2023 IL App (1st) 230595-U
FIRST DIVISION November 27, 2023
No. 1-23-0595
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________
JOSE ANTONIO COSSIO, JR., ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) No. 2022 M 5000896 ) TONI PRECKWINKLE and the COOK COUNTY ) The Honorable EMPLOYEES APPEALS BOARD, et al., ) Eve M. Reilly, ) Judge Presiding. Defendants-Appellees. ) ____________________________________________________________________________
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Lavin and Pucinski concurred in the judgment.
ORDER
HELD: Trial court’s dismissal of plaintiff’s claims based on findings they were time-barred and barred by res judicata affirmed where plaintiff has been relitigating the same cause of action in various venues since 2015.
¶1 Plaintiff-appellant Jose Antonio Cossio, Jr. (plaintiff) appeals, pro se, from the trial
court’s grant of a motion to dismiss filed by defendants-appellees Toni Preckwinkle and the
Cook County Employees Appeals Board (Board), et al. (individually as named, or
collectively as defendants), finding plaintiff’s claims to be both time-barred and barred by res No. 1-23-0595
judicata. Plaintiff contends that the trial court erred in holding res judicata applied, ignoring
the continuing violation doctrine, and dismissing his case as time-barred. He asks that we
reverse or vacate the court’s judgment, remand for further hearings, and/or reinstate his
employment. For the following reasons, we affirm.
¶2 BACKGROUND
¶3 This cause involves multiple lawsuits spanning many years filed by plaintiff, all
involving one central issue: the termination of his employment with Cook County (County).
¶4 The record reveals that, while plaintiff was serving in the military, he was court martialed
and found guilty of larceny, communicating a threat, identity theft, and use of a government
computer for identity theft. He was sentenced in 2004 to a bad-conduct discharge, 10
month’s confinement, and a fine. He served his sentence in a regional correctional facility
and was released in 2005. That year, a separate military investigation revealed plaintiff had
created a fraudulent website mimicking an official government website, and he was charged
for crimes related thereto. This time, he entered into a pretrial agreement and pled guilty to
conduct detrimental to good order and discipline in exchange for a sentence of time served.
¶5 In April 2013, plaintiff applied for a job with the County by filling out an online
application which required him to create a profile. One of the profile questions asked the
nature of his military discharge, and the available selections were “bad conduct discharge,”
“dishonorable discharge,” “general discharge,” “honorable discharge,” “other than honorable
discharge,” and blank. Plaintiff selected “honorable discharge.” Additionally, part of the
employment application required him to submit a conditional employment affidavit regarding
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any criminal history. It defined “conviction” as all convictions, regardless of whether it was
in Illinois, another state, federal court, or the court of another country. Plaintiff stated in his
application that he had no felony convictions.
¶6 Based on his application, plaintiff was hired by the County’s Bureau of Administration as
a fleet manager. Sometime later, the County discovered the falsehoods in his application and
referred the matter to the Cook County Office of the Independent Inspector General (IG).
Following an investigation, plaintiff was terminated from his employment for making
misrepresentations and omissions in his employment application documents and for failing to
cooperate with the IG during the investigation in violation of Cook County Ordinance section
2-285(a) (Cook County Code of Ordinances § 2-285(a) (amended Oct. 2, 2012)).
¶7 In 2015, plaintiff appealed his termination to the Board, which affirmed the decision
following a hearing. Plaintiff then sought administrative review of that decision in the trial
court. On February 10, 2016, following a hearing, the trial court issued an order upholding
the Board’s decision, finding that it was “not against the manifest weight of the evidence,
arbitrary or contrary to law.” It noted the evidence regarding his false statements remained
uncontroverted and he had failed to disclose “highly relevant information” to the IG.
Plaintiff appealed and our Court affirmed, likewise finding that the Board’s decision was not
against the manifest weight of the evidence. See Cossio v. Cook County, 2017 IL App (1st)
160654-U.
¶8 On September 26, 2018, plaintiff filed a petition in the trial court pursuant to section 2-
1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2018)), seeking to
3 No. 1-23-0595
vacate the decision affirming his termination. He alleged that, during the Board proceedings,
the County made a discovery violation by failing to disclose an email detailing how it had
come to learn of his falsehoods, which he insisted was relevant and would have assisted him
in defending the claims against him. In response, the County filed a motion to dismiss. First,
it noted that plaintiff’s petition was untimely, as it was filed more than two years after the
trial court’s order was issued. It further noted that the only exception to the two-year time
frame was for plaintiff to establish that the County fraudulently misstated or concealed a
material fact by failing to disclose the email. The County argued he could not meet this
requirement, as the email established only that the County was made aware of his military
convictions—something he, himself, has known since before his discharge.
¶9 Following a hearing, the trial court granted the County’s motion to dismiss. At the
outset, it declared that plaintiff’s petition was untimely, as it was filed on September 26,
2018, “clearly beyond the two years” afforded him under section 2-1401 to seek relief from
the court’s February 10, 2016 order. The court then reminded the parties that the time limit
may be tolled if plaintiff could establish that the email at issue comprised relevant and
material information and that the County had fraudulently concealed it during discovery. In
examining the facts presented, the court concluded that plaintiff had not satisfied the
fraudulent concealment exception. It determined that the email had no impact on, and did
not change, the unrebutted evidence that he was convicted of criminal conduct and
dishonorably discharged from the military, he did not disclose that information and instead
made false statements on his employment application, and he misled and failed to cooperate
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with the IG during the ensuing investigation. Accordingly, and reiterating that the email was
“not material to” his cause, the court denied his section 2-1401 petition. It closed the hearing
by informing plaintiff he had the right to appeal the decision.
¶ 10 Plaintiff, however, did not appeal that decision. Instead, on January 14, 2019, he filed a
lawsuit in federal court, asserting various constitutional violations and state law tort claims
against the County and IG related to the same discovery violation he alleged in his petition,
namely, their failure to disclose and the improper withholding of the (same) email. The
district court dismissed plaintiff’s claims with prejudice as barred by res judicata, noting he
had made the same fraudulent concealment argument in the state trial court, and that court
had already determined his petition was untimely and the alleged discovery violation did not
rise to the level of fraud necessary to excuse that untimeliness.
¶ 11 Plaintiff appealed the federal district court decision to the United States Court of Appeals
for the Seventh Circuit, which issued a written order in affirmance. In brief, it found, just as
the district court, that plaintiff’s claims against the County and IG in federal court were “the
same as the ones he lost against them in state court” and, accordingly, “dismissal of these
claims in federal court on res judicata grounds was proper.”
¶ 12 In March 2021, plaintiff filed another lawsuit against defendants in the circuit court,
asserting counts of negligent misrepresentation and common law fraud and seeking
declaratory judgment and monetary relief. He claimed that the Board’s 2015 decision
upholding his discharge should be overturned because he just learned that its members may
not have been properly appointed to sit on the Board at the time of his hearing. While that
5 No. 1-23-0595
suit was pending, he filed another section 2-1401 petition in the circuit court to vacate the
prior judgment in his administrative review case on the same basis. Plaintiff alleged that he
did not realize he could assert this as an issue and insisted that he now be allowed to litigate
this theory, as it could render the judgment void. The trial court consolidated plaintiff’s two
pending suits and, in January 2022, dismissed them. After examining the Board’s authority
to appoint its members and fill its vacancies, it held that “there is no question as to the
validity of any of the [Board] members on the panel at the time of [p]laintiff’s hearing” and,
thus, he failed to state a claim that the Board’s decision was void.
¶ 13 In February 2022, plaintiff filed the instant lawsuit at issue in this appeal. Once again, he
challenged his discharge and the Board’s 2015 decision affirming it, this time alleging a
different discovery violation. He argued that, while preparing for another case, he now
discovered that the IG had issued a subpoena in a different case in 2015, which he stated
“appear[ed] to be an undisclosed investigation into [his] TOR/VPN [computer] access.”
Plaintiff did not clarify that the subpoena was at all relevant to the investigation that had led
to his discharge. Rather, he stated only that defendants had failed to produce information
related to this subpoena during the 2015 Board hearing and that this “deprived [him] of the
opportunity to impeach” the IG and “fraudulently induced [him] into a Due Process waiver.”
His complaint alleged counts for mandamus, spoliation of evidence and declaratory relief,
and he again sought re-employment with the County, backpay, and an order from the court
declaring the Board’s termination of his employment null and void. Defendants filed a
motion to dismiss on multiple grounds, including that the complaint was untimely, barred by
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res judicata, failed to state a viable claim for mandamus, and tort immunity applied to bar
any claim of spoliation.1
¶ 14 The trial court granted defendants’ motion to dismiss. First, it found that plaintiff’s
complaint was time-barred pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-
619(a)(5) (West 2018)). Since no specific statute of limitations applied to his claims, the
court turned to section 13-205 of the Code and applied the five-year limitation for “all civil
actions not provided for.” 735 ILCS 5/13-205 (West 2018). Because plaintiff initiated his
suit in February 2022 for claims related to the Board hearing of 2015, it clearly fell outside
the limitations period and was time-barred. The court further found any assertion of
fraudulent concealment would not toll the period, as plaintiff did not plead or prove it. He
did not allege the subpoena regarding VPN access had anything to do with his discharge,
which dealt was his failure to properly disclose his military convictions and his refusal to
cooperate with the IG—completely unrelated matters. Second, the court found that
plaintiff’s suit was barred by res judicata under section 2-619(a)(4) of the Code (735 ILCS
5/2-619(a)(4) (West 2018)). After reviewing the procedural history of this cause and all the
others plaintiff had filed in relation to his discharge, as well as the elements of res judicata,
the court specifically found that the doctrine applied “because there was a final judgment on
the merits rendered by a court of competent jurisdiction, there was identity of cause of action,
and there was an identity of parties or their privies” between the instant cause and plaintiff’s
1 We note for the record that during the pendency of this litigation, plaintiff filed yet another section 2-1401 petition, his third, again attacking the Board’s 2015 order, citing discovery violations and demanding he be reinstated to his employment and paid back wages from 2014. 7 No. 1-23-0595
previous two circuit court cases, as well as his federal case wherein he challenged his
termination. Accordingly, the court dismissed plaintiff’s complaint.
¶ 15 ANALYSIS
¶ 16 On appeal, plaintiff contends that the trial court erred in dismissing his cause. First, he
claims that res judicata does not apply because he presented an “unrelated discovery
violation” that was “discovered only recently” and was distinct from the violation he asserted
previously. Next, he claims that even assuming the asserted discovery violations were
related and therefore triggered res judicata, the “continuing violations doctrine” should have
been employed. Finally, he claims his cause should not have been dismissed as time-barred
because he asserted “deception and that the investigations were unrelated to each other.”
¶ 17 The trial court provided several bases in support of its dismissal of plaintiff’s complaint.
However, we only need one, deemed dispositive, to affirm this matter upon review. See
Ambrosius v. Chicago Athletic Clubs, LLC, 2021 IL App (1st) 200893, ¶ 21. Because we
dispositively conclude plaintiff’s claims are time barred, we address that challenge first.
¶ 18 As noted, the trial court granted defendants’ motion to dismiss based on section 2-
619(a)(5) of the Code, which allows dismissal of a cause of action if it was not commenced
within the time limited by law. See 735 ILCS 5/2-619(a)(5) (West 2018). We review such
dismissals de novo (see Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008));
in doing so, we perform the same analysis that the trial court would perform (see Direct Auto
Insurance Co. v. Beltran, 2013 IL App (1st) 121128, ¶ 43). Again, we may affirm dismissal
on any basis supported by the record. See Ambrosius, 2021 IL App (1st) 200893, ¶ 21.
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Moreover, when statutory provisions pursuant to which relief is sought in a civil claim do not
specify the statute of limitations, section 13-205 of the Code acts as a catch-all provision. It
operates to set a five-year period for such claims. See 735 ILCS 5/13-205 (West 2018)
(“[A]ll civil actions not otherwise provided for, shall be commenced within 5 years next after
the cause of action accrued”). Statutes of limitations “discourage the presentation of stale
claims and * * * encourage diligence in the bringing of actions.” Sundance Homes, Inc. v.
County of Du Page, 195 Ill. 2d 257, 265-66 (2001).
¶ 19 Here, plaintiff’s instant complaint (again) challenged the Board’s 2015 decision
upholding his discharge. He sought mandamus and declaratory relief pursuant to Cook
County Ordinance Chapter 44-50(a) and 44-50(b). As these ordinances do not provide for a
specific statute of limitations, section 13-205 necessarily applied. This afforded plaintiff,
then, a five-year limitations period in which to file the instant suit. However, the record is
clear that he filed his complaint, the one that is the subject of this appeal, on February 22,
2022. This was more than five years after his discharge and the Board’s 2015 decision
upholding it. Accordingly, his complaint was untimely and the court properly dismissed it.
¶ 20 Plaintiff insists that this period should be tolled in his cause for two reasons. He cites
“the discovery rule” and claims that he only became aware of a new discovery violation, the
subpoena, in 2022, while preparing for a different case. Moreover, he claims that, contrary to
the trial court’s finding, he properly pled fraudulent concealment on the part of defendants.
However, based on the facts before us, neither of these claims has merit.
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¶ 21 First, the discovery rule delays the commencement of an applicable statute of limitations
“until the plaintiff knows or reasonably should know that he has been injured and that his
injury was wrongfully caused.” Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d
240, 249 (1994). Metaphorically, it postpones the start of the legal clock on a claim. When
the rule applies, the relevant inquiries are “whether and when the plaintiff develops ‘a
reasonable belief that the injury was caused by wrongful conduct, thereby creating an
obligation to inquire further on that issue.’ ” Shrock v. Ungaretti & Harris Ltd., 2019 IL App
(1st) 181698, ¶ 49 (quoting Dancor International, Ltd. v. Friedman, Goldberg & Mintz, 288
Ill. App. 3d 666, 672 (1997)). It does not matter whether the plaintiff knows or suspects who
the wrongdoer or what the wrong actually is. See Shrock, 2019 IL App (1st) 181698, ¶ 50;
accord Scheinblum v Schain Banks Kenny & Schwartz, Ltd., 2021 IL App (1st) 200798, ¶ 25.
Instead, once he has the burden to inquire further into the existence of a cause of action via
this reasonable belief, “ ‘a statute of limitations may run despite the lack of actual
knowledge’ ” on his part. (Emphasis in original.) Scheinblum, 2021 IL App (1st) 200798, ¶
25 (quoting SK Partners I, LP v. Metro Consultants, Inc., 408 Ill. App. 3d 127, 130 (2011)).
¶ 22 Our courts have made clear that the discovery rule does not apply in cases where the
injury at issue is the result of a “single traumatic event,” namely, an injury that is immediate
and caused by an external force. See Ericksen v. Village of Willow Springs, 279 Ill. App. 3d
210, 216 (1995). This is because, in such instances, the time of the injury is obvious and,
thus, the moment the plaintiff knows or should know of his right to sue is also obvious. See
Walters v. Mario Memorial Hospital, 217 Ill. App. 3d 744, 747 (1991) (the more obvious the
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injury, the more easily a plaintiff should be able to determine its cause). A plain example of
such a case is termination of employment. See Ericksen, 279 Ill. App. 3d at 216 (discovery
rule did not apply in cause where the plaintiff was terminated from employment as patrol
officer, since this single event put him on immediate notice that the termination might have
been wrongfully caused). In this type of case, a plaintiff is deemed to be on immediate
notice of the wrongful nature of the injury and under a duty to promptly investigate that
injury. See Ericksen, 279 Ill. App. 3d at 215 (this balances the increased difficulty in proving
a case that results from the passage of time with the hardship to a plaintiff who was not aware
of his right to sue).
¶ 23 In the case at bar, plaintiff’s injury, which he has consistently alleged from the outset of
all his litigation, is that he was wrongfully terminated from his employment. As we have just
noted, our courts have recognized that this fits the prime example of a single traumatic event.
See Ericksen, 279 Ill. App. 3d at 216. Simply put, then, and contrary to plaintiff’s assertion,
the discovery rule does not apply here to toll the statute of limitations.
¶ 24 In addition, plaintiff’s insistence that he only “recently discovered” that the IG had issued
a subpoena in a different case does not invoke the discovery rule in this case. Again, plaintiff
was fired in 2014, the Board upheld his termination in 2015, and he sought review in the trial
court in 2016. Even affording him the last of these dates, he knew or should have known of
his injury in 2016 and from that point, he was obligated to inquire further into it at that time.
Yet, he did not file the instant claim until 2022. Pursuant to section 13-205, the five-year
statute of limitations is long expired.
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¶ 25 Furthermore, we cannot help but note that plaintiff admits the subpoena he claims the
Board failed to disclose, which he states deals with his VPN access, was issued in, and
involved, a different case and not his employment termination case. In fact, he never
clarified for the trial court, and does not do so even now, how this subpoena is at all relevant
to his providing false information on his employment application regarding his military
discharge and failing to cooperate with the IG’s investigation—the bases of his discharge.
Instead, as he explains it in his brief, as well as in his underlying complaint, he supposedly
discovered “a subpoena online that indicated another IG investigation involving him” and
that this “appears to be an undisclosed investigation into [his] TOR/VPN access which may
contain impeachment evidence.” However, that is all he says, and the alleged subpoena is
not in the record before us. 2 Even were it in the record, the fact, which he, himself, admits,
remains: it was issued (if at all) in another case dealing with his computer access, not his
termination case. Thus, we fail to see how this subpoena is a “new discovery” that would
somehow toll the limitations period here. Accordingly, even if the discovery rule applied
(which it does not), we wholly fail to see how his new assertion and his instant cause would
even be linked for it to be operable.
¶ 26 Second, we similarly find, again contrary to plaintiff’s insistence, that the fraudulent
concealment exception also fails to toll the limitations period. Like the discovery rule, this
2 When discussing the subpoena and it content, plaintiff makes one citation in his brief to a page in the record on appeal. We examined that page, the various pages before and after, and the record as a whole and we have not found it. Additionally, we examined his complaint as contained in the record, where, again, he refers to the subpoena as being attached as an “exhibit.” However, as presented in the record, no exhibits are attached to his complaint. 12 No. 1-23-0595
exception tolls a limitations period. See Doe v. Boy Scouts of America, 2016 IL App (1st)
152406, ¶ 80; Wisniewski v. Diocese of Bellville, 406 Ill. App. 3d 1119, 1154 (2011) (this is
codified in section 13-215 of the Code (735 ILCS 5/13-215 (West 2018)). It, too, stops the
legal clock. It consists of affirmative acts or representations on the part of a defendant which
are meant to lull a plaintiff into delaying the filing of his claim or to prevent him from
discovering it. See Doe, 2016 IL App (1st) 152406, ¶ 81; accord Wisniewski, 406 Ill. App.
3d at 1154. Like the discovery rule, the burden rests with a plaintiff to plead and prove it.
This requires he both allege and present evidence that the defendant made misrepresentations
or performed acts which were known to be false with the intent to deceive him and upon
which he relied to his detriment so that he would not file a claim. See Doe, 2016 IL App
(1st) 152406, ¶ 81; accord Wisniewski, 406 Ill. App. 3d at 1154. However, “mere silence on
the part of the defendant and a failure by the plaintiff to learn of the cause of action are not
enough to establish fraudulent concealment.” Wisniewski, 406 Ill. App. 3d at 1154.
¶ 27 In the instant cause, plaintiff did not plead or prove fraudulent concealment. As the court
noted, plaintiff did not allege that the subpoena at issue, which dealt with his VPN access,
had anything to do with his termination, which dealt was his failure to properly disclose his
military convictions and his refusal to cooperate with the IG. Again, these are completely
unrelated matters, and even now on appeal, he fails to demonstrate how they are related.
Additionally, he does not allege what actions defendants took intending to deceive him and
upon which he detrimentally relied. The closest he comes is an allegation that they failed to
disclose it to him in 2015 and he could have used this subpoena to impeach the testimony of
13 No. 1-23-0595
the IG investigator, which, in his characterization, was the only evidence used to terminate
him; he also alleges that, to his detriment, he waived his due process rights. However, this is
hardly enough to establish fraudulent concealment. First, as he fails to describe anything
more about what due process rights he allegedly waived, we simply do not understand his
assertion of detrimental reliance. The record is clear that he received every opportunity to
argue against his termination before the Board and to present his cause in the trial court under
administrative review--and the appellate court, and the federal district court, and the federal
appeals court. Moreover, and again, plaintiff knew of his termination the moment it
happened. There was no “failure” on his part to learn of the cause of action; he knew exactly
what it was and when it happened. Thus, it was incumbent upon him to realize it and pursue
it, which he clearly did. Also, his attempt to characterize the evidence against him as only
consisting of the testimony of the IG investigator is absurd. The record in this matter
undeniably shows that he was terminated for falsifying information in his employment
application and for failing to cooperate with the IG during the investigation. His past
military criminal records and his employment application information were at the center of
the evidence in the cause. Even if it could somehow be said that the IG’s testimony was the
only evidence against him, the fact remains that he is now attempting to hang his hat on a
subpoena about his VPN access he says he discovered while preparing for another case that
has nothing to do with his termination case. And, critically, he does not allege that
defendants somehow made misrepresentations about it or hid it in order to deceive him into
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not filing a claim. Rather, he most certainly filed a claim; he simply did not prevail. None of
this constitutes fraudulent concealment which would toll the limitations period.
¶ 28 Ultimately, then, as neither the discovery rule nor the fraudulent concealment exception
apply to toll the applicable limitations period, we find, just as the trial court, that plaintiff’s
cause of action was time-barred and, therefore, properly dismissed.
¶ 29 Although this finding is dispositive, we opt to take a moment to address plaintiff’s claim
regarding res judicata since, in his eyes, as a pro se litigant, that constituted his primary
argument in his brief before this Court. While our decision up to now has focused on
timeliness, his first claim on appeal was that the trial court erred in applying res judicata to
bar his cause of action. However, precisely because our finding regarding timeliness is
dispositive, our discussion with respect to res judicata need only be brief. We include it here
only for his sake which, in turn, also makes our record more complete.
¶ 30 We begin by stating that, even were it not true (contrary to what we have already
determined) that plaintiff’s cause of action was time-barred, and even if it could somehow be
concluded (which it cannot) that it was timely (which it was not), dismissal of it was still
proper based on res judicata. In other words, and again contrary to his assertion, the trial
court did not err in holding that res judicata (also) barred his cause of action.
¶ 31 Pursuant to this doctrine, when a court of competent jurisdiction renders a final judgment
on the merits of a cause of action, that judgment becomes conclusive as to the rights of the
parties and their privies to the suit and, thus, acts as an absolute bar to any subsequent action
between the same parties or their privies involving the same claim, demand, or cause of
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action. See Cooney v. Rossiter, 2012 IL 113227, ¶ 18; accord Agolf, LLC v. Village of
Arlington Heights, 409 Ill. App. 3d 211, 218 (2011) (citing Nowak v. St. Rita High School,
197 Ill. 2d 381, 389 (2001)). At its core, this equitable doctrine prevents multiple lawsuits
between the same parties where the facts and issues presented are the same. See Agolf, 409
Ill. App. 3d at 218 (citing Leow v. A&B Freight Line, Inc., 175 Ill. 2d 176, 180 (1997), and
Green v. Northwest Community Hospital, 401 Ill. App. 3d 152, 154 (2010)). It applies to bar
such subsequent actions when all three of its elements exist, namely: “ ‘(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.’ ” Agolf, 409 Ill.
App. 3d at 218 (quoting Nowak, 197 Ill. 2d at 390). Once these elements are met, res
judicata extends to bar all matters that were offered to sustain or defeat the claim or demand,
as well as to any and all other matters which may have or could have been offered for that
purpose. See Cooney, 2012 IL 113227, ¶ 18; accord Agolf, 409 Ill. App. 3d at 218 (citing
Nowak, 197 Ill. 2d at 389). “Accordingly, while it is true that every plaintiff is entitled to his
day in court and res judicata should not be applied to create fundamental unfairness, the
critical nature of this doctrine operates to prevent repetitive lawsuits and protects parties from
being forced to bear the burden of relitigating essentially the same claim over and over.”
Agolf, 409 Ill. App. 3d at 219 (internal citations omitted).
¶ 32 Res judicata’s three elements have undeniably been met here so as to bar plaintiff's
complaint. As to the first and third elements, a final judgment on the merits and an identity
of the parties, these are not reasonably in dispute and, in fact, plaintiff does not even contest
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them on appeal. First, as the record demonstrates, courts of competent jurisdiction have
rendered final judgments related to the 2015 Board hearing not once, not twice, but several
times. The first was in February 2016 when the trial court upheld the Board’s decision
affirming his discharge pursuant to administrative review. He then brought a section 2-1401
petition in September 2018 urging that decision be overturned because the County failed to
disclose relevant information (i.e., a certain email). After briefing and argument, the court
dismissed his petition, finding he had not established a discovery violation. He brought the
same claim before the federal district court, which dismissed it in 2019. And, he raised the
same claim once again, this time before the Seventh Circuit Court of Appeals, which
affirmed the district court’s dismissal in 2020, specifically stating that the assertions he was
making were “the same as the ones he lost against [defendants] in state court.” Moreover,
the same parties and their privies are clearly involved in the lawsuits. Plaintiff and the
County have both been named parties in the litigation involving his discharge since its
inception. And, defendant Board (which was part of the administrative review of plaintiff’s
discharge) and defendant Preckwinkle (in her official capacity as Cook County Board
President), who plaintiff now names, clearly stand in privity with the County. See State
Farm Fire & Cas. Co. v. John J. Rickhoff Sheet Metal Co., 394 Ill. App. 3d 548, 559-60
(2009) (privity exists when parties adequately represent the same legal interest; persons or
entities, such as officials or agencies, who are not parties to an action but who are connected
via their interests or have a specified relationship to a named party and are affected by the
judgment with reference to interests involved in the action have privity).
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¶ 33 This leaves the second element of res judicata: identity of cause of action. Plaintiff
repeatedly argues that this element is missing because, since the prior discovery violation he
asserted involved the withholding of an email whereas the “newly discovered violation”
involves the withholding of a subpoena, these are inherently different transactions or
incidents and, thus, res judicata cannot apply. This is wholly incorrect. Separate claims are
considered the same cause of action under res judicata if they arise from a single group of
operative facts. See Agolf, 409 Ill. App. 3d at 219 (citing River Park, Inc. v. City of Highland
Park, 184 Ill. 2d 290, 314 (1998), and Lane v. Kalcheim, 394 Ill. App. 3d 324, 332 (2009),
and stating that this is known as the transactional test). This applies regardless of whether
different legal theories, evidence or remedies are asserted. See Agolf, 409 Ill. App. 3d at 219;
accord Cooney, 2012 IL 113227, ¶¶ 21-22 (separate claims, even if there is not a substantial
overlap of evidence among them and even if they assert different theories of relief, are still
considered part of the same cause of action for the purposes of res judicata if they arise from
a single group of operative facts). Again, res judicata bars all matters that were offered to
sustain or defeat the initial claim or demand, as well as any and all other matters which may
have or could have been offered for that purpose. See Cooney, 2012 IL 113227, ¶ 18; accord
Agolf, 409 Ill. App. 3d at 218, citing Nowak, 197 Ill. 2d at 389.
¶ 34 There is clearly an identity of cause of action here. Plaintiff is seeking the same relief
from the same group of operative facts as his prior litigation, challenging again the grounds
for his discharge and the 2015 Board decision that upheld it. He is merely asserting a
different theory of relief or, more appropriately perhaps, a difference in evidence.
18 No. 1-23-0595
Previously, he alleged the withholding of an email rendered his termination void, and now he
alleges the nondisclosure of a subpoena regarding VPN access in another matter renders his
termination void. Yet, these allegations arise from a single group of operative facts, i.e., the
same “transaction:” his termination for his failure to properly disclose his military
convictions and his refusal to cooperate with the IG, and the hearing before the Board which
upheld his termination. This has not changed at any point since the inception of litigation.
Therefore, as his claims arise from a single group of operative facts, identity of cause of
action clearly exists.
¶ 35 With all three elements met, then, res judicata properly operates to bar plaintiff’s claim
and, thus, there was no error upon the trial court in reaching that determination.
¶ 36 In a last-ditch attempt to save his appeal, plaintiff asserts that the continuing violations
doctrine renders the application of res judicata improper. However, that doctrine, which can
operate to toll a limitations period, requires the existence of a continuing tort, namely, one
that involves a continuing or repeated injury, or continued unlawful acts and conduct. See
Feltmeier v. Feltmeier, 207 Ill. 2d 263, 278-79 (2003). Specifically, a single overt act from
which subsequent damages may flow is not a continuing tort. See Feltmeier, 207 Ill. 2d at
279 (continual ill effects from an initial violation does not constitute a continuing tort). As
we discussed earlier, the one-time act of termination from employment is a single event, not
a continuous tort. Therefore, we can plainly state that the continuing violations doctrine does
not apply.
19 No. 1-23-0595
¶ 37 Ultimately, we have thoroughly concluded that plaintiff’s claim was properly dismissed
as time-barred and, even were it not so, the trial court’s finding that, alternatively, res
judicata operates to bar it, was also proper. Having addressed all the claims raised in his pro
se brief, this ends our review.
¶ 38 CONCLUSION
¶ 39 For all the foregoing reasons, we affirm the judgment of the trial court.
¶ 40 Affirmed.