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DENT v. CITY OF CHICAGO

United States District Court, Northern District of Illinois


August 1, 2003

SAMUEL DENT, PLAINTIFF
v.
CITY OF CHICAGO, MAYOR RICHARD DALEY, POLICE SUPERINTENDENT TERRY G. HILLARD, DEPUTY SUPERVISOR GARY H. SCHENKEL, LT. BANKS, AND SGT. WILLIAM SHERWIN, DEFENDANTS

The opinion of the court was delivered by: James Zagel, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff is a former probationary officer who alleges that the Chicago Police Department (1) failed to give him a conditional offer of employment prior to a medical evaluation; (2) failed to hire him because of his disability (imperfect vision); (3) failed to accommodate his disability; (4) harassed him upon hire; and (5) discharged him in retaliation for filing a prior complaint of discrimination and based upon a perceived disability (becoming ill at the Training Academy) in violation of Titles I and V of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq. and the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). Plaintiff further checks the box alleging discrimination based upon his age, in violation of the Age Discrimination Employment Act ("ADEA").

In addition, plaintiff attaches to his pro se complaint a document entitled "Item 12 continued," which sets forth 27 counts, titled consecutively from I and XXVII as follows: "adverse action, breach of trust, conspiracy, allegata and probata, civilii conspiracy, malicious conduct, defamation, default, decree, evidence opinion, expert witness, fact or opinion re-defamation, [ Page 2]

false/fraudulent statement, false pretences [sic], false testimony, formality, fraud to defraud, knowingly, knowledge, misleading conduct, motive, nonperformance and breach of contract, prima facie evidence case, settlement agreement, reasonable doubt, surplusage, and wrongful discharge." Plaintiff's complaint also incorporates an "Item 13 contnued" consisting of a same captioned complaint containing six counts.*fn1 Count I alleges termination due to a perceived disability in violation of Titles I and V of the ADA. Count II alleges unlawful subjection to a preemployment medical examination and termination in violation of the Rehabilitation Act. Count III is titled "Discrimination in violation of the Age Discrimination in Employment Act," but alleges that defendant automatically terminated him because it regarded him as disabled in violation Titles I and V of the ADA and "Sections SEC.12203 [Section 503]" (ADA non-retaliation provision). Count IV alleges termination in retaliation for engaging in protected activity. Count V alleges that plaintiff's termination violated the "`Direct Threat' Qualifications Standards" of the ADA, and Count VI seeks a rule to show cause based upon an alleged violation of the Dyer-Neely Consent Decree (83 C 5386).

Plaintiff has named both the City of Chicago and individuals as defendants. The individual defendants, as well as the City of Chicago, move for summary judgment on all of plaintiff's claims.

I am dismissing the individual defendants because (1) plaintiff has not alleged any specific actions attributable to any particular defendant; and (2) the law is well-settled that there is no individual liability under Title VII, the ADA, the Rehabilitation Act, and the ADEA. See [ Page 3]

EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1279-82 (7th Cir. 1995). Plaintiff does not dispute that a defendant cannot be held individually liable under Title VII, the ADA, the Rehabilitation Act, and the ADEA, but he argues that he has adequately pled conspiracy and cites Haddle v. Garrison, 525 U.S. 121 (1998). However, plaintiff only alleges that defendants conspired "to do something which, was actually carried out, did amount to another Federal crime and offense." This alone does not sufficiently allege civil conspiracy. Plaintiff alleges no facts to indicate the basis of this conspiracy claim, nor does he identify an actual offense. It could be inferred that his termination is that offense, but plaintiff still has not alleged any facts to show how the individual defendants conspired to bring about the termination. In his response to defendants' motion, plaintiff mentions denial of his right to equal protection, but he does not allege any class-based invidious discrimination, nor does he allege that any similarly situated individual who is less than 40, not disabled, or did not engage in statutorily protected activity was treated differently than he. Finally, there is no evidence that an individual defendant, other than Superintendent Terry G. Hillard, made the decision to terminate plaintiff. The Superintendent has the discretion to discharge probationary police officers without just cause or a hearing. Romanik v. Board of Fire & Police Commissioners, 338 N.E.2d 397 (Ill. 1975). Superintendent Hillard based his decision to terminate plaintiff on a report that plaintiff became ill and almost fainted at the firing range because he is allergic to pregnant women. Plaintiff concedes that he himself reported this belief to his superiors; therefore any allegations that the report on which Superintendent Hillard relied is false cannot be proven. Because plaintiff cannot maintain any claims against the individual defendants, they are dismissed from the case. [ Page 4]

I am granting summary judgment with respect to plaintiff's ADA and Rehabilitation Act claims regarding a failure to provide a conditional offer of employment and for failure to hire because they are barred by prior settlement of claims raised in action No. 96 C 0290. Plaintiff claims that this agreement is "evidence of [defendants] intent to abuse the legal process by trying to use a libel claim to coerce plaintiff into silence, and are not excludable as `offers of compromise'" and that he is suing defendants "over their conduct in bringing and continuing a lawsuit that constituted an abuse of process and also retaliation under the statutes involved." However, defendants have not brought suit against plaintiff, nor are they seeking ro preclude admissibility of the settlement agreement.

Plaintiff's petition for a rule to show cause based upon an alleged violation of the Dyer-Neely Consent Decree (83 C 5386) is denied because (although it is questionable that the Decree is applicable to plaintiff's claims), even if it was applicable, the Decree has been dissolved. See Dyer v. City of Chicago, 1997 WL 308843 (N.D. Ill. 1997) (Willams, J.).

With respect to plaintiff's disability discrimination claim, plaintiff insists that "defendant retaliated against him in violation of the ADA and ADEA by terminating her [sic] employment." Plaintiff cannot establish a claim of retaliation under the ADEA because there is no evidence that he complained of age discrimination preceding his discharge. Plaintiff also cannot establish a claim of retaliation under the ADA because he has not shown the requisite element that he was treated less favorably than similarly situated employees who did not engage in protected activity. See Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002). With respect to plaintiff's discrimination claim under the ADA/Rehabilitation Act, plaintiff has not adequately responded to defendants' argument that he is not entitled to protection under these statutes because he does [ Page 5]

not claim that he is disabled, nor does he show that he was erroneously regarded as disabled. Plaintiff does not show that being allergic to pregnant women significantly restricts a major life activity, and the only evidence offered by plaintiff that he is disabled is that an officer commented that plaintiff was "dangerous and a threat" as a police officer because of t his allergy, which is insufficient. Defendants' conclusion that plaintiff could not perform the duties of a police officer is not the same as a belief that plaintiff's allergy significantly restricts the life activity of working. Additionally, defendants' belief that plaintiff was allergic to pregnant women is not erroneous because plaintiff himself reported the allergy to defendants. Finally, plaintiff cannot prove that with his allergic condition, he was qualified to perform the essential functions of a probationary police officer. For these reasons, plaintiff cannot establish a claim of disability discrimination, and summary judgment is granted with respect to this claim. Summary judgment on plaintiff's retaliation claim is also granted for the same reasons.

Plaintiff does not respond to defendants' arguments with regard to his age discrimination and harassment claims, namely that these are beyond the scope of his first and only timely EEOC charge filed on July 10, 2001, which alleges only disability discrimination. While plaintiff's second EEOC charge does allege age discrimination and harassment, it was not filed until April 26, 2002, which is 302 days after his discharge on June 28, 2001, and thus, exceeds the statute of limitations for these claims. See Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 573-74 (7th Cir. 1998). Therefore, summary judgment is granted with respect to plaintiff's age discrimination and harassment claims.

Defendants move to strike the 27 counts set forth in "Item No. 12" on the ground that these counts consist of legal definitions, not separate cognizable claims, and even if the court [ Page 6]

were to construe facts alleged elsewhere into any of these counts, the facts as alleged are vague and confusing and do not state any claims. Although plaintiff correctly argues that a pro se civil rights complaint cannot be dismissed unless there is no set of facts under which plaintiff could obtain relief, McCormick v. City of Chicago, 230 F.3d 319 (7th Cir. 2000), "Item No. 12" does not contain any claims. There is no indication in this document of the basis for asserting these alleged "claims," and even though the pleading standards are more relaxed for a pro se plaintiff, plaintiff has not met these standards. Therefore, the counts alleged in "Item No. 12" are stricken.

Finally, summary judgment is granted with respect to plaintiff's claim Count V of "Item 13 continued" asserting "Discrimination in Violation of the Direct Threat Qualification Standards" because direct threat is a defense available to employers under the ADA.

For the reasons stated above, defendants' motion for summary judgment on all of plaintiff's claims is GRANTED.


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