United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
In December 2012, Israel Arce retired-involuntarily, he claims-from the Chicago Transit Authority (“CTA”), where he had worked since 1998 as a service truck driver. In January 2014, he sued CTA and two supervisors, Daniel Murphy and Timothy Carduff, for a variety of alleged wrongs. Doc. 1. Arce filed an amended complaint in February 2014, Doc. 8; Defendants moved to dismiss the amended complaint, Doc. 21, and Arce elected to file a second amended complaint rather than litigate to completion the motion to dismiss, Doc. 44. The second amended complaint alleges that Defendants discriminated against Arce based on his race and national origin (he is Puerto Rican), created a hostile work environment, and forced him to retire because of back injuries he suffered on the job, in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Fifth and Fourteenth Amendments to the United States Constitution. Doc. 44. The second amended complaint also alleges that CTA intentionally and negligently inflicted emotional distress. Ibid. Defendants have moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the suit. Doc. 54. The motion is granted in part and denied in part.
On a motion to dismiss under Rule 12(b)(6), the court must accept the operative complaint’s well-pleaded factual allegations, with all reasonable inferences drawn in Arce’s favor, but not its legal conclusions. See Smoke Shop, LLC v. United States, 761 F.3d 779, 785 (7th Cir. 2014); Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). The court must also consider “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, ” along with additional facts set forth in Arce’s brief opposing dismissal, so long as those additional facts “are consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) (internal quotation marks omitted) (quoting Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012)). The facts are set forth as favorably to Arce as those materials permit. See Meade v. Moraine Valley Cmty. Coll., 770 F.3d 680, 682 (7th Cir. 2014); Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).
Arce joined CTA in January 1998 as a truck driver, reporting to Murphy. Doc. 44 at pp. 2-3, ¶¶ 8, 21. Arce had previously worked for the Chicago Public School system, and while there had received workers’ compensation benefits for an injury. Id. at p. 5, ¶ 32. Upon learning this fact, Carduff (at the time not a manager) told other drivers that Arce was “a useless Puerto Rican, a Puerto Rican scammer, and a workman’s compensation train wreck.” Ibid. Carduff also pretended Arce’s first name was “Egypt.” Ibid. Carduff and Murphy are white. Id. at pp. 2-3, ¶¶ 13, 15. Sometime in 1998, Arce hurt his back on the job; but when he returned to work in September of that year, Murphy refused to assign him to drive a truck, instead making him change truck tires and pick up wheels without assistance. Id. at p. 5-6, ¶ 33. Yet when at least four white employees returned from similar injuries, they were each given “light duty” or even no assignments. Id. at p. 6, ¶ 34.
Arce hurt his back again at some point; in 2005, while recovering, he was assigned to a truck that allowed noxious fumes from the exhaust to enter the truck cabin, causing him to suffer a headache and nausea. Id. at p. 12, ¶ 64. In June 2007, Arce again hurt his lower back on the job. Id. at p. 3, ¶¶ 22-23. Carduff, by then Arce’s direct supervisor, id. at p. 2, ¶ 12, and Murphy had assigned Arce to drive a “front loader” that lacked adequate suspension and “bounced vigorously, ” aggravating his lower back injuries. Id. at p. 12, ¶¶ 65-66. It is unclear from the operative complaint how much time (if any) Arce missed due to the June 2007 injury, but in January 2008 Murphy and Carduff demanded that he return to work on full duty without restrictions. Id. at p. 9, ¶ 51. Whether Arce returned at that time and was subsequently reinjured, or whether he never returned, is also unclear; the complaint states simply that Arce was ready to return to work in October 2009. Id. at p. 6, ¶ 37. Arce had requested an accommodation for his injuries, and CTA had offered to limit his work assignments to those requiring that he lift no more than 70 pounds occasionally and 35 pounds frequently. Id. at p. 10, ¶ 56. Murphy and Carduff, however, never told Arce about the offer, and so he returned to work without restrictions and his accommodation request was “withdrawn” without his knowledge. Id. at pp. 10-11, ¶¶ 57-58.
Upon returning to work in late October 2009, and pursuant to a clause in the union’s collective bargaining agreement that allowed workers to select their trucks in order of seniority, Arce asked to be assigned to Truck 262, which he felt had “stable seating and [a] good suspension … that would not aggravate his previous injury.” Id. at pp. 6-7, ¶ 37. Immediately after Arce made his selection, however, Carduff removed Truck 262 from service “for an oil change”; the truck remained out of service for seven weeks, and Arce was forced to drive another truck. Id. at p. 7, ¶ 39. Carduff then “publicly bet $20.00 … that [Arce] would not last until Christmas.” Id. at p. 11, ¶ 62. On January 7, 2010, Carduff assigned Arce to drive a truck with a broken seat and stiff suspension; Arce suffered what wound up being a “career ending injury” to his tailbone as a result. Id. at p. 7, ¶¶ 40, 42. Truck 262 was returned to service the next day. Id. at p. 7, ¶ 41.
In May 2010, a CTA doctor determined that Arce was medically capable of returning to work, and so CTA stopped paying Arce disability benefits. Id. at p. 8, ¶ 44. Arce wanted to return to work in November 2010, but Murphy and Carduff refused to allow him his pick of trucks at that time. Id. at p. 8, ¶¶ 43, 45. Arce had been assigned to “Area 605” (a designation for injured workers on disability leave, id. at p. 8, ¶ 47), and Murphy and Carduff believed that under the collective bargaining agreement, workers in Area 605 did not have the right to pick trucks based on seniority. Id. at p. 8, ¶ 45. Yet they allowed at least one white employee in Area 605 to pick his vehicle. Id. at p. 8, ¶ 46.
In October 2012, a CTA benefits officer told Arce that he would soon lose his benefits unless he retired and began collecting a disability pension. Id. at p. 16, ¶ 81; id. at p. 28, ¶ 34. On November 7, 2012, Larry Wall, general manager of the CTA benefits department, told Arce that if he did not return to work by January 7, 2013, he would be discharged. Id. at p. 16, ¶ 82. Arce requested to be put on light duty, but Wall denied that request on December 4, 2012. Id. at p. 16, ¶ 83. Arce then retired from CTA sometime between December 31, 2012, and January 7, 2013. Id. at p. 2, ¶ 9 (listing a retirement date “on or about December 31, 2012”); Doc. 44-4 at 2 (alleging that “[o]n January 7, 2013, I was forced into retirement”).
Meanwhile, on December 19, 2012, Arce filed a charge with the Illinois Department of Human Rights (“IDHR”) and U.S. Equal Employment Opportunity Commission (“EEOC”). Id. at p. 16, ¶ 84; Doc. 44-2. (For ease of exposition, the court will refer to Arce’s various charges as EEOC charges, with the understanding that they were also filed with IDHR.) The charge alleged that Wall’s November 7, 2012 ultimatum amounted to harassment on the basis of Arce’s disability and was in retaliation for a 2009 complaint that Arce had made. Doc. 44-2 at 1-2. Wall’s stated reason for the ultimatum was that Arce “ha[d] been in an inactive employment status in excess of the maximum time permitted.” Id. at 2. The charge also alleged that Wall’s December 4, 2012 refusal to assign Arce to light duty violated CTA’s obligation to accommodate Arce’s disability, and was done on the basis of Arce’s race and national origin. Id. at 3-4. Wall’s stated reason for denying the light duty request was that “there was no alternate position available.” Id. at 3.
EEOC sent Arce a right-to-sue letter on June 2, 2014. Doc. 44-1. In the meantime, Arce filed two more EEOC charges; the first, dated March 27, 2013, alleged that he was forced into retirement on January 7, 2013, on the basis of his race, national origin, and disability. Doc. 44-4. CTA’s stated reason for forcing him to retire, according to Arce, was his “inability to return to work in full duty status because [he] was a threat because of the medication [he] took.” Id. at 2. Arce received a right-to-sue letter for that charge on June 17, 2014. Doc. 44-3. The other charge, filed on July 3, 2013, alleged that Arce was forced into retirement on the basis of his age (64 at the time). Doc. 44-6. Although Arce received a right-to-sue letter on this charge on June 5, 2014, Doc. 44-5, he does not allege age discrimination in the operative complaint, Doc. 44. Arce filed this lawsuit on January 7, 2014. Doc. 1.
I. Title VII and ADA Claims
Counts 2 and 3 of the second amended complaint allege that CTA created a hostile work environment on the basis of Arce’s race and national origin; Counts 4, 5, and 6 allege that CTA forced Arce to retire because of his race, national origin, and disability. Doc. 44. Defendants argue that those claims should be dismissed as time barred ...