Duignan v. City Of Chicago

Filing 27

MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 4/6/2017. Mailed notice. (mgh, )

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

Jamie Duignan,

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,

v.
City of Chicago, a Municipal
Corporation
Defendant.

No. 16 C 9688

Memorandum Opinion and Order
Plaintiff Jamie Duignan was working as a detective for the
Chicago Police Department (“CPD”) when, on approximately March
17, 2013, she engaged in conduct that led the Superintendent of
Police to file charges against her before the City’s Police
Board

on

August

26,

2014.1

In

April

of

2014

(i.e.,

after

plaintiff’s alleged misconduct, but before the Superintendent
filed

charges),

plaintiff

was

hospitalized

and

provisionally

diagnosed with acute psychosis delusional disorder. She later
tested positive for Huntington’s disease, which she states is “a

1

Plaintiff’s allegations do not describe the conduct, nor does
the complaint make the sequence of events clear, but the
decision of the Police Board, which plaintiff attaches as
Exhibit B, sheds light on both issues. The parties do not appear
to dispute the dates on which the events alleged occurred.
1

terminal

genetic

characterized

by

neurodegenerative
progressively

disorder

worsening

that

motor,

is

cognitive,

behavioral, and psychiatric symptoms.” Second Amended Complaint
(“SAC”)

at

¶ 12.

Plaintiff

alleges

that

her

psychosis

and

Huntington’s disease “were active for about two or three years
prior to April of 2014,” and that she was temporarily disabled
from

performing

condition

was

her

duties

medically

as

a

resolved

detective,

by

but
29,

September

that

“her

2014,”

at

which time she “experienced a total remission of her psychosis
and

no

longer

exhibited

any

active

signs

of

Huntington’s

disease.” Id. at ¶¶ 13-15.
In the meantime, the Police Board held a hearing on the
Superintendent’s charges against plaintiff on November 21 and
24, 2014. Plaintiff admitted to the conduct attributed to her,
but

she

presented

suffering,

at

the

unrebutted
time,

expert

from

testimony

“acute

that

psychosis

she

was

delusional

disorder, secondary to a general medical condition, Huntington’s
disease.” SAC at ¶ 20. In a decision issued on February 19,
2015, the Police Board found that plaintiff was not guilty of
the alleged violations, as her behavior was the result of a
paranoid delusional state that was substantially related to her
medical condition. Id. at 22. The Police Board further concluded
that

the

case

involved

“a

medical

2

rather

than

disciplinary

matter and should be handled by the Department as such.” SAC,
Exh. B at 11.
Thereafter, at defendant’s direction, plaintiff underwent a
psychological evaluation at the Center for Applied Psychology
and Forensic Studies on March 6, 2015. The psychologist who
evaluated her concluded that plaintiff was unfit for duty as a
police detective. SAC, Exh. D. The decision states that it is
“based

on

the

background

information,

current

test

findings,

observations, as well as interview data.” Id. It goes on to
elaborate, “[t]his decision is based upon the progressive course
of Huntington’s disease and the lack of an adequate departmental
system

to

continuously

Detective’s

monitor

psychological

medication

state.”

Id.

compliance

Plaintiff

and

grieved

the
this

determination on March 13, 2015.
On March 27, 2015, the Superintendent filed an action in
the Circuit Court of Cook County seeking administrative review
of the Police Board’s decision finding plaintiff not guilty of
misconduct. That action was dismissed, and the Police Board’s
decision
plaintiff

thus
had

psychological

affirmed,
been

on

July

referred

examination

27,

by

by

a

2016.

her

In

union

different

the
for

meantime,
a

second

provider.

The

psychologist who examined her on April 7, 2015, found that she
was

fit

for

duty.

The

complaint

3

does

not

indicate

whether

defendant is aware of the results of that examination. Plaintiff
has not been returned to work.
On September 16, 2015, the Superintendent filed a second
set of charges with the Police Board (the “second charges”),
again

seeking

plaintiff’s

discharge

from

the

Chicago

Police

Department. Plaintiff does not describe the second charges, the
events that gave rise to them, or when those events occurred. A
hearing proceeded on the second charges on June 29, 2016. So far
as

the

record

reveals,

no

decision

in

that

case

has

been

alleges

that

rendered.
In

Count

I

of

her

complaint,

plaintiff

defendant discriminated against and harassed her as a result of
her disability, and failed to accommodate her disability, in
violation of the Americans with Disabilities Act (“ADA”). In
Count

II,

she

asserts

Nondiscrimination
wrongfully

Act

requested

discriminated

claims

against

under

(“GINA”),

her

genetic

her

on

the

Genetic

Information

alleging

that

defendant

information

and

wrongfully

the

basis

of

her

genetic

information.
Defendant has moved to dismiss both of plaintiff’s claims,
arguing that she failed to exhaust her administrative remedies
by filing a timely charge with the EEOC. In defendant’s view,
plaintiff’s 300-day window to file an EEOC charge opened on
March

6,

2015,

when

she

was

found
4

to

be

unfit

for

duty.

Defendant further argues that plaintiff has not stated a claim
for ADA discrimination because: 1) she does not sufficiently
allege that she is a qualified individual, and 2) she does not
allege “but-for” causation. Additionally, defendant argues that
plaintiff’s failure to accommodate claim fails on the pleadings
because

she

does

not

allege

that

she

ever

requested

an

accommodation. Finally, defendant argues that plaintiff pleads
herself out of her claims that defendant unlawfully requested
her genetic information, and took adverse action against her
based on her genetic information, in violation of GINA. For the
following reasons, I grant defendant’s motion.
I.
When considering a motion to dismiss, I draw all reasonable
inferences in favor of the non-moving party, and I assume the
truth all well-pleaded allegations. See Killingsworth v. HSBC
Bank, 507 F.3d 614, 618 (7th Cir. 2007). To survive a motion to
dismiss, the complaint must set forth enough facts that, if
taken as true, “state a claim to relief that is plausible on its
face.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007).
Ordinarily, a plaintiff need not anticipate and attempt to
plead around an affirmative defense such as noncompliance with
the statute of limitations. See, e.g., Gomez v. Toledo, 446 U.S.
635, 640 (1980); United States Gypsum Co. v. Indiana Gas Co.,
350

F.3d

623,

626

(7th

Cir.

2003).
5

But

where

the

complaint

alleges facts that establish “everything necessary to satisfy
the affirmative defense,” dismissal on a Rule 12(b)(6) motion is
appropriate. U.S. v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005).
In Illinois, an employee alleging disability discrimination
must

file

an

EEOC

charge

within

300

days

of

the

allegedly

discriminatory act. Stepney v. Naperville School Dist. 203, 392
F.3d 236, 239 (7th Cir. 2004) (“Because the ADA’s enforcement
provision expressly incorporates § 2000e–5 of Title VII, claims
for discrimination under the ADA also must be filed within 300
days.”).

Here,

unsigned,

the

undated

complaint
version

does

of

the

not

allege,

charge

nor

does

the

to

the

attached

complaint reflect, the date on which plaintiff filed her charge.
In

her

opposition,

however,

plaintiff

acknowledges

that

the

charge was filed on February 12, 2016, the date that appears on
the document defendant attaches to its motion, and which appears
to be the version of the charge that plaintiff ultimately filed.2
Accordingly, for her claims to be timely, the complaint must
allege

discriminatory

conduct

within

the

300-day

window

preceding that date, i.e., on or after April 18, 2015.3

2

I note that this version is substantively different from the
unsigned version attached to the complaint. I may take notice of
the EEOC charge attached to the motion to dismiss. See e.g.,
Reliford v. United Parcel Service, 08 C 1266, 2008 WL 4865987,
at *1 n. 1 (N.D. Ill. July 8,2008)(Coar, J.).
3
Plaintiff is correct that failure to exhaust administrative
remedies does not deprive a federal court of subject-matter
6

Plaintiff argues that her claim accrued on September 16,
2015, the day defendant filed the second charges. Resp. at 4. I
agree with defendant, however, that the filing of these charges
does not amount to an adverse employment action, and that the
complaint articulates no actionable discriminatory conduct after
March 6, 2015, the day the CPD-endorsed psychologist determined
that plaintiff was unfit for duty.
“In a discrimination case, a materially adverse employment
action is one which visits upon a plaintiff a significant change
in employment status.” Boss v. Castro, 816 F.3d 910, 917 (7th
Cir. 2016) (internal quotations and citation omitted). Examples
of

materially

adverse

actions

include

changes

involving

“the

employee’s current wealth, his career prospects, or changes to
work

conditions

that

include

humiliating,

degrading,

unsafe,

unhealthy, or otherwise significant negative alteration in the
workplace.”

Id. According to the complaint, at the time the

second charges were filed, plaintiff had been on medical leave
since at least April of 2014—a status in which she appears to
remain to this day. Indeed, nothing in the complaint suggests
that the pendency of the second charges has had any effect on
her employment status.

jurisdiction. Salas v. Wisconsin Dept. of Corr., 493 F.3d 913,
921 (7th Cir. 2007).
7

Nor are plaintiff’s claims saved by framing the alleged
discrimination as a continuing violation. Plaintiff acknowledges
that

defendant’s

ongoing

refusal

to

reinstate

her

does

not

amount to a continuing violation. Stepney 392 F.3d at 239-40.
Accordingly, she relies on Selan v. Kiley, 969 F.2d 560, 565
(7th Cir. 1992), which she cites for the proposition that the
continuing
employer

violation
“for

a

doctrine

period

of

applies
time,

in

cases

followed

where

the

a

practice

of

discrimination, but has done so covertly, rather than by way of
an open notorious policy...In such cases the challenged practice
is

evidenced

only

by

a

series

of

discrete,

allegedly

discriminatory, acts.” Resp. at 5 (citing Selan) (ellipses in
original). But plaintiff’s own allegations establish that the
doctrine is inapplicable here.
The

complaint

cannot

reasonably

be

read

to

assert

a

“covert” discriminatory practice. Instead, it alleges that the
CPD determined, explicitly and overtly, that plaintiff’s medical
condition

rendered

her

unfit

for

duty.

By

plaintiff’s

own

account, she learned of that decision, and the basis for it, on
March 12, 2015, when she alleges that she received a copy of the
psychologist’s report. SAC at ¶ 31. As the court explained in
Selan, “what justifies treating a series of separate violations
as

a

continuing

violation”

is

that

“it

would

have

been

unreasonable to require the plaintiff to sue separately on each
8

one,” typically because “the plaintiff had no reason to believe
he was a victim of discrimination until a series of adverse
actions

established

a

visible

pattern

of

discriminatory

treatment.” Id. at 565-66. Plaintiff’s allegations negate that
theory here.
Finally, plaintiff’s claims cannot be considered timely on
the

theory

that

the

Superintendent’s

filing

of

the

second

charges was part of an ongoing pattern of harassment that spans
a period both before and after the limitations cutoff date. Even
assuming that ADA harassment claims are actionable, see Lloyd v.
Swifty

Transp.,

Inc.,

552

F.3d

594,

603

(7th

Cir.

2009)

(declining to decide whether hostile work environment claim is
actionable under the ADA), such claims require allegations of
severe or pervasive conduct. Id. Here, plaintiff argues that
defendant harassed her by pursuing charges against her, but as
noted above, she does not describe the Superintendent’s charges,
claim that they were frivolous, or plead any other facts to
support an inference that the charges were filed for the purpose
of harassing her.4

And while she notes that the hearing officer

in the case “questioned the Superintendent’s motive,” SAC at

4

Plaintiff also states in her opposition that defendant
“purposefully
failed
her
fitness
for
duty
examination
and...refused to write a letter, as required by the Illinois
State Police, to reinstate her FOID card.” Resp. at 10. These
facts are not included in the complaint. At all events, they do
not, without more, suggest actionable harassment.
9

¶ 40, this allegation is simply too thin a reed to support a
claim of severe or pervasive harassment. Because plaintiff does
not plead an actionable harassment claim, that claim cannot be
used

as

a

“hook”

to

bring

time-barred

conduct

within

the

limitations period.
Similarly, even if plaintiff’s failure to accommodate claim
were timely, it would still fail for at least one additional
reason:

plaintiff

does

not

allege

that

she

requested

an

accommodation. See James v. Hyatt Regency Chicago, 707 F.3d 775,
782 (7th Cir. 2013) (“the standard rule is that a plaintiff must
normally request an accommodation before liability under the ADA
attaches”) (citation omitted). Indeed, the complaint does not
suggest that plaintiff asked defendant to make any changes to
“its

ordinary

work

rules,

facilities,

terms,

and

conditions”

that would enable her to return to work. Siefken v. Village of
Arlington Heights, 65 F.3d 664, 666 (7th Cir. 1995). What she
asked for is her job back, but that is not an accommodation. Id.
I also conclude that plaintiff’s GINA claims do not survive
dismissal.

Under

GINA,

it

is

unlawful

for

an

employer

to

“discharge, any employee, or otherwise to discriminate against
any

employee

with

respect

to

the

compensation,

terms,

conditions, or privileges of employment of the employee, because
of genetic information with respect to the employee.” 42 U.S.C.
§

2000ff–1(a)(1).

“Genetic

information”
10

is

defined

as

information about (i) an individual’s genetic tests, (ii) the
genetic tests of family members of such individual, and (iii)
the manifestation of a disease or disorder in family members of
such individual. 42 U.S.C. § 2000ff(4)(A).
Plaintiff’s

allegations

do

not

plausibly

suggest

that

defendant requested her genetic information. Plaintiff urges me
to

infer

that

defendant

must

have

requested

her

genetic

information based on the allegation that the psychologist who
found her unfit for duty based that conclusion, in part, upon
“the progressive course of Huntington’s disease.” But according
to

the

complaint

and

its

attachments,

by

the

time

that

psychologist evaluated plaintiff, plaintiff’s expert had already
testified about her diagnosis of Huntington’s disease, and the
Police Board had already found plaintiff not responsible for her
alleged misconduct based on her medical condition.

Accordingly,

the fact that the psychologist considered plaintiff’s diagnosis
of Huntington’s disease does not, without more, suggest that
defendant unlawfully requested plaintiff’s genetic information.
As

for

plaintiff’s

discrimination

claim

under

GINA,

29

C.F.R. §1635.12 provides that “[m]edical information that about
a manifested disease, disorder, or pathological condition” is
not

considered

“genetic

information”

under

GINA.

Because

plaintiff specifically alleges that her psychosis “was organic
in nature and a clinical manifestation of Huntington’s disease,”
11

I conclude that she has pled herself out of any claim that
defendant

took

an

adverse

action

against

her

based

on

her

genetic information, as opposed to on her actual diagnosis of
Huntington’s

disease,

which

is

the

substance

of

the

discrimination claim she asserts under the ADA.
For the foregoing reasons, defendant’s motion to dismiss is
granted.

ENTER ORDER:

Elaine E. Bucklo
United States District Judge
Dated: April 6, 2017

12