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Darlene Hale and Troneeko French v. Pace

March 31, 2011

DARLENE HALE AND TRONEEKO FRENCH PLAINTIFFS,
v.
PACE, CDT, MICHAEL ROGERS, DISPATCHER 1, STAFF 1, DRIVER 2, DISPATCHER 2, SCR, AND STAFF 2 DEFENDANTS.



The opinion of the court was delivered by: Judge Ronald A. Guzman

MEMORANDUM OPINION AND ORDER

Darlene Hale and Troneeko French have sued Pace, CDT Transportation ("CDT"), Michael Rogers, Staff 1, SCR Transportation ("SCR"), Driver 2, Dispatcher 2 and Staff 2 for violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12131(A)-(B), § 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794, 42 U.S.C. §§ 1983, 1985, as well as violations of state law, including claims of false imprisonment, intentional infliction of emotional distress, defamation, negligent hiring, training and supervision and breach of contract. Defendants have moved to dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). For the reasons set forth below, the Court grants in part and denies in part the motion.

Facts

Defendant Pace is a suburban bus agency that provides "paratransit services" in the city of Chicago to disabled passengers who have difficulty riding regular public transportation. (Second Am. Compl. ¶ 1.) Pace contracts with defendant CDT, a private carrier, to provide paratransit service to parts of the City of Chicago on Pace's behalf. (Id. ¶ 2.) At all times relevant to the complaint, defendants Michael Rogers, Dispatcher 1 and Staff 1 were employees of CDT. (Id. ¶ 3.) Pace also contracts with defendant SCR, another private carrier, to provide paratransit service to other parts of the City of Chicago on Pace's behalf. (Id. ¶ 70.) Driver 2, Dispatcher 2 and Staff 2 are or were employees of SCR. (Id. ¶ 71.)

Plaintiff French is a severely disabled adult, who has been deemed eligible to use paratransit services. (Id. ¶ 10.) Plaintiff Hale is French's mother, legal guardian and caregiver. (Id. ¶ 9.) As French's mother and caregiver, Hale has frequently traveled with French on Pace's paratransit service as his "Personal Care Assistant" ("PCA"). (Id. ¶ 11.)

On August 25, 2007, plaintiffs were riding Pace paratransit with Rogers as their driver. (Id. ¶¶ 20, 21.) During the ride, Rogers demanded that Hale pay a fare and threatened to "put them out of the car by the side of the road if they did not comply." (Id. ¶¶ 20-22.) Hale complied with the demand and paid two fares, but she felt that Rogers' demand was improper because she believed that Pace's procedure dictated that a PCA accompanying a disabled individual did not have to pay a fare. (Id. ¶¶ 23-24.) Plaintiffs do not base any of their claims on the August 25, 2007 incident.

Hale called Pace twice and complained to a Pace official. (Id. ¶ 33.) Hale also discussed the incident in person with Melinda Metzger, Pace's Deputy Executive Director, and Tom Groeninger, Pace's Regional Manager for Paratransit, at a meeting. (Id. ¶¶ 28, 31.) Metzger advised Hale that: (1) French's file should be "PCA-coded," meaning that he is on record as someone who always rides with a PCA, (2) such information should have been available to the drivers and dispatchers and (3) she should not have been charged a fare. (Id. ¶¶ 29-30.) Metzger also told Hale that even if a driver were to call the police in a similar situation, Hale would "come out as having acted correctly in declining to pay two fares (rather than just one)." (Id. ¶ 32.)

Another incident occurred on November 23, 2007. (Id. ¶ 12.) At about 1:30 a.m., plaintiffs boarded a paratransit vehicle driven by Michael Rogers, operated by CDT and under contract to Pace. (Id. ¶¶ 12, 16.) After driving several blocks, Rogers told the plaintiffs, "You know how it goes. You was in the car with me before. You're gonna give me double fare, or I'm gonna take you out to the coldest part of Chicago and I'm gonna put you and your son out." (Id. ¶¶ 18-19.) During the course of this incident, Rogers communicated with Dispatcher 1 and other personnel who approved his actions. (Id. ¶ 39.) After Rogers referenced the August 25 incident and demanded that she pay two fares, Hale recalled the advice she had been given by Metzger and refused to pay a second fare, stating, "You can take us back where we were." (Id. ¶¶ 34-35.) Instead of taking Hale and French back to their starting point of 356 West 95th Street, Rogers instead drove them to the vicinity of 95th Street and Dan Ryan, a location where the plaintiffs did not know anyone. (Id. ¶¶ 12, 36, 38.) Rogers stopped the car, turned off the heat and lights and called the police. (Id. ¶¶ 36, 40.)

When the police arrived at the scene, Rogers told the officer that the plaintiffs were not willing to pay any fare. (Id. ¶ 41.) Hale responded by informing the officer that she was willing to pay one fare but that she refused to overpay. (Id. ¶ 42.) The police declined to take any action against the plaintiffs and drove them home. (Id. ¶ 53.)

On December 19, 2008, plaintiffs Hale and French again attempted to use Pace's paratransit services. (Id. ¶ 75.)*fn1 As plaintiffs approached the Pace vehicle, Driver 2 locked the doors and "called in" plaintiffs as "no shows." (Id. ¶ 79.) Hale subsequently called the Pace control center to resolve the problem. (Id. ¶ 80.) Driver 2 spoke to the plaintiffs, saying, "Bitch, I'm not taking your retarded ass son nowhere. Don't nobody like y'all that's why SCR and Pace trying to get you kicked off the service, cause don't nobody like you." (Id. ¶ 81.) Driver 2 also stated that other paratransit workers, drivers and dispatchers would support his version of the event. (Id. ¶ 82.) Ultimately, Driver 2 allowed plaintiffs to board the vehicle, but Driver 2 continued to use "profane and disparaging language toward them," including calling Hale "bitch" approximately ten to fifteen times, and refused to move the vehicle for ten to fifteen minutes. (Id. ¶¶ 83-84.)

Hale took exception to being addressed as "bitch" and argued with Driver 2 that it was not right for him to refuse service. (Id. ¶ 86.) Driver 2 contacted the dispatcher and requested that another vehicle be sent because Hale was "directing profane language at him." (Id. ¶ 87.) After Hale challenged Driver 2 to report what he had said to her and turn on the vehicle's camera, he refused to do so. (Id. ¶¶ 88-89.) Driver 2 eventually took plaintiffs to their destination, and Hale paid one fare for French. (Id. ¶¶ 91-92.) Following this incident, and on the advice of her physician, Hale has reduced the frequency with which she utilizes paratransit to travel with her son, but due to her son's condition, she continues to "utilize paratransit from time to time." (Id. ¶ 160.)

On February 4, 2009, Hale attended a Pace Board of Directors meeting where she expressed pointed criticism of the administrators of Pace paratransit. (Id. ¶¶ 94-95.) On a date not specified in the complaint, Pace told Hale that her ridership privileges were going to be suspended and subsequently conducted a telephonic hearing with Hale regarding her suspension from ridership. (Id. ¶ 97.) Thomas Ciecko, Pace's general counsel, participated in the hearing and also represented Pace in the suit filed by the plaintiffs. (Id. ¶ 98.) Ciecko rejected Hale's request to move the hearing to another day because French had had a seizure as well as her attempt to present a defense regarding Driver 2's behavior. (Id. ¶¶ 98-99.) On February 5, 2009, Pace sent a letter to Hale informing her that based on the December 19 episode, she would be "suspended" from utilizing Pace paratransit from February 9, 2009 through March 25, 2009. (Id. ¶ 96.)

Discussion

When ruling on a Rule 12(b)(6) motion, the court must "tak[e] the factual allegations pleaded by the plaintiffs as true and draw[] all reasonable inferences in their favor." London v. RBS Citizens, N.A., 600 F.3d 742, 745 (7th Cir. 2010). "The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits." Gibson v. Chi., 910 F.2d 1510, 1520 (7th Cir. 1990) (quotation omitted). A plaintiff's complaint must provide "only a short and plain statement of the claim showing that the pleader is entitled to relief" in order to give the defendant "fair notice" of the plaintiff's claims and the basis for those claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A dismissal under Rule 12(b)(6) is required if the complaint fails to describe a claim that is "plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937');">129 S. Ct. 1937, 1949 (2009).

I. Unnamed Defendants

Plaintiffs have named as defendants "Staff 1," "Driver 2," "Dispatcher 2" and "Staff 2." Plaintiffs had the opportunity to identify these defendants during discovery but they have failed to do so, and discovery is now closed. Because plaintiffs have failed to amend their complaint to identify these defendants and the docket does not show that summonses as to these individuals were returned executed, the Court dismisses any defendant not specifically named. See Williams v. Rodriguez, 509 F.3d 392, 402 (7th Cir. 2007). Therefore, the Court grants defendants' motion to dismiss the Second Amended Complaint as to the unnamed defendants.

II. Federal Claims

A. Counts VIII, IX, XV and XVI: Violations of the ADA and the Rehabilitation Act

In Counts VIII and XV, plaintiffs allege that remaining defendants discriminated against them in violation of Title II of the ADA by: (1) failing to provide them with paratransit service that is comparable to the level of service provided to individuals without disabilities; (2) permitting an operational practice that severely limited their access to paratransit services; and (3) failing to provide plaintiffs with equal, meaningful access to paratransit service. In Counts IX and XVI, plaintiffs allege that defendants violated the Rehabilitation Act by denying them the benefits of, and equal participation in, paratransit service by discriminating against them through acts of harassment and unlawful efforts to deprive plaintiffs of paratransit service. Courts use the same analysis for claims under the Rehabilitation Act and Title II of the ADA.*fn2 Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004); Crosby v. Reg'l Transp. Auth., No. 07 C 6235, 2010 WL 2350707, at *2 (N.D. Ill. June 11, 2010).

Title II of the ADA states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."

42 U.S.C. § 12132. Section 12143 defines discrimination as used in § 12132:

It shall be considered discrimination for purposes of section 202 of this Act [42 U.S.C.S. § 12132] and section 504 of the Rehabilitation Act of 1973 (29 U.S.C.S. 794) for a public entity which operates a fixed route system (other than a system which provides solely commuter bus service) to fail to provide with respect to the operations of its fixed route system, in accordance with this section, paratransit and other special transportation services to individuals with disabilities, including individuals who use wheelchairs, that are sufficient to provide to such individuals a level of service (1) which is comparable to the level of designated public transportation services provided to individuals without disabilities using such system; or (2) in the case of response time, which is comparable, to the extent practicable, to the level of designated public transportation services provided to individuals without disabilities using such system.

42 U.S.C. § 12143. To state a claim under Title II of the ADA, plaintiff must allege that: "(1) she is disabled as defined under the [ADA]; (2) she is qualified for the benefits that she sought; (3) she was denied those benefits because of her disability; and (4) [the defendant] is a public entity." Torrence v. Advanced Home Care, Inc., No. 08 C 2821, 2009 WL 1444448, at *3 (N.D. Ill. May 21, 2009) (quotation omitted). The Department of Transportation's regulations also provide requirements for compliance with the ADA. 49 C.F.R. pt. 37.

Defendants argue that because Hale is not disabled, she cannot state a claim under Title II or the Rehabilitation Act. However, in some circumstances, the ADA allows non-disabled individuals to bring claims of discrimination based on their association with disabled individuals.

28 C.F.R. § 35.130 ("A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association."); see, e.g., Baaske v. City of Rolling Meadows, 191 F. Supp. 2d 1009, 1015 (N.D. Ill. 2002) ("[C]courts have allowed individuals who have some relationship to a disabled person to assert Title II claims against public entities when the public entity discriminates against that individual based upon the individual's relationship to the disabled person."); Oak Ridge Care Ctr. v. Racine County, 896 F. Supp. 867, 872 (E.D. Wis. 1995) (finding that non-disabled individuals may bring claims under Title II based on their association with disabled individuals); Micek v. City of Chi., No. 98 C 6757, 1999 WL 966970, at *3-4 (N.D. Ill. Oct. 4, 1999).*fn3 Additionally, courts have held that associational discrimination claims may also be brought under the Rehabilitation Act. See Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 279-80 (2d Cir. 2009).

To bring a claim for associational discrimination, the plaintiff must "suffer some specific, separate, and direct injury as a result of his association with the disabled individual." Micek, 1999 WL 966970, at *3.Hale must have been "discriminated against or singled out in a discriminatory way due to [her] association with disabled persons." See id. at *3. An "indirect" injury is not enough. Id.

In Micek, the court found that the plaintiff did not have a separate injury when he alleged an economic loss resulting from a healthcare insurer's denial of coverage for his hearing-impaired family members. Id. The court stated that the plaintiff "suffered an indirect injury as a result of a City coverage policy that neither singled him out nor provided him with different options than those provided to other City employees." Id. at *13-14. In cases where an associational discrimination claim succeeded, "the nondisabled plaintiffs could claim that [they] themselves [were] discriminated against or singled out in a discriminatory way due to their association with disabled persons." Id. at *13.

In this case, Hale alleges that she was discriminated against as a result of her association with French. Hale's injury is not just an indirect result of French's injury because, although Hale was traveling with French, she was also seeking services for herself as French's PCA and was denied those services. Therefore, Hale has sufficiently stated an associational discrimination claim under the ADA and the Rehabilitation Act.

Next, defendants argue that plaintiffs were not denied benefits because of French's disability. Both the ADA and the Rehabilitation Act require defendants to provide a paratransit system that provides comparable benefits to the fixed route system used by individuals without disabilities and deem a failure to do so discrimination. See 42 U.S.C. § 12413; 49 C.F.R. § 37.131 (laying out requirements for paratransit systems); Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 672-75 (5th Cir. 2004). Plaintiffs allege that they were denied comparable benefits to the fixed route system because on the fixed route system, riders are not driven off the route and left stranded at another location or exposed to extensive, one-on-one interaction with the driver.

Defendants argue that these allegations are insufficient to state an ADA/Rehabilitation Act claim because there is no allegation of discriminatory animus. However, courts have found a viable disability discrimination claim can be stated without an allegation of discriminatory intent on the part of the defendant. See Melton, 391 F.3d at 672; Casas v. City of El Paso, 502 F. Supp. 2d 542, 552 (W.D. Tex. 2007). One court, for example, found that a paratransit service that charged a disabled person's PCA a fare in the paratransit service system but not in the ...


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