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PATTERSON v. ILLINOIS

January 26, 1999

DENNIS PATTERSON, PLAINTIFF,
v.
STATE OF ILLINOIS, DEPARTMENT OF CORRECTIONS, AND ODIE WASHINGTON, DIRECTOR, DEPARTMENT OF CORRECTIONS, DEFENDANTS.



The opinion of the court was delivered by: Mihm, District Judge.

ORDER

This matter is before the Court on the Magistrate Judge's Report and Recommendation ("R & R"). Therein, he recommended that this Court grant in part Defendants' Motion to Dismiss Plaintiff, Dennis Patterson's ("Patterson"), Amended Complaint and deny Defendants' Motion to Strike. In his Amended Complaint, Patterson alleges that due to his allergic reactions to tuberculin skin testing and, therefore, his refusal to take such a test, he was terminated in violation of the Rehabilitation Act (Count I) and Title II of the Americans with Disabilities Act ("the ADA") (Count II). In their Motion to Dismiss, Defendants argue: (1) this action is barred by the Eleventh Amendment; (2) neither the State of Illinois ("the State") nor Odie Washington ("Washington") is a proper defendant; (3) Washington is entitled to qualified immunity; (4) Title II of the ADA does not encompass employment disputes; and (5) an adverse reaction to a TB test is not a disability under either the Rehabilitation Act or Title II of the ADA. In their Motion to Strike, Defendants argue that paragraph 15 of the Amended Complaint should be stricken.

In his R & R, the Magistrate Judge recommended:

  that the motion to strike be denied and that the
  motion to dismiss be allowed with prejudice as to
  Odie Washington, as individuals are not subject to
  liability under either the ADA or the
  Rehabilitation Act; allowed with leave to replead
  as to the Rehabilitation Act claim against the
  State in Count I, because no allegations of
  federal financial assistance; allowed with leave
  to replead as to the entire ADA claim (Count II),
  because employment disputes can only be litigated
  under Title I [of the ADA]; and denied in all
  other respects.

(R & R at 18). Patterson is the only party who filed an Objection to the R & R. Therein, he objects to only one recommendation made by the Magistrate Judge: that Count II be dismissed with leave to replead because employment disputes are not cognizable under Title II of the ADA. Consequently, the Court SUMMARILY ADOPTS those recommendations to which no party has objected.

The sole issue before the Court on the Magistrate Judge's R & R is whether a public employee may bring a claim arising out of an employment dispute under Title II of the ADA. For the reasons stated herein, the Court ADOPTS the Magistrate Judge's recommendation to dismiss without prejudice Count II of the Amended Complaint with leave to replead under Title I of the ADA.

Standard for Motions to Dismiss

In resolving a motion to dismiss, this Court must consider all well-pled facts as true and must draw all inferences in favor of the non-moving party. See Bontkowski v. First Nat. Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993), cert. denied, 510 U.S. 1012, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993). In ruling on a motion to dismiss, courts consider whether relief is possible under any set of facts that could be established as consistent with the allegations in the complaint. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). This Court will dismiss a claim only if it is beyond doubt that no set of facts would entitle the Plaintiff to relief. See Chaney v. Suburban Bus Div., 52 F.3d 623, 627 (7th Cir. 1995); Venture Assoc. Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir. 1993).

Factual Background

Patterson is a former employee of the Illinois Department of Corrections ("IDOC") at the Hill Correctional Center. He alleges IDOC has a policy requiring tuberculin skin testing ("the Mantoux TB skin test" or "TB test") for all employees. He further alleges that a Mantoux TB skin test he took in 1992 caused an allergic reaction. A follow-up chest x-ray, however, indicated his condition was normal. He was not re-tested in 1993 or 1994. In 1995, he was informed that the TB test was a condition to employment with IDOC. He subsequently submitted medical documentation of his allergy to the test and submitted a new x-ray, which showed no evidence of acute pulmonary disease or active tuberculosis ("TB"). According to Patterson, TB education material provided by IDOC provides that in addition to the Mantoux TB skin test, TB can be diagnosed by a chest x-ray or lab tests on sputum. He further alleges that employees who test positive to the TB test are not discharged from employment.

Patterson was ordered to submit to the TB test. When he requested an alternative test, his request was denied. He was subsequently suspended from duty in July 1995 for refusing to take the Mantoux TB skin test and told that he could return to duty only after submitting to the test. When he failed to do so by January 1996, his employment with IDOC was terminated.

In his Amended Complaint, Patterson alleges that his adverse reaction to the TB test is a disability or, in the alternative, his adverse reaction to the test created a record of disability or, in the alternative, his employer perceived him as disabled. Consequently, according to Patterson, his termination violated the Rehabilitation Act (Count I) and Title II of the ADA (Count II).

In their Motion to Dismiss, Defendants argue that Title II of the ADA does not encompass employment disputes; instead, Title II is reserved for claims arising from the denial of services by governmental entities. The Magistrate Judge agreed. While recognizing there is a difference of opinion among various courts on this issue, the Magistrate Judge found more persuasive the line of cases holding that a public employee, like all other employees, must bring an ADA claim based on an employment dispute under Title I of the ADA.

Discussion

In Title I of the ADA, which is entitled "Employment", Congress created a statutory scheme prohibiting employment discrimination based on a person's disability. See generally 42 U.S.C. ยง ...


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