Cruse-Boyd move to dismiss on the grounds that supervisors are not liable under the Rehabilitation Act. The CHA moves to dismiss under Fed. R. Civ. P. 12(b)(6), claiming plaintiff has not alleged any facts establishing that the CHA discriminated against him solely because of his disability.
The Rehabilitation Act of 1973, 29 U.S.C. § 794(a) states that no otherwise qualified disabled individual shall, solely because of his or her 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 . . . ."
The Rehabilitation Act, like Title VII, applies only to employers and not individuals. AIC, 55 F.3d at 1279-80. Therefore, Murray and Cruse-Boyd are dismissed as to Count III.
To state a claim under § 794(a) of the Rehabilitation Act of 1973, a plaintiff must allege; "(1) that [he] is a 'handicapped individual' under the Act, (2) that [he] is 'otherwise qualified' for the [position] sought, (3) that [he] was [discriminated against] solely by reason of [his] handicap, and (4) that the program or activity in question receives federal financial assistance." A.R. v. Kogan, 964 F. Supp. 269, 271 (N.D. Ill. 1997), quoting Grzan v. Charter Hosp. of N.W. Ind., 104 F.3d 116, 119 (7th Cir. 1997). The CHA disputes only element number three. "Without proof that plaintiff was suspended solely on the basis of his handicap, plaintiff can not make out a prima facie case of handicap discrimination." Randle v. Bentsen, 19 F.3d 371, 375 (7th Cir. 1994) quoting Landefeld v. Marion General Hosp. Inc., 994 F.2d 1178, 1181 (6th Cir.1993)(emphasis added). See also Grzan v. Charter Hosp. of N.W. Ind., 104 F.3d 116, 121 (7th Cir. 1997)("The discrimination must come from the handicap and from the handicap alone.").
In Count III, plaintiff alleges in paragraph 16, that, "the conduct of Defendant Murray was at all times based on Plaintiff's race and subsequent to Plaintiff's December 1994 surgery was also based, in part, on Defendant Murray's perception that Plaintiff's surgery and medical condition thereafter made him disabled. . . ." (Emphasis added.) The CHA argues that, because plaintiff alleges his discrimination was due only "in part," and not solely to his disability, the motion to dismiss should be granted. It appears in paragraph 16 that plaintiff was attempting to allege that race and disability were the sole reasons for the harassment, but it is unclear. It is obvious that, as written, the complaint fails to allege that plaintiff's disability was the sole reason for his discharge and therefore fails to state a claim. Plaintiff may be able to plead race and handicap discrimination in alternative counts, only if he can do so mindful of his obligations under Fed. R. Civ. P. 11. Accordingly, the CHA's motion to dismiss Count III is granted without prejudice.
In Count IV, plaintiff alleges that defendants violated his freedom of speech (U.S. Const. Amend. 1) by retaliating against him for his raising complaints to the U.S. Department of Labor for violations of Labor Department regulations and the FMLA. Defendants move to dismiss on the grounds that plaintiff did not allege that the CHA had a policy or practice which is causally linked to the underlying violation, and that facts showing the violation were not adequately pled.
Persons acting under the color of state law who "subject or cause to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . ." 42 U.S.C. § 1983. To satisfy a section 1983 claim, "a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988); Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980). With respect to local governments, plaintiff must also allege that the discriminatory actions taken by government officials fairly represent a policy or custom of the governmental entity. Monell v. Department of Social Services, 436 U.S. 658, 691-4, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Here, plaintiff has failed to allege that the discriminatory actions of Murray and Cruse-Boyd were taken pursuant to or constituted a policy or practice of the CHA. Absent such an allegation plaintiff may not hold the CHA liable for the discriminatory actions of its employees. Therefore, the CHA's motion is granted.
With respect to Murray and Cruse-Boyd, plaintiff has alleged sufficient facts to establish he was retaliated against in response to his complaints to the U.S. Department of Labor. This satisfies notice pleading. Accordingly, Murray and Cruse-Boyd's motion to dismiss Count IV is denied.
For the reasons set forth above, Murray and Cruse-Boyd's motion to dismiss is granted as to Counts I and III and denied as to Counts II and IV. The CHA's motion is granted without prejudice as to Count II, III, and IV and denied as to Count I. Plaintiff is granted leave to file an amended complaint consistent with this opinion on or before March 6, 1998; defendant shall respond on or before March 27, 1998. The status hearing set for February 12, 1998 is continued to April 2, 1998, at 9:00 a.m.
ENTER: February 11, 1998.
Robert W. Gettleman
United States District Judge
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