unequivocal discharge from active duty in 1991. See also Verschuuren v. Equitable Life, 554 F. Supp. 1188, 1190 (S.D.N.Y. 1983) (ambiguous notice of termination is insufficient to begin running of statute of limitations). A promise to locate an alternative position for an employee does not necessarily imply that the employee's subsequent requests for alternative positions will prove futile. Winfrey did not have a right to demand transfer to an assignment that was not vacant, Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir. 1996) (ADA only requires employer to reassign disabled employee to a vacant position), or to remain on unpaid leave indefinitely until a position for which he would be "qualified" became available. See Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir. 1996) (ADA does not require employer to keep employee on unpaid leave indefinitely until alternative position becomes available). But the complaint alleges that the City assured Winfrey that he remained its employee, and asserted that it was seeking a reasonable accommodation by locating another position for him. These allegations permit an inference that the City's conduct in April 1991 would reasonably invite subsequent inquiries and applications concerning alternative assignments with the Department In fact, they permit an inference that the City would provide Winfrey with priority status for any subsequently vacant assignments for which he was qualified.
The City responds that Winfrey's August 1991 discrimination charge with IDHR demonstrates that the March 1994 refusal to reinstate Winfrey was not an independent act of discrimination but a mere consequence of previous discrimination. The City argues that, regardless of the City's proffered position during this time, Winfrey's 1991 discrimination charge reveals that he recognized that the City would not return him to work. Even assuming that Winfrey had correctly deduced that the City had violated his statutory rights in August 1991, the allegations still permit a reasonable inference of subsequent independent discriminatory conduct. At the most, Winfrey's IDHR charge implies that the City's failure to reinstate Winfrey in August 1991 discriminated against Winfrey because the City could have reasonably accommodated Winfrey by either (1) restructuring his old assignment, or (2) transferring Winfrey to another assignment for which he was qualified, with reasonable accommodations, that had since become vacant. But according to the allegations, the City assured Winfrey that it was seeking another assignment for him. Although the complaint does not specify if the City continued to communicate this position, it also does not reveal that the City ever indicated the contrary other than by failing to produce any concrete offers of employment.
Taking Winfrey's allegations as true, it is reasonable to infer at this stage in the proceedings that the City not only continued to consider Winfrey for subsequently vacant positions, but it also conferred him with priority status for any such positions for which he would be qualified. Thus, any previous failure to provide Winfrey with a vacant position may be reasonably characterized as "ad hoc." The fact that an employer discriminated against an employee in the past does not necessarily prevent an employee from complaining about subsequent discriminatory conduct. Webb, 931 F.2d at 437. The complaint implies that the City either failed to attempt to identify such positions or erroneously concluded that he was not qualified for vacant assignments because it could not reasonably modify those qualifications. If this inference proves true, then the City's failure to reinstate Winfrey to subsequently vacant assignments would be more akin to the denial of an application for a new position rather than reconsideration of a prior refusal for reinstatement, See also Jablonski v. Chas, Levy Circulating Co., 888 F. Supp. 84, 86 (N.D.Ill. 1995) (employer's denial of removed employee's applications for new positions constitute independent acts of discrimination); Cf. Silk v. City of Chicago, 1996 U.S. Dist. LEXIS 8334, 1996 WL 312074, at *8 (N.D.Ill., June 7, 1996) (only reasonable inference from employee's transfer to new assignment was that transfer constituted employer's accommodation for disability). Consequently, if assignments for which Winfrey was qualified had since opened up, the City's position would render its denial of Winfrey's later request to return to work a discrete act of discrimination.
Cf. Inda v. United Airlines, Inc., 565 F.2d 554, 562 (9th Cir. 1977) (promise to grant plaintiff priority status if policy removing plaintiff was eliminated as discriminatory added additional factor of unfairness to subsequent refusal to reinstate plaintiff to render it a discrete act).
Even if the record established that the City had reached a decision in 1991 to not return Winfrey to work, the complaint still permits an inference that the City's March 1994 refusal to return Winfrey to work constituted an independent act of discrimination. If an employer reinstates a discharged employee but then immediately removes that employee, that subsequent removal would constitute an independent act of discrimination from the original discharge. DeVito v. Chicago Park Dist., 83 F.3d 878, 880 (7th Cir. 1996) (defendant's removal of plaintiff after voting to reinstate him constituted distinct act of discrimination). In fact, the subsequent removal would constitute a separate discriminatory act even if the employer never permitted the employee to physically return to work or earn any salary. See id. The complaint alleges that the City directed Winfrey to take a physical in order to return to work, and that Winfrey passed this physical. The complaint further alleges that Winfrey was told at a meeting with a representative for the City that he should report to work. It is reasonable to infer that the complaint refers to directions from some agent of the City. If the evidence reveals that the City had effectively returned Winfrey to work, then the City's subsequent decision to again remove Winfrey may constitute an independent act of discrimination.
2. Whether Discrimination Occurred Prior to Effective Date of Title I of the ADA.
Title I of the ADA became effective against employers, including the City of Chicago, on July 26, 1992. 42 U.S.C. § 12118. As a general matter, the ADA does not apply retroactively to acts of discrimination that occurred prior to this date. Graehling v. Village of Lombard, 58 F.3d 295, 297. The Ricks ' principle of determining the operative date of discrimination for purposes of the statute of limitations applies equally to the question of whether the discrimination occurred after the effective date of the ADA. See id.
As explained above, Winfrey's allegations state a potential act of discrimination distinct from the City's prior refusal to reinstate him in April 1991. Assuming the allegations as true, it is reasonable to infer that the City's April 1991 decision only precluded Winfrey from returning to his prior assignment on the garbage trucks or other assignments that were vacant at that time. Because the allegations do not indicate any unequivocal decision by the City to prevent Winfrey from returning from unpaid leave, the complaint permits a reasonable inference that the City's later failure to return Winfrey to a subsequently vacant assignment was not a necessary consequence of its April 1991 decision but a discrete act of discrimination.
See also id. (discharge may be so tentative to render later decision on whether to let initial act hold sway as relevant discriminatory conduct). Even Winfrey's discrimination charge with IDHR only alleged discrimination after the City had still failed to return him to a position at least one month following July 26, 1991. Thus, regardless of whether the City's March 1994 refusal was a consequence of some earlier employment decision, the allegations permit an inference that the City did not reach that discriminatory decision until after Title I became effective.
For the reasons stated above, the City's motion to dismiss is denied with respect to Winfrey's claims under Title I of the ADA.
B. Statute of Limitations under Title II and the Rehabilitations Act
The City similarly argues that Winfrey's claims under Title II of the ADA and section 504 of the Rehabilitation Act must fail because Winfrey fails to allege a separate violation that occurred within either provisions's statute of limitations period. As an initial matter, the City asks the court to revisit its prior determination in Dertz v. City of Chicago, 912 F. Supp. 319 (N.D. Ill. 1995), that Title II of the ADA does not require the exhaustion procedures of Title I. In Dertz, this court reasoned that, because the Department of Justice's regulations promulgated under Title II expressly adopt the substantive requirements, but do not reference the procedural requirements, the DOJ must not have intended to impose those procedural requirements against claims under Title II.
Id. at 326 (citing the reasoning of Petersen v. Univ. of Wis. Bd. of Regents, 818 F. Supp. 1276 (W.D. Wis. 1993)). The City responds that the express terms of section 107 of the ADA require that the procedures set forth in Title VII of the Civil Rights Act of 1964, including its exhaustion requirements, apply to any claim for employment discrimination under the ADA. In particular, section 107(a) of the ADA does not explicitly restrict this adoption to employment claims pursued under Title I.
The City further implies that it is illogical or inconsistent to interpret the ADA to permit public employees to raise an employment discrimination under Title II directly in court but require private employee to first present their discrimination claims to the EEOC.
The City's arguments do not convince the court that it erred in its prior interpretation. With regard to the language of section 107, the City ignores the fact that section 107(a) applies to the "powers, remedies and procedures this subchapter [Title I] provides "to a person claiming discrimination concerning employment. In contrast, the enforcement provision for Title II, section 203, provides that the remedies, procedures, and rights of section 794a of the Rehabilitation Act present the administrative scheme "this subchapter [Title II] provides" to persons alleging a violation under Title II. 42 U.S.C. § 12133. The parallel structure of these enforcement provisions provides a specific enforcement scheme for claims that arise under each subchapter. In turn, this structure indicates an intent that Title I provide the procedural requirements of Title VII for persons bringing a claim pursuant to that subchapter, and that Title II provides the procedural requirements of the Rehabilitation Act to persons bringing claims pursuant to that subchapter. See Silk, 1996 U.S. Dist. LEXIS 8334, 1996 WL 312074 at *13. As the City argues, Congress' intent is somewhat ambiguous in light of the language of section 107(a) referring to any employment claim. However, section 107(a) specifies employment claims brought pursuant to either the statute or the regulations promulgated under Title I.
This reference to employment claims under the statute or regulations promulgated under Title I further undermines any clear intent on the part of Congress to subject employment claims under Title II to the exhaustion requirements of Title I. See id.; Wagner v. Texas A & M University, 939 F. Supp. 1297, 1310 (S.D.Tex. 1996). Consequently, the court finds that the language and structure of the ADA indicates an intent to impose the procedural requirements of Title VII only to employment claims pursued under Title I.
Although the logic of policy distinguishing between the requirements for public and private employees may be subject to debate, the court does not believe that it is so patently absurd to override a more consistent reading of both the statute and regulations promulgated thereunder. By permitting public employees to raise their claims for employment discrimination under Title II as well as Title I of the ADA, this court's interpretation of the statute indicates that public employees may bypass the administrative procedures required under Title I by pursuing their employment claims under Title II. In arguing for the absurdity of the distinction, the City focuses on the identity of the employees. However, the administrative filing procedures and time requirements of the discrimination statutes generally serve the purpose of providing adequate notice to the employer that the employee is aggrieved and affording an opportunity for settlement See Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). Therefore, the proper focus is more likely to relate to the nature of the employers rather than the employees. Congress may have considered that such warning or opportunities would not be as necessary for public employers. Regardless, the City provides no argument as to why this court's interpretation of Title II is so absurd as to require a different construction of the statute. Accordingly, the court reaffirms its prior holding that Title II of the ADA does not adopt the exhaustion requirements of Title I for purposes of employment discrimination claims.
If a federal civil rights statute does not impose into its own specific statute of limitations, then a court should borrow the statute of limitations from the applicable state governing personal injury suits. Cheeney v. Highland Community College, 15 F.3d 79, 81-82 (7th Cir. 1994). Accordingly, for purposes of Winfrey's claims under Title II of the ADA and the Rehabilitation Act, Illinois' two year personal injury statute of limitations applies. See id. at 81 (applying two year limitations period to claim under section 504 of the Rehabilitation Act); see also Ill. Stat. ch. 110, P 13-202 (1992).
For the reasons set forth in the preceding section, the complaint creates a permissible inference that the City's March 1994 refusal to return Winfrey to work was not merely a consequence of the City's refusal to reinstate Winfrey in 1991 but may constitute an independent act of discrimination. Winfrey filed the instant complaint with this court in February 1996, within two years of March 1994. Therefore, the court denies the City's motion to dismiss Winfrey's claims under either Title II of the ADA or the Rehabilitation Act because they are time-barred.
II. Adequacy of Allegations of Violation of Rehabilitation Act
The City alternatively argues that the court should dismiss Winfrey's claims under Count II of his complaint because it fails to properly allege that the discrimination was related to a "program or activity" receiving federal financial assistance. Section 504 of the Rehabilitation Act provides, in pertinent part:
"No otherwise qualified individual with a disability in the United States . . . shall, solely by reasons of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. . ."
29 U.S.C. § 794. In his complaint, Winfrey alleges that "the City is a recipient of federal financial assistance and therefore, its programs and activities, including the employment practices of the Department of Streets and Sanitation, are subject to the nondiscrimination on the basis of disability provisions of Section 504." P 64. The City argues that this pleading fails to allege that the program or activity from which Winfrey was excluded is regulated under the Rehabilitation Act. Instead, it merely asserts that the relevant Department's employment program is regulated by the Rehabilitation Act because the City of Chicago receives federal financial assistance.
Section 504 is program specific: "It proscribes discrimination only with respect to 'program' or 'activities' receiving federal financial assistance." Foss v. City of Chicago, 817 F.2d 34, 34-35 (7th Cir. 1987). In 1988, Congress amended the definition of "program or activity" to broaden the reach of the section 504 to "all the operations" of "a department, agency, special purpose district, or other instrumentality of a State or of a local government" that receives federal funding. § 794(b)(1)(A). Therefore, all the operations of a department or similar entity receiving federal financial assistance are subject to regulation. Schroeder v. City of Chicago, 715 F. Supp. 222, 225 (N.D.Ill. 1989), aff'd, 927 F.2d 957 (7th Cir. 1991). However, every program of an entire governmental entity, such as a municipality, is not regulated because some other program or division receives financial assistance. Schroeder, 927 F.2d at 962. Rather, section 504 continues to regulate each department, agency or similar instrumentality of the local government only if that instrumentality receives federal financial assistance. Id.
Winfrey's complaint only alleges that the City receives federal financial assistance. Even in his brief, the plaintiff declines to explicitly allege that any department or division that operated the employment program at issue, other than the City of Chicago, itself, received federal assistance. The fact that the "program or activity" that allegedly denied equal access to benefits received federal financial assistance is a necessary element of the prima facie case for a violation of section 504. See Schroeder, 715 F. Supp. at 225-26 (dismissing claim under Rehabilitation Act because complaint only alleged that City received federal funding). The court will not infer from Winfrey's specific allegation that the City receives federal funds that the Department of Streets and Sanitation also receives direct federal assistance.
Because Winfrey has failed to allege a necessary element of a prima facie case under section 504, the City's motion to dismiss Count II is granted. However, the court will permit Winfrey to amend Count II of his complaint to replead, consistent with his obligations under Rule 11, Federal Rules of Civil Procedure 11, his claim under the Rehabilitation Act. If Winfrey in fact has a good faith basis to allege that a specific department or agency that operated Winfrey's employment program received federal financial assistance, he may amend his complaint within fourteen days of this order to state this assertion. If; however, Winfrey is unable to so amend his complaint, the dismissal will be granted with prejudice.
III. Punitive Damages.
The City also moves to strike Winfrey's claim for punitive damages under each Count. Although Title I of the ADA expressly provides for the award of punitive damages in certain circumstances, it also explicitly exempts municipalities from such awards. 42 U.S.C. § 1981A(b)(1). In contrast, Title II does not provide for punitive damages, at all. This conspicuous silence indicates Congress' intent to not provide such damages for violations of Title II. See Harrelson v. Elmore County, 859 F. Supp. 1465, 1468-69 (M.D. Ala. 1994) (citing United States v. Martino, 681 F.2d 952, 954 (5th Cir. 1982) (en banc), aff'd, 464 U.S. 16, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983)). Title II applies to programs run by public entities. Therefore, this interpretation of the remedies provided under Title II is consistent with Title I's express exemption of government entities from such awards. Consequently, the court grants the City's motion to strike Winfrey's claims for punitive damages.
The court also notes that, if it had not dismissed Count II, Winfrey's punitive claims under his Rehabilitation Act claim would also be stricken. The Rehabilitation Act is also silent with regard to punitive damages. In light of this silence, the court finds that punitive damages are also not available for claims under section 504 of the Rehabilitation Act. See Cortes v. Board of Governors, 766 F. Supp. 623, 626 (N.D.Ill. 1991) (finding that Rehabilitation Act does not provide for punitive damages).
For the reasons set forth above, the defendant's motion to dismiss is granted in part and denied in part. Defendant's motion to dismiss is granted with respect to Count II, subject to the plaintiff amending his complaint within fourteen days to comply with this order. In addition, the defendant's motion to dismiss is granted with respect to plaintiff's claims for punitive damages. However, defendant's motion to dismiss plaintiff's claims under Count I is denied.
Blanche M. Manning
United States District Court Judge
Dated: JAN 8 1997