Koty v. Zaruba et al.

Filing 14

Enter ORDER: Defendants motion to dismiss 5 is granted in part and denied in part. Defendant John E. Zaruba is dismissed by agreement of the parties. The Complaint is dismissed without prejudice to the extent it alleges an ADA discrimination or failure to accommodate claims. The motion is denied as to the Complaints ADA retaliation claim. Signed by the Honorable Virginia M. Kendall on 7/28/2015.Mailed notice(tsa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Koty
Plaintiff(s),
Case No. 15 c 2600
Judge Virginia M. Kendall

v.
Zaruba et al
Defendant(s).
ORDER

Defendants’ motion to dismiss [5] is granted in part and denied in part. Defendant John E. Zaruba is
dismissed by agreement of the parties. The Complaint is dismissed without prejudice to the extent it
alleges an ADA discrimination or failure to accommodate claims. The motion is denied as to the
Complaint’s ADA retaliation claim.

STATEMENT
Defendants John E. Zaruba and the County of DuPage move to dismiss Plaintiff Eric Koty’s Complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 5). Koty is employed as a police
officer at the DuPage County Sheriff’s Office. The Complaint alleges that the Defendants violated the
Americans with Disabilities Act (“ADA”) by discriminating against Koty based on his disability, failing
to accommodate Koty’s inability to drive a Ford Crown Victoria, and transferring him to an inferior
position in retaliation for filing a charge with the EEOC. (Dkt. No. 1 ¶ III.F). As to discrimination and
failure to accommodate, Defendants argue that the Complaint fails to plead facts sufficient to establish
either that Koty was disabled under the ADA or that Defendants regarded him as such. As to retaliation,
Defendants argue that the Complaint does not sufficiently allege a causal link between any protected
activity and Koty’s transfer. For the reasons stated below, the Court grants the motion to dismiss in part.
Koty’s ADA discrimination and failure to accommodate claims are dismissed without prejudice. The
motion is denied as to Koty’s ADA retaliation claim. By agreement of the parties, Defendant John E.
Zaruba is dismissed from the case.
BACKGROUND
The Court takes the following allegations as true for the purposes of this Rule 12(b)(6) motion to dismiss.
See Vesely v. Armslist LLC, 762 F.3d 661, 664 (7th Cir. 2014). Koty was hired by the DuPage County
Sheriff’s Office on May 29, 2001. (Dkt. No. 1 ¶ III.B). Koty worked as a police officer in the Special
Operations Unit until April 8, 2014 when he was transferred to Courthouse Duty. (Id. ¶ III.H). Koty has
“femoral hip impingement with torn labrum” and other medical that cause significant pain when Koty
drives the Ford Crown Victoria that the Sherriff’s Office assigned to him. (Id. ¶ III.I). The pain that Koty
experiences in the Crown Victoria renders him unable to drive that vehicle. (Id. ¶ III.C). The Ford
Explorer is a significantly larger vehicle than Koty’s Crown Victoria, and the extra legroom in the Ford
Explorer would relieve Koty’s pain. (Id. ¶ III.L). The Sheriff’s Office is in possession of numerous Ford
Explorers, though it apparently does not put them to significant use; about a dozen Ford Explorers have
been sitting in the Sherriff’s Office parking garage for years. (Id. ¶ III.D). On January 9, 2014, Koty

notified his employers that if they were to accommodate him by assigning him an Explorer or another
vehicle with more leg room, he could perform his job duties with no pain. (Id. ¶ III.O). At some point,
Koty filed a charge of discrimination with the EEOC. 1 On April 7, 2014, Koty showed the charge to
Chief James Kruse. (Id. ¶ III.P). On April 8, 2014, Koty was transferred from Special Operations to
Courthouse Duty. (Id. ¶ III.R). On Courthouse Duty Koty was no longer eligible for holiday pay, lost the
ability to find other patrolman positions, missed training related to patrolman positions, worked inferior
hours, and no longer performed what he viewed as “police work.” (Id. ¶ IV.C).
STANDARD OF REVIEW
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.” Lodholtz v. York Risk Servs. Group, Inc., 778 F.3d 635, 639 (7th Cir. 2015)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The factual allegations in
the claim must be sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v.
Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555).
“Allegations in the form of legal conclusions are insufficient to survive a Rule
12(b)(6) motion.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012)
(citing Iqbal, 556 U.S. at 678). The Court “construe[s] all well-pleaded facts and draw[s] all inferences in
the light most favorable to the nonmoving party.” See Vesely, 762 F.3d at 664.
DISCUSSION

I.

Discrimination and Failure to Accommodate under the ADA

Koty’s claims that the Sherriff’s Office discriminated against him based on his disability and failed to
accommodate his disability both fail for the same reason: the Complaint does not sufficiently allege that
Koty was disabled within the meaning of the ADA. Being disabled within the ADA’s statutory definition
is a prerequisite to both discrimination and failure to accommodate under the ADA. See Gogos v. AMS
Mech. Sys., Inc., 737 F.3d 1170, 1172 (7th Cir. 2013) (discrimination); E.E.O.C. v. AutoZone, Inc., 707
F.3d 824, 832 (7th Cir. 2013) (failure to accommodate). A person is disabled under the ADA if that
person has “a physical or mental impairment that substantially limits one or more major life activities,” “a
record of such impairment,” or is “regarded as having such an impairment.” 42 U.S.C.S. § 12102(1).
Major 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. 29 C.F.R. Pt. 1630, App. § 1630.2(i).
“Substantially limits” means that the person is either “unable to perform a major life activity” or is

1

The charge is not attached to the Complaint and the Complaint does not allege that Koty
received a right-to-sue letter from the EEOC. Defendants, however, do not appear to dispute the
fact that Koty has, in fact, satisfied the ADA’s administrative prerequisites and have not attacked
the Complaint on the ground that Koty failed to exhaust administrative remedies. Cf. Perkins v.
Ameritch Corp., 161 F. App’x 578, 581 (7th Cir. 2006). The failure to file a charge and receive a
right-to-sue letter is not a jurisdictional defect and can be waived. See Gibson v. West, 201 F.3d
990, 993 (7th Cir. 2000). The Court, therefore, considers the present motion on the merits
without regard to these apparent defects, but nothing precludes the Sherriff’s Office from
bringing a later motion on exhaustion grounds if appropriate. See Fed. R. Civ. P. 12(h)(2)
(“Failure to state a claim upon which relief can be granted . . . may be raised . . . by a motion
under Rule 12(c) or at trial.”); see also Sunders-El v. Rohde, 778 F.3d 556, 559 (7th Cir. 2015).

“significantly restricted as to the condition, manner or duration” under which the individual can perform
the major life activity as compared to the average person in the general population. § 1630.2(j)(1).
Although driving itself is not a major life activity, “the inability to drive nevertheless could create a
disability if it caused an impairment of a major life activity,” such as working. Winsley v. Cook County,
563 F.3d 598, 604 (7th Cir. 2009). To claim substantial impairment of the ability to work, however, “a
plaintiff must allege that the impairment significantly restricts the ability to perform a class of jobs or a
broad range of jobs in various classes.” Id. (quoting Skorup v. Modern Door Corp., 153 F.3d 512, 514
(7th Cir. 1998)). The “inability to perform a particular job for a particular employer is not sufficient to
establish a substantial limitation on the ability to work; rather, the impairment must substantially limit
employment generally." Skorup, 153 F.3d at 514; see also Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 782
(7th Cir. 2007) (“If jobs utilizing an individual’s skills (but perhaps not his or her unique talents) are
available, one is not precluded from a substantial class of jobs.”) (quoting Sutton v. United Air Lines, Inc.,
527 U.S. 471, 492 (1999)) (emphasis deleted). While quantitative evidence is not required, a complaint
must contain information related to “general employment demographics and/or . . . recognized
occupational classifications that indicate the approximate number of jobs . . . from which an individual
would be excluded because of an impairment.” E.E.O.C. v. Rockwell Int'l Corp., 243 F.3d 1012, 1017
(7th Cir. 2001). (internal quotation marks omitted).
The Complaint does not contain sufficient factual allegations to establish that Koty is disabled within the
meaning of the ADA. Koty has alleged only that his impairment limits his ability to drive a certain model
of car. Koty’s impairment would be remedied completely through the use of a Ford Explorer rather than a
Crown Victoria. Koty has not even alleged that he is unable to perform a particular job for a particular
employer, let alone that he is substantially limited in his ability to work in general. In fact, Koty has not
alleged that his condition disqualifies him from doing any other job. Instead, Koty has alleged that he was
physically able to do the first alternative job that he was offered at the courthouse. Koty’s ability to
perform Courthouse Duty demonstrates that his impairment does not disqualify him from jobs within the
Sheriff’s Office and certainly does not support a plausible inference that his employment opportunities are
substantially limited in general. Construed in Koty’s favor to its limit, the Complaint alleges that, at most,
Koty is unable to perform one specific job. Without more, Koty failed to allege that he is disabled under
the ADA. See Squibb, 497 F.3d at 782
Koty has also failed to allege that, whether or not he was actually disabled, he was “regarded as” being
disabled by the Sheriff’s Office. See 42 U.S.C. § 12102(3). In order to establish that he was “regarded as”
having an actionable disability, Koty “must establish that either (1) the employer mistakenly believed that
he had an impairment that substantially limits a major life activity, or (2) the employer mistakenly
believed that an existing impairment, which is not actually limiting, does substantially limit a major life
activity.” Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 607 (7th Cir. 2012) (alterations and internal
quotation marks deleted) (quoting Brunker v. Schwan’s Home Serv., Inc., 583 F.3d 1004, 1008 (7th Cir.
2009)). As discussed above, Koty’s inability to ride in a Crown Victoria is not a substantial limitation on
a major life activity. The Complaint does not allege that the Sheriff’s Office mistakenly believed Koty
had any limitation other than the hip pain. Nor does the Complaint allege that the Sherriff’s Office
believed that Koty’s hip pain limited him from any activities other than riding in a Crown Victoria. The
Complaint therefore fails to state a claim that the Sheriff’s Office regarded Koty as disabled under either
theory. The claim is dismissed.

II.

Retaliation under the ADA

The Complaint does state a plausible claim that the Sheriff’s Office has retaliated against Koty for
reporting his condition and filing a charge with the EEOC. 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. See Cloe v. City of Indianapolis, 712 F.3d 1171, 1180 (7th Cir. 2013). The ADA

prohibits retaliation without regard to whether the plaintiff is actually disabled under the ADA. See
Cassimy v. Bd. of Educ. of the Rockford Pub. Sch. #205, 461 F.3d 932, 938 (7th Cir. 2006). The Sherriff’s
Office does not dispute that the Complaint adequately alleges that Koty engaged in a protected act or that
the transfer to Courthouse Duty constituted an adverse employment action. The Sherriff’s Office argues,
however, that the Complaint has failed to adequately plead a causal relationship between those events.
Drawing all reasonable inferences in Koty’s favor, the Court finds that the Complaint has sufficiently
alleged a causal relationship between protected activity and the adverse employment action. The
Complaint alleges that the transfer to Courthouse Duty occurred the day after Koty told his supervisor
about his EEOC complaint and states that the two events were causally related. This is sufficient to
survive a motion to dismiss. See Smith v. EMB, Inc., 576 F. App’x 618, 620 (7th Cir. 2014) (to plead
retaliation plaintiff need “allege only that she was subject to an adverse employment action after she
engaged in a specifically identified protected activity”) (emphasis deleted). While temporal proximity is
“unlikely, standing alone, to establish the causation element of a retaliation claim,” see Carlson v. CSX
Transp., Inc., 758 F.3d 819, 828 (7th Cir. 2014), suspicious timing may be sufficient to raise an inference
of discrimination when the adverse employment action comes “on the heels” of the protected activity. See
Mobley v. Allstate Ins. Co., 531 F.3d 539, 549 (7th Cir. 2008) (citing McClendon v. Ind. Sugars, 108 F.3d
789, 796 (7th Cir. 1997)) (two to three day period separating protected act and adverse employment
action supported inference of retaliation). The Court leaves Koty to his proof of causation. The motion to
dismiss is denied as to Koty’s claim of ADA retaliation.
CONCLUSION
For the reasons stated above, the motion to dismiss is granted in part and denied in part. Koty’s ADA
discrimination and failure to accommodate claims are dismissed without prejudice. The motion is denied
as to Koty’s ADA retaliation claim. Defendant Zaruba is dismissed by agreement of the parties.

Date: 7/28/2015
Virginia M. Kendall
United States District Judge