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LONG v. CHICAGO TRANSIT AUTH.

December 11, 1997

BRYANT LONG, Plaintiff,
v.
CHICAGO TRANSIT AUTHORITY, Defendant.



The opinion of the court was delivered by: ALESIA

 Before the court is plaintiff Bryant Long's motion to amend the judgment and for leave to file a second amended complaint. For the reasons that follow, the court denies plaintiff's motion and dismisses his case with prejudice.

 This is the second memorandum opinion and order issued by the court concerning this case. The general factual background of the case is detailed in Long v. Chicago Transit Authority, 979 F. Supp. 1214, 1997 U.S. Dist. LEXIS 16933, 1997 WL 674982, at *1-4 (N.D. Ill. 1997). Summarized below is the procedural background of this case.

 On February 12, 1996, plaintiff Bryant Long ("Long"), who had both of his feet partially amputated as a child, filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Proposed 2d Am. Compl. (hereinafter "2d Am. Compl.") Ex. A.) In that charge, Long alleged that he had "applied for a position of Bus Operator" with the Chicago Transit Authority ("CTA") and that "on or about December 18, 1995," the CTA rejected him because he was "disabled and unable to do the job." (Id.)

 After receiving notice of his right to sue, Long filed suit in this court, alleging that the CTA had violated the Americans with Disabilities Act ("ADA") by refusing to hire him as a bus driver solely on the basis of his disability. The CTA filed a motion to dismiss, arguing that Long was not "qualified" to be a CTA bus driver, as defined by the ADA and the ADA case law, because Long had failed to submit a United States Department of Transportation ("DOT") waiver to the CTA as required by federal and Illinois laws and regulations.

 In response to the CTA's motion to dismiss, Long filed an amended complaint. In his amended complaint, Long admitted that he had not obtained the requisite waiver from DOT. He alleged, however, that he was not able to obtain such a waiver because the CTA refused to join in his application for the waiver. The CTA filed a motion to dismiss Long's amended complaint. The CTA argued that it had no legal obligation to join in the application for waiver, that federal regulations provide that Long could have obtained the waiver unilaterally, and that it was Long's obligation, not the CTA's, to obtain the requisite waiver.

 On October 21, 1997, while the CTA's motion to dismiss was pending, Long filed a motion to inform the court that DOT had granted him a "training" waiver in September, 1997. The training waiver allowed Long to participate in the CTA's training program. Long claimed that DOT would not issue him a "regular" waiver because he had never driven a commercial vehicle. As the CTA never joined in his application, Long obtained the waiver unilaterally.

 On October 27, 1997, the court granted the CTA's motion to dismiss Long's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) because plaintiff was not a "qualified individual with a disability" as defined by the ADA, case law, and federal and Illinois laws and regulations. Long, 979 F. Supp. 1214, 1997 U.S. Dist. LEXIS 16933, 1997 WL 674982, at *2-3. The court explained that to determine whether Long was qualified to be a CTA bus driver, the court must first determine whether Long "satisfied the prerequisites for the position." Id. at *2 (citing Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996)). The court determined that a prerequisite for a partial amputee applying for the position of CTA bus driver is that the individual must have obtained a DOT waiver prior to being hired. Id. at *3; see 625 ILCS §§ 5/18b-101 to 111; 49 C.F.R. §§ 391.41, 391.49; ILL. ADMIN. CODE tit. 92, § 391.2000 (West 1997). Such a waiver can be obtained by the individual unilaterally, 49 C.F.R. § 391.49, and neither the parties cited nor could the court find any law which imposed a duty upon the CTA to join in the application for the DOT waiver.

 The court then determined that because Long had not obtained the requisite DOT waiver at the time that the CTA allegedly refused to hire him, Long was not "qualified" to be hired by the CTA as a bus driver. Long, 979 F. Supp. 1214, 1997 U.S. Dist. LEXIS 16933, 1997 WL 674982, at *2-3. The court further explained that because the only position for which Long had alleged that he had applied was that of bus driver, the CTA was under no obligation to hire him in another position. Id. at *4. Finally, the court explained to Long that his having obtained a "training" waiver in September of 1997 did not affect the court's opinion because "[the] determination of whether an individual is a 'qualified individual with a disability' must be made at the time of the employment decision." Id. (citing Bombard, 92 F.3d at 563).

 After the court issued its opinion, Long withdrew his motion for leave to file a second amended complaint. Then, on November 10, 1997, Long filed a motion to amend the judgment and for leave to file a second amended complaint (hereinafter "Long's motion to amend"). Long's proposed second amended complaint seeks to add to the first amended complaint allegations that (1) DOT issued Long a training waiver in September of 1997; (2) Long "offered to work" in non-driving positions while his employment application was under review; and (3) the CTA's refusal to hire Long has been continuing since December of 1995 until present. The second amended complaint also requests the court to issue a declaratory judgment in this action.

 On December 9, 1997, the parties appeared before the court on Long's motion to amend. At that time, Long's attorney represented that Long had never formally applied to the CTA for any position other than bus driver; rather, Long's alleged "offer to work" had merely been made in oral conversations with CTA employees. The CTA's attorney confirmed that Long had never applied for any position other than that of bus driver.

 II. DISCUSSION

 A. Plaintiff's motion to amend the ...


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