Tate v. Burke et al
Filing
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MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendants' motion 16 to dismiss Count Four (ADA retaliation via 42 U.S.C. 1983) is granted. The status hearing of 03/15/2019 remains in place.Emailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LARRY TATE,
Plaintiff,
v.
THOMAS J. DART, et al.
Defendants.
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No. 17 C 8888
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Larry Tate, a correctional officer with the Cook County Sheriff’s office, alleges
that his employer discriminated against him on the basis of his disability and
retaliated against him after he brought a suit for discrimination.1 R. 1, Compl.2 Tate
filed a six-count complaint against Cook County, the Sheriff of Cook County, Thomas
Dart, and three other employees of the Cook County Sheriff’s Office (the Defendants).
Id. Tate has sued the individual employees in both their official and individual
capacities. Id. at 1. The Defendants now move to dismiss Count Four of the
Complaint, a § 1983 claim for retaliation under the ADA against all the Defendants.
R. 16, Mot. Dismiss. The Defendants argue that § 1983 is not a proper vehicle to bring
an action under the ADA and that there is no individual liability under the ADA. Id.
¶¶ 3-4. For the reasons explained below, the motion is granted.
1This
Court has subject matter jurisdiction over the federal claims in this case under
28 U.S.C. §§ 1331 and 1343. It has supplemental jurisdiction over the Illinois law claim under
28 U.S.C. § 1367.
2Citations to the docket are indicated by “R.” followed by the docket entry and page or
paragraph number.
I. Background
For the purposes of this motion, the Court accepts as true the allegations in
the Amended Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Tate has worked
as a correctional officer for Cook County since 2007. Compl. ¶ 6. In 2010, Tate suffered
a back injury at work, which required surgery and months of rehabilitation. Id. ¶ 24.
He did not return to work until the spring of 2012 but was promoted to Sergeant in
October 2012. Id. ¶¶ 24-25. Tate alleges that, following his promotion, the Sheriff
assigned him to a position that required him to lift 55 to 60 pounds, a condition that
violated the medical restrictions placed on him after his injury. Id. ¶ 26. Tate later
asked for a reassignment and was transferred to the Division 5 lobby, but he was not
given any training for the new position. Id.
Tate was initially permitted to work up to four hours of overtime in his new
position in Division 5. Compl. ¶ 27. But after he requested training in December 2012,
he was told he was not allowed to work overtime because he had a disability. Id.
¶¶ 27- 28. As a result, Tate filed a federal complaint for disability discrimination in
June 2014, which settled in October 2015. Id. ¶ 29.
According to Tate, immediately following the settlement, the Sheriff
transferred him again—this time to the Classification unit within the receiving area
of the Jail—because, according to the Sheriff, a Sergeant was no longer needed in the
Division 5 lobby. Compl. ¶ 30. About two weeks later, though, a different non-disabled
Sergeant was assigned to the Division 5 lobby. Id. ¶ 32. Several months later, in
December 2016, Tate was promoted to Lieutenant. Id. ¶ 34. Nonetheless, he was soon
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notified that he needed to attend a meeting with some of his supervisors and provide
medical clearance in order to continue work as a Lieutenant. Id. ¶ 35. During the
meeting, his supervisors explained that all newly promoted Lieutenants would be
assigned to Divisions IX or X, two high-conflict areas within Cook County Jail. Id. ¶
38. Because the areas were considered high conflict, Tate needed to obtain full
medical clearance. Id.
On December 14, 2016, Tate provided his list of permanent restrictions from
his treating physician to his supervisors. Id. ¶ 39. The next day, Tate’s supervisors
informed him that he was unable to perform the essential functions of his position
and he needed to fill out a reasonable-accommodation request form, but also that
avoidance of violent situations was not a reasonable accommodation for a
Correctional Lieutenant. Id. ¶ 40. Tate later found out that other newly promoted
Lieutenants were assigned positions outside of Divisions IX or X. Id. ¶¶ 42-43. On
December 27, 2016—after he filled out his reasonable-accommodation request form
and attended another meeting with his supervisors—Tate was dismissed as a
Correctional Lieutenant. Id. ¶¶ 44, 48, 49, 51.
In March 2017, Tate filed a charge of discrimination with the Illinois
Department of Human Rights; the charge was cross filed with the Equal Employment
Opportunity Commission (EEOC). Compl. ¶ 17. He alleged discrimination based on
his disabilities and retaliation for engaging in protected activity. Id.; R. 1.1, 3/4/2017
Charge of Discrimination with Illinois Department of Human Rights. After receiving
a right-to-sue letter, Tate filed this six-count complaint against Cook County, the
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Cook County Sheriff, and other employees of the Cook County Sheriff’s office for
violations of the Americans with Disabilities Act (ADA), violations of the Illinois
Human Rights Act (IHRA), indemnification by Cook County, and violations of the
First Amendment and the retaliation provision of the ADA under 42 U.S.C § 1983. R.
20, Pl.’s Resp. at 1.
II. Legal Standard
Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only
include “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the
defendant fair notice of what the … claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up).3 The Seventh
Circuit has explained that this rule “reflects a liberal notice pleading regime, which
is intended to ‘focus litigation on the merits of a claim’ rather than on technicalities
that might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir.
2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to
state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police
of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). These allegations “must be enough to raise a right to relief above the
3This
opinion uses (cleaned up) to indicate that internal quotation marks, alterations,
and citations have been omitted from quotations.
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speculative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to the
assumption of truth are those that are factual, rather than mere legal conclusions.
Iqbal, 556 U.S. at 678-79.
III. Analysis
Count Four of Tate’s complaint brings a novel claim. He seeks to use § 1983 to
hold the Defendants liable for retaliation under the ADA, rather than bringing a
direct claim for retaliation under the statute. Section 1983 “authorizes suits to
enforce individual rights under federal statutes as well as the Constitution” against
state and local government officials. City of Rancho Palos Verdes, Cal. v. Abrams, 544
U.S. 113, 119 (2005). Section 1983 does not create substantive rights but operates as
“a means for vindicating federal rights conferred elsewhere.” Padula v. Leimbach,
656 F.3d 595, 600 (7th Cir. 2011) (cleaned up).
The Supreme Court, though, has repeatedly held that §1983 cannot be used to
circumvent a congressionally created remedial scheme within another statute. See
Rancho Palos Verdes, 544 U.S. at 121-23 (explaining that §1983 could not be used to
bring a claim for rights conferred under the Telecommunications Act because the Act
limited the relief available to private individuals and provided for expedited judicial
review); Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20
(1981) (holding that §1983 could not be used to bring claims for violations of the
Federal Water Pollution Control Act or the Marine Protection, Research, and
Sanctuaries Act of 1972 because both “provide quite comprehensive enforcement
mechanisms”).
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Here, the Defendants assert that the ADA provides a comprehensive remedial
scheme that precludes any § 1983 action. They cite Tri-Corp Hous. Inc., v. Bauman,
826 F.3d 446 (7th Cir. 2016), and argue that the case makes clear that § 1983 cannot
be used to “override private actions set forth” in the ADA. Mot. Dismiss ¶ 3. The
Defendants are not wrong—Tate’s § 1983 claim does have to be dismissed—but they
oversimplify the impact of Bauman on the facts here. The plaintiff in Bauman tried
to use § 1983 to sue an individual—a city alderman—for discrimination under the
ADA, but the Seventh Circuit upheld the district court’s dismissal of the suit because
the ADA “specif[ies] in detail who may be sued for damages, and using § 1983 to
override the limits of those statutory lists is unwarranted.” Id. at 449. Bauman held
only that (1) § 1983 cannot be used to bring an action under a statute that includes a
comprehensive remedial scheme and (2) the ADA includes a comprehensive remedial
scheme for claims of discrimination, without directly addressing whether retaliation
claims are precluded.
Tate argues that—even if the ADA includes a comprehensive remedial scheme
for claims of discrimination under 42 U.S.C. § 12112—it lacks one for retaliation
claims under 42 U.S.C § 12203, because courts are split on whether both
compensatory and punitive damages are available to plaintiffs when suing under that
provision. Pl.’s Resp. at 6. But Tate cites no authority to support his assertion that a
statutory provision must provide for all manner of damages for all similar claims in
order to be classified as a comprehensive remedial scheme. Indeed, the Supreme
Court has set forth a different definition: a statue is considered to have a remedial
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scheme sufficient to preclude § 1983 actions if it provides comprehensive enforcement
mechanisms that include citizen-suit provisions, as well as notice provisions
requiring plaintiffs to alert the requisite agency, the State, and the alleged violator
before filing suit. Sea Clammers, 453 U.S. at 6; see also Rancho Palos Verdes, 544
U.S. at 121 (“The provision of an express, private means of redress in the statute itself
is ordinarily an indication that Congress did not intend to leave open a more
expansive remedy under § 1983.”).
Section 12203(c) includes provisions of this nature. The text of the provision
explains that the same remedies and procedures available under 42 U.S.C. § 12117
for enforcement of the ADA’s discrimination provision shall be used to enforce the
retaliation provision, including submission of claims to the EEOC, notification to the
State, and the requisite deadlines for filing a civil action. 42 U.S.C. § 12203(c); 42
U.S.C. § 12117; 42 U.S. Code § 2000e–4; 42 U.S. Code § 2000e–5. Even if, as Tate
argues, it is not clear that the compensatory and punitive damages are available for
a retaliation claim, Tate develops no argument that the availability of backpay and
front pay (as well as attorneys’ fees) undermines what is otherwise an express cause
of action and a comprehensive remedial scheme.
Tate also insists that individual-liability for ADA retaliation would not really
expand the ADA remedial scheme. According to Tate, § 12203(a) “clearly specifies
that individuals are liable for engaging in retaliation” when it states that “[n]o
person” shall retaliate. Pl.’s Resp. at 4. But the Seventh Circuit has held otherwise.
Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634, 644 (7th Cir. 2015)
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(explaining that the district court was “correct to dismiss [the defendants] in their
individual capacity for the discrimination and retaliation claims arising directly
under the Rehabilitation Act and the ADA.”); see also Ortega v. Chi. Pub. Sch. of the
Bd. of Educ. of the City of Chicago, 2015 WL 4036016, at *1, n. 2 (N.D. Ill. June 30,
2015). So invoking § 1983 to add individual liability for ADA retaliation indeed would
be a step beyond the remedies provided by the ADA. More importantly, Tate provides
no reason to believe that the ADA’s comprehensive remedial scheme leaves room for
enforcement of the ADA via § 1983.
Finally, Tate argues that a recent Second Circuit case—Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015)—saves Count Four. But Vega does
not support Tate’s application of § 1983. The plaintiff in Vega brought a claim for
retaliation under the equal protection clause of the Constitution. Id. at 80-82. The
Second Circuit overturned the district court’s dismissal of the claim because
retaliation was a form of discrimination under the Equal Protection Clause, and
§ 1983 was the proper vehicle to bring a private action for the deprivation of rights
conferred by the Constitution. Id. at 82. Count Four of Tate’s Complaint does not
employ § 1983 to bring a claim under the Constitution. It instead employs the statute
to bring a claim under the ADA.4 Accordingly, Vega provides no help to Tate, and
Count Four cannot survive.
4Count
Four is titled “42 U.S.C § 1983 Based on Retaliation under the ADA against
all Defendants.” Compl. at 20. It is true that Paragraph 90 of the Complaint, located within
the allegations comprising Count Four, states that the Defendants “violated the antiretaliation provisions of the ADA and the IHRA, as well as the First Amendment.” Id. ¶ 90
(emphasis added). But Plaintiff’s response brief accepts the Defendants’ position that Count
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IV. Conclusion
For the reasons discussed, the Defendants’ motion to dismiss Count Four of
Tate’s Complaint is granted.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: March 14, 2019
Four seeks damages only for retaliation under the ADA; nowhere does the response brief
mention retaliation under the IHRA or the First Amendment. See Pl.’s Resp. So, the Court
has treated Count Four as limited to retaliation under the ADA. It is worth noting that any
claim Tate might bring under § 1983 for violations of the IHRA—a state law—would likewise
be dismissed. West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff
must allege the violation of a right secured by the Constitution and laws of the United
States…”). And a claim for retaliation under the First Amendment would be entirely
duplicative of Count Five of Tate’s complaint, titled “Retaliation in Violation of 42 U.S.C. §
1983 Based on the First Amendment.” Compl. at 22.
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