Spring-Weber v. City Of Chicago et al

Filing 55

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 4/10/2017: For the reasons stated in the accompanying memorandum opinion and order, the Court grants defendants' motion to dismiss in part [dkt. no. 35]. Specifically, the Court dismisses count 4 as to all defendants to the extent that the claim is based on Spring's alleged confinement in the waiting room and retaliation for speaking with Alderman Burke. The Court also dismisses count 4 as to Dr. Wong and Sil vestrini to the extent it is based on allegations involving drug and psychiatric testing and signing the HIPAA release form. The Court otherwise denies defendants' motion to dismiss. Given the pendency of a motion to withdraw, plaintiff's attorney is directed to take steps to immediately transmit a copy of this decision to plaintiff. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LISA SPRING-WEBER,
Plaintiff,
vs.
CITY OF CHICAGO, WILLIAM WONG,
and EDGAR IGNACIO SILVESTRINI,
Defendants.

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Case No. 16 C 8097

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Lisa Spring-Weber, a fire paramedic employed by the City of Chicago, has
chronic Bell's Palsy. She has filed suit against the City and two of its employees—
Doctor William Wong and Edgar Silvestrini—alleging that they subjected her to
disparate treatment because of her disability in violation of the American with
Disabilities Act (ADA) (count 1), retaliated against her in violation of the ADA (count 2),
denied her benefits because of her disability in violation of the Rehabilitation Act (count
3), violated her constitutional rights under the First, Fourth, Fifth and Fifteenth
Amendments (count 4), and intentionally inflicted emotional distress on her (count 5).
Defendants have moved to dismiss all five counts. The Court previously considered
and denied defendants' motion as to counts 1 and 2. See Spring-Weber v. City of
Chicago, No. 16 C 8097, dkt. no. 47. For the reasons stated below, the Court partially
grants the motion to dismiss count 4 but otherwise denies defendants' motion to
dismiss.

Background
The Court takes the following facts from the allegations in Spring's 1 amended
complaint.
Spring has worked as a fire paramedic for the Chicago Fire Department (CFD)
since April 2004. In 2009, she was diagnosed with severe chronic Bell's Palsy in the
right side of her face. Spring suffers from a variety of symptoms, including paralysis to
the right side of her face, facial distortion and drooping, cosmetic disfigurement causing
impaired speech and slurring, facial twitching, and impaired hearing. She occasionally
experiences flare-ups during which her symptoms worsen for a brief period. Spring's
doctors have provided CFD's medical division with certifications indicating that she is fit
for duty as a fire paramedic.
In May 2015, Spring suffered from a flare-up of her symptoms while on duty
driving an ambulance for CFD. She experienced facial distortion and twitching, facial
paralysis, drooling, a runny nose, sniffling, and eye watering. These symptoms
occurred mainly on the right side of her face, closest to the passenger seat. Joel Weiss,
another CFD employee riding as a passenger, accused Spring of falling asleep at the
wheel and repeatedly told her to wake up. When the two returned to the fire station,
Weiss complained to the field chief about Spring's appearance and claimed that she fell
asleep at the wheel. As a result, Spring was pulled off duty and placed on involuntary
medical leave, lasting from May to December 2015.
While on medical leave, Spring's pay rate was reduced. She also lost the ability
to work overtime and earn holiday pay, and she became ineligible for promotions. Her
1

The Court will refer to plaintiff as "Spring" because that is how her counsel refers to
her in her response to defendants' motion to dismiss.
2

pay reduction also lowered her pension contributions during that same time period.
Spring also lost out on a transfer to a more desirable location. Around June 2015,
Spring provided the City with a certification from her treating physician, who indicated
that her condition does not interfere with her ability to safely and effectively perform her
job. Despite this, the City deemed her unfit for duty and kept her on involuntary medical
leave.
CFD employees on medical leave are required to remain in their home or other
place of recuperation to permit CFD to monitor their progress. Am. Compl., Ex. A
(General Order 10-011) at III.D.6. Employees are allowed to leave only for specific
activities, such as attending religious services, purchasing food or necessities, going to
court, or voting. Id. at III.D.6.a. If the employee wishes to leave Chicago, she must
demonstrate a personal emergency and receive prior approval from the command staff
of the medical section. Id. at III.D.6.b. Thus Spring was confined to her home under
these conditions during her period of involuntary leave.
Spring also alleges that while she was on medical leave, both Dr. Wong (CFD's
medical director) and Silvestrini (the deputy district chief for CFD's medical division)
began using department policies to harass her. Under General Order 10-011, the
medical section assigns employees a date and time to report to the medical section for
evaluation. Id. at III.D.1. Employees must report on the assigned date in the
appropriate dress or modified dress uniform. Id. at III.D.2. Failure to report or to be
prompt for a scheduled appointment may be cause for discipline. Id. at III.D.4.
According to Spring, Dr. Wong and Silvestrini made excessive demands for Spring to
report to the medical division, each time in dress uniform. When she arrived at the

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medical division, Dr. Wong and Silvestrini would give preference to paramedics who
had arrived later than Spring, despite the fact that patients are supposed to be seen in
the order they arrive. As a result, she often had to wait five hours before meeting with
Dr. Wong, even when she arrived an hour early. She could not leave without seeing Dr.
Wong because if she did, she would receive a disciplinary warning for being "AWOL."
Additionally, Dr. Wong and Silvestrini required Spring to submit to multiple
urinalysis screenings for drug and alcohol use. General Order 87-008 provides the
criteria for determining when the medical section should require an employee to submit
to drug tests. See Am. Compl., Ex. B (General Order 87-008). One situation that
requires the administration of urinalysis is when the employee exhibits "[a]ny behavior
or conduct on duty, which in the opinion of two supervisors, . . . evidences reasonable
grounds to suspect use or excessive use of illegal drugs or alcoholic beverages." Id. at
IV.A.5. Spring was required to undergo multiple screenings and had to provide urine
samples in the presence of a City employee.
Defendants also required Spring to submit to psychiatric consultations and
testing over a two-day period and ordered her to meet with a psychologist for one year.
Thus far, Spring has spent approximately $1,000 on these appointments. Dr. Wong and
Silvestrini also required Spring to sign a comprehensive HIPAA release form in order to
permit them to access Spring's psychiatric record. When Spring protested, defendants
told her that they would fire her if she did not submit to testing and sign the release
form. Defendants have also singled Spring out for strenuous physical tests in order to
ensure that she is fit for duty.
Spring further alleges that Dr. Wong and Silvestrini have denied her medical care

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to which she is entitled. An employee who suffers an injury while on duty must have all
medical services pre-approved by CFD's medical director. General Order 10-011 at
III.A.7, VI.A. General Order 10-011 provides that approval shall be granted without
delay based upon the treating physician's recommendation and after a determination
that the treatment is consistent with generally accepted medical standards. Id. The
purpose of this order is to avoid requiring the employee to pay for duty-related medical
bills. Id. at VI.A. Spring suffered a duty-related injury in 2014 and requested preapproval from Dr. Wong for her medical treatment. Dr. Wong denied approval of her
treatment and has directed other City employees to shred Spring's other requests for
pre-approval.
Spring alleges that Dr. Wong and Silvestrini have repeated this mistreatment with
other employees. She alleges that they have systematically abused their authority in
order to mistreat other disabled CFD employees who are similarly situated. Spring also
alleges that the City is aware of this abuse because she and other employees have filed
grievances with the Chicago Firefighter's Union Local 2 as well as with the Illinois Office
of the Inspector General. At one point, Spring contacted her alderman, Edward Burke,
and asked him to contact the City on her behalf. Burke contacted Silvestrini about the
alleged discrimination, after which, Spring alleges, the abuse intensified.
In January 2016, Spring filed a charge of discrimination against the City with the
Equal Employment Opportunity Commission (EEOC) and the Illinois Department of
Human Rights (IDHR). In response, she alleges, the City retaliated against her in
numerous ways, including transferring her to a remote location, issuing baseless
disciplinary warnings, and refusing to permit her to schedule her furlough days.

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Spring filed this suit in August 2016. She claims in count 1 that she suffered from
disparate treatment by defendants due to her chronic Bell's Palsy in violation of the
ADA. In count 2, she claims that the City retaliated against her after she filed a charge
of discrimination with the EEOC and the IDHR, in violation of the ADA. Spring claims in
count 3 that defendants denied pre-approval of her medical care due to her disability in
violation of the Rehabilitation Act. In count 4, she claims that defendants' conduct
violated a number of her constitutional rights. First, Spring claims that placing her on
involuntary leave constitutes a deprivation of property without due process in violation of
the Fourteenth Amendment. Next, she claims that defendants violated her Fourth
Amendment rights by (1) subjecting her to unreasonable searches in the form of
urinalysis tests; (2) confining her to her home during the period of medical leave; and (3)
forcing her to wait in the medical waiting room for long periods of time. Spring also
claims defendants violated the Equal Protection Clause of the Fourteenth Amendment
by discriminating against her due to her disability. She claims that defendants violated
her Fifth Amendment right to privacy by (1) requiring intrusive psychiatric testing and
evaluation; and (2) requiring a HIPAA release of her medical records. Finally, she
claims that defendants' retaliated against her for speaking with Alderman Burke in
violation of the First Amendment. In total, Spring alleges eight different constitutional
violations. She claims that Dr. Wong and Silvestrini are each individually liable for these
violations and that the City is liable as well. In count 5, she claims that defendants'
conduct amounts to intentional infliction of emotional distress.
Discussion
Defendants have moved to dismiss all five counts of Spring's amended

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complaint. The Court has already denied the motion to dismiss as to counts 1 and 2
and therefore considers only the three remaining counts in this opinion. Defendants
argue for dismissal of count 3 on the grounds that they did not deprive Spring of any
protected interest in property. In regards to Spring's constitutional claims, defendants
argue that (1) their conduct does not evidence constitutional violations; (2) the City
cannot be held liable for any of the allegedly unlawful conduct; and (3) Dr. Wong and
Silvestrini are entitled to qualified immunity. Finally, defendants argue that the claim for
intentional infliction of emotional distress should be dismissed because the claim is
preempted by the Illinois Human Rights Act (IHRA), the alleged conduct is not
sufficiently extreme or outrageous to support such a claim, the claim is barred under the
Illinois Tort Immunity Act, and the statute of limitations restricts the actionable conduct.
To survive dismissal, a complaint must allege sufficient factual matter to state a
claim to relief that is plausible on its face. Gogos v. AMS Mech. Sys., Inc., 737 F.3d
1170, 1172 (7th Cir. 2013). 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." McCauley v. City of Chicago, 671 F.3d 611, 615
(7th Cir. 2011). In considering the defendants' motion to dismiss, the Court accepts as
true all of Spring's factual allegations and draws all reasonable inferences in her favor.
See Chasensky v. Walker, 740 F.3d 1088, 1093 (7th Cir. 2014).
I.

Rehabilitation Act
The Rehabilitation Act protects a qualified individual with a disability from

discrimination solely because of this disability in any program receiving federal financial
assistance. Branham v. Snow, 392 F.3d 896, 902 (7th Cir. 2004). In order to state a

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claim under the Act, the plaintiff must allege that (1) she suffers from a disability; (2) she
was otherwise qualified for the benefit sought; (3) she was discriminated against solely
by reason of her disability; and (4) the program or activity receives federal financial
assistance. See Stevens v. Skenandore, No. 99-2611, 2000 WL 1609404, *2 (7th Cir.
2000); Branham, 392 F.3d at 902. Spring alleges that she was entitled to pre-approval
of medical treatment for an on-duty injury and that defendants denied this approval due
to her disability. Am. Compl. ¶ 69(j)–(l). Defendants argue that Spring has failed to
properly allege that she was entitled to any specific benefit because she has not alleged
the circumstances of her duty-related injury or the treatment for which she sought
approval. Defs.' Mem. in Supp. of Mot. to Dismiss Pl.'s Am. Compl. at 7–8. But
General Order 10-011 indicates that pre-approval of expenses for duty-related injuries
will be granted without delay so long as the employee's medical provider recommends
the course of treatment. General Order 10-011 at V.I.A. Thus according to this policy,
the nature and circumstances surrounding the duty-related injury are irrelevant in
determining whether an employee is entitled to pre-approval of her medical expenses.
Spring has alleged that she was injured on the job in 2014, she requested pre-approval
for treatment, and defendants denied this approval because of her disability. Taking
these facts as true, Spring has adequately alleged a claim under the Rehabilitation Act.
The Court therefore denies defendants' motion to dismiss count 3.
II.

Constitutional claims
Spring alleges eight separate violations of her constitutional rights by defendants.

Defendants argue first that their conduct does not support any claim of a constitutional
violation. Alternatively, they argue that the City is not liable for any violations and that

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Dr. Wong and Silvestrini have qualified immunity.
A.

Constitutional violations
1.

Denial of due process

Spring first claims that, by placing her on involuntary medical leave, defendants
deprived her of a property interest in earnings, pension contributions, and a possible
promotion, all without due process of law. A plaintiff alleging a denial of due process
must allege that she has a protected property interest that she claims the defendants
denied her and that the process provided was inadequate. See Luellen v. City of East
Chicago, 350 F.3d 604, 613 (7th Cir. 2003); Barrows v. Wiley, 478 F.3d 776, 780 (7th
Cir. 2007). Defendants argue only that Spring did not have a protected property interest
in avoiding suspension; they do not argue that she failed to allege that the process was
inadequate.
In order to show that an employee has a protected property interest in his
continued employment, the employee typically must point to an independent source that
creates the interest, such as state law or an employment contract with a state entity.
See id.; Swick v. City of Chicago, 11 F.3d 85, 86 (7th Cir. 1993). Spring alleges that
she has a property interest in her employment under an Illinois statute stating that no
member of the fire department "shall be removed or discharged except for cause." 65
ILCS 5/10-2.1-17. As defendants argue, this statute requires cause for removal or
discharge but does not mention suspension. Therefore the statute provides Spring with
a property interest in avoiding removal or discharge but not in avoiding suspension.
See Townsend v. Vallas, 256 F.3d 661, 673–76 (7th Cir. 2001); compare Swick, 11
F.3d at 86–87 (evaluating a statute that indicates that suspension must also be for

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cause).
The Seventh Circuit has indicated, however, that "[e]ven in the absence of
explicit statutory protection. . .[,] removal or suspension—even a suspension with pay—
from a statutorily protected employment position might produce indirect economic
effects that trigger the protection of the Due Process Clause." Luellen, 350 F.3d at
613–14. The relevant inquiry appears to be whether the property lost due to the
suspension is so integral to the employee's position such that loss of the property could
be deemed a loss of the employee's position. Id. at 614. In other words, if a plaintiff
can show that a statute grants her a property interest in her continued employment,
other actions short of termination—such as suspension or a reduction in pay—may
sufficiently interfere with her employment so as to rise to the level of a deprivation of
that interest.
Spring alleges that her suspension caused a reduction in her pension
contributions and made her ineligible for promotions. Am. Compl. ¶¶ 58–59. More
importantly, she alleges that she received reduced pay while on involuntary medical
leave. Id. ¶ 56. In contrast with the "on-call pay" at issue in Luellen—which the court
determined was not a protected property interest—Spring's regular pay could be
deemed so integral to her position that loss of this pay constitutes a loss of her position.
Thus Spring has adequately alleged that defendants deprived her of a property interest
when they placed her on involuntary medical leave. The Court denies defendants'
motion to dismiss count 4 based on the alleged denial of due process.
2.

Fourth Amendment violations

Spring claims that defendants violated the Fourth Amendment by subjecting her

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to unreasonable searches in the form of urinalysis tests. Defendants argue that,
because Spring works in a safety-sensitive position, compelled drug testing does not
violate the Fourth Amendment. It is true that warrantless drug testing of an employee
may be permissible when the employee occupies a safety-sensitive position. Krieg v.
Seybold, 481 F.3d 512, 517 (7th Cir. 2007). But even in such a case, a court is still
required to balance the intrusion on the employee's constitutional rights against the
search's promotion of a legitimate government interest to determine whether the drug
test was constitutional. Id. Thus even if it were undisputed from Spring's allegations
that she occupied a safety-sensitive position, this fact alone does not preclude her from
claiming that she has the right to be free from warrantless drug testing by her employer.
Spring next claims that defendants subjected her to an unlawful seizure when
they confined her to her home as a condition of involuntary medical leave. Defendants
argue that the home confinement policy is rationally related to CFD's legitimate interest
in preventing abuse of sick leave policies. The Seventh Circuit has indicated, however,
that policies confining employees to the home while on medical leave may violate the
Constitution. See Pienta v. Vill. of Schaumburg, 710 F.2d 1258, 1260 (7th Cir. 1983).
In Pienta, the Court concluded that the Village's home confinement policy infringed
employees' rights "to vote, to exercise freely their religion by church attendance, to go to
court, to attend political or family gatherings, and to travel." Id. Defendants argue that
the same is not true for the policy at issue here because it provides exceptions for an
employee's exercise of constitutional rights. See Defs.' Mem. in Supp. of Mot. to
Dismiss Pl.'s Am. Compl. at 9. CFD's general policy does permit an employee on
medical leave to leave her home in order to attend religious services, go to court, vote,

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obtain food or necessities, and bring a child to or from school, among other things.
General Order 10-011 at III.D.6.a. But the policy does not permit the employee to leave
in order to attend political or family gatherings. Further, the policy indicates that the
employee cannot leave the boundaries of Chicago unless it is for an emergency and the
employee receives prior approval from the medical section command staff. Id. at
III.D.6.b. This is similar to the policy in Pienta, which required an employee to get
authorization from the chief of police before leaving the state and which the court
concluded infringed the plaintiff's right to travel. Pienta, 710 F.2d at 1260. Spring has
therefore adequately alleged that the defendants' home confinement policy violates her
constitutional rights.
Finally, Spring claims that defendants subjected her to an unlawful seizure when
they forced her to remain in the waiting room for five-hour periods, knowing she would
receive a disciplinary mark if she left without completing her appointment. It certainly is
not the case that every work-related requirement that assigns an employee to a
particular location constitutes an unlawful seizure. And Spring does not cite any case
law to support her claim that this particular conduct rises to the standard required for a
constitutional violation.
The Court grants defendants' motion to dismiss Spring's claim that they violated
her Fourth Amendment rights to the extent that it is based on being confined to the
waiting room but otherwise denies the motion with regard to Spring's Fourth
Amendment claim.
3.

Equal protection

Spring next claims that defendants discriminated against her due to her disability

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in violation of the Equal Protection Clause. Defendants argue that Spring cannot bring
both an equal protection claim and a claim under the ADA when the claims are based
on the same conduct. The Seventh Circuit has not expressly considered whether
Congress intended the ADA to preclude simultaneous constitutional claims. But the
court has previously held in the context of Title VII claims that both the Fourteenth
Amendment and Title VII "grant public sector employees independent rights to be free
of employment discrimination" and thus that Title VII is not the exclusive remedy for
employment discrimination. Ratliff v. City of Milwaukee, 795 F.2d 612, 624 (7th Cir.
1986) (internal quotation marks omitted); see also Holmes v. Godinez, 311 F.R.D. 177,
230–31 (N.D. Ill. 2015) (holding that the ADA does not preclude equal protection claims
brought under section 1983 based on the same conduct). The Court concludes that
Spring's ADA claim does not prevent her from also asserting an equal protection claim.
Defendants also argue that Spring's equal protection claim is essentially a "classof-one" claim, and that public employees are prohibited from bringing such claims.
Defs.' Mem. in Supp. of Mot. to Dismiss Pl.'s Am. Compl. at 10. Defendants are correct
in their assertion that public employees cannot bring class-of-one claims. See Engquist
v. Oregon Dep't of Agric., 553 U.S. 591, 604–05 (2008). But this means only that public
employees cannot bring an equal protection claim based on allegations that a
government employer "made an individualized, subjective personnel decision in a
seemingly arbitrary or irrational manner." Id. at 605. The Court in Engquist went on to
affirm a public employee's ability to bring an equal protection claim "when the
government makes class-based decisions in the employment context, treating distinct
groups of individuals categorically differently." Id. Here, Spring alleges that defendants

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discriminated against her based on her disability—i.e. on her membership in a specific
class. She does not allege that the defendants acted "solely for arbitrary, vindictive or
malicious reasons." Id. at 596. Thus Spring is not alleging a "class-of-one" claim. The
Court denies defendants' motion to dismiss Spring's equal protection claim.
4.

Fifth Amendment claims

Spring claims that defendants violated her right to privacy under the Fifth and
Fourteenth Amendments by requiring her to sign a HIPAA release form to permit
defendants access to her psychiatric records and requiring her to undergo intrusive
psychiatric testing and evaluation.
The privacy interest protected by the Fourteenth Amendment "includes a
'qualified' constitutional right to the confidentiality of medical records and
communications." Coffman v. Indianapolis Fire Dep't, 578 F.3d 559, 566 (7th Cir.
2009). Defendants argue again that because Spring works in a safety-sensitive
position, requiring disclosure of her confidential medical records does not violate the
Constitution. But as discussed earlier, the Court is still required to determine whether
CFD has a legitimate interest under the circumstances in requiring its fire paramedics to
release their medical history. See id. Thus even if Spring holds a safety-sensitive
position, she has sufficiently stated a Fifth Amendment claim based on the required
disclosure of medical records.
The Seventh Circuit has not determined whether this right to confidentiality
extends to mandatory psychiatric testing. See Flynn v. Sandahl, 58 F.3d 283, 290 (7th
Cir. 1995) (citing a First Circuit case affirming the existence of such a right). In a later
case, the court suggested that such a claim may exist under the Fifth Amendment. See

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Greenawalt v. Indiana Dep't of Corr., 397 F.3d 587, 592 (7th Cir. 2005). Defendants
argue that the court in Coffman expressly indicated that even if such a right exists, it
unquestionably must give way to public interest in the context of firefighters. See
Coffman, 578 F.3d at 566 (indicating that the court "do[es] not second-guess the
propriety of such an evaluation for a firefighter"). The court in Coffman, however, was
evaluating a claim that compelled psychiatric testing violated the ADA. Id. at 565. The
ADA prohibits such testing unless the examination is "job-related and consistent with
business necessity." Id. Thus the court's the determination that this standard was met
for firefighters does not necessarily indicate that the same conclusion would result for a
claim brought under the Constitution. Therefore the Court denies the defendants'
motion to dismiss Spring's claims based on her right to privacy.
5.

First Amendment retaliation

Finally, Spring claims that defendants violated her rights under the First
Amendment by retaliating against her for speaking with Alderman Burke about the
allegedly discriminatory treatment. To establish a claim for retaliation in violation of the
First Amendment, a public employee must establish that she spoke as a private citizen
on a matter of public concern. Kubiak v. City of Chicago, 810 F.3d 476, 481 (7th Cir.
2016). Defendants correctly argue that Spring has failed to allege that she spoke on a
matter of public concern. Spring alleges that she contacted Burke in order to ask him
"to contact the City regarding its discriminatory conduct on her behalf." Am. Compl. ¶
71(d). Thus the objective of Spring's speech was to further a purely private interest.
See Kubiak, 810 F.3d at 483. Her allegations reflect that her goal was to air and correct
a personal grievance against her employer and therefore her speech was not protected

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by the First Amendment. See id. The Court dismisses Spring's claim for violation of the
First Amendment.
6.

Conclusion

In summary, the Court concludes that Spring has stated claims for violations of
her constitutional rights based on involuntary medical leave, random drug testing, the
home confinement policy, disability discrimination, psychiatric testing, and the HIPAA
release form. The Court concludes that Spring has not stated claims for violations of
her constitutional rights based on the waiting room confinement and retaliation for her
conversation with Burke. The Court therefore grants defendants' motion to dismiss
count 4 to the extent it is based on the latter allegations.
B.

Municipal liability

Defendants next argue that even if Spring has adequately alleged constitutional
violations, the City cannot be held liable under section 1983 for the conduct of its
employees. In order to sustain a claim under section 1983 against a municipality—
known as a Monell claim—plaintiff must "demonstrate that the entity's official policy,
widespread custom, or action by an official with policy-making authority was the moving
force behind his constitutional injury." Dixon v. Cty. of Cook, 819 F.3d 343, 348 (7th Cir.
2016) (internal quotation marks omitted). Defendants argue that Spring has failed to
state Monell claims against the City on any of these three bases; Spring argues that she
has alleged facts supporting all three.
1.

Official policy

An unconstitutional policy can be express or can "take the form of an implicit
policy or a gap in expressed policy." Id. The only examples that Spring provides of

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express policies that form the basis for defendants' allegedly unlawful conduct are the
provision of General Order 10-011 that requires those on medical leave to remain in
their home and the provision of General Order 87-008 that dictates when employees
can be subjected to random drug testing. Am. Compl. ¶ 31. Defendants do not argue
that these do not constitute official policies. The Court concludes that Spring can
proceed with her constitutional claims against the City under a theory of official policy
based on these two alleged constitutional violations.
Spring also alleges that gaps in the department's official policies gave Dr. Wong
and Silvestrini discretion to implement the policies in a way that lead to the remaining
constitutional violations. She first alleges that General Order 10-011 gives Dr. Wong
discretion to determine when to pre-approve medical expenses, which permits
constitutional abuses. Am. Compl. ¶ 21. But the order provides that pre-approval shall
be granted without delay based upon the treating physician's recommendation. General
Order 10-011 at III.A.7. There does not appear to be a gap in the policy that implies
that the medical director can or should deny pre-approval based on an employee's
disability. Spring also points to the fact that the order gives Dr. Wong the discretion to
require employees on medical leave to report to the medical division for appointments.
But earlier the Court determined that Spring failed to allege a constitutional violation
based on defendants' conduct in requiring her to report for appointments. Thus there is
no basis for Monell liability based on this gap. Spring also points to an alleged gap in
the drug testing policy, which permits drug testing when two supervisors are of the
opinion that an employee's behavior evidences reasonable grounds to suspect use of
illegal drugs or alcohol. The Court agrees that this provision may constitute a gap that

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implies that CFD supervisors need not comply with constitutional standards before
imposing warrantless drug testing on their employees.
The Court concludes that Spring has alleged grounds for Monell liability based on
a theory of official policy only for Defendants' home confinement and drug testing.
2.

Widespread custom

In order to support a claim for Monell liability based on custom, a plaintiff must
allege facts that permit an inference that the allegedly unconstitutional practice was
widespread and that the specific violations were not isolated incidents. Gill v. City of
Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017). The court in Gill determined that the
complaint was insufficient where the plaintiff failed to allege the existence of other
incidences of similar conduct. See id.
Spring has alleged that other CFD employees have filed grievances with the
Union and the Illinois Office of the Inspector General based on conduct similar to that
which she experienced. Am. Compl. ¶ 71(b)–(c). She also alleges that these
grievances made the City aware of abuse of the relevant department policies. Id. ¶ 71.
Thus she has sufficiently alleged that the practices she complains of were widespread
and that her treatment was not an isolated incident. The Court therefore finds that
Spring can proceed with all of her Monell claims based on a theory of widespread
custom.
3.

Policy-making authority

The mere fact that an individual is the decision-maker on a particular issue does
not necessarily mean he has policy-making authority for purposes of a Monell claim.
Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664, 675 (7th Cir. 2009). Spring

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alleges that Dr. Wong and Silvestrini have policy-making authority when it comes to
executing CFD's general orders because they have discretion to implement them as
they see fit. Am. Compl. ¶¶10–29. But by and large, the general orders dictate the
terms of CFD's policy on involuntary medical leave, pre-approval of medical expenses,
and employee drug testing. The fact that Dr. Wong and Silvestrini had discretion in
some areas of execution does not by itself support a claim that they had policy-making
authority in the areas covered by the policy. See Valentino, 575 F.3d at 675 ("The fact
that a particular official . . . has discretion in the exercise of particular functions does
not, without more, give rise to municipal liability based on the exercise of that
discretion."). Spring's allegations support an inference that Dr. Wong and Silvestrini
were constrained by department policies and therefore did not have policy-making
authority for the matters at issue. See id. at 676. The Court therefore concludes that
Spring cannot support a claim of Monell liability under this theory.
C.

Qualified immunity

Under the doctrine of qualified immunity, government officials are shielded from
liability for civil damages "where their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known."
Akande v. Grounds, 555 F.3d 586, 589 (7th Cir. 2009). Defendants Dr. Wong and
Silvestrini argue that even if Spring has sufficiently alleged that they violated her
constitutional rights, the rights were not clearly established at the time of their alleged
conduct. The Court considers only the constitutional violations that remain following the
rulings described in Part II.A of this opinion.
In light of the Seventh Circuit's ruling in Luellen that a suspension can constitute

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a deprivation of a protected property interest, Spring has adequately alleged that
defendants' decision to place her on involuntary medical leave without due process
violated a clearly established right. Further, the court's ruling in Pienta indicates that
confining employees to their homes as a condition of sick leave without the freedom to
exercise all of their constitutional rights is a clearly established violation of these rights.
The Court also concludes that imposing different conditions on an employee because of
her disability can violate rights clearly established under the Equal Protection Clause.
Therefore the Court denies the defendants' motion to dismiss count 4 as brought
against the individual defendants seeking civil damages based on the involuntary
medical leave, the home confinement, and the disability discrimination.
Defendants' decision to subject Spring to drug testing, however, does not violate
a clearly established right, given that other circuits have determined that a firefighter
qualifies as safety-sensitive position subject to warrantless drug testing and the
absence of contrary authority from the Seventh Circuit. See, e.g., Wilcher v. City of
Wilmington, 139 F.3d 366, 375 (3d Cir. 1998). Further, defendants' decisions to subject
Spring to psychiatric testing and to require a HIPAA release do not violate a clearly
established right to privacy, given that the Seventh Circuit has not yet determined
whether this right prohibits psychiatric testing or whether there is always an overriding
safety interest in the case of firefighter personnel. The Court therefore dismisses count
4 as to Dr. Wong and Silvestrini to the extent Spring seeks damages from them based
on the drug testing, the psychiatric testing, and the HIPAA release form allegations.
D.

Conclusion

In summary, the Court dismisses count 4 against all defendants to the extent that

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it is based on Spring's confinement in the medical waiting room and retaliation for her
conversation with Burke. The Court also dismisses count 4 against Dr. Wong and
Silvestrini to the extent it is based on the drug testing, the psychiatric testing, and the
HIPAA release form allegations. The Court otherwise denies the defendants' motions to
dismiss count 4.
III.

Intentional infliction of emotional distress
Spring's final claim is that all of the conduct alleged in the previous counts

constitutes intentional infliction of emotional distress (IIED). Defendants argue that (1)
the IIED claim is preempted by the IHRA; (2) their conduct was not sufficiently extreme
to support such a claim; (3) Spring is barred from bringing this claim against Dr. Wong
and Silvestrini by the Tort Immunity Act; and (4) the statute of limitations prevents
Spring from basing this claim on conduct that occurred prior to August 15, 2015.
The IHRA gives the Illinois Human Rights Commission exclusive jurisdiction over
state civil rights violations and therefore preempts common law claims that seek redress
for violations that fall within those defined in the statute. See Naeem v. McKesson Drug
Co., 444 F.3d 593, 602 (7th Cir. 2006); Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d
507, 515–16, 639 N.E.2d 1273, 1276 (1994). The relevant inquiry for determining
whether the IHRA preempts an IIED claim is not whether the facts supporting the IIED
claim could also have supported a claim under the IHRA, but whether the plaintiff can
prove the elements of the IIED claim independent of legal duties furnished by the IHRA.
Naeem, 444 F.3d at 604. The Court concludes that Spring can do so here. A claim for
IIED requires a showing of extreme and outrageous conduct; intent to inflict emotional
distress; and causation. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 268–69, 798 N.E.2d 75,

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79–80 (2003). The conduct that Spring alleges can qualify as extreme and outrageous,
independent of whether it also violates the IHRA. Spring alleges that she was placed
on involuntary leave, confined to her home, forced to undergo drug and psychiatric
testing, denied compensation for medical treatment, transferred to a remote location,
denied transfers or promotions to other positions, and denied the ability to schedule her
furlough days. Even assuming that none of this conduct was motivated by Spring's
disability—and therefore cannot serve as the basis for a civil rights violation—this
conduct could give rise to a claim for IIED. Further, this conduct could rise to the
requisite level of severity necessary to bring such a claim, despite defendants' argument
to the contrary. Spring has alleged repeated instances of unjustified mistreatment by
the defendants based on matters beyond her control—a chronic medical issue—which
would have substantially impaired her ability to do her job. The Court concludes that
the IIED claim is not preempted by the IHRA and Spring has alleged conduct that is
sufficiently outrageous to support such a claim.
The Court also concludes that Spring is not barred from bringing this claim
against Dr. Wong and Silvestrini by the Tort Immunity Act. The Act provides that "a
public employee serving in a position involving the determination of policy or the
exercise of discretion is not liable for an injury resulting from his act or omission in
determining policy when acting in the exercise of such discretion even though abused."
745 ILCS 10/2-201. In order for an employee to be entitled to immunity, his acts must
constitute both a determination of policy and an exercise of discretion. Brooks v. Daley,
2015 IL App (1st) 140392, ¶ 13, 29 N.E.3d 1108, 1113. Defendants have successfully
argued, however, that Dr. Wong and Silvestrini were not determining department policy

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when they used discretion to carry out the department's general orders. Thus they are
not entitled to immunity under the Tort Immunity Act.
Finally, defendants argue that Spring's IIED claim cannot be based on any
conduct that occurred prior to August 15, 2015, based on the one-year statute of
limitations for IIED claims. See 745 ILCS 10/8-101. But the Illinois Supreme Court has
indicated that where the defendant exhibits continuing unlawful acts and conduct—
known as a "continuing tort"—the limitations period does not begin to run until the date
of the last injury or the date the tortious acts cease. Feltmeier, 207 Ill. 2d at 278, 798
N.E.2d at 85. Under these circumstances, claims based on conduct that occurred
outside of the typical limitations period can survive so long as the complaint was filed
within one year of the final injury or tortious act. Given the possibility that defendants'
conduct amounts to a continuing tort, the Court declines at this stage to limit Spring's
IIED claim to conduct occurring after August 15, 2015.
Conclusion
For the foregoing reasons, the Court grants defendants' motion to dismiss in part
[dkt. no. 35]. Specifically, the Court dismisses count 4 as to all defendants to the extent
that the claim is based on Spring's alleged confinement in the waiting room and
retaliation for speaking with Alderman Burke. The Court also dismisses count 4 as to
Dr. Wong and Silvestrini to the extent it is based on allegations involving drug and
psychiatric testing and signing the HIPAA release form. The Court otherwise denies
defendants' motion to dismiss.
________________________________
MATTHEW F. KENNELLY
United States District Judge

Date: April 10, 2017

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