Cook County Nurse Revives Age-Discrimination and FMLA Claims After Judge Rules County Forfeited Preclusion Defense

CHICAGO (LN) — U.S. District Judge Elaine Bucklo granted a Cook County public health nurse leave to amend her complaint Thursday, ruling that the county forfeited a potentially dispositive claim-preclusion defense by failing to raise it at two successive opportunities.

Kathy Dunn worked as a nurse and nurse administrator for the Cook County Department of Public Health for 39 years. Following an investigation by the county's Office of the Independent Inspector General into her practice of teaching classes at area universities — a possible violation of dual-employment rules — she was fired in 2023. Dunn pursued both an administrative appeal before the Cook County Employee Appeals Board and, after receiving an EEOC right-to-sue letter, a federal civil-rights lawsuit.

In January 2026, Bucklo dismissed most of Dunn's claims, holding that she had failed to exhaust administrative remedies on the bulk of them and had not pleaded sufficient facts to support her Age Discrimination in Employment Act and FMLA counts. Dunn moved to amend in February.

Defendants argued the amended claims were barred by res judicata, pointing to an October 31, 2025, Cook County circuit court decision affirming the EAB's dismissal of Dunn's administrative appeal. Bucklo agreed the state court ruling would ordinarily have preclusive effect — Illinois courts of general jurisdiction could have heard Dunn's federal civil-rights claims alongside her administrative appeal, and under the doctrine of merger and bar, the failure to bring them there forecloses bringing them here.

But Bucklo held that the county had forfeited that defense through inaction. Defendants filed their first motion to dismiss in October 2025 without raising res judicata, even though the state case was then pending and a stay would have been available. After the state court ruled on October 31, 2025, defendants again stayed silent — filing a reply brief in December 2025 and an answer in February 2026, neither of which raised claim preclusion.

"Defendants also failed to raise res judicata as an affirmative defense in their February 20, 2026, answer to Dunn's initial complaint," Bucklo wrote, adding that she had already resolved a motion to dismiss that would have been significantly simpler to decide on res judicata grounds and was now deciding a second motion that could have been avoided entirely. She noted that defendants may have withheld the argument to prevent Dunn from curing the defect by filing her federal claims in state court before judgment entered there.

On the merits of the amendment, Bucklo held that Dunn's revised complaint cleared the pleading bar on both surviving claims. The original ADEA count had failed because Dunn alleged only in general terms that younger employees were treated better, without identifying those employees, their supervisors, or the standards they were held to. The amended complaint, Bucklo held, supplied those specifics. The FMLA count had failed because Dunn had not alleged that her bursitis was a serious health condition or that it prevented her from performing her job; the amended complaint alleged the condition required surgery and regular outpatient treatment and left her unable to walk or perform ordinary in-office work.

Bucklo narrowed the ADEA discrimination count to discriminatory discharge, the only theory Dunn preserved in her EEOC charge.

Four counts are now live: Count I (Title VII race discrimination), Count VII (ADEA discriminatory discharge), Count IX (ADEA retaliation), and Count XII (workers' compensation retaliation). All other counts remain dismissed with prejudice.