Leskovisek et al v. Illinois Department of Transportation et al

Filing 21

OPINION: Defendants' Motion to Dismiss (d/e 17 ) is GRANTED IN PART and DENIED IN PART. Count V is dismissed as to Defendant CMS without prejudice and with leave to replead. The Motion is otherwise denied. Plaintiffs are grantedleave to file a Second Amended Complaint on or before April 23, 2018. Defendants shall thereafter answer or otherwise respond on or before May 7, 2018. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 04/10/2018. (SKN, ilcd) (Main Document 21 replaced on 4/10/2018) (SKN, ilcd).

E-FILED

Tuesday, 10 April, 2018 01:39:14 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
NICHOLAS LESKOVISEK, by his
next friend, LORI STANLEY, and
CHAD UNDERWOOD, by this next
friend, KIM UNDERWOOD,

)
)
)
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Plaintiffs,
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v.
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ILLINOIS DEPARTMENT OF
)
TRANSPORTATION and ILLINOIS )
DEPARTMENT OF CENTRAL
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MANAGEMENT SERVICES,
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Defendants.
)

No. 3:17-CV-03251

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiffs Nicholas Leskovisek, by his next friend, Lori
Stanley, and Chad Underwood, by his next friend, Kim Underwood,
filed a five-count First Amended Complaint alleging violations of
the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et
seq. (ADA). This cause is now before the Court on the Motion to
Dismiss (d/e 17) filed by Defendants Illinois Department of
Transportation (IDOT) and Illinois Department of Central
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Management Services (CMS).1 For the reasons that follow, Count
V is dismissed without prejudice as to CMS with leave to replead.
The Motion is denied in all other respects.
I. JURISDICTION
This Court has subject matter jurisdiction because Plaintiffs=
claims are based on the ADA, a federal law. See 28 U.S.C. ' 1331
(AThe district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
United States@). Venue is proper because a substantial part of the
events or omissions giving rise to Plaintiffs= claims occurred in this
district. 28 U.S.C. ' 1391(b)(2).
II. LEGAL STANDARD
Defendants move to dismiss Plaintiffs’ First Amended
Complaint for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) and for failure to state a
claim pursuant to Rule 12(b)(6).

1

Illinois has legislatively waived its Eleventh Amendment immunity for claims
for damages under the ADA. See 745 ILCS 5/1.5(d); Painter v. Ill. Dep’t of
Transp., No. 16-3187, 2017 WL 6032504, at *2 (7th Cir. 2017) (unpublished
disposition).
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Pursuant to Federal Rule of Civil Procedure 12(b)(1), a
defendant may move for dismissal of a claim for lack of subject
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When considering a
Rule 12(b)(1) motion to dismiss for lack of standing, this Court
accepts as true all well-pleaded factual allegations and draws all
reasonable inferences in favor of the plaintiff. Alicea-Hernandez v.
Catholic Bishop of Chi., 320 F.3d 698, 701 (7th Cir. 2003).
However, “[i]f a defendant raises a factual challenge to standing,
the plaintiff bears the burden of proving standing by a
preponderance of the evidence.” Laurens v. Volvo Cars of N. Am.,
LLC, 868 F.3d 622, 625 (7th Cir. 2017). Defendants only make a
facial challenge to subject matter jurisdiction here.
A motion under Rule 12(b)(6) challenges the sufficiency of the
complaint. Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458
(7th Cir. 2007). To state a claim for relief, a plaintiff need only
provide a short and plain statement of the claim showing he is
entitled to relief and giving the defendants fair notice of the claims.
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
When considering a motion to dismiss under Rule 12(b)(6),
the Court construes the complaint in the light most favorable to
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the plaintiff, accepting all well-pleaded allegations as true and
construing all reasonable inferences in the plaintiff’s favor. Id.
However, the complaint must set forth facts that plausibly
demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 547 (2007). A plausible claim is one that alleges factual
content from which the Court can reasonably infer that the
defendants are liable for the misconduct alleged. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Merely reciting the elements of a cause
of action or supporting claims with conclusory statements is
insufficient to state a cause of action. Id.
III. FACTS ALLEGED IN THE COMPLAINT
The complaint contains the following allegations, which the
Court accepts as true for purposes of the motion to dismiss.
Tamayo, 526 F.3d at 1081.
Leskovisek is a 31-year-old man with autism who is unable to
use speech to communicate. Underwood is a 27-year-old man with
autism who has an impaired ability to communicate and interact
with others.
Leskovisek and Underwood entered IDOT’s Students with
Disabilities Program in 2008 and 2010, respectively, with the job
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title of Tech Trainee. The Students with Disabilities Program was a
program administered by IDOT in collaboration with School
District 186 and United Cerebral Palsy Land of Lincoln. The
Program was intended to provide job training and employment
experience to individuals with disabilities, with the goal of enabling
them to obtain permanent, competitive employment.
In early 2011, IDOT assigned Plaintiffs to work in its Traffic
Safety Division, Statistical Coding Unit (Unit). Plaintiffs
successfully performed the essential functions of this position and
were consistently top performers within the Unit. However, as
participants in the Program, Plaintiffs earned less than their coworkers and did not receive any employment benefits.
After working as Tech Trainees for over three years in the
Unit, Plaintiffs inquired about working in full-time competitive
employment. Two barriers stood in their way: (1) American
Federation of State, County, and Municipal Employees (AFSCME)
trade union bidding rights and (2) the State of Illinois’ hiring
process for non-exempt positions, which Plaintiffs refer to as the
“Rutan process.” See Rutan v. Republican Party of Ill., 497 U.S. 62
(1990) (holding that hiring, promotion, transfer, and recall may not
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be based on party affiliation or support but must be based on the
merits and qualifications of candidates). Equip for Equality
attorney, Barry Lowy, successfully negotiated a solution with
AFSCME to the first barrier.
Plaintiffs allege that they were not as successful on the
second barrier. According to Plaintiffs, the State of Illinois created
a structured application and interview process for applicants for
most State positions. Defendant CMS is the State agency that
administers the process. Under the process, applicants for State
employment must undergo testing for particular job classifications,
regardless of whether there is a position currently vacant or being
advertised. If a position becomes available, and the applicant
scores a sufficiently high grade on the test, the applicant
undergoes a structured interview. Plaintiffs allege that, due to the
nature of their disabilities, they could not pass the test or
participate in an interview without a reasonable accommodation,
despite having already demonstrated their ability to perform the
job.
In June 2014, Lowy contacted IDOT Chief Counsel, Michael
Forti, to request a reasonable accommodation. Lowy explained
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that Plaintiffs were not capable of passing the CMS entrance test
or interviewing for the position without an accommodation. Lowy
further explained that the testing and interview requirements, as
applied to Plaintiffs, were not job-related or consistent with
business necessity, as both men had demonstrated their ability to
perform the essential functions of the positions.
In a July 2014 response, Chief Counsel Forti responded that
Plaintiffs were satisfactorily performing the essential functions of
their assigned duties. Chief Counsel Forti also indicated that IDOT
“‘does not object to a waiver of the testing and interviewing
requirements’ but, because CMS administers this process, CMS,
not IDOT, must grant the accommodation request.” First Am.
Compl. ¶ 37 (d/e 14).
On August 28, 2014, Lowy contacted CMS to request a
reasonable accommodation. On October 17, 2014, CMS attorney
Jeff Shuck responded that CMS was in the process of researching
the feasibility of bypassing the testing and interviewing procedures
required for Rutan-covered, Personnel Code-covered vacancies. In
early December, after hearing nothing further, Lowy left a phone
message for Shuck. On December 10, 2014, Lowy contacted
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Shuck by email asking for a firm date by which CMS would provide
a response to Plaintiffs’ requests for reasonable accommodations.
On December 19, 2014, Shuck responded that he needed
additional information. Lowy provided the requested information
that same day. After December 19, 2014, neither CMS nor IDOT
contacted Plaintiffs or Lowy to seek additional information, discuss
the request, or grant or deny the requested accommodation.
On June 15, 2015, Plaintiffs each filed a charge of
discrimination with the Equal Employment Opportunity
Commission (EEOC) regarding CMS’s and IDOT’s failure to provide
a reasonable accommodation and engage in the interactive
process. On July 30, 2015, Plaintiffs were informed that they
would be moved to a new workspace isolated from everyone else.
After their job coach contested the move, IDOT agreed not to move
Plaintiffs.
On September 2, 2015, IDOT sent a letter to its Program
partners notifying them that IDOT was terminating the Program
effective December 31, 2015. Plaintiffs continued to express their
desire to remain employed by IDOT. Plaintiffs allege, on
information and belief, that IDOT had vacancies for comparable
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data entry positons between August 28, 2014 and the present day.
Plaintiffs also allege that, on information and belief, IDOT hired
individuals to fill such positions and/or hired temporary or
seasonal employees to complete the Unit’s data entry.
On October 31, 2017, Plaintiffs filed a Complaint against
IDOT and CMS. On January 18, 2018, Plaintiffs filed a First
Amended Complaint.
Plaintiffs bring four claims alleging a violation of Title I of the
ADA: (1) failure to provide a reasonable accommodation to the
State’s required pre-employment testing and interviewing
requirements and failure to engage in the interactive process
(Count I); (2) failure to hire Plaintiffs (Count II); (3) maintaining
qualification standards that screen out individuals with disabilities
(Count III); and (4) participating in an arrangement that has the
effect of discriminating against a qualified applicant (Count IV).
Plaintiffs also bring a claim for retaliation under Title V of the ADA
(Count V).
Plaintiffs request that the Court declare that Defendants’
actions violate Titles I and V of the ADA and order Defendants to
create and adhere to a reasonable accommodation policy and
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protocol to ensure applicants with disabilities receive
accommodation to the hiring process. Plaintiffs also request that
the Court order Defendants to hire Plaintiffs with retroactive
salary, promotions, and seniority or, in the alternative, award
Plaintiffs the value of compensation and benefits they will continue
to lose in the future as a result of Defendants’ unlawful conduct.
Finally, Plaintiffs seek backpay with interest, compensatory
damages, and reasonable attorney’s fees and costs.
IV. ANALYSIS
Defendants move to dismiss Plaintiffs First Amended
Complaint on the grounds that Plaintiffs lack standing and for
failure to state a claim.
A.

Plaintiffs Have Standing to Bring Their Claims
Defendants first argue that Plaintiffs’ complaint should be

dismissed for lack of jurisdiction because they do not have
standing to bring their claims. Specifically, Defendants assert that
Plaintiffs never applied for permanent State employment and,
therefore, did not suffer an injury that can be redressed.
Defendants also assert that Plaintiffs cannot claim that they face a

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real and immediate threat of future violations of their rights that
would warrant prospective injunctive relief.
To have standing, an individual must meet three
requirements: (1) the individual must have suffered an injury in
fact that is both (a) concrete and particularized and (b) actual or
imminent; (2) the injury must be fairly traceable to the challenged
action; and (3) it must be likely that a favorable decision will
redress the injury. Sierra Club v. Franklin Cnty. Power of Ill., LLC,
546 F.3d 918, 925 (7th Cir. 2008); see also Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016). Therefore, to survive Defendants’
motion to dismiss for lack of standing, Plaintiffs’ complaint must
contain sufficient factual allegations on each of these
requirements. See Berger v. Nat’l Collegiate Athletic Ass’n, 843
F.3d 285, 289 (7th Cir. 2016).
Here, Plaintiffs have sufficiently alleged standing. Plaintiffs
allege that they suffered an injury because they were unable to
access the State’s testing and interview process, lost their ability to
compete for a full-time position, lost wages, and suffered emotional
distress. Plaintiffs’ injuries are fairly traceable to Defendants’
alleged actions of not reasonably accommodating Plaintiffs, not
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engaging in the interactive process, not hiring Plaintiffs, and
retaliating against Plaintiffs. Finally, it is likely that the alleged
injuries can be redressed by the Court.
Defendants argue that Plaintiffs lack standing because they
did not apply for any vacant positions. Generally, a person who
does not apply for a position or request a benefit lacks standing to
challenge the procedures that govern applying for or requesting
that benefit. Baer-Stefanov v. White, 773 F. Supp.2d 755, 759
(N.D. Ill. 2011) (citing cases). However, such person nonetheless
has standing if he can demonstrate that applying for or requesting
that benefit would have been futile. See Int’l Bhd. of Teamsters v.
United States, 431 U.S. 324, 365 (1977) (concluding that the
failure to apply for a job did not “foreclose [a person’s] entitlement
to seniority relief under Title VII” where doing so would have been
futile).
In Teamsters, the United States Supreme Court recognized, in
a Title VII case, that “[a] consistently enforced discriminatory policy
can surely deter job applications from those who are aware of it
and are unwilling to subject themselves to the humiliation of
explicit and certain rejection.” Id. at 365 (noting that potential
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applicants need not “subject themselves to the humiliation of
explicit and certain rejection”). To merit relief under the futility
doctrine, the nonapplicant plaintiff must meet “the not always easy
burden of providing that he would have applied for the job had it
not been for [the employer’s discriminatory] practices.” Id. at 368.
Courts have extended the futility doctrine to ADA cases, and
Congress expressed its intent that the futility doctrine identified in
Teamsters apply to the ADA. See Davoll v. Webb, 194 F.3d 1116,
1132 (10th Cir. 1999) (finding that the futility doctrine applied to
ADA cases); H.Rep.No. 101-485(II) at 82-83 (1990) (noting the
Teamsters case and stating that “[t]he Committee intends for this
doctrine to apply to this title”).
In this case, Plaintiffs have plausibly alleged that they were
deterred from applying for a position due to the consistently
enforced discriminatory policy of requiring all individuals to
undergo the testing and interview requirements. In fact, Plaintiffs
allege that applicants must undergo testing for a particular job
classification even if there is no position currently vacant or being
advertised. Plaintiffs further allege that, due to their disabilities,
they could not pass that test or participate in the interview without
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a reasonable accommodation. Plaintiffs allege that they attempted,
without success, to obtain reasonable accommodations for the
testing and interview requirements. Therefore, Plaintiffs have
sufficiently alleged that it would have been futile to apply for a
vacant position where, due to their disabilities and the lack of a
reasonable accommodation, they could not complete the threshold
testing and interview requirements. See E.E.OC. v. Creative
Networks, L.L.C., 912 F. Supp. 2d 828 (D. Ariz. 2012) (“[A]
claimant is not necessarily required to complete every step of the
application process—or even apply—when discriminatory hiring
procedures deter her from doing so.”).
Defendants also argue that Plaintiffs do not have standing to
seek injunctive relief. “[T[o establish injury in fact when seeking
prospective injunctive relief, a plaintiff must allege a ‘real and
immediate’ threat of future violations of their rights.” Scherr v.
Marriott Int’l, Inc., 703 F. 3d 1069, 1074 (7th Cir. 2013).
Here, construing the complaint in the light most favorable to
Plaintiffs, Plaintiffs allege that they have expressed their desire to
be considered for comparable positions performing data entry at
IDOT (First Am. Compl. ¶ 70) but are unable to seek such
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positions because they need—but have been denied—a reasonable
accommodation to participate in the State’s testing and interview
process. Id. ¶¶ 31, 64, 71. Therefore, Plaintiffs have alleged that
they still want to be considered for employment with IDOT but are
unable to seek such employment due to Defendants’ alleged
discrimination. As such, Plaintiffs have sufficiently alleged a real
and immediate threat of future violations to their rights, and have
alleged that they have standing to seek injunctive relief.
B.

Defendants’ Motion to Dismiss for Failure to State a
Claim is Granted in Part and Denied in Part
Defendants also argue that the First Amended Complaint fails

to state a claim.
Under the ADA, a plaintiff can bring a claim of discrimination
alleging disparate treatment, disparate impact, or a failure to
accommodate. See Valencia v. City of Springfield, Ill., 883 F.3d
959, 967 (7th Cir. 2018); Raytheon Co. v. Hernandez, 540 U.S. 44,
53 (2002) (recognizing that both disparate treatment and disparate
impact claims are cognizable under the ADA). A plaintiff can also
bring a claim for retaliation under the ADA. 42 U.S.C. § 12203(a);

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Dickerson v. Bd. of Tr. of Cmty. Coll. Dist. No. 522, 657 F.3d 595,
601 (7th Cir. 2011).
Plaintiffs bring their discrimination claims in four counts.
Plaintiffs allege that Defendants failed to provide a reasonable
accommodation, failed to hire them, that the qualification
standards effected a disparate impact, and that the contractual
arrangement between IDOT and CMS had the effect of
discriminating against Plaintiffs. Plaintiffs also bring a retaliation
claim.
Defendants first argue that Plaintiffs cannot state a claim
because they did not apply for any positions. For the reasons
stated above, the Court finds that Plaintiffs have plausibly alleged
that applying for a position would have been futile in light of the
testing and interview requirements that Plaintiffs could not
perform absent a reasonable accommodation, which Defendants
allegedly refused to provide. The Court will proceed to address
Defendants’ remaining arguments on each count.
1.

Count I States a Claim

In Count I, Plaintiffs allege that Defendants discriminated
against them by failing to make a reasonable accommodation to
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the State’s required pre-employment testing and interviewing
requirements. The ADA defines discrimination to include failing
to make a reasonable accommodation to the known physical or
mental limitations of an otherwise qualified individual with a
disability who is an applicant unless the accommodation would
impose an undue hardship. 42 U.S.C. § 12112(b)(5)(A). To state a
claim for a failure to make a reasonable accommodation, Plaintiffs
must allege that: (1) they are disabled; (2) they are otherwise
qualified to perform the essential functions of the job with or
without a reasonable accommodation; and (3) Defendants failed to
make a reasonable accommodation. See Stevens v. Ill. Dep’t of
Transp., 210 F.3d 732, 736 (7th Cir. 2000).
Here, Plaintiffs allege that they have autism, which causes
substantial limitations on various major life activities including
communication and interacting with others. Plaintiffs further
allege that they were qualified for at least some of IDOT’s data
entry positions, as evidenced by their successful performance in
their jobs as Tech Trainees. Plaintiffs requested a reasonable
accommodation to the State’s pre-employment testing and
interviewing requirements. Defendants failed to engage in the
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interactive process with Plaintiffs because Defendants never
discussed alternatives to the State’s testing and interviewing
requirements and never responded with an answer to Plaintiffs’
requests for an accommodation to those requirements.
Defendants assert that Count I fails to state a claim because
the complaint alleges that Defendants did, in fact, engage in the
interactive process. The Court disagrees.
Plaintiffs allege that IDOT did not object to a waiver of the
testing and interviewing requirements but that CMS, not IDOT,
must grant the accommodation request. Am. Compl. ¶ 37.
Plaintiffs allege that they contacted CMS who, other than asking
for additional information that was immediately provided, did not
make any effort to engage in an interactive process or otherwise
discuss, grant, or deny the request for an accommodation.
While the failure to engage in the interactive process is not an
independent basis for liability, it is actionable if it prevents the
identification of an appropriate accommodation of a qualified
individual. Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055, 1062
(7th Cir. 2014). Construing the complaint in the light most
favorable to Plaintiffs and drawing all reasonable inferences in
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their favor, the Court finds that Plaintiffs have adequately alleged
that Defendants’ actions prevented the identification of an
appropriate accommodation. See Clemens v. Speer, No. 16-cv467-wmc, 2017 WL 2684101, at *8 (W.D. Wis. June 21, 2017)
(finding it “plausible to infer that the single phone call . . . did not
amount to an interactive process and, therefore, that defendant
failed to uncover a reasonable accommodation that would have
allowed plaintiff to return to work”); Dusik v. Lutheran Child &
Family Servs. of Ill., No. 16 CV 10812, 2017 WL 1437045, at *3
(N.D. Ill. Apr. 24, 2017) (finding it “plausible to infer that [the
defendant’s] few phone calls with [plaintiff] did not amount to an
interactive process and that[,] as a result, [the defendant] failed to
uncover a reasonable accommodation”).
Defendants also argue that IDOT cannot be liable for failing
to accommodate Plaintiffs because approval was beyond its
control. The Court will not decide this issue on a motion to
dismiss. Plaintiffs have plausibly alleged that CMS and IDOT
failed to provide a reasonable accommodation. Plaintiff alleges
that CMS is the state agency that administers the State’s hiring
process that Plaintiffs had to undergo. An entity cannot do
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through a contractual relationship that which it cannot do directly.
See 42 U.S.C. § 12112(b)(2) (defining discrimination to include
“[p]articipating in a contractual or other arrangement or
relationship that has the effect of subjecting a covered entity’s
qualified applicant or employee with a disability to the
discrimination prohibited by this subchapter”).
Defendants next argue that the accommodation Plaintiffs
sought—complete waiver of the testing and interview process—was
not an appropriate accommodation. However, an employer cannot
“reject an employee’s requests for an accommodation without
explaining why the requests have been rejected or offering
alternatives.” E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789,
806 (7th Cir. 2005) (noting that the employer was not obligated to
provide the accommodation the employee requested but “could not
simply reject the request and take no further action”).
Defendants also argue that Plaintiffs do not allege why they
could not complete the hiring requirements. Defendants do not
cite any support for requiring such allegations at the pleading
stage. Moreover, Plaintiffs do allege that they could not pass the
test or participate in an interview because of their inability to use
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speech to communicate (Leskovisek) and impaired ability to
communicate and interact with others (Underwood). First Am.
Compl. ¶¶ 8, 9, 31, 33. And, as the Court noted above, Plaintiffs
alleged facts supporting each of the elements of a failure to
accommodate claim. Defendants’ Motion to Dismiss Count I is
denied.
2.

Count II States a Claim

In Count II, Plaintiffs allege that Defendants violated the ADA
by failing to hire them. To state a claim for a failure to hire,
Plaintiffs must allege that they were not hired for a job because of
their disability. Dixon v. CMS, No. 14 C 4986, 2015 WL 6701771,
at * 2 (N.D. Ill. Nov. 3, 2015).
Defendants seek to dismiss Count II, arguing that Plaintiffs
did not allege that any vacancies existed. Defendants also argue
that Defendants cannot fail to hire or discriminate against
someone who never applied for the job.
However, Plaintiffs do allege, on information and belief, that
vacancies existed. See First Am. Compl. ¶¶ 51-52, 69. In
addition, as discussed above, Plaintiffs have plausibly alleged that
it would have been futile to apply for a position due to Defendants’
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discriminatory practices. Therefore, Defendants’ Motion to
Dismiss Count II is denied.
3.

Count III States a Claim

In Count III, Plaintiffs allege that Defendants violated the ADA
by using qualification standards that screen out persons with
disabilities. Section 12112(b)(6) of the ADA provides, in relevant
part, that discrimination under the ADA includes:
using qualification standards, employment tests[,] or
other selection criteria that screen out or tend to screen
out an individual with a disability or a class of
individuals with disabilities unless the standard, test or
other selection criteria, as used by the covered entity, is
shown to be job-related for the position in question and
is consistent with business necessity.
42 U.S.C. § 12112(b)(6).
Defendants argue that Count III is a disparate impact claim
and that Count III fails to state a claim because Plaintiffs fail to
allege any facts showing that the Defendants’ testing process
caused a relevant and statistically significant disparity between
disabled and non-disabled applicants.
Plaintiffs argue that the legal framework for establishing
disparate impact under the ADA is different from other antidiscrimination laws because § 12112(b)(6) extends to qualification
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standards that screen out an individual or a class of individuals
with disabilities, whereas the other anti-discrimination laws do not
extend protections to standards that screen out individuals only.
Pls. Resp. at 17 (citing Williams v. ABM Parking Servs., Inc., No.
1:16cv1259, 2017 WL 4999562, at *6 (E.D. Va. Oct. 31, 2017) and
EEOC Technical Assistance Manual, Title I of the ADA, § I-4.3.2
(1992)). Plaintiffs further assert that plaintiffs regularly bring
claims under § 12112(b)(6) without pleading or proving a statistical
disparity. Pls. Resp. at 18 (citing cases). Finally, Plaintiffs argue
that, even if statistics are ultimately required, Plaintiffs should be
given the benefit of the discovery process.
Defendants cite to Roberts v. City of Chi., 817 F.3d 561, 566
(7th Cir. 2016) to support their position that Plaintiffs must allege
facts showing that the testing process caused a relevant and
statistically significant disparity between disabled and nondisabled applicants. In Roberts, the Seventh Circuit affirmed the
dismissal for failure to state a claim where the plaintiffs only
alleged that the defendant discriminated against them individually
and not disabled applicants generally. The Seventh Circuit further
found that the ADA plaintiffs failed to allege any facts tending to
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show that the defendant’s employment practice “‘caused a relevant
and statistically significant disparity between’ disabled and nondisabled applicants.” Id. (quoting Adams v. City of Indianapolis,
742 F.3d 720, 733 (7th Cir. 2014) (involving complex Title VII
discrimination claims)).
Although Roberts is binding on this Court, the Court will
allow Count III to proceed with leave for Defendants to raise the
issue again after discovery. First, § 12112(b)(6) specifically defines
discrimination to include qualifications standards that screen out
an individual with a disability, not just a class of individuals with a
disability. Second, Plaintiffs have alleged sufficient facts to permit
them to proceed to discovery to obtain evidence that Defendants’
testing process caused a relevant and statistically significant
disparity between disabled and non-disabled applicants.
Therefore, the Court will not dismiss Count III at this time.
4.

Count IV States a Claim

The ADA defines discrimination against a qualified individual
on the basis of a disability to include:
participating in a contractual or other arrangement or
relationship that has the effect of subjecting a covered
entity’s qualified applicant or employee with a disability
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to the discrimination prohibited by this subchapter
(such relationship includes a relationship with an
employment or referral agency, labor union, or
organization providing fringe benefits to an employee of
the covered entity, or an organization providing training
and apprenticeship programs).
42 U.S.C. § 12112(b((2). Section 12112(b)(2) was “intended to
prohibit an entity from doing through a contractual relationship
what it cannot do directly.” Piquard v. City of E. Peoria, 887 F.
Supp. 1106, 1124 (C.D. Ill. 1995) (noting that “[a]n entity may not
contract with organizations that provide employee fringe benefits if
the relationship subjects the disabled employee” to discrimination
prohibited by the ADA).
In Count IV, Plaintiffs allege that IDOT participated in an
administrative arrangement where IDOT controlled the Office
Assistant/Associate position openings and functions but could not
hire applicants without those applicants undergoing the CMScontrolled hiring process, which screened out Plaintiffs because of
their disabilities. Plaintiffs assert that this administrative
arrangement had the effect of discriminating against Plaintiffs.
Defendants move to dismiss Count IV on the ground that the
facts alleged in this count are merely part of Plaintiffs’ overall
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failure-to-hire claim and Plaintiffs do not allege anything new to
support this count as a separate basis of liability.2 The Court will
not dismiss Count IV at this time. Rule 8 of the Rules of Civil
Procedure provides that a party may set out two more statements
of a claim in a single count or separate counts and “may state as
many separate claims . . . as it has, regardless of consistency.”
Fed.R.Civ.P. 8(d)(2), (d)(3). Therefore, Defendants’ Motion to
Dismiss Count IV is denied.
5.

Count V States a Claim as to Defendant IDOT

In Count V, Plaintiffs allege that Defendants retaliated against
them for requesting a reasonable accommodation and for filing a
charge of discrimination with the EEOC. Plaintiffs further allege
that Defendants retaliated against them by attempting to alter the
terms and conditions of their employment by placing them in an
isolated workspace, failing to accommodate them and engage in
the interactive process, terminating their employment with IDOT,
and failing to hire Plaintiffs for employment with IDOT.

Defendants also argue that Plaintiffs never applied for the positions and no
vacancies existed, so Plaintiffs were never subjected to any arrangement
between IDOT and CMS. The Court has already addressed the failure-toapply issue and found that Plaintiffs have alleged that it would have been
futile to apply. In addition, Plaintiffs allege that vacancies existed.
2

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The ADA prohibits employers from retaliating against
applicants or employees for opposing any act or practice made
unlawful by the ADA or making a charge under the ADA. 42
U.S.C. § 12203(a). To state a claim for retaliation, Plaintiffs must
allege that Defendants took an adverse employment action because
Plaintiffs engaged in protected activity. Carlson v. CSX Transp.,
Inc., 758 F.3d 819, 828 (7th Cir. 2014); see also Mounts v United
Parcel Serv. of Am., Inc., No. 09 C 1637, 2009 WL 2778004, at *4
(N.D. Ill. Aug. 31, 2009) (noting that “a plaintiff must plead facts
sufficient to allow the court to draw a reasonable inference that the
defendant is liable for the conduct alleged”).
Defendants move to dismiss Count V because Plaintiffs do
not allege that CMS was involved in any retaliatory conduct. The
Court agrees. Plaintiffs allege that IDOT attempted to transfer
them, terminated the Students with Disabilities Program, which
resulted in Plaintiffs losing their positions, and continued to refuse
to hire them or allow them to continue working in another
employment capacity, all in retaliation for their requests for
reasonable accommodations and for filing a charge of
discrimination with the EEOC. First Am. Compl. ¶¶ 93-98.
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Missing are any facts that plausibly suggest that CMS retaliated
against Plaintiffs. Therefore, Count V is dismissed without
prejudice as to CMS with leave to replead.
Defendants also challenge Plaintiffs’ assertion that IDOT
retaliated against them by not permitting them to continue
working in another capacity. Defendants argue that the ADA
requires reassignment only when an employee cannot perform the
essential functions of his current position. Finally, Defendants
argue that Plaintiffs admit that they were not full-time employees,
and the ADA does not require employers to convert temporary jobs
into permanent jobs. However, these issues are better resolved on
a motion for summary judgment. Plaintiffs specifically allege that
IDOT retaliated against them by attempting to place them in an
isolated workspace, terminating the Students with Disabilities
program, and failing to hire or otherwise allow Plaintiffs to
continue to work in another employment capacity. First Am.
Compl. ¶¶ 95, 96, 98. The Court finds that Count V states a claim
for relief against IDOT.

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6.

The Court Will Not Strike Plaintiffs’ Requests For
Relief

Plaintiffs seek various forms of relief in their First Amended
Complaint. Defendants challenge portions of Plaintiffs’ claims for
relief.
Defendants first argue that Plaintiffs lack standing to request
injunctive relief on behalf of anyone other than themselves, and
that the ADA does not require employers to create policies and
protocols that would apply only to specifically named individuals.
Injunctive relief is an available remedy under the ADA. See
42 U.S.C. §12117(a) (incorporating the remedies in the Civil Rights
Act of 1964, including 42 U.S.C. § 2000e-5, which provides for
injunctive relief). The Court has wide discretion when fashioning a
remedy for unlawful discrimination. U.S. E.E.O.C. v. Gurnee Inn
Corp., 914 F.2d 815, 817 (7th Cir. 1990).
The Court previously addressed standing and determined
that Plaintiffs have standing to seek injunctive relief. The Court
will not decide on a motion to dismiss whether the request that
Defendants be ordered to create and adhere to a reasonable
accommodation policy and protocol is appropriate. Should
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Plaintiffs succeed on their claims, the Court will address the
appropriate remedy at that time.
Defendants next argue that the ADA does not require an
employer to accommodate a disabled employee by promoting him
to a higher-level position or trump an employer’s seniority system.
According to Defendants, Plaintiffs’ complaint makes it clear that
the full-time employment of Plaintiffs would affect collective
bargaining agreements and seniority systems because AFSCME
required that their desired positions be classified as a lowerranked title before AFSCME would agree to waive bidding rights.
Defendants further argue that the complaint does not allege any
existing vacancies or any vacancies that do not implicate seniority
rights.
Plaintiffs respond that these are factual issues for discovery.
The Court agrees. If Plaintiffs succeed on their claims, the Court
will consider the appropriate remedy for the unlawful
discrimination. Moreover, Plaintiffs are not requesting a promotion
or reassignment but are seeking placement in the position to
which they believe they are entitled. See 42 U.S.C. § 12117(a)
(incorporating § 2000e-5); 42 U.S.C. § 2000e-5(g) (providing that if
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the court finds that the respondent has intentionally engaged in an
unlawful employment practice, the court may order “reinstatement
or hiring of employees”).
Finally, Defendants argue that Plaintiffs are not entitled to
monetary damages relating to positions for which they never
applied, when they do not claim any barriers to submitting
applications or that any unlawful conduct by Defendants
prevented them from submitting applications. For the reasons
stated above, the Court finds that Plaintiffs have plausibly alleged
that it would have been futile to apply for the positions. Therefore,
the Court will not strike Plaintiffs’ request for monetary damages at
this time.
V. CONCLUSION
For the reasons stated, Defendants’ Motion to Dismiss (d/e
17) is GRANTED IN PART and DENIED IN PART. Count V is
dismissed as to Defendant CMS without prejudice and with leave
to replead. The Motion is otherwise denied. Plaintiffs are granted
leave to file a Second Amended Complaint on or before April 23,
2018. Defendants shall thereafter answer or otherwise respond on
or before May 7, 2018.
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ENTERED: April 10, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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