Freeman v. Metropolitan Water Reclamation District of Chicago
Filing
111
MEMORANDUM OPINION AND ORDER: Defendant's motion to dismiss 97 is granted. For the reasons stated herein, the Court dismisses Plaintiff's Fourth Amended Complaint [91, 92, 94] with prejudice. Civil case terminated. Signed by the Honorable Harry D. Leinenweber on 11/29/2018:Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHAKA FREEMAN,
Plaintiff,
Case No. 17 C 4409
v.
Judge Harry D. Leinenweber
METROPOLITAN WATER
RECLAMATION DISTRICT OF
GREATER CHICAGO,
Defendant.
MEMORANDUM OPINION AND ORDER
Defendant Metropolitan Water Reclamation District of Greater
Chicago moves under Federal Rule of Civil Procedure 12(b)(6) to
dismiss Plaintiff Shaka Freeman’s Fourth Amended Complaint (Dkt.
Nos. 91, 92, 94).
For the reasons stated herein, the Defendant’s
Motion is granted. (Dkt. No. 97.)
I.
BACKGROUND
This marks the first time the Court has considered a fullybriefed Motion in this case, but not for lack of activity by the
litigants.
Plaintiff, Shaka Freeman, filed his initial, 130-page
complaint in June 2017.
The Court thereafter appointed a series
of four attorneys to represent Freeman in his suit, but each
withdrew.
Freeman proceeded pro se.
In the following months,
Freeman filed four amended complaints.
He sought leave to file a
fifth, but, eager to move this case along, the Court denied that
leave and required Freeman to stand on the fourth amended version.
That Complaint boasts eleven causes of action and is spread across
three different documents on the docket. (Dkt. Nos. 91, 92, 94.)
Defendant, the Metropolitan Water Reclamation District of Greater
Chicago, has filed a 12(b)(6) Motion, seeking to dismiss the
Complaint
in
full.
In
weighing
that
Motion,
the
Court
has
extracted what it could from Plaintiff’s byzantine and often opaque
allegations.
allegations
The
as
Court
true
and
accordingly
takes
all
treats
reasonable
the
following
inferences
in
Freeman’s favor, as it must. Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008).
The Court also treats these allegations
with lenity, given that Freeman is pro se.
Tarkowski v. Robert
Bartlett Realty Co., 644 F.2d 1204, 1207 (7th Cir. 1980) (citation
omitted).
Freeman, an African-American man, started work in May 2015 as
a Midnight Shift Treatment Plant Operator at Defendant’s Stickney
Plant.
In August 2015, Freeman was convicted of DUI, had his
license suspended, and, in accordance with Defendant’s company
policy, reported that change in licensure to Defendant.
A month
later, on September 18, 2015, Defendant terminated Freeman for
“unsatisfactory performance,” a generic explanation that Defendant
later clarified to mean that “[Freeman] did not have a driver’s
license, which is a requirement to do his job.”
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(Fourth Am. Compl.
¶¶ 39-40.)
Also
on
September
18,
2015,
Freeman
voiced
a
“discrimination complaint” to a person he describes as the “HR
Director, Employment Relations Manager” (presumably referring to
someone in Defendant’s Human Resources department).
It is unclear
which of these events—Freeman’s termination or his complaint to
HR—occurred first.
To any extent, Defendant thereafter replaced
Freeman with a non-African-American employee.
Freeman sued Defendant for a slew of discrimination claims
under: 42 U.S.C. § 1981; 42 U.S.C. § 1983; the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and Title VII,
42 U.S.C. § 2000e-2.
Defendant moves to dismiss the Complaint in
full and with prejudice.
II.
DISCUSSION
To survive a motion to dismiss under Federal Rule of Civil
Procedure
12(b)(6),
a
complaint
plausible on its face.”
“must
state
a
claim
that
is
Adams v. City of Indianapolis, 742 F.3d
720, 728 (7th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
When considering motions to dismiss under
Rule 12(b)(6), a district court accepts as true all well-pleaded
factual allegations and draws all reasonable inferences in favor
of the non-moving party.
See, e.g., Jakupovic v. Curran, 850 F.3d
898, 902 (7th Cir. 2017).
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As demonstrated by the count-by-count discussion below, the
Court
agrees
dismissal
Defendant’s Motion.
is
warranted
and
accordingly
grants
Moreover, given that the Court has twice
dismissed Freeman’s complaints and four times permitted Freeman
leave
to
amend
his
complaint,
the
Court
dismisses
Freeman’s
Complaint with prejudice, as Defendant requests.
A.
Count I (ADA Discrimination)
Count I is a claim for discrimination in violation of the
ADA.
To state such a claim, Freeman must allege: (1) a disability
under the ADA; (2) that he is qualified to perform the essential
functions
of
the
job
either
with
or
without
reasonable
accommodation; and (3) that he suffered from an adverse employment
action because of his disability.
Kersting v. Wal-Mart Stores,
Inc., 250 F.3d 1109, 1115 (7th Cir. 2001).
this bar.
long
as
He contends he suffers from alcoholism, which can, so
it
“substantially
limits
activities,” qualify as a disability.
Inc.,
629
Freeman does not clear
F.3d
§ 12102(1)).
665,
670
(7th
Cir.
one
or
more
major
life
Ames v. Home Depot U.S.A.,
2011)
(quoting
42
U.S.C.
Freeman fails to explain how any such substantial
limitations attend his alcoholism, however.
He fares better on
the second element, alleging he was qualified to complete the tasks
of a Plant Operator with or without any reasonable accommodation.
But Freeman’s limited success pleading this claim ends there, as
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he never plausibly alleges the third element: the requisite causal
connection between his alcoholism and his firing.
Cf. Serwatka v.
Rockwell Automation, Inc., 591 F.3d 957, 962 (7th Cir. 2010) (“[A]
plaintiff complaining of discriminatory discharge under the ADA
must show that his or her employer would not have fired him but
for his actual or perceived disability[.]”).
He explains that
Defendant purportedly fired him due to his DUI-imposed license
suspension. But the fact that he lost his license after committing
an alcohol-related crime does not by itself establish that Freeman
cannot drive—and thus cannot work for Defendant—because of his
alcoholism.
That causal relationship is the key to Freeman’s ADA
claim, and yet he never alleges it.
His ADA claim cannot stand.
The Court accordingly dismisses Count I with prejudice.
B.
Count II (ADA Reasonable Accommodations)
In Count II, Freeman charges that Defendant failed to make
reasonable accommodations for him as the ADA requires.
To state
this claim, Freeman must allege that: (1) he is a qualified
individual with a disability; (2) the employer was aware of his
disability; and (3) the employer failed to accommodate reasonably
the disability.
Cir. 2001).
Ozlowski v. Henderson, 237 F.3d 837, 840 (7th
As explained above, Freeman claims he suffers from
alcoholism, but fails to describe how that affliction actually
disables him.
See Ames, 629 F.3d at 670.
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Freeman also fails to
allege that Defendant was aware of his alcoholism, though perhaps
the Court could infer Freeman related as much in his alleged
conversations with Defendant concerning his DUI.
To any extent,
even if Freeman had plausibly alleged the first two elements of
this claim, he has certainly not alleged the last, i.e., that
Defendant failed to accommodate his disability.
Freeman
claims
he
asked
Defendants
for
two
possible
accommodations, but the requests Freeman describes miss the mark.
In the first request, Freeman allegedly asked that he be permitted
to drive his personal vehicle—suspension notwithstanding—if he
could acquire an “MDDP Permit.”
Freeman never defines said permit
in his Complaint, but the Court believes he is referring to the
“Monitoring-Device Driving Permit” which the Illinois Secretary of
State sometimes issues to drivers with histories of drinking and
driving.
See 625 ILCS 5/6-206.1; People ex rel. Nerheim v. 2005
Black Chevrolet Corvette, 40 N.E.3d 160, 162-66 (Ill. App. Ct.
2015) (describing MDDP and associated statutes).
Alternatively,
Freeman allegedly asked that Defendant allow him to drive a “John
Deer Gator” instead of a regular automobile.
Freeman contends he
may legally drive a Gator without a driver’s license so long as he
remains on private property (as in, presumably, the terrain he
would
have
employee).
to
navigate
to
fulfill
his
duties
as
Defendant’s
The problem with these accommodation requests is that
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they are accommodations for Freeman’s license suspension and not
for his alcoholism.
“The law is clear that a plaintiff raising a
reasonable accommodation claim under the ADA must demonstrate that
the requested accommodation has some connection with the alleged
disability suffered.”
Wolfgram v. G4S Secure Sols. (USA), Inc.,
No. 1:18CV198, 2018 WL 5016337, at *2 (N.D. Ind. Oct. 15, 2018)
(citation omitted).
Though Freeman might have collected the
troublesome DUI because he was intoxicated when he should not have
been, Freeman simply never claims that alcoholism prevents him
from driving.
He thus fails to tether his disability to the
accommodations he sought, so Count II can proceed no further.
It
is dismissed with prejudice.
C.
Count III (ADA Discrimination)
Count III is duplicative of the ADA discrimination claim in
Count I and is accordingly dismissed with prejudice.
Cf. Hoagland
ex rel. Midwest Transit, Inc. v. Sandberg, Phoenix & von Gontard,
P.C., 385
F.3d
737,
744
(7th
Cir.
2004)
(indicating
that
duplicative counts should be dismissed).
D.
Count IV (ADA Retaliation)
Count IV is an ADA retaliation claim.
To state this claim,
Freeman must allege: (1) he engaged in a statutorily protected
activity; (2) he suffered an adverse action; and (3) a causal link
between the protected activity and the adverse action.
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Turner v.
The Saloon, Ltd., 595 F.3d 679, 690 (7th Cir. 2010).
Freeman’s
claim stumbles at the first step. He suggests Defendant retaliated
against him for his accommodation requests.
See Rodrigo v. Carle
Found. Hosp., 879 F.3d 236, 243 (7th Cir. 2018) (reciting that
seeking accommodations is a statutorily protected activity).
But
as explained above, the accommodations he sought were not related
to his alleged disability: Freeman is prevented from driving not
by his alcoholism, but by his license suspension. The latter might
owe in part to the former, but Freeman has not alleged how, nor
has he alleged, for example, that his inability to stay sober
during his shifts precludes him from driving notwithstanding his
license
suspension.
Because
Freeman
never
pursued
any
accommodation for his disability, he fails to make out the first
element of an ADA retaliation claim.
Count IV is dismissed with
prejudice.
E.
Count V (Monell Claim)
In Count V, Freeman pursues a § 1983 Monell claim. See Monell
v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978).
For this
claim to survive Defendant’s Motion, Freeman must allege: (1) that
he suffered a deprivation of a constitutional or federal statutory
right (2) as a result of an express municipal policy, widespread
custom, or deliberate act of a decision-maker with final policymaking authority which (3) was the cause of his injury.
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See Dixon
v. Cnty. of Cook, 819 F.3d 343, 348 (7th Cir. 2016).
It is not
clear what right Freeman believes he was deprived of.
But even if
that were clear and plausibly alleged, Freeman fails to plead the
second Monell element.
According to Freeman, Defendant terminated him because he is
African American and yet claimed that Freeman’s termination owed
to
70
ILCS
2605/4.11,
Reclamation
Director
District
to
circumstances.
a
provision
Act
terminate
which
of
the
empowers
probationary
Metropolitan
Defendant’s
appointees
Water
Executive
in
certain
This allegation appears to perplex Defendant (see
Def.’s Mot. 7, 12, Dkt. No. 97), and understandably so: § 4.11
merely
provides
Defendant
with
certain
authority
vis-à-vis
termination of employees; the statute does not compel any specific
termination, nor does it recite a policy describing when or why
certain employees should be terminated.
See 70 ILCS 2605/4.11.
Even so, Freeman contends that Defendant “us[ed] the 4.11 policy
to terminate” him (Fourth Am. Compl. ¶ 99, Dkt. No. 91), and as
such, Defendant maintained a policy that can support Freeman’s
Monell claim.
The Court disagrees.
Freeman cannot allege a
“policy,” for Monell purposes, by simply pointing to the statutory
grant
of
authority
which
sets
the
parameters
capacity to terminate certain employees.
Complaint
describes
how
Defendant
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on
Defendant’s
Nothing in Freeman’s
allegedly
went
about
implementing
the
authority
bestowed
by
§ 4.11,
whether
in
application to Freeman, specifically, or to employees, generally.
Simply put, the allegations are silent as to the policy or practice
that Defendant supposedly followed in terminating Freeman.
that, Freeman’s Monell claim fails.
Absent
See, e.g., Saiger v. Dart,
No. 13 C 5495, 2015 WL 1433076, at *3 (N.D. Ill. Mar. 26, 2015)
(dismissing Monell claim where complaint failed to plead facts
allowing the Court to draw the reasonable inference that defendant
maintained a custom, policy, or practice that violated plaintiff’s
rights); see also Thomas v. City of Markham, No. 16 CV 08107, 2017
WL 4340182, at *4 (N.D. Ill. Sept. 29, 2017) (dismissing Monell
claim and observing that in pursuing such claims, plaintiffs must
show a policy at issue, not merely a “random event” (quoting Thomas
v. Cook Cty. Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2010))).
Count V is insufficiently pled and so is dismissed with prejudice.
F.
Count VI (Monell Claim)
Count VI essentially charges the same Monell claim levied in
Count V.
It is accordingly dismissed with prejudice.
G.
Count VII (§ 1981 Discrimination Claim)
Count VII is a race-based discrimination claim pursued under
42 U.S.C. § 1981.
But § 1981 does not create a private right of
action, so Freeman cannot use it as a vehicle for this suit.
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Campbell v. Forest Pres. Dist. of Cook Cty., 752 F.3d 665, 671
(7th Cir. 2014).
H.
This count is dismissed with prejudice as well.
Count VIII (Title VII Disparate Treatment Claim)
Count VIII asserts disparate treatment under both Title VII
and § 1981.
Freeman
As above, this Count is dismissed to the extent
pursues
it
via
§ 1981.
To
establish
the
Title
VII
component of this claim, Freeman must allege that he: (1) is a
member
of
a
protected
class;
(2)
was
performing
her
job
satisfactorily; (3) suffered an adverse employment action; and (4)
was treated less favorably than at least one similarly-situated,
non-African-American colleague.
Farrell v. Butler Univ., 421 F.3d
609, 613 (7th Cir. 2005) (citations omitted).
plead the final element.
Freeman fails to
He describes a few comparator employees
who were either hired before he was (Fourth Am. Compl. ¶ 116, Dkt.
No. 91) or hired in his stead after his termination (id. ¶ 80),
but he nowhere alleges that any of those employees had a DUI
conviction and a suspended license. That is an important omission:
“To determine whether employees are similarly situated for the
purposes of analyzing a Title VII retaliation claim, the employees
must be directly comparable in all material respects.”
Hudson v.
Chi. Transit Auth., 375 F.3d 552, 561 (7th Cir. 2004) (internal
quotation
marks
and
citations
omitted)
(emphasis
added).
Defendants purportedly fired Freeman because his DUI conviction
- 11 -
precluded him from driving, as his job demanded.
It is thus key
to the similarly-situated analysis whether the employees retained
or hired in Freeman’s stead were likewise unable to drive. Freeman
has not alleged as much, so he has failed to allege similarlysituated colleagues as required.
When Freeman comes closest to alleging similarly-situated
employees, he recites that in an email to Defendant’s “employer
relations manager,” Defendant’s HR Director wrote: “Why is the
defendant
treating
the
plaintiff
differently
than
other
probationary employees with a suspended drivers [sic] license?”
(Fourth Am. Compl. ¶ 35, Dkt. 92 (citing Email Thread 11, Ex. 22
to Pl.’s Second Am. Compl., Dkt. No. 69-22).)
But: (1) the actual
quote is the more generic—“Why are we treating him differently
than other employees?”—and where an exhibit and the complaint
conflict, the exhibit tropically controls, Forrest v. Universal
Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2005); (2) this
question from HR is part of a larger email thread and discussion
in which the participants later recite having terminated another
employee who became unable to drive (Ex. 22 at 9-11); and (3)
reciting an HR representative’s (ostensibly soon-to-be corrected)
impression is not an adequate substitute for pleading similarlysituated employees in the first instance.
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Freeman
Count VIII.
fails
to
state
a
disparate
treatment
claim
in
That Count is dismissed with prejudice.
I.
Count IX (Grab Bag Claim)
In Count IX, Freeman alleges “RACE BASED DISCRIMINATIONRETALIATION-FOR
REPORTING
A
CHANGE
IN
DRIVERS
LICENSE
STATUS
PURSUANT TO POLICY-TITLE VII-OF THE CIVIL RIGHTS ACT OF 1964 AND
42
U.S.C.
§ 1981
CLAIM-DISPARATE
Compl. 33, Dkt. No. 91.)
TREATMENT.”
(Fourth
Am.
This count appears to rest of several
different causes of action: § 1981, Title VII, and the ADA.
But
regardless how the Court construes this count, Freeman herein fails
to state a claim.
As before, the count cannot rest upon § 1981,
which does not provide a private right of action.
F.3d at 671.
Campbell, 752
Nor can Freeman cannot lodge a Title VII disparate
treatment claim in this count because, as noted above, such a claim
would be duplicative of Count VIII.
Finally, the count fares no better even if Count IX is
intended as a Title VII retaliation claim.
To allege such a claim,
Freeman must demonstrate that: (1) he engaged in some statutorilyprotected activity; (2) he was performing his job according to his
employer’s
legitimate
expectations;
(3)
despite
meeting
those
expectations, he suffered a materially adverse action; and (4) he
was treated worse than a similarly-situated employee who did not
engage in statutorily protected activity.
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Firestine v. Parkview
Health Sys., Inc., 388 F.3d 229, 233 (7th Cir. 2004) (citations
omitted).
Again, Freeman fails to allege any similarly-situated
employees who were treated more favorably than he.
Absent that
allegation, Freeman’s retaliation claim falls apart.
Count IX is
dismissed with prejudice.
J.
Count X (Another Grab Bag Claim)
Count X presents yet another amalgamation of claims.
Having
recited one of Freeman’s grab bag claims above, in Count IX, the
Court will not waste ink doing so again.
Suffice it to say that
Count X arguably contains a § 1981 claim, a Title VII retaliation
claim, and a Title VII disparate impact claim.
The first two must be dismissed for the reasons already laid
out above.
As for the disparate impact claim: Freeman must allege
that Defendant maintained a practice or policy under which nonAfrican Americans were treated differently.
See Adams v. City of
Indianapolis, 742 F.3d 720, 732 (7th Cir. 2014).
But Defendant
points out that as with Freeman’s Monell claims in Count V, Freeman
fails to allege the requisite practice or policy.
Once more,
Freeman points to the termination procedures laid out in § 4.11.
Yet he fails to articulate any way in which Defendant’s exercise
of the authority bestowed upon it by that statute amounts to a
“policy” which caused a disparate impact.
Count X.
It is dismissed with prejudice.
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That failure dooms
K.
Count XI (Yet Another Grab Bag Claim)
Like the two counts preceding it, Freeman’s final Count—Count
XI—plays host to many discrete claims.
They include a § 1981
claim, a § 1983 Monell claim, and a Title VII retaliation claim.
These claims are duplicative of causes of action already considered
and dismissed.
Count XI is accordingly dismissed with prejudice
for the same reasons recited above.
III.
CONCLUSION
This ruling wipes out Freeman’s lawsuit, but the Court does
not reach this conclusion lightly.
Pro se plaintiffs like Freeman
should be afforded lenity, and this Court has allowed him that.
The Court has twice dismissed Freeman’s complaints in full.
Nos. 68, 90.)
to amend.
(Dkt
Four times, the Court has permitted Freeman leave
But his opportunities to cure his perennially deficient
claims have run out.
The Fourth Amended Complaint fails to state
a claim for which relief may be granted, so the Court grants
Defendant’s 12(b)(6) Motion in full.
Nothing remains of Freeman’s
case.
IT IS SO ORDERED.
Dated: 11/29/2018
Harry D. Leinenweber, Judge
United States District Court
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