Field v. Housing Authority of Cook County et al

Filing 58

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 8/13/18. Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DIANE FIELD and JAKE HOFFMAN,

)
)
)
Plaintiffs,
)
)
v.
)
)
HOUSING AUTHORITY OF COOK
)
COUNTY and ILLINOIS DEPARTMENT )
OF HUMAN RIGHTS,
)
)
)
Defendants.
)

17-cv-02044
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiffs Diane Field and Jake Hoffman have sued the Housing Authority of
Cook County (“HACC”) and the Illinois Department of Human Rights (“IDHR”) for
disability discrimination.

In their Amended Complaint, Plaintiffs bring claims

against HACC under the Fair Housing Act, 42 U.S.C. § 3601 et seq., Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and § 504 of the
Rehabilitation Act (“§ 504”), 29 U.S.C. § 794, and against IDHR for violating the ADA,
§ 504, and a prior federal court injunction.
IDHR moves to dismiss Plaintiffs’ Amended Complaint for failure to state a
claim pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) and requests the
Court to strike Plaintiffs’ requests for injunctive, declaratory and punitive relief. For
the reasons stated herein, IDHR’s motions to dismiss and strike are granted in part
and denied in part.

Factual Background1
A.

Participation in HACC Programs

Diane Field and her 21-year-old son, Jake Hoffman, are both disabled. Field
suffers from Asperger’s Syndrome, Post-Traumatic Stress Disorder (“PTSD”), and a
mild traumatic brain injury due to domestic violence. Am. Compl. ¶¶ 3, 12–14, ECF
No. 24. As a result, she faces communication and processing difficulties and often
requires assistance communicating. Id. ¶¶ 14–15. Hoffman’s disabilities include
PTSD, a mild traumatic brain injury, aspects of Asperger’s Syndrome, and auditory
processing delays, among others.

Id. ¶¶ 17–18.

Field receives Social Security

benefits from the federal government for her disabilities; Hoffman received Social
Security benefits for his disabilities until August 2016, when he enlisted in the
military. Id. ¶¶ 16, 21.
Field receives a housing voucher from HACC under the federal Housing Choice
Voucher Program, which provides her with rental assistance as a low-income
individual in Cook County, Illinois.2

Id. ¶¶ 28–29, 31.

The number of family

members sharing a household determines the size of a voucher, and Hoffman was
listed on Field’s voucher until June 2015, which qualified Field and Hoffman for a
two-bedroom home in Lemont, Illinois.

Id. ¶¶ 6, 12, 30, 153, 162.

Field also

The following facts are taken from Plaintiffs’ amended complaint and are accepted as
true on review of Defendant’s motion to dismiss. See Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008).
1

Pursuant to the Housing Choice Voucher Program, both HACC and the participating
family make rent payments to the housing unit owner. Am. Compl. ¶ 31. HACC calculates
the amount of each monthly rental assistance payment based on the family’s household
income. Id. ¶¶ 62, 67–69.
2

2

participates in two other HACC programs: the Home Ownership Program, which
helps low-income families purchase a home, and the Family Self-Sufficiency Program,
which provides education and job skills. Id. ¶¶ 32–34.
In early 2015, Field arranged for Hoffman to attend Brehm Preparatory School
(“Brehm Prep”), a residential therapeutic high school in Carbondale, Illinois, that was
better equipped to accommodate Hoffman’s disabilities than his previous school. Id.
¶¶ 37–40. Field contacted HACC repeatedly in June 2015 regarding her Housing
Voucher Program renewal paperwork, expressing concern about how to report
Hoffman’s income3 and whether Hoffman should remain on Field’s housing voucher
while he resided at Brehm Prep. Id. ¶¶ 57–62. When requesting guidance from
HACC, Field explained that she often required assistance completing paperwork
because of her communication disability. Id. ¶¶ 53, 56–61.
In a meeting around June 10, 2015, HACC manager Angela Francis informed
Field that if Hoffman remained on Field’s housing voucher, his income would factor
in to calculate HACC’s monthly rental assistance payment, even though Hoffman
required his disability income to live at Brehm Prep. Id. ¶¶ 61–62. Field therefore
elected to remove Hoffman from her voucher with the understanding that she could
reinstate Hoffman when he graduated. Id. ¶ 63.
In advance of Hoffman’s graduation, Field contacted HACC in early 2016
regarding reinstating Hoffman on her housing voucher. Id. ¶ 83. Field had numerous
communications with HACC staff about the matter. Id. ¶ 85. In an email to HACC

3

Presumably, Field refers to Hoffman’s Social Security income. See Am. Compl. ¶ 58.

3

caseworker Phyllis Johnson in February 2016, Field asked to reinstate Hoffman,
warned that she would file a complaint with IDHR or the Department of Housing and
Urban Development (“HUD”) if necessary for Hoffman to be reinstated, and requested
that her speech therapist be included in any future conversations to assist with her
communication processing issues. Id. ¶¶ 83, 87, 111, 120.
Field and Johnson also spoke by phone, during which Field requested to
include her speech therapist in the conversation, but Johnson refused, advising Field
that the therapist could only participate in in-person meetings. Id. ¶¶ 112–16.
In the end, Johnson refused to add Hoffman back to Field’s voucher, citing an
HACC administrative rule prohibiting reinstatement of a family member once that
individual was removed. Id. ¶ 88. During this call, Johnson also raised her voice,
told Field that it was her turn to listen, and warned Field to not threaten Johnson.
Id. ¶ 121. Field was frightened by Johnson’s behavior. Id. ¶ 122. She worried that
if she filed a complaint with HUD or IDHR, HACC could disqualify Field from the
Housing Choice Voucher Program altogether.4 Id.
That same day, Field contacted HACC supervisor Sheryl Seiling about her
conversation with Johnson, and again asked to add Hoffman back to her voucher. Id.
¶¶ 89, 123. Her request was denied. Id. ¶ 90. According to Field, HACC did not
engage in any serious, case-by-case consideration of Field’s request, which Field

Field was concerned that Johnson interpreted Field’s willingness to file a complaint
with HUD or IDHR as a threat, and according to Field, threatening an HACC caseworker is
grounds for termination from HACC programs like the Housing Choice Voucher Program.
Am. Compl. ¶ 121.
4

4

contends is required by HACC’s written policies for handling a participant’s request
for disability-based rule exceptions. Id. ¶¶ 88, 90–93, 96–101.
B.

IDHR’s Investigation

Field subsequently filed a complaint with IDHR in February 2016 detailing
HACC’s refusal to reinstate Hoffman and alleging that Johnson had threatened and
intimidated her. Id. ¶¶ 124, 168, 80. Per the Fair Housing Assistance Program,
Field’s complaint was cross-filed with HUD, but IDHR was responsible for the
investigation.5 Id. ¶¶ 124–25, 168.
IDHR began investigating Field’s charge against HACC, and in May 2016,
IDHR relayed a conditional offer from HACC to Field, in which HACC agreed to
restore Hoffman to Field’s voucher if Field paid back-rent. Id. ¶¶ 132–34. Field
declined this offer, because she was concerned that incurring a debt to HACC would
jeopardize her ability to purchase a home through the Home Ownership Program.6
Id. ¶¶ 137–40.
Between May and September 2016, Field continued to seek Hoffman’s
reinstatement to her housing voucher without having to pay back-rent. Id. ¶ 142. In
September 2016, HACC offered to restore Hoffman without requiring back-rent, but

Under the Fair Housing Assistance Program, HUD established an intergovernmental
enforcement partnership with IDHR in 2002 that permits HUD to refer discriminatory
housing complaints in Illinois to IDHR for investigation. Fair Housing Assistance Program,
U.S. Dep’t of Hous. & Urban Dev., https://www.hud.gov/program_offices/fair_housing_equal
_opp/partners/FHAP (last visited May 27, 2018).
5

To remain eligible for the Home Ownership Program, a participant must not owe rent
or other debts to HACC. Am. Compl. ¶¶ 139–40. Field was therefore concerned that
accepting HACC’s initial offer, which would have put her in debt to HACC, would have
disqualified her from the Home Ownership Program. Id. ¶¶ 138, 140.
6

5

Hoffman had already graduated from Brehm Prep, and faced with the prospect of
homelessness, had chosen to enlist in the military. Id. ¶¶ 144–50.
Over the next several months of the investigation, IDHR took numerous
actions to which Field objects. Id. ¶¶ 8, 172. First, the HACC staff claimed that they
had in fact warned Field that once she removed Hoffman from her voucher, he could
not be reinstated. Id. ¶ 175. Although Field informed IDHR that the statement was
false, and IDHR staff investigator Stan Moen did not produce any proof beyond
HACC’s word that it had informed Field of the administrative rule, Moen advised
Field that if she continued to pursue the investigation, her complaint would be
dismissed as invalid, presumably on the grounds that HACC had warned her of the
consequences of removing Hoffman from her voucher. Id. ¶¶ 176–79.
Second, another IDHR employee, Daniel Padilla, told Field that she could not
prove her allegations that Johnson had threatened and intimidated her on a phone
call. Id. ¶ 181. Padilla advised her to remove these allegations from her charge
against HACC. Id. ¶¶ 8, 180–81. Field followed Padilla’s advice and did not include
the intimidation allegations in her final submitted charge. Id.
Third, Field requested that her communication aide, Suzy Woods, be allowed
to participate in conversations between Field and IDHR to help Field understand the
investigation’s status. Id. ¶ 198. IDHR initially allowed this practice, but in one
instance, Moen refused to allow Woods to join a phone call, instead insisting that
Woods email him and state that she was permitted to speak on Field’s behalf. Id.
¶¶ 8, 199. Subsequently, IDHR communicated directly with Woods on Field’s behalf
while excluding Field herself from direct communications. Id. ¶¶ 8, 199–202, 206.
6

IDHR later acknowledged that the practice of requiring Field’s advocate to speak on
her behalf, instead of allowing both to participate, deviated from IDHR policy. Id.
¶¶ 203–04. IDHR also denied Field’s request to speak with IDHR’s ADA coordinator
to explain why her disability necessitated the assistance of a communication aide. Id.
¶¶ 207–08.
Dissatisfied with the length of time IDHR was taking to complete its
investigation,7 Field filed the instant lawsuit against IDHR and HACC on March 15,
2017. Id. ¶ 194. Three months later, on June 20, 2017, IDHR completed its final
investigative report, which found no cause to indicate that HACC had violated Field’s
or Hoffman’s rights. Id. ¶¶ 209–10. The report found that Field “did not ask for a
reasonable accommodation” and instead merely “sought clarification as to if it were
possible or not.” Id. ¶¶ 102, 212–13. The report further stated that even if she had
requested a reasonable accommodation, it “was not medically necessary.” Id. ¶¶ 102,
217. According to Plaintiffs, the final report is erroneous because it disregards
substantial evidence in IDHR’s case file. Id. ¶¶ 214–16, 218. Field and Hoffman then
filed the Amended Complaint on November 16, 2017.
Legal Standard
A motion under Rule 12(b)(6) challenges the sufficiency of the plaintiff’s
complaint. Christensen v. Cnty. of Boone, 483 F.3d 454, 458 (7th Cir. 2007). To

State regulations require IDHR to complete an investigation within 365 days of the
charge filing date. See 775 Ill. Comp. Stat. Ann. 5/7A-102(G). IDHR did not complete its
investigation until June 2017, seventeen months after the initial administrative charge was
filed. See Am. Compl. ¶¶ 185–92.
7

7

survive a motion to dismiss pursuant to 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, 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) (citing Twombly, 550
U.S. at 556). The complaint “need only provide a short and plain statement of the
claim showing that the pleader is entitled to relief, sufficient to provide the defendant
with fair notice of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008); see also Fed. R. Civ. P. 8(a)(2).
In reviewing a motion to dismiss under Rule 12(b)(6), a court must accept as
true all well-pleaded allegations in the complaint and must draw all possible
inferences in the plaintiff’s favor. See Tamayo, 526 F.3d at 1081. At the same time,
“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).
Analysis
Plaintiffs claim that IDHR discriminated against Field on the basis of
disability in violation of the ADA (Counts IX and XIII) and § 504 of the Rehabilitation
Act (Counts X and XIV), retaliated against both Field and Hoffman for asserting their
rights in violation of the ADA (Count XI) and § 504 (Count XII), and made
impermissible credibility determinations in violation of a federal court injunction
(Count XV). See generally Am. Compl. ¶¶ 293–350. Plaintiffs ask the Court to grant
declaratory relief, compensatory and punitive damages, reasonable attorneys’ fees
8

and costs, and injunctive relief. Id. at 55–56. IDHR now moves both to dismiss all of
Plaintiffs’ claims against it (Counts IX through XV) for failure to state a claim under
Rule 12(b)(6) and to strike parts of Plaintiffs’ prayer for relief.
I.

Counts IX–XIV as to Hoffman
IDHR argues that Hoffman fails to state a claim in Counts IX through XIV

because he never pursued any benefits from IDHR. Def.’s Mem. Supp. at 6–7, 9, ECF
No. 42. Hoffman does not challenge the dismissal of Counts IX through XIV. See
Pls.’ Resp. at 1, ECF No. 50. The Court accordingly grants IDHR’s motion to dismiss
Counts IX through XIV as to Hoffman.
II.

Counts IX–XIV as to Field
Because the relevant provisions and implementing regulations of the

Rehabilitation Act and the ADA are “materially identical,” they are typically
interpreted and applied in a consistent manner.8 A.H. ex rel. Holzmueller v. Ill. High
Sch. Ass’n, 881 F.3d 587, 592 (7th Cir. 2018) (citing Steimel v. Wernert, 823 F.3d 902,
909 (7th Cir. 2016)). The Court’s analysis of Field’s ADA claims therefore applies
equally to her § 504 claims, as both are supported by the same factual allegations.
See Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004); Holmes v. Godinez,
311 F.R.D. 177, 224 (N.D. Ill. 2015).

The only notable difference between the ADA and the Rehabilitation Act is that a
plaintiff alleging a violation of § 504 must plead that the relevant state agency receives
federal funds. Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015) (citing Jaros v. Ill.
Dep’t of Corr., 684 F.3d 667, 671 (7th Cir. 2012)). The parties do not dispute that IDHR
receives federal funding and is therefore subject to the Rehabilitation Act. Am. Compl. ¶ 7.
8

9

A.

Claims for Denial of Reasonable Accommodation

Field alleges that IDHR denied her a reasonable accommodation in violation
of Title II of the ADA, 42 U.S.C. § 12132 (Counts IX and XIII) and § 504 of the
Rehabilitation Act, 29 U.S.C. § 794 (Counts X and XIV). 9
The ADA dictates 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.” 42 U.S.C. § 12132. The
ADA’s implementing regulations require a public entity to “make reasonable
modifications in policies, practices, or procedures where the modifications are
necessary to avoid discrimination on the basis of disability.”10
§ 35.130(b)(7)(i).
appropriate

28 C.F.R.

For example, a public entity has an affirmative duty to “take

steps

to

ensure

that

communications

with

applicants

[and]

participants . . . with disabilities are as effective as communications with others.” 28
C.F.R. § 35.160(a).

Field brings separate claims for “denial of equal access” (Counts IX and X) and “denial
of reasonable accommodation” (Counts XIII and XIV). But all four counts are based on the
same factual allegations, see Pls.’ Resp. at 10 n.7, and all allege that by denying reasonable
accommodation, Field was denied equal access to IDHR’s programs, see Am. Compl. ¶¶ 297–
99, 306–08, 324–29, 336–41. The Court therefore construes all four counts as bringing claims
for denial of reasonable accommodation. See Holzmueller, 881 F.3d at 592–93 (holding that
disability discrimination under the Rehabilitation Act and the ADA can be established
through showing (1) intentional discrimination; (2) failure to provide reasonable
accommodation; or (3) disparate impact).
9

While the Rehabilitation Act lacks equivalent language expressly requiring
accommodation, “the Supreme Court has recognized a duty to provide reasonable
accommodation in Section 504.” Holzmueller, 881 F.3d at 592 (citing Alexander, 469 U.S. at
301).
10

10

To prove disability discrimination under the ADA and § 504, “a plaintiff must
show: (1) that [s]he suffers from a disability, (2) that [s]he is qualified to participate
in the program in question, and (3) [s]he was either excluded from participating in or
denied the benefit of that program based on [her] disability.” Novak v. Bd. of Trs. of
S. Ill. Univ., 777 F.3d 966, 974 (7th Cir. 2015); see also 29 U.S.C. § 794; 42 U.S.C.
§ 12132.

The Seventh Circuit recognizes that “refusing to make reasonable

accommodations is tantamount to denying access.” Jaros v. Ill. Dep’t of Corr., 684
F.3d 667, 672 (7th Cir. 2012). A plaintiff can therefore prove the third prong—that
she was excluded from participation—by showing that the defendant refused to
provide a reasonable accommodation.

See Wis. Cmty. Servs., Inc. v. City of

Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006); see also Harper v. Dart, No. 14 C 01237,
2015 WL 6407577, at *4 (N.D. Ill. Oct. 21, 2015) (citing Jaros, 684 F.3d at 672) (“One
can ‘deny access’ by failing to reasonably accommodate a plaintiff’s disability.”).
Field alleges that she requested a reasonable accommodation by asking IDHR
to include her communication aide, Suzy Woods, in conversations between IDHR and
Field, a practice that had been previously permitted. See Am. Compl. ¶¶ 198, 214–
16, 325–26, 337–38. By denying this accommodation and forcing Woods to speak on
Field’s behalf, while excluding Field herself, Field claims that IDHR denied her equal
access to participate in IDHR’s investigation. See Am. Compl. ¶¶ 298–99, 307–08.
IDHR makes three different arguments in its attack of Field’s reasonable
accommodation claims. First, it contends that Field fails to state a claim under Title

11

III of the ADA, 42 U.S.C. § 12182.11 Def.’s Mem. Supp. at 7. But Field makes no
claims under Title III, so these arguments are irrelevant.
IDHR next asserts that Field was not qualified for the benefits she sought from
IDHR.12 Id. at 6. In support of this statement, IDHR refers only to unidentified
“communications” attached to the original complaint. See id. But because those
“communications” were not attached to the Amended Complaint, nor were they
referenced by it, they cannot serve as the basis for a motion to dismiss. See Kelley v.
Crosfield Catalysts, 135 F.3d 1202, 1204–05 (7th Cir. 1998) (stating that an amended
complaint supersedes a prior pleading, and matters not restated in the amended
complaint cannot be considered on a motion to dismiss).
Finally, IDHR argues that Field cannot state a claim under the ADA or § 504
because IDHR did not deny her any benefits. Def.’s Mem. Supp. at 6–7. Specifically,
IDHR asserts that by allowing Field’s aide, Suzy Woods, to communicate with IDHR
on behalf of Field, even while excluding Field herself, IDHR had granted an
accommodation and was, in fact, complying with its statutory obligation to ensure
equally effective communications under 28 C.F.R. § 35.160(a).

Id. at 7.

Field

disagrees, contending that IDHR’s so-called “accommodation”—excluding Field from
conversations and instead communicating directly with Field’s aide—contravened

11

IDHR makes this argument only as to Counts XIII and XIV. See Def.’s Mem. Supp.

at 7.
It is unclear whether IDHR refers to benefits Field sought from HACC or IDHR, as
the statement is ambiguous in both IDHR’s Memorandum in Support of the Motion to
Dismiss and in IDHR’s Reply. See Def.’s Mem. Supp. at 6; Def.’s Reply Supp. at 2, ECF No.
51. The Court construes the statement to refer to benefits from IDHR because that is the
only interpretation relevant to the claims IDHR seeks to dismiss.
12

12

the purpose of the ADA’s requirement of equally effective communication, which aims
to make it easier for people with disabilities to fully participate in public programs
like IDHR’s investigation. See Pls.’ Resp. at 5–6.
In support of its arguments, IDHR invokes 28 C.F.R. § 35.160(c)(2)(ii). This
regulation permits a public entity to rely on an “adult accompanying an individual
with a disability to interpret or facilitate communication” only where “the individual
with a disability specifically requests that the accompanying adult interpret or
facilitate communication, the accompanying adult agrees to provide such assistance,
and reliance on that adult for such assistance is appropriate under the
circumstances.” 28 C.F.R. § 35.160(c)(2)(ii). But § 35.160(c) does not expressly permit
IDHR to exclude a disabled individual from communications, and thus cannot, on its
own, sanction IDHR’s actions.

See id.

In addition, the regulation refers to an

“accompanying adult,” which implies that the individual with a disability is included
in the relevant communications. See id. (emphasis added). Furthermore, where an
individual with a disability expressly requests that IDHR allow her to participate
along with the facilitating adult during any communications, to deny such a request
could hardly be “appropriate under the circumstances.”
What is more, IDHR asserts that it was only required to grant
“accommodations that were reasonable, not [Field’s] ideal or even preferred
accommodations,” see Def.’s Reply at 3, but whether IDHR’s alternative
accommodation was reasonable is “a question of fact not suitable for determination
on a motion to dismiss.” Stuckey v. City of Naperville, No. 97 C 7037, 1998 WL
173298, at *5 (N.D. Ill. Apr. 7, 1998); see also Dadian v. Vill. of Wilmette, 269 F.3d
13

831, 838 (7th Cir. 2001) (reasonableness of a requested accommodation is “highly factspecific”).
In short, Field has adequately alleged that IDHR denied her a reasonable
accommodation in violation of the ADA and § 504. IDHR’s motion to dismiss Counts
IX, X, XIII and XIV is therefore denied as to Field.
B.

Claims for Retaliation and Intimidation

In Counts XI and XII, Field alleges that IDHR retaliated against and
intimidated her in violation of the ADA and § 504. Am. Compl. ¶¶ 312–13, 317–18.
Under the ADA, it is unlawful to “discriminate against any individual because such
individual has opposed any act or practice made unlawful by [the ADA] or because
such individual made a charge,” or to “coerce, intimidate, threaten, or interfere with
any individual in the exercise” of “any right granted or protected by [the ADA].” Id.
§§ 12203(a), (b).
To state a claim of retaliation under the ADA and § 504, a plaintiff must allege
that (1) she engaged in a protected activity under the ADA or § 504, and (2) she
suffered an adverse action as a result of that activity. Curtis v. City of Chi., No. 16 C
8042, 2018 WL 1316723, at *4 (N.D. Ill. Mar. 14, 2018).
IDHR does not dispute that Field engaged in activity protected by the ADA
and § 504. Am. Compl. ¶¶ 8, 194, 198–202. Instead, IDHR argues that no adverse
action occurred as a result of that protected activity. Def.’s Mem. Supp. at 8–9. IDHR
further contends that even if Field properly stated a retaliation claim under the ADA
in Count XI, the § 504 claim in Count XII must be dismissed because the provision
does not permit claims for retaliation outside of an employment context. Id. at 8.
14

i.

Adverse Action

For the purpose of a retaliation claim, a plaintiff suffers an adverse action if,
as a result of engaging in protected activity, a defendant takes action that “would
have dissuaded a reasonable [person] from engaging in protected activity.” Freelain
v. Vill. of Oak Park, 888 F.3d 895, 901–02 (7th Cir. 2018) (citing Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). The “test uses an objective
standard, based on how a reasonable [person] might react,” and while it disregards
the “personal feelings of [an] individual [plaintiff], the inquiry does account for the
personal circumstances” of such a plaintiff. Id. at 902 (emphasis in original).
Here, Field alleges numerous adverse actions, including that IDHR (a) did not
conduct a fair and neutral investigation, Am. Compl. ¶¶ 175–79, 182, 211–18; (b)
steered Field to withdraw her charge against HACC, id. ¶¶ 176, 183; (c) encouraged
Field to settle her case against HACC under terms favorable to HACC and
detrimental to Field, id. ¶¶ 134–35, 182; (d) prevented Field from including
allegations of Johnson’s threats and intimidation in Field’s perfected charge against
HACC, id. ¶¶ 180–81; and (e) conducted an unnecessarily prolonged investigation,
id. ¶¶ 184–92, 195.
While the complaint lacks an exact timeline of Field’s protected activity and
the adverse actions that purportedly resulted from this activity, her claims pass the
plausibility stage for pleading purposes.

For example, Field alleges that IDHR

investigator Moen told Field, without justification, that her complaint would be
dismissed as invalid if she continued to pursue her investigation against HACC. Am.
Compl. ¶¶ 175–79. Additionally, Field alleges that IDHR unnecessarily prolonged
15

the investigation, a plausible result of Field’s act of filing a lawsuit against IDHR
under the ADA and § 504. See id. ¶¶ 173, 182, 185–92, 194–95. Accepted as true,
Field’s allegations suggest that IDHR interfered with her assertion of rights by taking
actions that dissuaded Field from pursuing an investigation under the ADA and
§ 504. Thus, Field has plausibly pleaded that she suffered an adverse action as a
result of protected activity.
IDHR’s arguments to the contrary are unavailing. First, IDHR argues that
any alleged coercion to persuade Field to withdraw her charge against HACC cannot
qualify as an adverse action because the action is protected within the scope of
litigation, as established in Steffes v. Stepan Co., 144 F.3d 1070, 1075–76 (7th Cir.
1998). See Def.’s Mem. Supp. at 8. But IDHR’s investigation does not fall within the
scope of litigation contemplated in Steffes, which held that “conduct occurring within
the scope of litigation” will rarely constitute retaliation because such conduct “falls
within the unique duties of an advocate” and occurs “in the adversarial arena where
opposing counsel and the trial court can quickly put the brakes on unethical or
unlawful behavior.” Steffes, 144 F.3d at 1075–76. IDHR’s investigation had none of
those qualities.
IDHR also raises an argument on reply that Field fails to assert a causal
relationship between the protected activity and the adverse action. See Def.’s Reply
at 3. But arguments raised for the first time in a reply brief are waived, Mendez v.
Perla Dental, 646 F.3d 420, 423–24 (7th Cir. 2011). That said, it is established law
that a plaintiff pursuing a retaliation claim does not need to allege a causal
connection at the pleading stage. Sanders v. Ill. Dep’t of Cent. Mgmt. Servs., 593 F.
16

App’x 575, 577 (7th Cir. 2015) (citing Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014,
1029 (7th Cir. 2013)).13
Field has plausibly pleaded an adverse action, and the motion to dismiss her
retaliation claim under the ADA (Count XI) is denied.
ii.

Relief for Retaliation Under § 504

Next, IDHR argues that § 504 of the Rehabilitation Act, 29 U.S.C. § 794, only
permits retaliation claims in an employment discrimination context, and therefore
does not apply to Field’s claim. Def.’s Mem. Supp. at 8. But, as Field points out, see
Pls.’ Resp. at 7–8, the Seventh Circuit has stated in Reed v. Columbia St. Mary’s
Hospital that the Rehabilitation Act “does not limit retaliation claims to the
employment context.” 782 F.3d 331, 337 (7th Cir. 2015).
In its reply, IDHR asserts that Columbia St. Mary’s Hospital did not expressly
address vicarious liability under Title II of the Rehabilitation Act. Def.’s Reply at 4.
Again, arguments raised for the first time in a reply are deemed waived, Mendez, 646
F.3d at 423–24, but IDHR is incorrect in substance: the facts in Columbia St. Mary’s
Hospital, which the Seventh Circuit ruled stated a viable claim for retaliation under
the Rehabilitation Act, were based on vicarious liability of an employer for the
retaliatory acts of its employees. See 782 F.3d at 334, 337. Thus, Field may pursue

IDHR also devotes space to arguing against two other potential adverse actions—the
removal of Hoffman from Field’s housing voucher and IDHR’s refusal of Field’s request to use
a communication aide, see Def.’s Mem. Supp. at 8—but neither of those actions were
identified by Field as adverse actions. See Am. Compl. ¶¶ 313, 318.
13

17

a § 504 retaliation claim against IDHR, and the motion to dismiss Count XII is
denied.
III.

Count XV: Violation of Injunction in Cooper v. Salazar
Plaintiffs also allege that IDHR violated a court injunction by making

credibility determinations during its investigation into Field’s housing complaint
against HACC. Am. Compl. ¶¶ 210–18, 349–50. The Illinois Human Rights Act, 775
Ill. Comp. Stat. Ann. 5/7A-102(D)(2), was amended in 1996 to permit IDHR to make
credibility determinations during an investigation into whether there was
substantial evidence of discrimination. But in 1999, the Northern District of Illinois
granted a preliminary injunction against this practice, which had been challenged as
violating procedural due process under the Fourteenth Amendment. See Cooper v.
Bombela, 34 F. Supp. 2d 693 (N.D. Ill. 1999), aff’d sub nom. Cooper v. Salazar, 196
F.3d 809 (7th Cir. 1999). In subsequent litigation, the court “permanently enjoined
[IDHR] from relying on any credibility determinations made without affording
complainants an opportunity to confront and cross examine witnesses against them.”
Cooper v. Salazar, No. 98 C 2930, 2001 WL 1351121, at *6 (N.D. Ill. Nov. 1, 2001).
Plaintiffs allege that IDHR violated this injunction because it made credibility
determinations in its decision to find no cause and dismiss Field’s discrimination
charge against HACC. Am. Compl. ¶¶ 210–18, 349–50. IDHR moves to dismiss
Count XV on the grounds that IDHR did not make credibility determinations, but
rather, relied on independent evidence to conclude that Field’s complaint against
HACC lacked substantial evidence. Def.’s Mem. Supp. at 10.

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The Court does not reach IDHR’s argument, however, because Plaintiffs lack
standing to bring suit for violation of the injunction. The Court’s “first task, as it is
in every case, is to determine whether we have subject matter jurisdiction” over
plaintiffs’ claims, even if the parties do not raise jurisdiction as an issue. Grinnell
Mut. Reinsurance Co. v. Haight, 697 F.3d 582, 584 (7th Cir. 2012); see also Hay v.
Ind. State Bd. of Tax Comm’rs, 312 F.3d 876, 879 (7th Cir. 2002) (“[N]ot only may the
federal courts police subject matter jurisdiction sua sponte, they must.”).
As an order of a court, an injunction is enforceable through civil contempt
proceedings. Nat’l Spiritual Assembly of Baha’is of U.S. Under Hereditary
Guardianship, Inc. v. Nat’l Spiritual Assembly of Baha’is of U.S., Inc., 547 F. Supp.
2d 879, 884–85 (N.D. Ill. 2008), aff’d on other grounds, 628 F.3d 837 (7th Cir. 2010).
Such proceedings “are part of the action from which they stem.” Rockwell Graphic
Sys., Inc. v. DEV Indus., Inc., 91 F.3d 914, 920 (7th Cir. 1996). As a result, only
plaintiffs who were party to the underlying suit or the intended beneficiary of the
injunction can enforce an injunction. See In re Suburban W. Props., LLC, 504 B.R.
477, 486 (Bankr. N.D. Ill. 2013) (“In order for a third party to have standing to enforce
an injunction, it must either be a party in the case in which the injunction was issued,
or must have been the intended beneficiary of the injunction.”); see also Wang v.
Gordon, 715 F.2d 1187, 1190 (7th Cir. 1983) (stating that a court order “sought to be
enforced by [a] nonparty [must have] be[en] made in favor of that [nonparty]” (citation
omitted)); Gautreaux v. Pierce, 743 F.2d 526, 533 (7th Cir. 1984) (rejecting a third
party’s efforts to enforce a court order because the order was not entered for their
benefit).
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Plaintiffs have not pleaded that they are members of the class that was party
to Cooper v. Salazar, nor that the injunction was made for Plaintiffs’ benefit.
Plaintiffs therefore lack standing to initiate a proceeding against IDHR for violating
the injunction issued in Cooper v. Salazar. Accordingly, IDHR’s motion to dismiss
Count XV is granted.
IV.

Prayer for Relief
Plaintiffs seek declaratory relief, punitive and compensatory damages,

reasonable attorneys’ fees and costs, and injunctive relief. See Am. Compl. at 55–56.
IDHR moves to strike declaratory relief and certain aspects of the requested
injunctive relief14 from the Amended Complaint. Def.’s Mem. Supp. at 12–13.
A court may strike requests for relief when a complaint “seek[s] relief that is
not recoverable as a matter of law.” FDIC for Valley Bank v. Crowe Horwath LLP,
No. 17 CV 04384, 2018 WL 1508485, at *2 (N.D. Ill. Mar. 27, 2018) (citing Delta
Consulting Grp., Inc. v. R. Randle Const., Inc., 554 F.3d 1133, 1141–42 (7th Cir.
2009)). While a motion to strike is “usually discouraged,” Otero v. Dart, No. 12 C
3148, 2012 WL 5077727, at *2 (N.D. Ill. Oct. 18, 2012), it “may be used to remove an
excessive or unauthorized claim for damages,” Hrubec v. Nat’l R.R. Passenger Corp.,
829 F. Supp. 1502, 1507 (N.D. Ill. 1993). The decision to strike material from the
pleadings is within the district court’s discretion, and the party moving to strike has
the burden of showing that the plaintiff’s claim is “devoid of merit, unworthy of

IDHR also moves to strike punitive damages from the Amended Complaint. Def.’s
Mem. Supp. at 12. But this Court has since granted HACC’s motion to strike the request for
punitive damages. See Order of 1/17/2018, ECF No. 45. Accordingly, IDHR’s motion to strike
punitive damages is denied as moot.
14

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consideration, and unduly prejudicial.” E & J Gallo Winery v. Morand Bros. Beverage
Co., 247 F. Supp. 2d 979, 982 (N.D. Ill. 2003).
A.

Declaratory Relief

In the Amended Complaint, Plaintiffs seek a declaration that IDHR violated
the ADA and § 504. Am. Compl. at 55. IDHR asserts that declaratory relief is
improper in this case because the alleged damages have already occurred. Def.’s
Mem. Supp. at 13. In response, Plaintiffs argue that a motion to strike a prayer for
relief is premature. Pls.’ Resp. at 15.
The Declaratory Judgment Act, 28 U.S.C. § 2201, permits declaratory relief “in
any case of actual controversy . . . whether or not further relief is or could be sought.”
28 U.S.C. § 2201(a). The primary purpose of the Act is to “avoid accrual of avoidable
damages to one not certain of his rights and to afford him an early adjudication.”
NUCOR Corp. v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 577 (7th
Cir. 1994). Courts have discretion over whether to hear a declaratory judgment
claim, but “if the declaratory judgment will clarify and settle the disputed legal
relationships and afford relief from the uncertainty and controversy that created the
issues, it is usually resolved rather than dismissed.”

Id. at 578. If traditional

remedies are sufficient, however, courts may properly dismiss a declaratory judgment
claim, and if the alleged damage has already occurred, declaratory judgment is not
appropriate. Rothman v. City of Chi., No. 02 C 3533, 2003 WL 21148180, at *5 (N.D.
Ill. May 16, 2003) (citing Cunningham Bros., Inc. v. Bail, 407 F.2d 1165, 1167–68 (7th
Cir. 1969)).

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In the instant case, the requested declaration—that IDHR violated the ADA
and § 504—concerns injuries that have already occurred, as IDHR’s investigation of
Field’s charge against HACC concluded on June 20, 2017. See Am. Compl. ¶¶ 192,
195, 300, 309, 314, 319, 330, 342. Granting declaratory relief therefore would not
prevent accrual of any avoidable damages. What is more, a declaration that IDHR
violated the ADA and § 504 would do nothing to clarify the legal relations between
the parties for any future litigation because Field is already pursuing claims against
IDHR under the ADA and § 504 in the instant lawsuit. Accordingly, IDHR’s motion
to strike declaratory relief is granted.
B.

Injunctive Relief

In the Amended Complaint, Plaintiffs ask the Court to order IDHR to (a)
designate and publicize an ADA coordinator; (b) update its ADA and § 504 compliance
plan; and (c) cease receiving referrals from HUD to investigate housing complaints
under the Fair Housing Assistance Program. Am. Compl. at 56. IDHR challenges
the validity of the first and third requests on the merits.
The Court declines to reach IDHR’s arguments, however, because “[a]
defendant’s motion to strike a prayer for relief is premature if such relief is provided
for by law.” Jumpfly, Inc. v. Torling, No. 10 C 0385, 2010 WL 1978732, at *4 (N.D.
Ill. May 17, 2010). As discussed above, Field states claims under the ADA and § 504
of the Rehabilitation Act, and both statutes provide for injunctive relief. See 42 U.S.C.
§ 12133 (mirroring remedies under § 504); 29 U.S.C. § 794a(a)(2) (incorporating
remedies available under Title VI of the Civil Rights Act, 42 U.S.C. § 2000d-7); 42
U.S.C. § 2000d-7 (permitting both legal and equitable remedies). Thus, because Field
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has stated claims under Title II and § 504, and injunctive relief is provided for by law
in both statutes, striking her prayer for injunctive relief at this stage would be
premature. See Jumpfly, 2010 WL 1978732, at *4.
Accordingly, IDHR’s motion to strike Plaintiffs’ request for injunctive relief is
denied.
Conclusion
For the reasons stated herein, the Court grants in part and denies in part
IDHR’s motion to dismiss [41] Plaintiffs’ Amended Complaint. IDHR’s motion to
dismiss Count XV is granted, as is the motion to dismiss Counts IX–XIV only as to
Hoffman. In all other respects, IDHR’s motion to dismiss is denied. IDHR’s motion
to strike is granted as to Plaintiffs’ request for declaratory relief, but is denied in all
other respects.

IT IS SO ORDERED.

ENTERED

8/13/18

__________________________________
John Z. Lee
United States District Judge

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