The opinion of the court was delivered by: ASHMAN
On January 29, 1993, Plaintiff received a written notification and directive from one of his supervisors for reasonable suspicion of being under the influence of drugs or alcohol while on the job on January 27, 1993. Plaintiff received a 30-day suspension for the alcohol related incident which began on February 1, 1993 and a 15-day suspension for verbally harassing a supervisor which began on March 3, 1993. Pursuant to the notification, Plaintiff was required to enter a drug and alcohol rehabilitation program and to consent to random drug/alcohol testing during work hours for the next two years, during which time Plaintiff's employment could be terminated immediately if he tested positive. Additionally, as a condition of Plaintiff's continued employment, he was required by the Village to attending counseling sessions with Mr. Chuck Jones through the Employee's Assistance Program.
During February 1993, Plaintiff enrolled in an outpatient alcohol and drug treatment program which lasted one and a half months. Plaintiff returned to work after completing the program and has not had a drinking problem since that time.
Employees in the Street Department were generally given performance reviews on an annual basis. However, on February 3, 1995, Plaintiff received a performance evaluation report covering the period from November of 1992 through November of 1994. Although Plaintiff's bi-monthly reports for 1994, given by his immediate supervisor, showed Plaintiff's performance to be satisfactory, he was given a rating of poor on the performance evaluation covering the two-year period. By combining two years of evaluation into one report, Defendant was able to evaluate Plaintiff on the basis of performance and other related problems that occurred prior to the Plaintiff's completion of rehabilitation. As a consequence of this report, Plaintiff was put on probation in February of 1995. On March 27, 1995, Plaintiff informed Defendant that its actions constituted employment discrimination on the basis of his age and alcohol-related handicap. Plaintiff was then placed on administrative leave effective May 31, 1995, and demoted on June 15, 1995. Plaintiff filed charges of discrimination with the Illinois Department of Human Rights ("IDHR") in August of 1995 and filed suit in this Court on September 12, 1995. In March of 1996, charges were brought against Plaintiff ordering his termination based on, inter alia, a "pattern since 1991 of unsafe practices." Plaintiff filed additional charges of discrimination with the IDHR in April of 1996. Plaintiff was then officially terminated on May 1, 1996.
On August 15, 1996, Plaintiff was given leave to file a Third Amended Complaint, containing sixteen counts; seven counts seeking relief pursuant to the ADA, 42 U.S.C. § 12101 et. seq., five seeking relief pursuant to the ADEA, 29 U.S.C. § 623(d), three seeking relief under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, and one state law claim for Intentional Infliction of Emotional Distress. All of the counts allege different nuances of discrimination, retaliation and adverse employment action.
Plaintiff now moves to file a Fourth Amended Complaint, adding as an exhibit, an additional right to sue letter. This letter arose from a charge alleging retaliatory conduct which occurred after the filing of this suit. Additionally, Plaintiff seeks to add Chuck Jones, the Village's Employee Assistance Program therapist, as a defendant and to add a seventeenth count alleging a violation of the Illinois Mental Health and Developmental Disabilities Confidentiality Act ("Mental Health Act"), 740 ILCS 110/1 et. seq. Plaintiff states that, since the filing of the Third Amended Complaint, depositions of current Department of Public Works employees have revealed that Chuck Jones disclosed confidential information regarding Plaintiff to these employees. Plaintiff states that there has been no bad faith, dilatory motive or undue delay in bringing this motion and that the Defendant will not be prejudiced because it has not served any written discovery on Plaintiff, nor have the depositions of Plaintiff or Jones been taken.
Defendant does not oppose the Plaintiff's motion to amend with respect to the addition of the right to sue letter as an exhibit. However, Defendant does oppose the motion with respect to the addition of the Mental Health Act claim contained in proposed Count XVII. Defendant objects to the addition of this count on the basis that it is not within the Court's supplemental jurisdiction, resulting in a lack of subject matter jurisdiction over the claim.
Defendant submits a two-prong argument in support of its contention that the Plaintiff's motion for leave to file a fourth amended complaint should be denied: (1) the claim contained in Count XVII is not within the Court's supplemental jurisdiction and (2) even if the Court does have supplemental jurisdiction over the claim, it should decline to exercise its jurisdiction pursuant to 28 U.S.C. § 1367(c).
A. The Court Has Supplement Jurisdiction Over The Plaintiff's Mental Health Act Claim.
The Defendant first argues that the claim contained in proposed Count XVII is not within the Court's supplemental jurisdiction and therefore, the Plaintiff's motion for leave to file a Fourth Amended Complaint should be denied.
Generally, leave to amend the complaint is liberally granted. FED R. CIV. P. 15(a). However, leave to amend may be denied where it would either prejudice the opposing party or result in the addition of a futile claim or allegation. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). An amendment is futile where it is incapable of surviving a motion to dismiss. Glick v. Koenig, 766 F.2d 265, 268 (7th Cir. 1985), Garcia v. City of Chicago, 24 F.3d 966, 970 (7th Cir. 1994). Thus, if proposed Count XVII would not withstand a motion to dismiss based on lack of subject matter jurisdiction under FED. R. CIV. P. 12(b)(1), the amendment ...