C.F.R.
§ 1626.18(b).
   Here, Walczak’s EEOC charge had been pending for almost
two years when she filed her suit in Cook County Circuit Court
seeking judicial review of the Board’s discharge decision. She
12                                                           No. 12-2808

could have joined her ADEA claim to that action at any time.3
See Dookeran, 719 F.3d at 577. By failing to take any steps to
preserve her age-discrimination claim in her action in state
court, Walczak allowed that court to enter a final, preclusive
judgment.
    Walczak emphasizes that the Board knew about the EEOC
charge for years and could have raised its objection to claim-
splitting in the state court. But the Board was not required to
lodge a preemptive objection in the first suit in order to
preserve its right to assert a claim-preclusion defense in the
second suit. Until Walczak filed her ADEA claim in federal
court, no claim-splitting had occurred. The filing of an
administrative charge with the EEOC is not a parallel litigation
track; it is a necessary precondition to filing an ADEA claim in
any court.
   When Walczak filed her ADEA lawsuit in federal court, the
Board immediately raised claim preclusion as a defense,
arguing that Walczak had improperly split her claims between
the two courts. This was the first time that the Board could


3
   Walczak says that she “allowed the EEOC to do its job” by not
“prematurely requesting a right to sue letter.” But if Walczak wanted to
continue pursuing informal remedies with the EEOC before filing suit (the
filing of a civil action generally “terminate[s] further processing of the
charge,” 29 C.F.R. § 1626.18(d)), there were several actions she could have
taken to preserve her ability to add her ADEA claim to the state-court suit.
First, she could have requested that the court postpone or stay the
proceedings until such time as her EEOC charge was resolved. See Palka v.
City of Chicago, 662 F.3d 428, 438 (7th Cir. 2011). Alternatively, she could
have ask[ed] the EEOC … to accelerate the administrative process. Id.
Walczak did neither.
No. 12-2808                                                       13

have raised the argument, and it was the appropriate time to
do so. The cases Walczak cites on this point are not to the
contrary; each involved sequential judicial proceedings. See
Curtis v. Lofy, 914 N.E.2d 248 (Ill. App. Ct. 2009) (same case
refiled after a summary-judgment order); Piagentini v. Ford
Motor Co., 901 N.E.2d 986 (Ill. App. Ct. 2009) (same); Thorleif
Larsen & Son, Inc. v. PPG Indus., Inc., 532 N.E.2d 423 (Ill. App.
Ct. 1988) (two cases filed in different counties); Airtite, a Div. of
Airtex Corp. v. DPR Ltd. P’ship, 638 N.E.2d 241 (Ill. App. Ct.
1994) (a state-court case and a federal-court case referred to
arbitration).
    Finally, Walczak argues that applying claim preclusion here
does not further the doctrine’s purposes because even if she
had joined her ADEA claim in the action in Cook County
Circuit Court, that court was in no better position to assess her
age-discrimination claim than the federal district court because
it was only reviewing the administrative discharge
proceedings. This argument fundamentally misunderstands
preclusion doctrine. Applying preclusion rules doesn’t involve
a case-specific cost-benefit analysis assessing which court is
better situated to decide the claim. Instead, preclusion doctrine
seeks “to minimize ‘the expense and vexation attending
multiple lawsuits, conserve[] judicial resources, and foster[]
reliance on judicial action by minimizing the possibility of
inconsistent decisions.’ ” Matrix IV, Inc. v. Am. Nat’l Bank &
Trust Co., 649 F.3d 539, 547 (7th Cir. 2011) (quoting Montana v.
United States, 440 U.S. 147, 153–54 (1979)) (alterations in
original); cf. Wilson v. Edward Hosp., 2012 IL 112898, ¶ 12, 981
N.E.2d 971, 976 (“The rule against claim-splitting is founded on
the premise that litigation should have an end and that no
14                                                  No. 12-2808

person should unnecessarily be harassed with a multiplicity of
lawsuits.”). Although Illinois recognizes equitable exceptions
to preclusion, arguing that claim-splitting is “no big deal” on
the facts of the case does not establish that applying preclusion
is inequitable.
   Because the Board did nothing to signal acquiescence to
Walczak’s claim-splitting and Walczak hasn’t shown that
applying preclusion is otherwise inequitable, the district court
correctly concluded that her ADEA suit is precluded.
                                                     AFFIRMED .
