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KROCKA v. RIEGLER

March 21, 1997

VINCENT J. KROCKA, Plaintiff,
v.
PATRICIA RIEGLER, RICHARD WEDGBURY, JAMES BRANSFIELD, BRADFORD WOODS, STEVEN J. STANARD, MATT RODRIGUEZ, STANARD & ASSOCIATES, INC., and the CITY OF CHICAGO, an Illinois Municipal Corporation, Defendants.



The opinion of the court was delivered by: LINDBERG

 Vincent J. Krocka brings this action under Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12111 et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, to remedy allegedly unlawful employment practices and discrimination on the basis of disability. In addition, Krocka brings a claim pursuant to 42 U.S.C. § 1983 for deprivation of constitutional rights and claims pursuant to state common law. Defendants now move to dismiss the complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and to strike certain portions of the complaint.

 I. STATEMENT OF FACTS

 Under Rule 12(b)(6), the court must accept as true all factual allegations of the complaint and draw all reasonable inferences in favor of the plaintiff. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). The lengthy and detailed complaint contains allegations regarding the following sequence of events. Plaintiff Vincent J. Krocka ("Krocka") is a Chicago Police Officer in the 16th District who suffers from an endogenous form of depression. Krocka is also a licensed attorney in Illinois, Washington, D.C. and Florida. Defendants are the City of Chicago ("City"), Stanard & Associates, Inc. (a firm retained by the City to perform psychological evaluations) and various individuals employed by or otherwise associated with the Chicago Police Department ("CPD").

 Krocka was hired by the CPD on January 28, 1980. In July 1990, his internist, Dr. Glenn Cabin, diagnosed him with hypertension. In October 1990, Dr. Michael Bresler diagnosed Krocka as suffering from a dysthymic disorder that resulted in symptoms of depression, including a sleep disorder, low self-esteem, sad affect, irritability and pessimism. A dysthymic disorder is endogenous, which means that it is physiologically or biologically based. Pursuant to this diagnosis, Dr. Cabin prescribed 20 mg per day of the medication Prozac. Without this medication, Krocka's depression makes it nearly impossible for him to get out of bed for most of the day, which significantly restricted his ability to carry out his duties as a police officer or lawyer to the point of seriously limiting or eliminating his ability to work. Within weeks of beginning treatment with Prozac, Krocka's condition improved significantly. For the first eight to ten months of treatment, Dr. Bresler evaluated Krocka's condition weekly, but in August 1991, Drs. Cabin and Bresler agreed that the evaluations could be reduced to once every three months. According to both doctors, treatment with Prozac significantly reduced Krocka's depression symptoms without impairing his cognitive skills, reaction time, driving skills, or general performance or ability, and allowed Krocka to carry out his duties as a police officer without impediment.

 On January 7, 1993, Krocka returned to work after a vacation and was told to report the next day to defendant James Bransfield, Chief Surgeon of the CPD. At that meeting, the first question Bransfield asked was, "Are you still taking the Prozac?" When Krocka indicated that he was, Bransfield responded, "Oh no, Oh God. You know we're going to have to put you on medical." Upon learning that Krocka was a licensed attorney, Bransfield responded, "Oh no, Oh God." Bransfield placed Krocka on Medical Roll and also ordered him to submit to a physical exam and psychological evaluation. That day, Krocka had the physical exam, which found his health to be "essentially normal" except for an abnormal EKG and high blood pressure.

 On January 25, 1993, Krocka was given a psychological exam by a staff member at Stanard & Associates. The resulting evaluation stated that Krocka was not referred for disciplinary reasons but because he "disclosed to the Department that he was taking Prozac." The evaluation also stated that Krocka was "a man who sought treatment for a depressive condition, and has experienced considerable relief through psychotherapy and the use of Prozac." On February 9, 1993, Dr. Cabin sent a letter to Bransfield that Krocka was being closely monitored by both Dr. Cabin and Dr. Bresler, and that while on Prozac, Krocka was able to fully perform his duties as a police officer.

 On February 10, 1993, defendant Steven J. Stanard stated in a letter to defendant Richard Wedgbury, Director of Personnel for the CPD, that based on the information in Dr. Cabin's letter, Krocka should return to full active duty. He further recommended, however, that Krocka be placed in the Personnel Concerns Program for the duration of his treatment with Prozac. On the same day, defendant Bradford Woods, the Personnel Concerns Program Manager, started a Personnel Concerns Program log on Krocka with the notation that the log was "Per Steven Stanard Psych request 12 mos." On February 23, 1993, Krocka was returned to full active duty. Prior to placing Krocka in the Personnel Concerns Program, the City performed no test to determine whether he was a direct threat to the health or safety of others as a result of his treatment with Prozac.

 On May 26, 1993, Woods sent an internal memorandum to Wedgbury requesting that Krocka be placed in Personnel Concerns based on Stanard's recommendation. Under the heading "Recent Disciplinary History," Woods typed "None." Woods recommended that Krocka be placed in Personnel Concerns although he knew that Krocka did not meet the criteria for placement in the program. Wedgbury approved Krocka's designation as a "Personnel Concern."

 On June 21, 1993, a Personnel Concerns Conference took place at the 16th District to place Krocka into the Personnel Concerns Program. The conference was attended by, among others, Krocka, Woods and defendant Patricia Riegler, a Sergeant in the 16th District who was a Personnel Concerns Supervisor. At that time, Krocka was informed that his placement in the program was effective March 1, 1993, through March 1, 1994. Sixteenth District Commander Bergamin was not present at the conference even though program rules required his attendance. Commander Bergamin has since stated that as Krocka was not a disciplinary problem, he fails to see why Krocka was placed in the Personnel Concerns Program, considering its disciplinary criteria.

 A "Personnel Concerns Supervisor" is defined as a "specially trained supervisor who has the responsibility to closely monitor, evaluate, guide and improve the performance of an assigned personnel concern." According to Commander Bergamin, this special training consists of a one-day training session. On June 21, 1993, Riegler was assigned as Krocka's Personnel Concerns Supervisor. According to Krocka's complaint, Riegler was not adequately trained to make the psychological or medical evaluations required in monitoring individuals being treated with psychotropic medication. Krocka alleges that prior to being assigned as Krocka's Personnel Concerns Supervisor, Riegler had taken a leave of absence due to a "stress disorder," and at some time had threatened suicide or to cut her wrists.

 The disciplinary nature of the Personnel Concerns Program makes placement in it highly stigmatizing within the CPD. It was common knowledge within the 16th District that Krocka was a Personnel Concern because of his Prozac treatment, and as a result Krocka became the butt of Prozac jokes and writings on the bathroom wall. Because a Personnel Concern draws scrutiny from supervisors, other police officers did not want to work with Krocka for fear of intense observation. On at least one occasion, Riegler told another officer that Krocka was "a nut case."

 On August 7, 1993, Riegler was the Sergeant assigned to evaluate Krocka for his semi-annual efficiency rating. Although Krocka had previously received a rating of 85, Riegler tried to rate Krocka in the low 60s for abuse of the Medical Roll. However, as Bransfield had ordered Krocka's most recent medical leave, Riegler's rating was overruled after Krocka submitted a grievance. Krocka asserts that this event was the first in a lengthy series of attempts to manufacture a linkage between Krocka and Behavioral Alert Indicators in order to justify his retention in the Personnel Concerns Program, with the intended goal being Krocka's eventual removal from the police force because of his Prozac use.

 In October 1993, Riegler began intensive supervision of Krocka, appearing constantly at jobs, following him on duty and monitoring him during personal and meal times. During the fall of 1993, Dr. Bresler was required to increase Krocka's appointment schedule from every three months to every two to three weeks. Dr. Bresler noted that Krocka felt increasingly anxious because of his placement in Personnel Concerns and had expressed concerns about the harassment he had endured. During this time, Riegler refused to allow Krocka to see the Personnel Concerns Progress Reports about him.

 Prior to the time that Krocka requested an accommodation with regard to a new shift assignment, all of Riegler's Personnel Concerns Reports about him noted "no unusual behavior" and cited no code infractions or admonishments. In mid-December 1993, Krocka, as a result of the shift-bidding process, was assigned to work the 1st Watch (12:00 a.m. to 8:00 a.m.). For approximately the previous ten years, Krocka had been assigned to the 3rd Watch (4:00 p.m. to 12:00 a.m.). At about this time, Dr. Cabin wrote to Bransfield and requested that Krocka be accommodated on the 3rd Watch for health reasons. On December 27, 1993, Krocka met with Bransfield, who commented that only diabetics were allowed shift accommodations because of their medication schedules. He refused to honor Dr. Cabin's request.

 On the same day, Krocka entered a 7-11 store at Irving and Central. Three other officers entered shortly thereafter. After making a purchase, Krocka left the store. Riegler witnessed these events. That night, at the 16th District and in front of police desk personnel and midnight shift supervisors, Riegler orally reprimanded the other three officers, but selectively singled out Krocka and initiated a Summary Action Punishment Request against him for "inattention to duty." Riegler further threatened, "the next time, it'll be days." On February 3, 1994, Krocka was informed by Commander Bergamin that he had received a call from Woods, and informed Krocka that he either had to work the 1st Watch or go on Medical Roll. He also told Krocka that he would remain in Personnel Concerns as long as his Prozac treatment continued.

 On February 4, 1994, Krocka felt ill while on duty. Krocka's partner took him to Resurrection Hospital, where he was admitted and diagnosed as having a cardiovascular attack, angina, an irregular heartbeat and severely acute hypertension. An emergency room nurse informed Krocka that he had almost suffered a stroke. Krocka was hospitalized for six days in the Coronary Care Unit as a result of this attack, and the bill for his stay and follow-up medical services totaled $ 16,348. Additional fees for psychological consultation since the fall of 1993 totaled $ 1,000. Krocka was released into the care of Dr. Cabin and placed on Medical Roll. Krocka asserts that this cardiovascular attack was the result of continuous employment stress generated by defendants' conduct, harassment and retaliation for Krocka's attempt to seek a reasonable accommodation on account of his disability.

 On February 17, 1994, Dr. Cabin wrote to Bransfield and informed him that Krocka was being "closely monitored" in regularly scheduled exams, which consisted of blood workups, blood pressure, EKG readings and lengthy discussions about how Krocka was responding to Prozac treatment. On March 1, 1994, Krocka met with Bransfield, who ordered Krocka to submit to a blood test to measure the level of Prozac in his system. Krocka did not voluntarily submit to the blood test and objected to Bransfield's order. Bransfield responded by informing Krocka that he was in violation of a direct order and threatening him with disciplinary action if he did not comply. On March 10, 1994, Krocka ...


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