2. The city
The city asserts that it did not act under color of state law. The city argues that plaintiffs fail to establish any city custom, practice, or policy that supported treating HIV-positive applicants differently from other applicants.
Plaintiffs allege that on two separate occasions, applicants were rejected because of their HIV-positive status. The complaint also contains the explicit claim that defendants maintained a custom, practice, or policy of (1) testing candidates for HIV, (2) requiring a physical examination prior to providing candidates with a valid conditional offer of employment, and (3) discriminating against HIV positive applicants. Complaint, P 10. Plaintiffs allege that defendants' actions stemmed from these customs, practices, and policies. Id., P 11.
Plaintiffs sufficiently allege the existence of a city policy, practice, or custom. Plaintiffs asserting Section 1983 claims, like all other plaintiffs, must simply provide sufficient notice of their claims, showing an entitlement to relief. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1162-63 (1993). Section 1983 claims may not be subjected to a "heightened pleading standard" requiring plaintiffs to describe the policy, custom, or practice by particular factual allegations. Id.7 Plaintiffs' general allegations of city policy, practice, or custom suffice to allege that the city acted under color of state law.
The city also argues that neither Dr. Bransfield nor the Chicago police department is vested with the authority to make employment policy for the city. See Limes-Miller v. Chicago, 773 F. Supp. 1130, 1136 (N.D. Ill. 1991). This is wholly irrelevant to plaintiffs' Section 1983 claims. Plaintiffs do not allege that either Dr. Bransfield or the police department established the alleged custom, practice, or policy on behalf of the city. Indeed, the defendants attribute the custom, practice, or policy to "one or more of the defendants," including the city. Accordingly, the role of Dr. Bransfield or the police department in setting city employment policy has no bearing on the city's motion to dismiss.
C. Qualified Immunity
Dr. Bransfield asserts that qualified immunity bars the Section 1983 claim against him. As already noted, qualified immunity does not apply if plaintiffs allege the violation of a clear federal right.
Plaintiffs allege that defendants, including Dr. Bransfield, discriminated against them because they are HIV-positive. Disabled persons are not a suspect class, and therefore are not entitled to the "strict scrutiny" equal protection analysis applied to classifications involving race or fundamental rights. DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 725 (10th Cir. 1988); California Ass'n of Physically Handicapped, Inc. v. FCC, 721 F.2d 667, 670 (9th Cir. 1983), cert. denied, 469 U.S. 832, 83 L. Ed. 2d 63, 105 S. Ct. 121 (1984); Brown v. Sibley, 650 F.2d 760, 766 (5th Cir. 1981).
The equal protection clause affords the disabled the right to be free from government classifications that are not rationally related to a legitimate government purpose. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985); Pontarelli Limousine, Inc. v. Chicago, 929 F.2d 339, 341 (7th Cir. 1991).
The complaint alleges that Dr. Bransfield discriminated against HIV-positive persons by refusing to consider their applications. The complaint specifically alleges that the removal of plaintiffs from the police officer eligibility lists was "irrational and based solely on vague, undifferentiated fears which are unsupported by medical or scientific evidence." Complaint, P 42. The complaint thus alleges a classification of the disabled without a rational basis. The allegations of the complaint state a violation of plaintiffs' clearly established right to equal protection of the laws. Because the complaint alleges a violation of a clearly established right, Dr. Bransfield has not established that he is protected by qualified immunity on a motion to dismiss.
D. Punitive Damages
The city moves to strike the request for punitive damages. Punitive damages are not generally available under § 1983 against municipalities unless waived by federal or state law. See Kolar v. County of Sangamon, 756 F.2d 564, 567 (7th Cir. 1985). Plaintiffs do not identify any waiver of the city's municipal immunity from punitive damages. Accordingly, the claim for punitive damages against the city on the Section 1983 claim must be stricken.
VI. The Illinois AIDS Confidentiality Act
Plaintiffs allege that defendants' failure to obtain plaintiffs' consent to HIV testing and failure to provide plaintiffs counseling in connection with the HIV test violated the Illinois AIDS Confidentiality Act ("IACA"), 410 ILCS 305/1 et seq. IACA prohibits any person from ordering an HIV test without first receiving the informed consent of the test subject. 410 ILCS 305/4. IACA also requires physicians ordering HIV testing to inform the test subject about the meaning of test results and to make available information regarding the availability of additional testing, further information, and counseling. 410 ILCS 305/5. IACA provides a civil right of action against any person negligently or intentionally violating IACA's provisions. 410 ILCS 305/13.
A. Subject Matter Jurisdiction
Defendants move to dismiss the IACA claim for want of subject matter jurisdiction. In a case containing state and federal law claims, a district court may exercise supplemental jurisdiction over state law claims when the state claims "are so related to [the federal claims] that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. 1367(a). Defendants note that plaintiffs' federal claims require that the testing be performed with the intent to discriminate against plaintiffs on account of their disability. Plaintiffs' IACA claims, on the other hand, require plaintiffs to show that defendants did not provide proper counseling or obtain informed consent to the HIV tests. Defendants reason that because the IACA and federal claims involve different elements of proof, they are not part of the same case or controversy under Article III.
Defendants' argument is without merit. A state law claim is part of the same case or controversy for Article III purposes when the state and federal law claims arise from "a common nucleus of operative fact." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). This common nucleus will generally exist if "considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding." Id.
Plaintiffs' IACA and federal claims arise from a common nucleus of operative fact. All claims arise from the same HIV testing. Plaintiffs' federal claims demand a determination of whether this testing violated Section 504 and the equal protection clause. Plaintiffs' IACA claims require the court to determine whether defendants complied with state law in performing the HIV testing. These are interrelated claims that should be tried in one judicial proceeding. See Roe v. Little Co. of Mary Hospital, 800 F. Supp. 620, 624 (N.D. Ill. 1992) (state and federal claims related to single incident of HIV-transmission properly tried together). Accordingly, supplemental jurisdiction is appropriate.
Defendants contend that even if supplemental jurisdiction is otherwise appropriate, the court should refuse to exercise supplemental jurisdiction over the IACA claims because the claims present complex issues of state law. A federal court may decline to exercise supplemental jurisdiction over a state law claim if "the claim raises a novel or complex issue of State law." 28 U.S.C. § 1367(c)(1). Defendants note that IACA is a relatively new statute, and that few state courts have interpreted its provisions.
The issues presented by plaintiffs' IACA claims are not so novel or complex as to require denying jurisdiction. The IACA statutes are clear in their requirements. Moreover, the statutes are supplemented by fairly extensive regulations promulgated by the Illinois Department of Public Health pursuant to IACA. See 410 ILCS 305/16; Ill. Admin. Code, Title 77, § 697.10 et seq. Moreover, several cases have already interpreted IACA, providing a fairly comprehensive picture of the act's purposes. See Connor v. Foster, 833 F. Supp. 727 (N.D. Ill. 1993); Doe v. Burgos, 265 Ill. App. 3d 789, 202 Ill. Dec. 833, 638 N.E.2d 701 (Ill. App. 1994); In re Application of Multimedia KSDK, Inc., 221 Ill. App. 3d 199, 581 N.E.2d 911, 163 Ill. Dec. 757 (1991). Accordingly, the complexity or novelty of the state law issues presented does not warrant declining supplemental jurisdiction.
Dr. Bransfield and USOH assert that plaintiffs' consent to HIV testing precludes their IACA claims. The complaint indicates that plaintiffs submitted to a required physical examination. Complaint, PP 18, 27. However, the complaint does not allege that this submission constituted the informed consent to an HIV test required by IACA. 410 ILCS 305/4. Indeed, plaintiffs explicitly deny having given the required consent to HIV testing. Complaint, PP 18, 29. Accordingly, plaintiffs' submission to a physical examination is not a proper basis for dismissing the IACA claims.
C. Propriety of Defendants
1. Dr. Bransfield and USOH
Dr. Bransfield and USOH allege that plaintiffs do not state an IACA claim against them because plaintiffs fail to allege that either Dr. Bransfield or USOH "ordered" the HIV testing. Only a person ordering an HIV test is liable for failure to obtain informed consent. 410 ILCS 305/4. Only physicians ordering an HIV test are liable for failure to provide information on further testing or referrals for counseling. 410 ILCS 305/5.
This argument is without merit. Plaintiffs allege that USOH actually performed HIV-testing on them. Complaint PP 18, 30. Plaintiffs allege that Dr. Bransfield informed John Doe of the test results. Complaint, PP 19. At the very least, these allegations raise a reasonable inference that either USOH, Dr. Bransfield, or both, ordered the HIV test performed. Accordingly, plaintiff states an IACA claim against both Dr. Bransfield and USOH.
2. The city
The city argues that it cannot be liable for failure to provide counseling because it is not a physician. IACA specifically requires that "no physician" order an HIV test without providing information about the meaning of the test results and the availability of counseling. 410 ILCS 305/5.
The city's argument is meritless. Plaintiffs allege that the HIV testing was performed at the city's direction. The city is generally liable for the acts or omissions of its employees. See Luna v. Meinke, 844 F. Supp. 1284, 1287 (N.D. Ill. 1994). Nothing in IACA prohibits suit against the city on a respondeat superior theory. Indeed, IACA imposes liability for civil damages on any "person" who intentionally or negligently violates its provisions. 410 ILCS 305/13. Governmental entities are included within the definition of "person." 410 ILCS 305/3(h). Accordingly, there is no basis to dismiss the IACA claim against the city.
Dr. Bransfield alleges that he is immune from suit on the state law counts. Illinois law provides that a public employee exercising discretionary authority is immune from suit for abuse of that discretion. 745 ILCS 10/2-201. However, the immunity for discretionary acts does not extend to a public employee's willful or wanton acts. Munizza v. Chicago, 222 Ill. App. 3d 50, 583 N.E.2d 561, 565, 164 Ill. Dec. 645 (1991), appeal denied, 144 Ill. 2d 635, 591 N.E.2d 24 (1992). Similarly, a public employee exercising executive authority is immune from suit for acts or omissions in the execution or enforcement of laws, provided that the acts or omissions are not willful or wanton. 745 ILCS 10/2-202.
Accepting the allegations of the complaint as true, as the court must on a motion to dismiss, Dr. Bransfield is not protected by immunity at this juncture. While plaintiffs' claims arise out of actions allegedly performed by Dr. Bransfield as a public employee, plaintiffs specifically allege that he acted "willfully, wantonly, and with reckless and callous indifference to plaintiffs' rights." Complaint, P 43. Dr. Bransfield contends that these allegations of willful and wanton conduct are insufficient absent a clear factual basis. However, the Federal Rules of Civil Procedure permit statements of motive or intent to be pleaded generally. Triad Assocs. v. Robinson, 10 F.3d 492, 497 (7th Cir. 1993). Accordingly, Dr. Bransfield's assertion of state law immunity provides no basis for dismissing the IACA claim.
VII. Intentional Infliction of Emotional Distress
A. Emotional Distress
The complaint alleges that defendants have "intentionally, recklessly, and negligently inflicted significant emotional distress upon plaintiffs." Dr. Bransfield contends that plaintiffs fails to state an emotional distress claim under Illinois law.
A claim for intentional infliction of emotional distress requires (1) extreme and outrageous conduct by defendant (2) causing (3) severe emotional distress suffered by plaintiff. Public Finance Corp. v. Davis, 66 Ill. 2d 85, 360 N.E.2d 765, 767, 4 Ill. Dec. 652 (1976). Reckless conduct may support a cause of action if the actor knows emotional distress is certain or substantially certain to result from his action. Id. Negligent conduct may give rise to an emotional distress claim if the emotional distress resulted in a physical manifestation and if the distress resulted from breach of a duty defendant owed to plaintiff.
Dr. Bransfield asserts that the conduct alleged was not extreme or outrageous. Plaintiffs allege that defendants required them to submit to an HIV test, provided them with the results of a positive HIV test, and refused to further consider their applications for employment. Whether conduct is extreme or outrageous depends largely on particular circumstances, including the degree of power or authority that defendants exercised over plaintiffs. See McGrath v. Fahey, 126 Ill. 2d 78, 533 N.E.2d 806, 809, 127 Ill. Dec. 724 (1988). The complaint's allegations are not inconsistent with extreme or outrageous conduct. The court therefore cannot resolve this issue on a motion to dismiss.
Dr. Bransfield also alleges that he owed no duty to plaintiffs, and thus a claim of negligent infliction of emotional distress is impossible. However, IACA appears to impose various duties on physicians conducting HIV testing. Insofar as plaintiffs assert that IACA violations caused them emotional distress, the distress resulted from breach of a duty imposed by law. Accordingly, plaintiffs' claim for negligent infliction of emotional distress cannot be dismissed.
B. Punitive Damages
Dr. Bransfield and the city move to strike plaintiffs' request for punitive damages in conjunction with the IACA and emotional distress claims. Illinois state law provides that municipalities and public officials are not liable for punitive damages. 745 ILCS 10/2-102. Plaintiffs do not dispute that punitive damages are unavailable. Accordingly, the request for punitive damages is stricken as to plaintiffs' state law claims.
In summary, the court's disposition of defendants' motions to dismiss is as follows:
(1) Defendants City of Chicago, Dr. James J. Bransfield, and United States Occupational Health's motions to dismiss the Americans with Disabilities Act claims are moot.
(2) Defendant City of Chicago's motion to dismiss the claims against the City of Chicago Police Department is granted.
(3) Defendant City of Chicago's motion to strike the claims for punitive damages against the city under 42 U.S.C. § 1983, the Illinois AIDS Confidentiality Act, and the Illinois emotional distress claim is granted.
(4) Defendant Dr. James J. Bransfield's motion to strike the claim for punitive damages against him under the Illinois AIDS Confidentiality Act and the Illinois emotional distress claim is granted.
(5) Defendants' motions to dismiss are denied in all other respects. The defendants are directed to answer all surviving claims by December 1, 1994.
Suzanne B. Conlon
United States District Judge
November 16, 1994