United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
Before the Court is a motion to dismiss  Plaintiff's second amended complaint, filed by Defendant Chicago Transit Authority. For the reasons set forth below, the Court grants in part and denies in part Defendant's motion .
Plaintiff Noah Rouse, Jr. is a former Chicago Transit Authority ("CTA") bus driver, who began working for CTA on July 7, 1997. SAC ¶ 4. After twelve years on the job, Rouse was diagnosed with end stage renal failure in July 2009. SAC ¶ 7. Only a kidney transplant will cure Plaintiff's disease, and while he awaits a transplant, he is required to undergo dialysis for four-and-a-half hours, three times a week. SAC ¶ 13. These sessions take place every Monday, Wednesday, and Friday beginning at 3:30 p.m. Id. When Plaintiff received his diagnosis, he was placed on leave pursuant to the Family Medical Leave Act ("FMLA"), and after just two months on short term disability, his doctor released him back to work in September 2009. SAC ¶¶ 14-16.
Plaintiff's Second Amended Complaint ("SAC") alleges that in September 2009 he "requested that he be given a reasonable accommodation in the form of a change in his schedule to enable him to attend his mandatory dialysis [sic] 3:30 p.m. Monday, Wednesday, and Friday." SAC ¶ 21. Plaintiff says that he provided CTA with his doctor's recommendation that because "dialysis can cause fatigue immediately... he be allowed to attend his dialysis prior to his bussing shift." SAC ¶ 22. The counterintuitive nature of this allegation suggests a typographical error, and a March 8, 2012 letter from CTA to the U.S. Equal Employment Opportunity Commission, attached to Plaintiff's SAC as Exhibit 1, supports the Court's suspicion that Plaintiff likely intended to state that his doctor recommended that he attend his dialysis after (not before) his bussing shift. CTA's letter states that Rouse requested a "lighter duty assignment than operating a bus, " beginning at 7:00 a.m. each day and ending by 3:30 p.m. SAC Ex. 1 at p. 2. Plaintiff alleges that CTA did not respond to Rouse's request until December 15, 2010, (SAC ¶ 23), but this claim also is contradicted by CTA's letter to the EEOC, which represents that CTA responded to Plaintiff on December 15, 2009. SAC Ex. 1 at p. 2 (emphasis added). CTA's letter expresses the opinion of CTA's Accommodation Review Board that, in light of Rouse's accommodation request, Plaintiff could not "perform the essential functions of the Bus Operator position for which [he] was hired." Id. And the letter memorializes CTA's purported reason for denying Plaintiff's request for a "lighter duty" assignment in the specific timeframe he requested: because no such position existed. Id.
Rouse notes that prior to responding to his accommodation request on December 15, the Disability Review Committee sent him a letter on October 13, 2009, informing him that he would be placed in a program called "Temporary Medical Disability (TMD)/Area 605." SAC ¶ 24. According to Rouse, CTA and Defendant Amalgamated Transit Union 241 ("the Union") "jointly invented" this program, "upon information and belief, " "as a budgeting tool to cut costs." SAC ¶ 25. Plaintiff alleges that CTA used the program "to screen out employees with disabilities or who were otherwise injured or prone [sic] likely to be injured in the future in order to greatly cut costs of insurance." SAC ¶ 26. Rouse does not explain how this program saves CTA money, but he suggests that an employee who is placed in Area 605 "automatically stays in the program for two years, and is generally given a third year, if medical records are produced to show that the individual can possibly resume employment within the next year." SAC ¶ 27. According to Plaintiff, the letter from the Disability Review Committee stated that "[t]he return to your previous classification is dependent upon the Authority's medical approval clearance and a budgeted' vacancy." SAC ¶¶ 29-31. Rouse alleges that the Committee, in making that decision, neglected to consult with his doctors and failed to "engage in any interactive process" with him. SAC ¶¶ 32, 34. He contends that Defendants were legally required to accommodate his scheduling request, to allow him to continue working full-time driving a bus route "and/or assign him to some of the other positions [sic] which he was eligible and which his doctors recommended." SAC ¶ 33.
Rouse alleges that Defendants kept him "and hundreds of similarly situated employees in the area 605 program, and informed them that they could not return to any position without a [sic] being released to work absent any restrictions " and that "CTA had no intention of ever returning Plaintiff nor the majority of similarly situated co-workers to a paying position, despite their fitness to return to work." SAC ¶ 35 (emphasis in original). At the same time, though, Rouse states that CTA did "offer him a bus driving position, " but suggests that he declined it because it "required him to commute to the north side of town" and, consequently, "would not have allowed [him] to attend his dialysis." SAC ¶ 62. Rouse criticizes CTA's accommodation, claiming also that it was "conditioned upon being released to work without restrictions.'" SAC ¶ 63. And although he interprets that condition to mean that CTA would not have allowed him to accept the offer unless and until he was "perfectly healthy, " ( id. ), Rouse, in fact, did have a medical restriction on top of his scheduling limitations. At the time of his diagnosis, his doctors restricted him from lifting more than 50 lbs, but later lifted that restriction sometime before March 19, 2010, which (per CTA's March 8, 2012 letter) seems to have prompted CTA's offer of employment as a bus driver at one of its north side garages. SAC ¶ 63; Ex 1 at p.2.
In March 2010, Rouse complained to the EEOC regarding CTA's failure to offer him a satisfactory work arrangement. See SAC Ex. 2 at p. 2. Rouse's letter to the EEOC notes that his "original request" to CTA was for a "guaranteed schedule of 7 a.m. to 3 p.m." and demonstrates that he later altered his request in accordance with his updated dialysis plan, which required him to attend treatments at a facility located 30 minutes from his job at 2:00 p.m. Monday, Wednesday, and Friday. Id. Rouse's letter also reflects his demand for an hour lunch break each day to take his medication. Id. Ultimately, CTA terminated Rouse on July 6, 2012, after almost three years in the Area 605 program. SAC ¶ 48(ii). In his view, CTA unlawfully terminated him "for the sole reason that he suffered from a disability." Id.
The EEOC investigated Plaintiff's allegation and issued him a right-to-sue letter on April 24, 2012. SAC ¶ 2 n.1. Plaintiff, however, did not actually receive the letter at that time, because the EEOC did not have an updated address for Rouse. Id. Exhibit 2 to Plaintiff's SAC includes an internal EEOC memorandum, which notes that the letter to Rouse was "return[ed] to sender." SAC Ex. 2 at p.4. According to Plaintiff, the EEOC reissued the letter over a year later once the agency learned of his whereabouts in March 2013. See id. According to an e-mail that he wrote to the EEOC and attached to his SAC as Exhibit 3, he received the letter some time prior to March 26, 2013. SAC Ex. 3 at p. 1.
Rouse commenced this suit on July 23, 2013, and filed the seven-count SAC at issue here on January 15, 2014. Count I alleges "disparate treatment" in violation of section 504 of the Rehabilitation Act of 1973. Among other things, Rouse alleges that CTA treated him "disparately in contrast to similarly situated non-disabled employees" by placing him in Area 605 "without cause, " denying him a reasonable accommodation, failing "to engage in an interactive process" with him, "baring [sic] Plaintiff and all other employees in section 605 from viewing available bids for open positions, " and, ultimately, terminating him "for the sole reason that he suffered from a disability." SAC ¶ 48. Count II alleges a separate violation of the Rehabilitation Act of 1973, premised on CTA's failure to accommodate his scheduling request. Rouse claims that CTA violated the Act by failing to grant him an appropriate accommodation during the three years that he spent in Area 605, barring him "and all employees in section 605 from seeing the open bids which would appear for jobs, " by hiring 300 "outside bus drivers" "shortly after his termination, " and by offering him a bus driving position that would have required Plaintiff "to commute to the north side of town, and which would not have allowed Plaintiff to attend his dialysis." SAC ¶ 62. Count III alleges disparate treatment under Title II of the Americans with Disabilities Act ("ADA"). Count IV alleges that the Union breached a fiduciary duty it owed to him by failing to assist him "in filing a grievance or otherwise supporting him against the CTA's illegal behavior and ultimate termination of Plaintiff." SAC ¶ 73. Count V is a failure to accommodate claim against CTA pursuant to Title II of the ADA. Count VI is a failure to accommodate claim brought under Title I of the ADA, pled "in the alternative to Counts I-V." Count VII is a disparate treatment claim under Title I of the ADA, also pled "in the alternative."
CTA moved to dismiss McDaniel's amended complaint  in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
II. Legal Standard
The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). As previously noted, reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiff's complaint and draws all reasonable inferences in his favor. Killingsworth, 507 F.3d at 618. To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the "speculative level, " assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the... claim is and the grounds upon which it rests." Erickson v. ...