United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
Henry Harris has sued the City of Harvey under the Americans with Disabilities Act (ADA) for discrimination and retaliation. 42 U.S.C. §§ 12112(a), 12203(a). The City of Harvey has moved for summary judgment on Harris's claims. For the reasons stated below, the Court grants the City's motion.
Henry Harris is a police officer employed by the City of Harvey. On January 18, 2009, Harris injured his back and shoulder in a traffic accident. After the injury, he began working light duty assignments. Harris filed a charge with the Equal Employment Opportunity Commission (EEOC) on May 13, 2010, alleging that he was denied light duty as a reasonable accommodation and that this constituted disability discrimination and retaliation for testifying in a race discrimination case. The EEOC issued Harris a notice of his right to sue on May 28, 2010. Harris did not file suit. Harris filed a second EEOC charge on December 10, 2010, alleging that his supervisors engaged in retaliatory and discriminatory conduct after he filed his first EEOC charge. The EEOC issued Harris a notice of right to sue on September 27, 2012. Harris filed the current lawsuit on December 27, 2012.
Harris contends that Acting Chief of Police Donald Eaves, Commanders of Internal Affairs Lemuel Askew and Marcus Patterson, and City Attorney Sandra Alvarado engaged in a pattern of retaliation and disability discrimination after he filed his first EEOC charge. Specifically, Harris alleges that his supervisors (1) ordered him to drive a police vehicle to a deposition against medical restrictions, (2) failed to file an injury report after he went to the hospital following the deposition, (3) required him to submit forms explaining previous absences, (4) refused to replace his expired body armor, (5) assigned him work in the records room in violation of his medical restrictions, (6) threatened him, (7) underreported his wages to workers' compensation, (8) refused to reimburse him for his parking costs incurred during the deposition, (9) required him to use the previous year's sick days during an extended absence, (10) refused to pay him for the previous year's unused vacation leave, and (11) ordered him to return to full duty work before he was cleared by his doctors.
A party is entitled to summary judgment if it shows that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). On a motion for summary judgment, the Court views the record in a light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1114 (7th Cir. 2001). Summary judgment is inappropriate "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The City of Harvey contends that because Harris did not sue within ninety days of receiving a right to sue letter for his first EEOC complaint, he cannot bring a claim for discrimination. Before filing suit under the ADA, a plaintiff must timely file a charge with the EEOC and must receive notice of his right to sue. See 42 U.S.C. § 12117 (adopting Title VII procedures set forth in 42 U.S.C. § 2000e-5). A plaintiff has ninety days to file suit after receiving notice. Id. § 2000e-5(f)(1).
The City is correct that Harris cannot bring a discrimination action based on the matters alleged in his first EEOC complaint because Harris did not file suit within ninety days of receiving the first right to sue letter. Harris can, however, pursue claims that were "like or reasonably related" to the allegations contained his second EEOC charge for which he timely filed suit. Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994).
Harris's failure to check the box labeled "discrimination" in the second EEOC charge does not preclude him from pursuing a discrimination claim. See Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 168 (7th Cir. 1976). In his second EEOC charge, Harris alleged that "the City of Harvey's scheme to retaliate" was also "part of an ongoing custom and practice of the City of Harvey to discriminate against police officers with disabilities." Pl.'s Mem. in Opp. to Mot. for Summ. J., Ex. B at 3. Because Harris's second EEOC charge alleged incidents that were unrelated to the allegations in his first charge, he can proceed on his discrimination claim based on those incidents. See Martini v. A. Finkl & Sons Co., No. 96 C 0756, 1996 WL 667816, at *6-7 (N.D. Ill. Nov. 15, 1996) (allowing adjudication of plaintiff's retaliation claim and discrimination claim "to the extent that it is predicated on allegations not specifically alleged in the [time barred] First Charge").
B. Retaliation claim
The ADA prohibits an employer from retaliating against an employee who filed a complaint under the ADA. 42 U.S.C. § 12203(a). A plaintiff can prove retaliation either directly or indirectly. Povey v. City of Jeffersonville, 697 F.3d 619, 624 (7th Cir. 2012). To prove retaliation under the direct method, Harris must show that (1) he engaged in protected activity, (2) he suffered a materially adverse employment action, and (3) there was a causal link between his protected activity and the adverse action. Id. To prove retaliation under the indirect method, Harris must show that (1) he engaged in protected activity, (2) he was meeting his employer's legitimate expectations, (3) he suffered a materially adverse employment action, and (4) he was treated less favorably than similarly situated ...