Briscoe v. Village of Vernon Hills et al
Filing
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MEMORANDUM OPINION Signed by the Honorable Samuel Der-Yeghiayan on 5/25/2016: Mailed notice (mw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN BRISCOE,
Plaintiff,
v.
VILLAGE OF VERNON HILLS, et al.,
Defendants.
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No. 15 C 10761
MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants’ motion to dismiss. For the
reasons stated below, the motion to dismiss is granted in its entirety.
BACKGROUND
Plaintiff John Briscoe (Briscoe) was allegedly employed as a police officer by
the Village of Vernon Hills (Village) and was eventually promoted to a Commander
position In November 2012, Briscoe allegedly injured his knee and back, and in
2013 Briscoe had knee and back surgery. After post-surgical care and additional
treatment, it was allegedly determined that Briscoe would not be able to perform the
full unrestricted duties of a police officer appointed to a Commander position. At
that time, although it was clear that Briscoe would no longer be able to do his job
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even with a reasonable accommodation, he did not retire. Briscoe contends that the
Village then ceased paying worker’s compensation benefits and required him to
utilize his accumulated sick days, vacation time, and compensatory time.
In May 2014, Briscoe allegedly applied for a line-of-duty disability pension
with the Village Police Pension Board (Pension Board). In June 2014, Briscoe
allegedly received a memorandum from Defendant Chief Mark Fleischhauer
(Fleischhauer) requiring him to return to work, and Briscoe did not comply. In July
2014, Fleischhauer allegedly ordered Briscoe to report to two physicians selected by
the Village for medical evaluations (Evaluations). On September 11, 2014, Briscoe
allegedly filed an application for benefits with the Illinois Worker’s Compensation
Commission seeking benefits for his knee and back condition. On September 15,
2015, Fleischhauer again allegedly ordered Briscoe to return to work and to provide
an explanation for his absence, and Briscoe did not comply.
Briscoe contends that in October 2014, the Village allegedly enacted an
ordinance (Ordinance) that would require Briscoe to file a claim for health insurance
benefits pursuant to the Public Safety Employee Benefits Act (PSEBA) with the
Village within 30 days. Briscoe contends that the enactment of the Ordinance was
based on some hidden conspiracy aimed at punishing and discriminating against him.
In November 2008, Briscoe was allegedly served with a notice of discipline
accusing Briscoe of violating the Village Police Department’s sick leave policy. The
Village contends that Briscoe failed to disclose that he was collecting money for his
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injuries via worker’s compensation and at the same time was getting paid in a second
job outside his work for the Village. Briscoe contends that the disciplinary notice
was also part of some hidden conspiracy against him. The Village also later took
other adverse actions against Briscoe before the Pension Board granted a line-of-duty
disability pension in February 2015, and he retired on disability benefits effective
November 20, 2014.
Briscoe includes in his complaint a claim brought against the Village alleging
disability discrimination in violation of the Americans with Disabilities Act (ADA),
42 U.S.C. § 12101 et seq. (Count I), an ADA retaliation claim brought against the
Village (Count II), an ADA discrimination claim brought against the Village based
upon the Examinations (Count III), claims brought pursuant to 42 U.S.C. § 1983
(Section 1983) against all Defendants alleging retaliation in violation of the exercise
of Briscoe’s First Amendment rights (Count IV), Section 1983 conspiracy claims
brought against all Defendants (Count V), a Monell claim brought against the Village
(Count VI), and state law conspiracy claims brought against all Defendants (Count
VII). Defendants now move to dismiss all claims.
LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences
that favor the plaintiff, construe allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
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the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)
(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)); see also
Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive a
motion to dismiss, the complaint ‘must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,’ and that ‘[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’”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
DISCUSSION
I. Section 1983 First Amendment Retaliation Claims (Count IV)
Defendants move to dismiss the Section 1983 First Amendment claims. For a
Section 1983 First Amendment retaliation claim, a plaintiff must establish: (1) that
“he engaged in activity protected by the First Amendment,” (2) that “he suffered an
adverse action that would likely deter future First Amendment activity,” and (3) that
“the First Amendment activity was at least a motivating factor in the defendants’
decision to retaliate.” Gekas v. Vasiliades, 814 F.3d 890, 895 (7th Cir.
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2016)(internal quotations omitted)(quoting Santana v. Cook Cnty. Bd. of Review, 679
F.3d 614, 622 (7th Cir. 2012)). Defendants argue that Briscoe has not alleged facts
that suggest he engaged in protected free speech. A public employee’s speech is
protected under the First Amendment when the employee speaks out “as a citizen on
a matter of public concern.” Kubiak v. City of Chicago, 810 F.3d 476, 481 (7th Cir.
2016)(citing Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). A matter of public
concern is defined as a “legitimate news interest, or a subject of general interest and
of value and concern to the public at the time of publication.” Kubiak, 810 F.3d at
483 (internal quotations omitted)(quoting Meade v. Moraine Valley Cmty. Coll., 770
F.3d 680, 684 (7th Cir. 2014))(stating that “[w]hether an employee’s speech
addresses a matter of public concern must be determined by the content, form, and
context of a given statement”)(internal quotations omitted)(quoting Connick v.
Myers, 461 U.S. 138, 147-48 (1983)).
In the instant action, Briscoe contends that he spoke out on matters “of public
concern,” but his conclusory allegations are not alone sufficient to plead a Section
1983 First Amendment retaliation claim. (Compl. Par. 119). Nor is it sufficient for
Briscoe to present conclusory allegations as to a widespread pattern and practice of
discrimination. (Compl. Par. 84,144). The discrimination identified in the complaint
is the alleged discrimination allegedly suffered personally by Briscoe. The
allegations in the complaint indicate that Briscoe engaged in speech relating to his
personal health issues, worker’s compensation, and disability and other employment
benefits and conditions of employment. Such allegations suggest that Briscoe
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engaged in speech relating to a personal grievance with the Village. Briscoe also
argues that discrimination against employees is a matter of public concern.
However, under such logic virtually every complaint of discrimination by an
employee would be transformed into protected speech. The law does not provide
such a broad scope for protected speech. The facts alleged by Briscoe himself do not
indicate any protected speech by Briscoe that could support Section 1983 First
Amendment retaliation claims. Therefore, Defendants’ motion to dismiss the Section
1983 First Amendment retaliation claims (Count IV) is granted.
In addition, since there is no underlying individual Section 1983 claim
remaining in this action, the Monell claim (Count VI) and the Section 1983
conspiracy claims (Count V) must be dismissed as well. See Hart v. Mannina, 798
F.3d 578, 596 (7th Cir. 2015)(dismissing Monell claim because the underlying
individual Section 1983 claims were dismissed); Sallenger v. City of Springfield, Ill.,
630 F.3d 499, 504 (7th Cir. 2010)(stating that “a municipality cannot be liable under
Monell when there is no underlying constitutional violation by a municipal
employee”); Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008)(stating that
“conspiracy is not an independent basis of liability in § 1983 actions”).
II. ADA Claims
Defendants move to dismiss the ADA claims. For an ADA discrimination
claim a plaintiff must establish: (1) that “he is disabled,” (2) that “he is otherwise
qualified to perform the essential functions of the job with or without reasonable
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accommodation,” and (3) that “the adverse job action was caused by his disability.”
Roberts v. City of Chicago, 817 F.3d 561, 565 (7th Cir. 2016). An individual is
deemed disabled under ADA if that individual has “a physical or mental impairment
that substantially limits one or more major life activities of such individual,” has “a
record of such an impairment,” or is “regarded as having such an impairment. . . .”
42 U.S.C. § 12102(1). Briscoe argues that he is protected by the ADA because he
was regarded as being disabled by the Village even if his perceived physical
impairment did not qualify as a disability. (Resp. 11). Briscoe does allege in his
complaint that he was regarded as having a disability. (Compl. Par. 78). However,
that only suffices to cover one of the three elements of the ADA claim. As indicated
above, he still must show that he is otherwise qualified to perform the essential
functions of the job with or without reasonable accommodation. This is illustrated
by the language of the ADA itself. The ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity.” 42 U.S.C.§ 12132 (emphasis
added). While Briscoe can utilize the “regarded as” prong to meet the disability
requirement, he still must show that he was a qualified individual. See, e.g., Jackson
v. City of Chicago, 414 F.3d 806, 814 (7th Cir. 2005)(affirming district court ruling
that the police officer was disabled but was not a qualified individual protected by
the ADA). The ADA defines a qualified individual as “an individual who, with or
without reasonable accommodation, can perform the essential functions of the
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employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
Briscoe’s allegations in his complaint make it clear that even after seeking treatment
for his injuries, he was no longer able to perform the essential functions for a
Commander position even with a reasonable accommodation. Nor does Briscoe
explain in response to the instant motion why he satisfies the qualified individual
requirement, stating only that he has “established a prima facie case of ‘regarded as’
disability sufficient to deny Defendants’ Motion to Dismiss.” (Resp. 11). The court
notes that Briscoe’s contention that Defendants regarded him as being disabled is not
consistent with his own allegations that he was repeatedly asked to return to work.
Briscoe was not a qualified individual protected by the ADA.
The court also notes that Briscoe cites to Wright v. Illinois Dep’t of Children
& Family Servs. (Resp. 12). Although Briscoe does not provide a proper citation for
the case or page numbers for his reference to Wright it appears that he is referring to
Wright v. Illinois Dep't of Children & Family Servs., 798 F.3d 513 (7th Cir. 2015),
which addressed 42 U.S.C. § 12112(d)(4)(A) (Section 12112(d)(4)(A)). Section
12112(d)(4)(A) provides that “[a] covered entity shall not require a medical
examination and shall not make inquiries of an employee as to whether such
employee is an individual with a disability or as to the nature or severity of the
disability, unless such examination or inquiry is shown to be job-related and
consistent with business necessity.” Id. In the instant action, Briscoe alleges that he
was a police officer charged with doing the necessary actions to protect the public.
Such allegations indicate that medical evaluations would be consistent with a
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business necessity on the part of the Village. Defendants also point to federal and
state law that authorizes such examinations and helps to ensure that police officers
are able to perform their duties and protect the public.
To the extent that Briscoe seeks to pursue an ADA retaliation claim, in an
effort to support the discrimination claim in Count III, Briscoe specifically alleges in
his complaint that he never asserted any ADA rights with the Village. (Compl. Par.
37, 105-113). Nor does Briscoe present any arguments or legal support to oppose
Defendants’ motion to dismiss the ADA retaliation claim. (Resp. 11-13). Briscoe
also alleges that he filed his charge with the Equal Employment Opportunity
Commission in January 2015, which would have been after the alleged adverse
actions by Defendants. (Compl. Par. 4).
The Village was not required to continue to employ and pay a police officer
who was unable to perform the necessary tasks of his job, which included protecting
the public from harm. Briscoe’s own allegations clearly indicate that the Village did
everything it could to give Briscoe an opportunity to return to work and continue his
service to the public, but that there was no alternative in the end other than for
Briscoe to retire with disability benefits. Therefore, Defendants’ motion to dismiss
the ADA claims (Count I-III) is granted.
III. State Law Conspiracy Claims
Defendants move to dismiss the state law conspiracy claims (Count VII.
Pursuant to the Illinois Local Governmental and Governmental Employees Tort
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Immunity Act (Tort Immunity Act), “[a] public employee is not liable for an injury
caused by his adoption of, or failure to adopt, an enactment, or by his failure to
enforce any law.” 745 ILCS 10/2-205. In the instant action, Briscoe alleges that
Defendants, when acting within the scope of their employment retaliated against
Briscoe by adopting the Ordinance. (Compl. Par. 149. 135-36). Such conduct would
clearly be barred by the Tort Immunity Act. To the extent that Briscoe seeks to
assert state law conspiracy claims beyond the scope of enacting the Ordinance,
Briscoe has failed to allege any independent cause of action to support a conspiracy
claim. See Indeck N. Am. Power Fund, L.P. v. Norweb PLC, 735 N.E.2d 649, 662
(Ill. App. Ct. 2000)(stating that “a conspiracy is not an independent tort” and that
when “a plaintiff fails to state an independent cause of action underlying its
conspiracy allegations, the claim for a conspiracy also fails”). Therefore,
Defendants’ motion to dismiss the state law conspiracy claims (Count VII) is
granted.
CONCLUSION
Based on the foregoing analysis, Defendants’ motion to dismiss is granted in
its entirety.
___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: May 25, 2016
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