United States District Court, N.D. Illinois, Eastern Division
Cray Dixon, Plaintiff, Pro Se.
MEMORANDUM OPINION AND ORDER
L. ALONSO, District Judge.
the Court is defendant's motion to dismiss the third
amended complaint, which is granted in part and denied in
part for the reasons explained below.
November 3, 2015, the Court dismissed plaintiff London
Dixon's amended complaint and gave him leave to file
another amended complaint to try to state claims against the
Illinois Department of Central Management Services
("CMS") for failure to hire and failure to
reasonably accommodate his disabilities, in violation of the
Americans with Disabilities Act ("ADA").
current complaint is the third amended complaint, which
plaintiff filed pro se and CMS moves to dismiss with
prejudice. Plaintiff filed three statements in response to
the motion, (ECF Nos. 51, 52, and 55), which the Court will
construe together as plaintiff's response.
evaluating the sufficiency of a complaint, the Court
construes it in the light most favorable to the plaintiff,
accepts as true all well-pleaded facts therein, and draws all
reasonable inferences in plaintiff's favor.
Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939,
946 (7th Cir. 2013). "[A] complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations" but must contain "enough facts to
state a claim for relief that is plausible on its face."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S.
at 556). The Court is mindful that pro se pleadings are to be
construed liberally and held to less exacting standards than
those prepared by counsel. See Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir.
alleges in his third amended complaint that CMS discriminated
against him because of his disability by failing to hire him
and failing to accommodate his disability. Plaintiff's
narrative is as follows, in its entirety: "In 2012
Plaintiff filled out an application and passed an examination
for a job with the State of Illinois through Defendant
agency. Defendant never contacted Plaintiff again concerning
any job opportunity, though Plaintiff has reason to believe
jobs were available, including Office Aid[e], which Plaintiff
is qualified for." (ECF No. 47, Third Am. Compl. ¶ 13.)
In his request for relief, plaintiff seeks an order directing
CMS to hire him and to reasonably accommodate his disability.
( Id. ¶ 16.) Plaintiff also seeks money damages. (
Id. at 6; ECF No. 58.)
first contends that plaintiff has not stated a claim for
failure to accommodate because he alleges no facts whatsoever
regarding any accommodations he sought or was denied. (ECF
No. 49, Def.'s Mem. Supp. Mot. at 5.) In his response
brief, plaintiff states that he has schizophrenia and that
when he was at a CMS job fair for veterans, he asked for (and
was evidently denied) help filling out a job application,
better lighting, a quiet room, and copies of completed
applications and test scores at the end of the test. (ECF No.
52.) These allegations are not contained in the complaint,
but the Court can consider facts that a plaintiff alleges in
a brief in opposition to a motion to dismiss, as long as
those facts are consistent with the complaint's
allegations (which they are here). See Smith v.
Dart, 803 F.3d 304, 311 (7th Cir. 2015). Because the ADA
protects qualified individuals with a disability from
discrimination not just in employment, but in job-application
procedures as well, 42 U.S.C. § 12112(a), plaintiff states a
claim for failure to accommodate.
also contends that plaintiff's claim should be dismissed
because he fails to allege that CMS was his employer or
prospective employer. As noted in the Court's opinion of
November 3, 2015, employment agencies are among the entities
that can be liable for discrimination under the ADA. (ECF No.
39, Mem. Op. and Order at 5 (citing 42 U.S.C. § 12111(2)).)
An employment agency is defined as a governmental agency that
regularly undertakes to procure employees for an employer or
to procure for employees opportunities to work for an
employer. ( Id. (citing 42 U.S.C. § 12111(7) and 42
U.S.C. § 2000e(c)).) Plaintiff asserts in his response brief
that CMS procures employees for state agencies, controls some
of the process for employment with state agencies, and
administers the examinations plaintiff took in an effort to
obtain employment with the State of Illinois. Accordingly,
plaintiff has sufficiently alleged that CMS is an employment
agency subject to the provisions of the ADA.
plaintiff's failure-to-hire claim, CMS argues that
plaintiff's third amended complaint suffers from the same
pleading deficiencies the Court discussed in its prior
opinion. In his response to CMS's motion, plaintiff cures
most, but not all, of these deficiencies. Although plaintiff
specifies his disability and sufficiently alleges that CMS is
an employment agency subject to the ADA, he still fails to
allege how CMS itself discriminated against him or
participated in a discriminatory act. Plaintiff's claim
is based on his allegations that he applied for a state job
through CMS, which was functioning as an employment agency,
and he was not hired or contacted again about any job
opportunity. But plaintiff alleges no facts from which it
could reasonably be inferred that CMS was responsible for
other agencies' hiring decisions or that CMS failed or
refused to refer plaintiff to those agencies for employment.
Therefore, plaintiff's failure-to-hire claim is
dismissed. The dismissal will be with prejudice because the
Court does not envision a possibility of successful amendment
and, furthermore, ...