MEMORANDUM OPINION AND ORDER
Plaintiffs John Northen, Jimmie Markham, and John McCarthy, former Chicago police officers who receive disability pensions from the City of Chicago ("the city"), sue the city for requiring them to pay for their own health insurance. The city formerly had provided the plaintiffs free health insurance through the city's employee health plan. The plaintiffs claim that the city's actions violate the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("the ADA"). The plaintiffs also contend that the city's actions violate article 13, section 5 of the Illinois constitution and article 5 of the Illinois pension code, 40 ILCS 5/5-101, et seq. The city moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6).
For purposes of ruling on a motion to dismiss, the court must take as true all factual allegations in the complaint. Early v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7th Cir. 1989). The plaintiffs are retired Chicago policemen with disabilities
who receive disability pensions through the city's Policemen's Benefit and Annuity Fund ("the fund"). Complaint PP 5-7. On about August 1, 1992, the plaintiffs were notified that they no longer would be eligible for free health insurance through the fund. Complaint P 9. Active Chicago policemen continue to receive free health benefits. Complaint P 11.
The plaintiffs filed a charge of employment discrimination with the Equal Employment Opportunity Commission ("the EEOC"), and the EEOC granted the plaintiffs notice of the right to sue. Complaint P 15. The plaintiffs filed this suit within ninety days of receiving the right to sue. The city moves to dismiss for failure to state a claim upon which relief can be granted.
1. Motion To Dismiss
A motion to dismiss concerns the sufficiency of the complaint, not the merits of the suit. Triad Ass'n, Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 97, 111 S. Ct. 129 (1990). The court grants a motion to dismiss only if it is clear that the plaintiff can prove no set of facts that would entitle him to relief. Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir. 1993); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
In ruling on a motion to dismiss, the court takes all well-pleaded facts to be true, and draws all inferences and resolves all ambiguities in the non-moving party's favor. Bontkowski v. First National Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992). Thus, the complaint may be dismissed for failure to state a claim upon which relief can be granted only if the facts that the plaintiffs allege show that they are not entitled to judgment. Bartholet v. Reishauer, A.G., 953 F.2d 1073, 1079 (7th Cir. 1992).
2. ADA Claim
The city moves to dismiss count I because the plaintiffs are not covered under the ADA. The city contends, without case law support, that:
the employment provisions of the ADA do not apply to former employees. . . . Plaintiffs admit that they are former employees of the Chicago Police Department. . . . Thus, they are not employees within the meaning of the ADA.