NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 7, 2012*
Decided November 8, 2012
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 12‐1569
SAMUEL SLEDGE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 C 4186
BELLWOOD SCHOOL DISTRICT 88,
Defendant‐Appellee. Robert M. Dow, Jr.,
Judge.
O R D E R
Samuel Sledge appeals the grant of summary judgment against him on his claims
under Title VII of the Civil Rights Act of 1964 claims as well as the dismissal of his other
employment‐discrimination claims on res judicata grounds. We affirm.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 12‐1569 Page 2
Because Sledge failed to controvert the defendant’s version of the material facts
under Local Rule 56.1(b), the following facts are taken from the defendant’s Local Rule
56.1(a)(1)(3) submission. See L.R. 56.1(b)(3)(C). Sledge, then a bus driver for Bellwood
School District 88, applied to be Bellwood’s evening building‐and‐grounds coordinator.
Bellwood interviewed several applicants including Sledge—who had no custodial or
building‐maintenance experience—but eventually hired another African‐American man
who had extensive custodial and building‐maintenance experience.
After learning that he had been passed over, Sledge sued Bellwood in Illinois state
court, alleging that it violated his collective‐bargaining rights by hiring a purportedly
nonunion‐employee for the position. Sledge voluntarily dismissed that complaint several
months later.
While that action was proceeding, Sledge sued Bellwood again in state court,
repeating his claim about not being hired and bringing a new claim of retaliatory discharge.
Sledge had recently been fired by Bellwood after leaving a sleeping student on the school
bus one evening, though he maintained that he was fired in retaliation for filing his earlier
state‐court complaint. The state court dismissed this second action with prejudice.
Sledge then brought this lawsuit in federal court alleging race discrimination, breach
of contract, falsification of documents, violations of his First and Fourteenth Amendment
rights, interference with business relations, retaliatory firing, and a violation of his
collective‐bargaining agreement. The district court granted Bellwood’s motion to dismiss all
but Sledge’s Title VII claims on grounds of res judicata (the Title VII claims could not have
been raised in the state‐court proceedings because Sledge had not yet obtained his right‐to‐
sue letter from the Equal Employment Opportunity Commission). The record left “no
doubt,” observed the court, that Sledge was re‐litigating the same case about his not being
hired for the buildings‐and‐grounds job and his subsequent discharge.
Discovery ensued, and the court eventually granted summary judgment to Bellwood
on Sledge’s Title VII claims. The court concluded that Sledge not only provided no direct
evidence of race discrimination, but also failed to prove a prima facie case of discrimination
under the indirect method because he did not show that he was qualified for the position or
that a similarly situated non‐class member was treated more favorably than he. Finally, the
court found that Sledge could not establish a retaliation claim because he could not show
that his initial state‐court complaint (which allegedly triggered the retaliation) was based on
any prohibited activity covered by Title VII (the complaint had alleged only the denial of
Sledge’s union rights).
No. 12‐1569 Page 3
On appeal Sledge first challenges the dismissal of his non‐Title VII claims, arguing
that the district court wrongly dismissed his claims on res judicata grounds before Bellwood
even answered his complaint. “It is true that res judicata is not one of the affirmative
defenses that Rule 12(b) permits to be made by motion rather than in the answer to the
complaint. But when an affirmative defense is disclosed in the complaint, it provides a
proper basis for a Rule 12(b)(6) motion.” Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir.
2008)(citing cases). See also C.H. Robinson Worldwide, Inc. v. Lobrano, Nos. 11‐2777, 11‐2893,
2012 WL 4511618, *3 (8th Cir. Oct. 3, 2012); SBT Holdings, LLC v. Town of Westminster, 547
F.3d 28, 36 (1st Cir. 2008). Such is the case here. Sledge’s complaint cited his prior state‐court
action regarding his employment dispute, and Bellwood attached to its motion to dismiss a
copy of Sledge’s prior state‐court complaint and the dismissal order—documents of which
the district court was entitled to take judicial notice. See Papasan v. Allain, 478 U.S. 265, 268 n.
1 (1986), Opoka v. I.N.S, 94 F.3d 392, 395 (7th Cir. 1996); Gen. Elec. Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074, 1080–81 (7th Cir. 1997).
Sledge also challenges the grant of summary judgment on his Title VII
discrimination claim and asserts that a white man, not a black man, was hired for the
coordinator position. Although Sledge must show that he was treated less favorably than a
non‐black applicant to establish a prima facie case of discrimination under the indirect
method, see Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 394 (7th Cir. 2010), he failed to
respond to Bellwood’s statement of facts at summary judgment. The district court here
acted within its discretion to strictly apply Local Rule 56.1(b) and admit the undisputed
facts that Bellwood set forth. See Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012).
We note too that the court explicitly reminded Sledge to file his Local Rule 56.1(b) response
and even encouraged him to consult the court’s pro se help desk to help him prepare it.
We have considered the defendant’s other arguments, and they do not merit
discussion. Accordingly, the judgment of the district court is AFFIRMED.