2026 IL App (1st) 250718-U No. 1-25-0718
Order filed August 19, 2026
Third Division
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 JUDICIAL DISTRICT
ZENON MCHUGH, ) Appeal from the ) Circuit Court of
Plaintiff-Appellant, ) Cook County )
v. ) No. 23 L 7680 )
THE ILLINOIS DEPARTMENT OF TRANSPORTATION, ) Honorable ) Patrick Sherlock, Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE MARTIN delivered the judgment of the court.
Justices Rochford and Reyes concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in granting summary judgment on plaintiff’s refiled Ethics Act claim, on the basis that the claim was barred by res judicata.
¶2 In this wrongful termination action, plaintiff Zenon McHugh appeals the circuit court’s grant of summary judgment in favor of defendant The Illinois Department of Transportation (IDOT), and the court’s subsequent denial of his motion for reconsideration. For the reasons that follow, we affirm. 1
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon entry of a separate written order.
¶3 I. BACKGROUND
¶4 IDOT is a department of the State of Illinois tasked with maintaining the state’s transportation system. McHugh began his employment with IDOT in 2001, working as an Emergency Traffic Patrol Minuteman (ETP). ETP employees provide 24 hours a day emergency roadside assistance to vehicles on Illinois roadways.
¶5 In 2012, McHugh was promoted to a managerial position as a “Lead Lead Worker,” supervising subordinates and advising his immediate supervisor as to the performance of staff. See McHugh v. Ill. Dep’t of Transp., 55 F.4th 529, 531 (7th Cir. 2022); McHugh v. Ill. Dep’t of Transp., 2021 WL 4318092 *2 (N.D. Ill. 2021) (not reported in Fed. Supp.) In his capacity as a “Lead Lead Worker,” McHugh was responsible for supervising Lead Workers and ETP employees.
¶6 In 2011, the Office of the Executive Inspector General (OEIG) for the Governor’s Office launched an internal investigation of IDOT to determine if certain ETP employees had failed to perform their duties and submitted falsified reports to their managers. OEIG also investigated whether certain managers had failed to properly supervise their staff.
¶7 OEIG interviewed McHugh as part of its ongoing investigation. Following the investigation, OEIG concluded that McHugh had violated two IDOT personnel policies: the supervisor responsibilities policy and the work performance policy. It also determined that McHugh had failed to comply with IDOT’s policy requiring employees to comply with the State Officials and Employees Ethics Act (Ethics Act) (5 ILCS 430/1-1 et seq. (West 2024)). The Ethics Act requires employees to conduct themselves with the highest possible ethical standards, so as to foster public trust and confidence. OEIG recommended that IDOT terminate McHugh’s employment.
¶8 McHugh was terminated for cause, effective September 14, 2016. McHugh filed a
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grievance with his union challenging the termination. The union ultimately determined that the grievance was not sufficiently meritorious to warrant arbitration.
¶9 In 2017, McHugh filed a 15-count second amended complaint in the United States District Court for the Northern District of Illinois naming several individuals and IDOT as defendants (McHugh I). McHugh alleged that he was wrongfully terminated and claimed he was deprived of his rights to procedural and substantive due process under the fourteenth amendment to the United State Constitution in violation of 42 U.S.C. § 1983. His one count against IDOT alleged that, acting through its agents, IDOT violated the whistleblower protections of the Ethics Act. McHugh asserted that IDOT discharged him in retaliation for disclosing certain information to OEIG during its investigation, which “caused IDOT embarrassment and damage to its reputation.”
¶ 10 After discovery, IDOT and the individual defendants moved for summary judgment. IDOT argued, among other things, that it was immune from the Ethics Act claim under the eleventh amendment to United States Constitution. IDOT contended that the Ethics Act claim must be adjudicated in state court and therefore the district court lacked subject matter jurisdiction over the claim. McHugh countered that the district court had supplemental jurisdiction over the Ethics Act claim under 28 U.S.C. § 1367. See McHugh, 55 F.4th at 531.
¶ 11 In a memorandum opinion issued on September 23, 2021, the district court granted IDOT’s motion. McHugh, 2021 WL 4318092 *8. The district court determined that McHugh’s due process claims were meritless and granted summary judgment on these claims. It also found that the Ethics Act claim was barred by sovereign immunity under the eleventh amendment and thus, entered summary judgment on this claim. Id.
¶ 12 “McHugh moved to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), arguing that the district court should have declined to exercise supplemental jurisdiction
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over his Ethics Act claim.” McHugh, 55 F.4th at 531. McHugh requested that the district court modify its judgment to a dismissal without prejudice, for lack of jurisdiction, to allow him the opportunity to pursue the claim in state court. Id. The district court denied the motion.
¶ 13 McHugh appealed to the United States Court of Appeals for the Seventh Circuit (federal appeals court). He did not challenge the entry of summary judgment on his federal procedural and substantive due process claims, nor did he contest the sovereign immunity finding. McHugh limited his appeal to one argument—that the district court erred by resolving the Ethics Act claim on the merits— rather than relinquishing jurisdiction so that he could pursue the claim in state court.
¶ 14 In a December 14, 2022 opinion, the federal appeals court modified the district court’s order, finding that the district court should have dismissed the Ethics Act claim without prejudice for lack of subject matter jurisdiction. The federal appeals court determined that because IDOT enjoys eleventh amendment sovereign immunity from suit in federal court, the district court lacked subject matter jurisdiction over the Ethics Act claim, which is a state law claim.
¶ 15 IDOT had argued that the federal appeals court could affirm the district court’s entry of summary judgment on the Ethics Act claim based on the decision in See v. Illinois Gaming Board, 2020 IL App (1st) 192200, ¶¶ 17-81, where the reviewing court determined that the plaintiff’s Ethics Act claim was barred under the doctrines of claim splitting and federal claim preclusion law. IDOT suggested that similar to the decision in See, a state court, applying the doctrine of claim splitting and federal claim preclusion law, would preclude McHugh from pursuing his Ethics Act claim in state court, given that he initially attempted to bring the claim in federal court. The federal appeals court responded in part:
“[E]ven if we had jurisdiction over the Ethics Act claim, we would not predict what another
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court might decide about [res judicata]. *** We recognize that IDOT would prefer we resolve this case on the merits now, but more is at stake here than the parties’ interests. A federal court acting without subject-matter jurisdiction violates federalism and separation-
of-powers principles underlying our constitutional system.” McHugh, 55 F.4th at 534-35.
¶ 16 On August 2, 2023, McHugh filed a complaint in the circuit court of Cook County, refiling his Ethics Act claim against IDOT (McHugh II). In response, IDOT sought to dismiss the action pursuant to section 2-619(a)(4) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(4) (West 2022)), on the basis of res judicata. IDOT argued that res judicata barred McHugh from relitigating his Ethics Act claim in state court, following the federal court’s dismissal of the claim.
¶ 17 The circuit court denied IDOT’s motion to dismiss. The court determined that res judicata did not apply to bar the state court from considering the Ethics Act claim, because the modified order was not a final judgment on the merits of the Ethics Act claim. The circuit court noted that the federal appeals court dismissed the Ethics Act claim without prejudice, for lack of jurisdiction, and “expressly reserved [McHugh’s] right to maintain the action before [the circuit court].”
¶ 18 The case was eventually set for trial. Prior to trial, however, IDOT filed a motion for summary judgment. In its summary judgment motion, as in its earlier motion to dismiss, IDOT asserted that McHugh’s Ethics Act claim was barred by res judicata. Relying again on the decision in See, IDOT argued that McHugh was barred by federal claim preclusion from relitigating his Ethics Act claim in state court because he previously litigated the same claim in federal court, based on the same operative facts.
¶ 19 On February 10, 2025, the circuit court issued a written order granting IDOT’s motion for summary judgment “on grounds of res judicata as stated in open court.” The court noted that the order disposed of the case in its entirety.
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¶ 20 Following the denial of his motion for reconsideration on March 20, 2025, McHugh filed a timely notice of appeal with this court. The Illinois Attorney General’s Office (Attorney General) filed a brief on behalf of IDOT.
¶ 21 II. ANALYSIS
¶ 22 On appeal, McHugh advances one main argument. He contends that the circuit court erred in granting summary judgment on the basis that the Ethics Act claim was barred by res judicata. We begin by setting forth our standard of review and the governing principles regarding summary judgment and res judicata.
¶ 23 A. Summary Judgment
¶ 24 “The purpose of summary judgment is to determine whether a genuine issue of material fact exists that would require a trial.” Hodges v. St. Clair County, 263 Ill. App. 3d 490, 492 (1994). Summary judgment is appropriate where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILC 5/2-1005(c) (West 2012). “In determining whether a genuine issue as to any material fact exists, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent.” Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 518 (1993).
¶ 25 “A triable issue precluding summary judgment exists where the material facts are disputed, or where, the material facts being undisputed, reasonable persons might draw different inferences from the undisputed facts.” Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). “Although the plaintiff need not prove his case at the summary judgment stage, he must present sufficient evidence to create a genuine issue of material fact.” Keating v. 68th & Paxton, L.L.C., 401 Ill. App. 3d 456, 470 (2010). Our review of a circuit court’s summary judgment order is
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de novo. Adams, 211 Ill. 2d at 43. Dismissal of an action on the grounds of res judicata is also subject to de novo review. Ward v. Decatur Memorial Hospital, 2019 IL 123937, ¶ 44.
¶ 26 B. Res Judicata
¶ 27 Here, federal law governs our analysis of the res judicata issue because the alleged preclusive action was filed in federal court. See Apex Mgmt. Corp. v. WSR Corp., 225 B.R. 640, 644 (N.D. Ill. 1998); Peregrine Financial Group, Inc. v. Trademaven, L.L.C., 391 Ill. App. 3d 309, 313 (2009) (federal law governs the res judicata effect of cases litigated in federal court). However, whether we apply federal law or Illinois law is academic and does not substantively affect our analysis since “the elements of res judicata are the same under federal and Illinois law.” Diversified Financial Systems, Inc. v. Boyd, 286 Ill. App. 3d 911, 914 (1997); see also Brown v. Chrysler Financial Services, 218 Fed. Appx. 536, 539 (7th Cir. 2007) (“In Illinois, the requirements for res judicata are virtually identical to those under federal law.”)
¶ 28 “Res judicata is a judicially created doctrine resulting from the practical necessity that there be an end to litigation and that controversies once decided on their merits shall remain in repose.” Village of Bartonville v. Lopez, 2017 IL 120643, ¶ 49. “Under the doctrine of res judicata, ‘a final judgment on the merits rendered by a court of competent jurisdiction bars a subsequent action between the same parties or their privies involving the same cause of action.’ ” Ward v. Decatur Memorial Hospital, 2019 IL 123937, ¶ 44 (quoting Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 21). “The bar extends not only to what was decided in the first action but also includes those matters that could have been decided in the initial action.” Ward, 2019 IL 123937, ¶ 44. In federal court, res judicata or claim preclusion has three elements: “(1) an identity of parties; (2) a final judgment on the merits; and (3) an identity of the cause of action (as determined by comparing the suits’ operative facts).” Palka v. City of Chicago, 662 F.3d 428, 437 (7th Cir. 2011).
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¶ 29 Here, the dispute centers on the finality requirement, as the parties concede that the other two requirements for application of res judicata were satisfied. McHugh argues that res judicata does not apply because there was no final judgment on merits, where the federal appeals court modified the district court’s dismissal order, to a dismissal without prejudice for lack of subject- matter jurisdiction.
¶ 30 Generally, a dismissal without prejudice for lack of jurisdiction does not constitute a final judgment on the merits. See River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 303-04 (1998). However, our supreme court has held that “the use of ‘without prejudice’ language is not sufficient to protect a plaintiff against the bar of res judicata when another part of plaintiff’s case has gone to final judgment in a previous action.” (Emphasis in original.) Hudson v. City of Chicago, 228 Ill. 2d 462, 472 n. 2 (2008).
¶ 31 The Ethics Act claim was part of a prior action that went to a final judgment on the merits in federal court. McHugh’s effort to refile the claim in state court, after the claim was part of a prior action that went to a final judgment on the merits in federal court, constitutes a case of claim splitting. “A plaintiff who splits his claims *** and [refiles] part of an action after a final judgment has been entered on another part of the case subjects himself to a res judicata defense.” Hudson, 228 Ill. 2d at 473.
¶ 32 McHugh concedes that his Ethics Act claim was split between the federal and state courts. He contends, however, that under the “express-reservation” exception to the rule against claim splitting found in section 26(1) of the Restatement (Second) of Judgments (1982), the particular claim splitting that occurred here is permissible. Under the “express-reservation” exception, the rule against claim-splitting will not apply if “the court in the first action expressly reserved the plaintiff’s right to maintain the second action.” Restatement (Second) of Judgments § 26(1) (1982).
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We do not believe that the “express-reservation” exception applies to the facts of this case.
¶ 33 The prohibition against claim splitting is a form of claim preclusion. Medcor, Inc. v. Kelly, 2025 WL 2590388, at *5 (N.D. Ill. Sept. 8, 2025). Illinois employs the “transactional” approach to claim preclusion. River Park, 184 Il. 2d at 307. Under this approach, the assertion of different legal theories constitutes a single cause of action if a single group of operative facts give rise to the assertion. Rogers v. St. Mary Hospital of Decatur, 149 Ill. 2d 302, 312 (1992). “[A] party may not split a cause of action into separate grounds of recovery and raise the separate grounds in successive lawsuits; instead, a party must raise in a single lawsuit all the grounds of recovery arising from a single transaction or series of transactions that can be brought together.” Mars Inc. v. Nippon Conlux Kabushiki-Kaisha, 58 F.3d 616, 619 (Fed. Cir. 1995).
¶ 34 The rule against claim splitting “is based on the belief that it is fairer to require a plaintiff to present in one action all of his theories of recovery relating to a transaction, and all of the evidence relating to those theories, than to permit him to prosecute overlapping or repetitive actions in different courts or at different times.” Maldonado v. Flynn, 417 A.2d 378, 382 (Del. Ch. 1980). Thus, “[i]f a plaintiff has a collection of claims that arise from one set of events and has an unconstrained choice between a forum of limited jurisdiction and a forum of broad jurisdiction, a decision to proceed in the more limited forum precludes her from bringing the unlitigated claims in a subsequent proceeding.” Waid, 91 F.3d at 864-65. “Only where a plaintiff has some claims which can only be brought in a limited forum may he ‘proceed in the forum of limited and exclusive jurisdiction without losing the opportunity to later litigate the claims not within that forum’s jurisdictional competency.’ ” Humphrey v. Tharaldson Enterprises, Inc., 95 F.3d 624, 626 (7th Cir. 1996).
¶ 35 We find guidance from this court’s factually similar case and decision in See, 2020 IL App
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(1st) 192200. There, rather than choosing to file his Ethics Act claim in state court, where there would be no jurisdictional impediment, plaintiff chose to bring the claim in federal court, despite the fact that he knew, or should have known, that the federal court did not have subject matter jurisdiction to consider the claim. Id. ¶ 17. Our appellate court determined that since the Illinois state court had the broadest possible jurisdiction, the plaintiff should have initiated his lawsuit there. “Instead, he chose a limited forum, which means the principles of claim preclusion or claim splitting bar his current suit.” Id. ¶ 18. The same holds true here.
¶ 36 “Rather than filing all his claims in state court, which had unconstrained jurisdiction over the state Ethics Act and federal causes of action, [McHugh] chose to file them in the more limited forum of federal court.” Id. ¶ 17. “Although preventable, [McHugh] chose to split his claims, and he now seeks to relitigate a claim that arises from the same operative facts as those already litigated. This is the very thing that res judicata was designed to prevent.” Id. ¶ 22.
¶ 37 We find that the circuit court did not err in granting summary judgment on McHugh’s refiled Ethics Act claim, on the basis that the claim was barred by res judicata. In light of this finding, we need not consider the Attorney General’s alternative argument that summary judgment was proper because McHugh was discharged for his own misconduct, and he cannot show that protected activity contributed to his discharge.
¶ 38 III. CONCLUSION
¶ 39 For the foregoing reasons, we affirm the dismissal of McHugh’s case based on res judicata.
¶ 40 Affirmed.