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September 29, 1995


The opinion of the court was delivered by: MANNING

 Plaintiffs filed their five-count amended complaint on April 21, 1994 against the City of Chicago (hereafter "City"), Superintendent of Police, Matthew Rodriguez (hereafter "Rodriguez") and Chief Surgeon, James Bransfield (hereafter "Bransfield"). Counts I and II are brought by plaintiff Lawrence Dertz (hereafter "Dertz") alleging that the defendants violated the Americans with Disabilities Act (hereafter "ADA") 42 U.S.C. § 12131-12134 and the federal Rehabilitation Act of 1973, 29 U.S.C. § 794 when they refused to re-employ him after a medical leave. Counts III and IV are brought by plaintiffs Dertz and Terrence Lynn (hereafter "Lynn") alleging that the city's policy of singling out for discharge policemen on leave from active duty because of psychological disabilities while exempting from discharge both physically disabled as well as non-disabled officers on leave, is in violation of the ADA, and the federal Rehabilitation Act. Count V is brought against defendants Rodriguez and Bransfield in their individual capacity only and alleges that the policies of these defendants violates the Fourteenth Amendment of the United States Constitution.

 Before this court is defendants' motion to dismiss Counts I, II, III, IV and V for failure to state a claim upon which relief can be granted. Defendants contend that: (1) Counts I, II and III should be dismissed because both plaintiffs have failed to satisfy the administrative filing pre-requisites for bringing an employment claim under Title I of the ADA: (2) Count III should be dismissed as to Lynn because Lynn is not a "qualified individual with a disability" within the meaning of the ADA: (3) Count IV should be dismissed as to Lynn because Lynn is not a "qualified handicapped individual" within the meaning of the Rehabilitation Act, and (4) Count V should be dismissed because the complaint fails to state a claim against defendants Bransfield and Rodriguez under 42 U.S.C. § 1983, the complaint fails to state an equal protection claim, Rodriguez and Bransfield are entitled to qualified immunity, and defendants Bransfield and Rodriguez are not subject to suit under 42 U.S.C. § 1983. For the reasons stated below, defendants' motion to dismiss Counts I, II, III, IV and V is denied.


 Plaintiff Dertz

 Dertz was hired as a police officer for the City of Chicago in December 1970. From 1970 until August, 1991, Dertz performed his job to the satisfaction of the City. During the last year that Dertz was on active duty as a police officer, he experienced marital difficulties which reached a culmination in August 1991. Dertz voluntarily sought the assistance of a therapist employed by the defendants. That same month, Dertz was hospitalized at Riveredge Psychiatric Hospital for a two-week period. During his hospitalization, he was given medication for depression. After he was released from the hospital, Bransfield referred Dertz to Stanard and Associates (hereafter "Stanard") for a psychological evaluation. It was the recommendation of Stanard that Dertz not return to duty and be re-evaluated in six months.

 In November, 1991, Dertz filed a union grievance seeking to return to active duty and to recover all benefits due him as a result of the City's refusal to return him to active duty. With the consent of Dertz's doctor, he was taken off medication for depression. In July 1992, defendants returned Dertz to work without police powers, and in September, 1992, Dertz returned to full duty. In October 1992, a panel of two psychologists and a psychiatrist met to consider Dertz's return to work grievance. Their recommendation was that although Dertz was fit to return to a civilian job with the City, he was not fit to return to active police duty, to have full police powers, to have police credentials or to carry a weapon. In November 1992, the City informed Dertz that he would be placed on medical leave and to use his vacation and sick pay. In March 1993, Dertz applied for a disability pension with the Police Pension Board (hereafter "Board")

 In June 1993, defendants again ordered Dertz to undergo a psychological evaluation. Dertz was referred to Stanard where he was determined to be psychologically unfit for police duty. Pursuant to his application for disability benefits with the Board, Dertz was evaluated on two separate occasions by a psychiatrist, Dr. Michael Rogers. On both occasions, Dr. Rogers found Dertz to be fit to return to full duty as a police officer. In August 1993, Rodriguez sought Dertz's discharge from the Department on the grounds that he was psychologically unfit to perform the duties of a police officer, based upon Bransfield's recommendation.

 By order of November 23, 1993, Dertz's application for disability benefits was denied by the Board. The Board concluded that Dertz "is not disabled and therefore this request for ordinary disability benefits BE AND IS HEREBY DENIED." After receiving notice that his disability application had been turned down, Dertz again requested reinstatement with the Department. Defendants would not consider Dertz for reinstatement.

 Plaintiff Lynn

 Lynn was hired as a police officer for the City in October 1971. On July 8, 1991 Lynn was attempting to effect an arrest when an assailant struck him on the face. During the ensuing struggle, Lynn and the arrestee fell to the ground. It was later discovered that Lynn suffered a subdural hematoma. As a result of his injuries, Lynn went on the Department medical roll on July 13, 1991 and remained on medical roll until July 19, 1992. Although Lynn went back to limited police duties for a time, he was unable to continue those duties due to his injuries. At the request of Bransfield, Lynn was sent for psychological evaluation by Stanard and was found psychologically unfit for duty.

 In November 1992, Lynn was granted a leave of absence and applied for disability pension from the Board. Lynn is currently receiving disability benefits from the Board. In November 1993, Dr. Bransfield filed charges with the Board against Lynn which seek his dismissal as a police officer on the grounds that "based upon psychological testing [Lynn] unfit to resume the duties of a police officer".


 In ruling on a motion to dismiss, the court must presume the well pleaded allegations of the complaint to be true. Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490, (1977). In addition, this court must view the allegations in the complaint in a light most favorable to the plaintiff. Gomez v. Illinois State Board of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). Dismissal is only proper if it appears beyond any doubt that the plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 The ADA is divided into three "Titles" or "Subchapters"- Title I is captioned "Employment" and provides in a pertinent part:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such an individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions, privileges of employment. 42 U.S.C.A. § 12112(a).

 A "covered entity" is defined as "an employer, employment agency, labor organization, or joint management committee," and an "employer" includes persons engaged in industry affecting commerce who have 15 or more employees. 42 U.S.C.A. § 12111(2), § 12111(5). A "person" includes a state or other governmental agencies. 42 U.S.C.A. § 12111(7). Defendant City of Chicago is a governmental agency with 15 or more employees and is therefore subject to suit under Title I of the Act. Title I incorporates the procedures of Title VII of the Civil Rights Act of 1964, which require a plaintiff to file a charge with the Equal Opportunity Commission prior to filing a civil claim in federal court. See § 12117.

 Title II of the Act is captioned "Public Services". The relevant provision reads:

Subject to the provisions of this subchapter, 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, or be ...

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