Johnson v. City Of Chicago
MEMORANDUM Opinion and Order Signed by the Honorable Andrea R. Wood on 3/31/2017:Mailed notice(rth, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
CITY OF CHICAGO,
Judge Andrea R. Wood
MEMORANDUM OPINON AND ORDER
Plaintiff Harold L. Johnson, proceeding pro se, is an employee of Defendant City of
Chicago (“City”). Johnson alleges that the City discriminated against him on the basis of a
shoulder injury and his impaired vision, both of which Johnson characterizes as disabilities.
Johnson also alleges that the City retaliated against him for seeking an accommodation for those
alleged disabilities. Consequently, Johnson brings claims for violations of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12132 et seq., the Rehabilitation Act, 29 U.S.C. §§ 794
et seq., and the United States Constitution pursuant to 42 U.S.C. § 1983. (Second Am. Compl.,
Dkt. No. 68.) Before the Court is the City’s motion to dismiss Johnson’s Second Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Dkt.
No. 69.) 1 For the reasons explained below, the Court grants the motion in part and denies it in
Although Johnson has styled his complaint “3rd Amended Complaint of Employment Discrimination,”
this is Johnson’s actually second amended complaint and accordingly the City’s motion to dismiss is
titled “Defendant City of Chicago’s Motion to Dismiss Plaintiff’s Second Amended Complaint” (See Dkt
No. 69.) For the purposes of this opinion, the Court refers to the operative complaint subject to the City’s
instant motion as the Second Amended Complaint.
This lawsuit is not the first time Johnson has appeared in court to complain about the
City’s treatment of him and his injuries. According to a prior lawsuit, the City and Johnson’s
local of the International Brotherhood of Teamsters (“Union”) began to discriminate against him
on or about August 10, 2006. As a precursor to that prior lawsuit, Johnson filed a charge with the
Equal Employment Opportunity Commission (“EEOC”) against the Union on May 9, 2007 and,
on August 18, 2008, he filed a charge with the EEOC against the City. On August 26, 2009,
Johnson received from the EEOC two notices of his right to sue. On November 17, 2009,
Johnson filed a complaint against, inter alia, the City and the Union. (Compl., Johnson v. City of
Chicago, et al., Case No. 09-cv-07224 (N.D. Ill.), Dkt. No. 1.) Johnson claimed that the City and
the Union failed to accommodate reasonably Johnson’s disabilities—specifically, his vision loss,
his heart condition, and his problems with his shoulder and back—and that the City retaliated
against Johnson because he asserted his rights protected by the ADA. (Second Am. Compl. ¶ 13,
Johnson v. City of Chicago, et al., Case No. 09-cv-07224 (N.D. Ill.), Dkt. No. 51.) On January 5,
2011, Johnson, the City, and the Union agreed to settle the case. (Order, Johnson v. City of
Chicago, et al., Case No. 09-cv-07224 (N.D. Ill.), Dkt. No. 83.)
Meanwhile, in May 2010, during the pendency of this earlier case, Johnson injured his
shoulder at work. (Second Am. Compl. at 5 of 16, Dkt. No. 68.) As a result, he did not work
between May 2010 and March 2011. (Id.) Upon his return, he was assigned to light duty with no
heavy lifting. (Am. Compl. at 6 of 9, Dkt. No. 47.) 2 Thereafter, Johnson’s manager harassed him.
(Id.) On September 1, 2011, Johnson was sent to a duty doctor. The doctor checked his shoulder
For purposes of factual exposition, the Court supplements the facts of the Second Amended Complaint
with facts set forth in Johnson’s first Amended Complaint (Dkt. No. 47).
and vision and determined that Johnson was unfit for duty. In retaliation for settling the earlier
case, the City forced Johnson to take a leave of absence. (Id.).
Johnson filed his initial Complaint in this matter on June 3, 2013. (Dkt. No. 1.) The Court
dismissed the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), citing his failure
to plead any factual allegations to support his claims. (Memo. Op. & Order at 3, Dkt. No. 43.)
Johnson then filed his first Amended Complaint. (Dkt. No. 47.) That complaint was subsequently
dismissed as well. Johnson’s first Amended Complaint was based on claims in his EEOC charge
filed on January 17, 2013. (Second Am. Compl. at 7 of 16, Dkt. No. 68.) To bring a claim under
the ADA, a plaintiff must first file a charge alleging the unlawful employment practice with the
EEOC and receive a notice of right to sue. 42 U.S.C. § 2000e-5(e), (f). Because Illinois is a state
with an equal opportunity agency, Johnson’s charge had to be filed with that agency within 300
days of the employment action of which he complains. 42 U.S.C. § 2000e-5(e); Doe v. Oberweis
Dairy, 456 F.3d 704, 708 (7th Cir. 2006). Since Johnson filed his EEOC Charge on January 17,
2013, his Complaint had to be based on claims occurring after March 23, 2012. But Johnson’s
first Amended Complaint alleged no events after September 2011. Thus, the Court dismissed
Johnson’s first Amended Complaint but granted him leave to replead once more. (Memo. Op. &
Order at 8–9, Dkt. No. 61.)
The Second Amended Complaint alleges that Johnson requested a reasonable
accommodation in April 2012, and the City denied that request in April 2012 and again in March
2013. (Second Am. Compl. at 5 of 16, Dkt. No. 68.) It further alleges that the City refused to
rehire Johnson until Johnson’s “doctor found his shoulder healed and rel[e]ased him to work,”
and even though that release occurred in November 2013, the City denied Johnson’s application
until December 2013. (Id.) This alleged discrimination resulted in Johnson’s loss of two years of
income and seniority. (Id.)
Statute of Limitations
As an initial matter, Johnson’s Second Amended Complaint has remedied the statute of
limitations problem identified in the Court’s prior ruling dismissing the first Amended
Complaint, as he has alleged that the City engaged in unlawful employment practices during the
required time period—i.e., after March 23, 2012. For example, Johnson alleges that he was
denied requests for reasonable accommodation of his shoulder injury in April 2012 and March
2013. Thereafter, according to Johnson, the City repeatedly refused to rehire him until his
shoulder had completely healed and even then unreasonably delayed his rehire. (Second Am.
Compl. at 5 of 16, Dkt. No. 68.) As this all occurred during the requisite time period, Johnson’s
claims based on these alleged violations by the City are not barred by the statute of limitations.
The Court next turns to the City’s argument that Johnson has not stated claims for which
he is entitled to relief. A complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). To survive a motion to dismiss
under Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). While the complaint need not include detailed
factual allegations, there “must be enough to raise a right to relief above the speculative level.”
Id. at 555. The plaintiff must “‘plead[ ] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’” McReynolds v.
Merrill Lynch & Co., 694 F.3d 873, 885 (7th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662
(2009)). The Court accepts all well-pleaded allegations in Johnson’s complaint as true for
purposes of the motion to dismiss. See Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614,
618 (7th Cir. 2007). That said, while a pro se complaint “is to be construed liberally and held to
less stringent standards, . . . courts are not bound to accept as true a legal conclusion couched as
a factual allegation.” Yates v. John Marshall Sch., 2009 WL 1309516, at *2 (N.D. Ill. May 11,
2009) (internal quotation marks omitted) (quoting Papsan v. Allain, 478 U.S. 265, 286 (1986)).
Discrimination Claims under the ADA and Rehabilitation Act
To plead a claim for discrimination under either the ADA or the Rehabilitation Act,
Johnson must adequately allege: (1) he has a disability within the meaning of the statute; (2) he
is otherwise qualified to perform the essential functions of his job with or without reasonable
accommodation; and (3) his employer took adverse job actions against him because of the
disability or failed to make reasonable accommodations. E.E.O.C. v. United Parcel Serv., Inc.,
2010 WL 3700704, at *2 (N.D. Ill. Sept. 10, 2010) (setting forth requirements under the ADA);
Blumenthal v. Murray, 995 F. Supp. 831, 836 (N.D. Ill. 1998) (setting forth same core
requirements under the Rehabilitation Act).
Johnson has alleged a disability: his permanently impaired vision and his injured left
shoulder. (Second Am. Compl. at 5 of 16, Dkt. No. 68.) This impairment and injury plausibly
limit substantially Johnson’s ability to perform certain major life activities, as required to show a
qualifying disability for purposes of the ADA. 29 C.F.R. § 1630.2(j)(1)(ii) (an impairment is a
disability only if it “substantially limits the ability of an individual to perform a major life
activity as compared to most people in the general population”); 42 U.S.C. § 12102(2)(A)
(“[M]ajor life activities include, but are not limited to, caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working.” (emphasis added)).
Next, Johnson has alleged that he was qualified to perform his tasks with a reasonable
accommodation. (Second Am. Compl. at 5 of 16, Dkt. No. 68.) The City complains that
Johnson’s allegations are devoid of any factual basis and are merely conclusory. Though it is true
that Johnson did not state in his allegations what was his requested accommodation, Johnson did
attach to his Second Amended Complaint a letter, dated April 20, 2012, from Dr. Theresa
McCarthy, who provided him medical rehabilitation care. (Second Am. Compl. at 8 of 16, Dkt.
No. 68.) That letter explains the reasonable accommodation he sought as follows:
[Johnson] is unable to perform lifting or overhead tasks above shoulder height
with any weight more than 10 pounds without shoulder pain. He should also be
limited in the amount of weight he carries to no more than occasionally 50
pounds. He is completing outpatient therapy and would need these restrictions
incorporated in his job to return to work.
As such, Johnson’s Second Amended Complaint, along with this attached letter, sets forth
sufficient detail to satisfy Rule 8.
Finally, Johnson has also alleged that the City failed to make this reasonable
accommodation for his disability, instead refusing to allow Johnson to work. (Id.) Thus,
Johnson’s discrimination claims under the ADA and Rehabilitation Act will survive the motion
Retaliation Claim under the ADA
To state a claim for retaliation under the ADA, a plaintiff must allege: (1) that he engaged
in a statutorily protected activity; (2) that he suffered an adverse employment action; and (3) that
there was a causal link between the protected activity and the employer’s action. Prince v. Ill.
Dep’t of Revenue, 73 F. Supp. 3d 889, 894 (N.D. Ill. 2010). Assuming, without deciding, that
Johnson engaged in activity that the statute protects and that he suffered an adverse employment
action, he has not pleaded a causal link between the two.
The Second Amended Complaint makes no allegation of a causal link between any action
taken by the City and Johnson’s request for reasonable accommodations. In response to the
motion to dismiss, Johnson states,
[T]he retaliation claim of the plaintiff was documented in the
plaintiff[’s] charge of discrimination dated January 17, 2013.
Clearly in the charge one of the reason [sic] stated for the
retaliation was a prior filing of a charge of retaliation . . . . The
filing of charges  is the protected act. The lack of accommodation
is the adverse employment action.
(Pl.’s Answer to Def.’s Mot. to Dismiss Second Am. Compl. at 6 of 19, Dkt. No. 82.). But the
Second Amended Complaint pleads no facts plausibly suggesting any causal connection between
this prior charge and the denial of Johnson’s request for reasonable accommodations. Johnson
just references a letter attached to his Second Amended Complaint, from Kevin Murphy, Labor
Relationships Supervisor, Department of Fleet and Facility Management, dated January 31,
2013. That letter reads in relevant part:
The most recent medical documentation we have regarding your
restrictions is the result of your fitness for duty medical evaluation
from 2011. At that time the City of Chicago’s medical provider
determined that you were not fit for duty based on your permanent
restrictions. The Department, based on the most recent medical
documentation from 2011, continues to have concerns regarding
your ability to perform all the essential functions of your position
in a safe manner.
If you wish to request potential reasonable accommodations for
your position, you will need to provide us with recent medical
documentation from your medical provider that clearly identifies
your current medical restrictions and your ability to work safely in
performing the essential functions of the position of a garage
(Second Am. Compl. at 6 of 16, Dkt. No. 68.) This document does not support Johnson’s
allegation that the City declined to reinstate Johnson or provide him with reasonable
accommodation because he filed the prior charge. It does not even mention his prior charge.
Rather, it merely explains why the City was standing by its decision not to reinstate him.
Because Johnson has failed to set forth factual allegations that plausibly support a causal link
between any action taken by the City and Johnson’s request for reasonable accommodations, his
claim for unlawful retaliation must be dismissed.
Claims under § 1983
Finally, with respect to his claim under § 1983, the Second Amended Complaint does not
set forth how the City violated Johnson’s constitutional rights. In his response to the City’s
motion to dismiss, Johnson merely contends that City employees Kevin Murphy and Paul Plant
had final policy-making authority to provide reasonable accommodation but declined to do so.
(Pl.’s Answer to Def.’s Mot. to Dismiss Second Am. Compl. at 5 of 19, Dkt. No. 82.). However,
this still fails to set forth a constitutional violation. The United States Constitution does not
generally does not require workplace accommodations for the disabled, even if it is a public
employer. See Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 368 (2001) (“If special
[workplace] accommodations for the disabled are to be required, they have to come from
positive law and not through the Equal Protection Clause.”) Rather, such protections and
accommodations are the province of the ADA and the Rehabilitation Act. Thus, Johnson’s
claims are properly brought under those statutes, not under the Constitution. Johnson’s claim
under § 1983 is dismissed. Jones v. Regional Transp. Auth., 2012 WL 2905797, at *6 (N.D. Ill.
Jul. 16, 2012) (concluding that plaintiff was precluded from relying on § 1983 as a means to
remedy an alleged ADA violation where no constitutional violation alleged).
For the reasons stated above, the City’s motion to dismiss the Second Amended
Complaint (Dkt. No. 69) is granted in part and denied in part. Specifically, Johnson’s claim for
retaliation under the ADA and his § 1983 claim are dismissed, but his claims for improper
workplace discrimination under the ADA and Rehabilitation Act survive. At this stage in the
proceedings, the Court sua sponte deems it prudent to reconsider the rulings at the outset of the
case denying Johnson’s motions for attorney representation. Accordingly, the Court will recruit
pro bono counsel to represent Johnson in this matter. Johnson is advised, however, that his
counsel’s representation will be limited in scope to the surviving claims alleged in the Second
Amended Complaint; the assignment of counsel is not an invitation for Johnson or his counsel to
assert new claims.
Dated: March 31, 2017
Andrea R. Wood
United States District Judge
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