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WINFREY v. CITY OF CHICAGO

January 8, 1997

RUDOLPH WINFREY, Plaintiff,
v.
CITY OF CHICAGO, Defendant.



The opinion of the court was delivered by: MANNING

 Plaintiff, Rudolph Winfrey ("Winfrey"), filed this two-count complaint against the defendant, the City of Chicago ("City"), alleging that the City discriminated against him on the basis of his disability in violation of Titles I and II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131-34, and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794. The City submits this motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) arguing that the court should: (1) dismiss Winfrey's claim under Title I of the ADA because the complaint does not permit a reasonable inference that the City discriminated against him before Title I of the ADA became effective; (2) dismiss all of Winfrey's claims because the complaint does not permit a reasonable inference that he satisfied the statute of limitations requirements of either statute; (3) dismiss Winfrey's claim under the Rehabilitation Act because he failed to allege that the program or activity, to which he purportedly was excluded, receives federal financial assistance; and (4) strike Winfrey's claims for punitive damages because none of the pertinent statutory provisions provide for such an award from a municipality. For the reasons set forth below, the court grants the City's motion with respect to Winfrey's claim under the Rehabilitation Act and his claims for punitive damages but denies the City's motion with respect to its assertion that Winfrey's claims are time-barred.

 BACKGROUND

 Following are the facts as set forth in Winfrey's complaint. The City hired Winfrey in 1971 as a laborer in the Department of Streets and Sanitation. After suffering from an on-the-job injury and a latent eye condition, retinitis pigmentosa, Winfrey began to lose his eye sight in 1977. In 1986, Winfrey was diagnosed as legally blind.

 In response to Winfrey's request to the City for a reasonable accommodation for his condition, the City reassigned Winfrey in 1987 or 1988 as a laborer with special events. Winfrey continued to satisfactorily perform his duties. In June 1991, Winfrey fell off a twenty-five foot ledge and broke his leg. He was subsequently placed on "duty disability" until the City's physician, on December 16, 1991, released Winfrey to return to work. Although the City attempted to place Winfrey on involuntary medical leave at this time, the City ultimately assigned Winfrey to work on the garbage trucks. Apparently because of difficulties with this assignment, Winfrey requested vacation time which the City granted while it attempted to identify an alternative assignment for him.

 Before his return from vacation, the City sought to discharge Winfrey for alleged absenteeism even though it had never provided him with any prior written or verbal warnings regarding his attendance. Winfrey asserts that the City seldom discharged or disciplined non-handicapped employees, even when subject to repeated warnings for attendance violations. Winfrey has not received any information explicitly revealing the ultimate outcome of these charges. On the one hand, the City did not allow Winfrey to return to work but returned him to status on unpaid leave, so that he lost his salary and benefits as an active employee. On the other hand, the City informed Winfrey that he was still an employee and assured him that it was seeking a new assignment for him. In response, Winfrey submitted a letter and an updated resume to the City. The City told Winfrey to wait for its call.

 In August 1991, Winfrey filed a charge with the Illinois Department of Human Rights ("IDHR") alleging that the City discriminated against him on the basis of his disability. *fn1" In early 1994, the City again contacted Winfrey and directed him to report for a physical examination to return him to active duty. Winfrey completed the physical and was released to return to work on March 8, 1994. Winfrey and his attorney then met with a representative of the Department of Streets and Sanitation, Walter Bresnahan. At this meeting, Winfrey was told to report to work the following day. However, when Winfrey reported to the Department, he was told that there was no work for him. On March 17, 1994, Winfrey filed a charge with the Equal Employment Opportunity Commission ("EEOC").

 After receiving notice from the EEOC of his right to sue, Winfrey filed the instant two count complaint against the City. In Count I, Winfrey alleges that the City violated both Title I and Title II of the ADA "in one or all of the following ways:": (1) refusing to permit Winfrey to return to his position as a laborer even though he satisfactorily performed in that position for over five years since legally blind; (2) limiting, segregating and classifying Winfrey as unable to work; and/or (3) failing to investigate whether a reasonable accommodation for Winfrey's condition is possible. In Count II, Winfrey alleges that the City violated section 504 of the Rehabilitation Act by denying him the right to return to work in 1992 and every day thereafter solely on the basis of his disability. In particular, Winfrey alleges that: (1) the disciplinary charge seeking termination for absenteeism was instituted solely on the basis of his disability; and (2) the City discriminated against him by refusing to reassign or restructure an assignment for him.

 The City submits the instant motion to dismiss both counts. First, the City asserts that all of Winfrey's claims are time-barred. In support, the City argues that the alleged discriminatory act on its part would have occurred in April or May of 1992 when the City filed charges against Winfrey for absenteeism and subsequently removed him from active duty. Because Title I of the ADA was not in effect at this time, the City's conduct could not have violated this provision. In addition the City argues that both claims under the ADA would be time-barred because Winfrey did not file with the EEOC until more than 300 days later in 1994. The City also argues that Winfrey's claim under the Rehabilitation Act would be time-barred because he did not file his complaint until more than two years following the alleged act of discrimination. In the alternative, the City also moves to dismiss Winfrey's claim under the Rehabilitation Act because he failed to properly allege that the purported discrimination was related to a program or activity receiving federal financial assistance. Finally, the City argues that Winfrey's claim for punitive damages should be stricken because neither statute provides such damages against a municipal corporation.

 DISCUSSION

 The court may not grant a motion to dismiss for failure to state a claim upon which relief may be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). All well-pleaded facts are accepted as true, and the court will view those allegations, and reasonable inferences therefrom, in a light most favorable to the plaintiff. Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). Therefore, "a suit should not be dismissed if it is possible to hypothesize facts, consistent with the complaint, that would make out a claim." Graehling v. Village of Lombard, 58 F.3d 295, 297 (7th Cir. 1995).

 I. Time-bar.

 Winfrey responds that his complaint is based upon the City's alleged refusal to reinstate him in March 1994, well after the effectiveness of Title of the ADA and within the limitations period of both statutes. Winfrey further argues that the City's refusal to reinstate him in March 1994 constitutes a distinct and independent act of discrimination from the City's refusal to reinstate him in 1991 because ...


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