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Alamo v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

July 28, 2015

ROBERTO G. ALAMO, Plaintiff,
THE CITY OF CHICAGO, CHARLIE BLISS and PATRICK STEFAN, in their Individual Capacities, Defendants.



Plaintiff, a former Chicago firefighter, Roberto G. Alamo ("Alamo") filed a seven-count complaint against the City of Chicago (the "City"), his former superior Lieutenant Charlie Bliss ("Bliss"), and former coworker Patrick Stefan ("Stefan") (together "defendants"), alleging claims of discrimination and retaliation based on his national origin in violation of Title VII of the Civil Rights Act and 42 U.S.C. ยง 1983, a claim for failure to accommodate under the Americans with Disabilities Act (the "ADA"), and claims against the City and Stefan for common law assault and battery. Defendants moved to dismiss all claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated below, the Court grants defendants' motion to dismiss.


The following facts are taken from the third amended complaint and accepted as true for the purposes of ruling on the instant motion. Alamo, who is Puerto Rican, was employed by the Chicago Fire Department in 2006. In 2009, he was transferred from Chicago Fire Department Engine Company 89 to Company 55. His supervisor at Company 55 was Lieutenant Bliss. Shortly after Alamo started with Company 55 and through 2011, he experienced verbal and physical harassment from his fellow firefighters, including name calling related to his race and national origin. In March 2011, one firefighter negatively commented on Alamo being a Puerto Rican and "physically assaulted" him. He also claimed that his fellow firefighters stole or threw out his food. Additionally, he complained about being "detailed excessively" (or reassigned as explained below) as compared to his colleagues. He reported the harassment to Bliss on numerous occasions and in a written complaint to his battalion chief and Bliss, without response.

On September 13, 2011, Alamo reported to work but was not feeling well due to allergies and informed Bliss and a colleague that he would be in the television room and might be sleeping. About an hour later, Stefan, a captain on a different truck than Alamo and thus not his supervisor, woke Alamo up, yelled profanities at him and said "I don't like your kind, you better put in a transfer and get out of this firehouse because I don't want you here." Stefan then chest bumped Alamo, used more profanity and threatened physical violence. Later Alamo was again pushed against a wall by Stefan, which was witnessed by Bliss. Alamo called 911 for assistance and spoke to officers when they arrived, but did not press charges because a chief assigned to Engine Headquarters 42 asked him to try to keep the incident in house.

On September 14, 2011, at 6:00 am, Alamo was relieved of his duty by a fellow firefighter and took the bus on his route home. Alamo exited the bus after a few blocks due to chest pain, dizziness and a migraine. He called a friend to pick him up and take him to the hospital where he explained to the emergency room doctor that he had been chest bumped and pushed at work the day before. The doctor diagnosed him with a work-related chest contusion and work-related stress and possible post-traumatic stress disorder ("PTSD"). Alamo met with his primary care physician the next day, who referred Alamo to a psychologist and a psychiatrist and diagnosed him with work-related anxiety. His doctor ordered a medical leave as of September 14, 2011, due to the workplace incident with Stefan. Alamo reported the leave to the captain of Company 55 and provided him with the paperwork from his physician and the emergency room.

On March 13, 2012, Sylvia Tienda ("Tienda"), Chicago Fire Department medical section chief, informed Alamo that he was running out of medical leave time and directed him to get a release from this treating physician to return to full duty status without restrictions. He met with his treating physician the next day, who authorized Alamo to return to work without restriction. On March 16, 2012, Alamo gave the authorization letter to Tienda, who informed him that he also needed a prescription note authorizing a Functional Capacity Evaluation. Alamo obtained the prescription and delivered it to Tienda. On March 21, 2012, a doctor in the medical section, Dr. Issac Morcos, told Alamo that they needed progress notes from his treating physicians before clearing him to return to work. His doctors sent their notes in the following days. Alamo filed an inquiry with Tienda on March 30, 2012, about his work status and received a response from her on April 3, 2012, that Dr. Morcos was requesting his medical records dating back to 2009, and wanted Alamo to undergo further psychological and physical testing before clearing him to return to work.

On April 4, 2012, Alamo filed an EEOC charge alleging discrimination and retaliation against the Fire Department. About two weeks later Tienda scheduled Alamo for physiological testing with Dr. Cavanaugh to occur on May 1 and May 24, 2012. Alamo attended the first session, however, Dr. Cavanaugh refused to continue his evaluation without reviewing additional medical records requested from Alamo, which he chose not to provide. On July 3, 2012, Alamo received a letter from the Fire Department's human resources deputy commissioner explaining that his leave time was exhausted and that if he did not return to work, resign or go on a leave of absence, in about two weeks he would be designated as "absent without authorized leave." On July 6, 2012, the Fire Department stopped paying Alamo his salary and benefits. Several months later, Alamo was reinstated as a firefighter.

Alamo filed his initial complaint on June 4, 2012, against Stefan, Bliss and Tienda, asserting against each claims of race discrimination under Sections 1981 and 1983. Those defendants moved to dismiss the complaint and in response Alamo sought leave to file an amended complaint to assert additional allegations related to his unauthorized leave status. The Court allowed the amendment. Those defendants again moved to dismiss the complaint. After the defendants' motion was fully briefed, in a written statement the Court granted in part and denied in part the motion and allowed Alamo leave to file an amended complaint. Alamo then filed his second amended complaint, adding the City, Dr. Morcos and Dr. Hugh Russell as defendants, and a claim against the City for race discrimination under Title VII. Those defendants answered the complaint and the parties engaged in written discovery and were attempting to schedule Alamo's deposition when his counsel sought leave to withdraw. The Court allowed Alamo to substitute counsel and to file an amended complaint, and struck the discovery deadlines. Alamo then filed the instant complaint, against which defendants have moved to dismiss.

Legal Standard

A court must dismiss any action which lacks subject matter jurisdiction. The party asserting jurisdiction has the burden of establishing it under Rule 12(b)(1). Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009). "On a motion to dismiss for lack of subject matter jurisdiction, the court is not bound to accept the truth of the allegations in the complaint, but may look beyond the complaint and the pleadings to evidence that calls the court's jurisdiction into doubt." Bastien v. AT & T Wireless Servs., Inc., 205 F.3d 983, 990 (7th Cir. 2000). However, when reviewing a defendant's Rule 12(b)(6) motion to dismiss, the Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Detailed factual allegations are not required, but the plaintiff must allege facts that when "accepted as true... state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the complaint's factual content allows the Court to draw a reasonable inference that the defendants are liable for the misconduct alleged. Id.


1. Title VII Claims

Alamo seeks recovery from the City under Title VII asserting claims for national origin discrimination, both hostile work environment and disparate treatment, and retaliation, Counts 1, 2 and 3 respectively. Defendants argue that these claims should be dismissed because Alamo failed to file them in a federal court complaint within 90 days of receiving his EEOC right-to-sue letter. Alamo received his letter on May 2, 2013, from the EEOC charge he filed against the Chicago Fire Department for discrimination based on national origin and disability, and retaliation. Accordingly, his 90-day deadline to file a civil action based on that charge was July ...

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