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Ortiz v. Board of Education of City of Chicago

United States District Court, Seventh Circuit

July 2, 2013

DAVID ORTIZ Plaintiff,
v.
BOARD OF EDUCATION OF CITY OF CHICAGO, Defendant.

MEMORANDUM OPINION AND ORDER

GEORGE M. MAROVICH, District Judge.

Plaintiff David Ortiz ("Ortiz") has filed against the Board of Education of the City of Chicago a second-amended complaint in which he asserts a claim under the Americans with Disabilities Act ("ADA"). Defendant moves to dismiss the case on the grounds that Ortiz failed to exhaust his administrative remedies. For the reasons set forth below, the Court denies defendant's motion.

I. Background

For purposes of this motion to dismiss, the Court takes as true the allegations in Ortiz's second-amended complaint and the documents attached thereto. Fed.R.Civ.P. 10(c). The Court also considers the Charges of Discrimination that Ortiz filed with the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC") (which charges defendant attached to its motion to dismiss), because Ortiz referred to them in his second-amended complaint. Equal Employment Opportunity Comm'n v. Concentra Health Services, Inc., 496 F.3d 773, 778 (7th Cir. 2007) (document attached to motion to dismiss is considered part of the pleadings where the document is referred to in the complaint and is central to the plaintiff's claim).

Defendant Board of Education of the City of Chicago (the "Board") employed plaintiff Ortiz for more than sixteen years. During that time, Ortiz worked as a Parent Advocate at Sawyer Elementary School. As Parent Advocate, Ortiz was responsible for supervising the safety of school staff and students and for monitoring students.

Ortiz has a major depressive disorder. Over the years, he has informed the school about it. For example, in 1995, after the death of Ortiz's mother, Ortiz informed Gerard Gliege (who was, at the time, the acting assistant principal) that he was seeking medication for his depression. In or about August 2008, Ortiz informed Nellie Robles ("Robles"), the school's principal, that he was depressed about his divorce.

In the year 2010, Ortiz continued to suffer from depression. On or about March 15, 2010, Ortiz told a co-worker that he was suicidal. That co-worker told Robles, who authorized the co-worker to take Ortiz to the hospital for treatment.

Ortiz was admitted to the hospital for a week. After his release, Ortiz attempted suicide by swallowing a large quantity of prescription medication. Ortiz ended up back in the psychiatric hospital until he was released on or about March 29, 2010. Upon his release, Ortiz was prescribed a cocktail of drugs, including Lithium, Wellbutrin, Abilify and Zoloft. He alleges that these drugs caused him to behave abnormally.

Ortiz was due back at work on April 5, 2010. On April 4, 2010, Ortiz drank alcohol during the day, but he stopped that evening. When Ortiz went to work on April 5, 2010, he brought with him to work a package of raw steak and a four-pack of unopened bottles of Mike's Hard Lemonade (an alcoholic beverage). Principal Robles called Ortiz into the office and informed him that he would be tested for drugs and alcohol, because he smelled of alcohol. Ortiz took a Breathalyzer test, and Ortiz alleges that defendant believed the test to be positive. Robles sent him home and, ultimately, suspended his employment.

After he was sent home, Ortiz informed his psychiatrist that he was concerned about his behavior. The psychiatrist reduced Ortiz's doses of several of the medications and took Ortiz off the Lithium entirely. Within about three and a half weeks, Ortiz stabilized and felt that the behavioral effects of the prior drug cocktail had diminished.

On June 29, 2010, Ortiz filed a Charge of Discrimination with the IDHR and the EEOC. His Charge stated:

I. A. ISSUE/BASIS SUSPENSION-MAY 11, 2010, BASED ON MY MENTAL DISABILITY, DEPRESSION
B. PRIMA FACIE ALLEGATIONS
1. I am an individual with a mental disability as defined within Section 1-103(I) of the Illinois Human Rights Act.
2. Respondent has knowledge of my disability.
3. I began my employment with Respondent in September 1993. My work performance as a security officer at Sawyer Elementary School meets ...

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