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Rouse v. Chicago Transit Authority

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

September 21, 2016

NOAH ROUSE, JR., Plaintiff,


          Robert M. Dow, Jr., United States District Judge.

         This matter is before the Court on Plaintiff's motion [86] to reconsider the Court's July 31, 2014 order [57] granting in part and denying in part Defendant Chicago Transit Authority's motion to dismiss Plaintiff's second amended complaint (“SAC”). For the reasons explained below, the Court grants Plaintiff's motion [86] in part and reinstates Plaintiff's Rehabilitation Act claims (Counts I and II of the SAC) to the extent that they were previously dismissed. In addition, the Court dismisses Defendant Amalgamated Transit Union Local 241 from the case without prejudice due to Plaintiff's failure to serve the Union. See [57] at 23. Finally, the Court denies Defendant's motion [97] to dismiss for want of prosecution because it was filed while Plaintiff's motion to reconsider was pending. This case is set for further status hearing on October 5, 2016.

         I. Background

         In his SAC, Plaintiff Noah Rouse, Jr. (“Plaintiff”) brought suit against Defendant Chicago Transit Authority (“Defendant”) for alleged violations of the Rehabilitation Act of 1973 (“Rehabilitation Act”) (Counts I and II) and the Americans with Disabilities Act (“ADA”) (Counts III, V, VI, and VII). Plaintiff also brought suit against the Amalgamated Transit Union Local 241 (“Union”) for breach of fiduciary duty (Count IV). The SAC [35] is described in detail in the Court's order [57] on Defendant's motion to dismiss, knowledge of which is assumed here. On July 31, 2014, the Court granted in part and denied in part Defendant's motion to dismiss the SAC. The Court dismissed Plaintiff's ADA claims in full, dismissed the Rehabilitation Act claims in part, and proposed to dismiss the breach of fiduciary duty claim based on Plaintiff's failure to serve the Union. On December 10, 2015, Plaintiff filed a motion for reconsideration of the Court's partial dismissal of the Rehabilitation Act claims.

         II. Analysis

         Section 504(A) of the Rehabilitation Act (“Act”) provides that “[n]o otherwise qualified individual with a disability * * * shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance[.]” 29 U.S.C. § 794(a). The Rehabilitation Act “prohibits discrimination in the same manner as the Americans with Disabilities Act and uses the same standards but applies to employees of federally funded programs.” Kraus v. Shinseki, 846 F.Supp.2d 936, 947 (N.D. Ill. 2012).[1] A plaintiff may prove a violation of the Rehabilitation Act by showing: “(1) disparate treatment, (2) disparate impact, or (3) a refusal to make a reasonable accommodation.” Daveri Dev. Grp., LLC v. Vill. of Wheeling, 934 F.Supp.2d 987, 996 (N.D. Ill. 2013). Plaintiff's SAC alleges claims for disparate treatment (Count I) and refusal to make a reasonable accommodation (Count II).

         In its order granting Defendant's motion to dismiss in part, the Court concluded based on Untermyer v. College of Lake County, 284 Fed.Appx. 328, 330 (7th Cir. 2008), Conley v. Village of Bedford Park, 215 F.3d 703, 710 n.5 (7th Cir. 2000), and Bush v. Commonwealth Edison Co., 990 F.2d 928, 933 (7th Cir. 1993), that Illinois' two year statute of limitations for personal injury actions applied to Plaintiff's Rehabilitation Act claims, and therefore Plaintiff's claims were barred to the extent that they were based on alleged disparate treatment or refusals to accommodate that occurred prior to July 23, 2011-two years before Plaintiff filed his original complaint. See [57] at 14-15, 18. The Court further concluded that the continuing violation doctrine did not operate to toll the statute of limitations because the incidents of discrimination alleged by Plaintiff-the denial of his accommodation request in December 2009, his termination in July 2012, and other failures to accommodate between those two dates- constituted separate actionable unlawful employment practices. See id. at 19-20 (citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)). Finally, the Court concluded that Plaintiff could pursue his Rehabilitation Act claims for disparate treatment and refusal to make a reasonable accommodation “to the extent that after July 23, 2011 [Defendant] made explicit decisions not to accommodate Plaintiff's scheduling request or took other explicit actions that violated his rights under the Rehabilitation Act.” Id. at 22.

         More than sixteen months after the Court issued its order, Plaintiff's counsel filed a motion for reconsideration. Counsel argues that he could not have made his arguments earlier because he did not have an opportunity to respond to arguments that Defendant made for the first time in its reply brief in support of its motion to dismiss the SAC. Assuming this is true, counsel could have sought leave to file a surreply before the Court made its ruling, or filed a motion for reconsideration within a reasonable time after. Counsel has no reasonable excuse for his excessive delay.[2] In addition, counsel's arguments in support of reconsideration are difficult to follow due to counsel's many typographical errors and disjointed and incomplete sentences[3] and counsel's failure to support the motion with citations to the SAC and legal precedent.[4]Nonetheless, the Court retains discretion to reconsider its rulings at any time before final judgment (see Fed.R.Civ.P. 54(b); Hanley v. Green Tree Servicing, LLC, 934 F.Supp.2d 977, 985 (N.D. Ill. 2013)) and the Seventh Circuit has expressed a preference that district courts allow, where possible, cases to be decided on the merits. The Court concludes that reconsideration is warranted here to correct and clarify certain aspects of its order [57] dismissing the SAC in part.

         In his motion for reconsideration [86], Plaintiff argues that the Court erred by partially dismissing his claims under the Rehabilitation Act for disparate treatment (Count I) and failure to accommodate (Count II). Specifically, Plaintiff argues that the Court erred by: (1) construing his SAC not to allege that Defendant failed to transfer Plaintiff to a vacant position; (2) not reaching the issue of whether a two or four-year statute of limitations would apply to Rehabilitation Act claims based on an alleged failure to transfer; and (3) concluding that the continuing violation doctrine does not apply to Plaintiff's claims.[5]

         A. Failure to Transfer

         The Court turns first to its prior ruling that Plaintiff failed to allege the elements of a “failure to transfer” claim as set forth in Donahue v. Consolidated Rail Corp., 224 F.3d 226 (3d Cir. 2000). See [57] at 17. In Donahue, the Third Circuit granted summary judgment to the employer on the employee's reasonable accommodation claim, which was based on the employer's alleged failure to transfer the employee to a vacant position, because the employee failed to demonstrate: “(1) that there was a vacant, funded position; (2) that the position was at or below the level of the plaintiff's former job; and (3) that the plaintiff was qualified to perform the essential duties of this job with reasonable accommodation.” 224 F.3d at 230. Donahue is not binding on this Court and did not set pleading standards. Instead, it was decided on a motion for summary judgment, which subjects the plaintiff to a much higher burden than a motion to dismiss. At the pleading stage, “[s]pecific facts are not necessary, ” so long as the pleadings “give the defendant fair notice of what the * * * claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)). The Court is not aware of any Seventh Circuit precedent that requires a complaint to allege facts supporting each of the Donahue elements. Therefore, the Court will re-examine Plaintiff's SAC using the Seventh Circuit's established pleading standards for failure to accommodate and disparate treatment claims under the Rehabilitation Act.

         1. Denial of a Reasonable Accommodation

         Upon reconsideration, the Court concludes that the SAC's allegations are sufficient to state a claim for denial of a reasonable accommodation based on Defendant's alleged failure to transfer Plaintiff to a vacant position.[6] “Reassignment to a vacant position is a form of reasonable accommodation.” Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001); see also 42 U.S.C. § 1211(9) (defining the denial of a reasonable accommodation to include the “failure to reassign a disabled employee to a vacant position”). The ADA, which the Rehabilitation Act follows, “mandate[s] that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.” E.E.O.C. v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012). A plaintiff alleging a failure to accommodate under the Rehabilitation Act, including a failure to transfer, must “make out a prima facie case by establishing” three statutory elements: “(1) he is a qualified individual with a disability; (2) the employer was aware of his disability; and (3) the employer failed to reasonably accommodate the disability.” Ozlowski, 237 F.3d at 840 (internal quotation marks and citations omitted).[7]

         The third element, Defendant's failure to make a reasonable accommodation, is the only one at issue here. The SAC alleges the following background facts in support of this claim: Plaintiff was employed by Defendant as a bus operator from July 1997 until July 2012. In July 2009, Plaintiff was diagnosed with end stage renal failure. Until Plaintiff receives a kidney transplant, he is required to attend four-and-a-half-hour long dialysis appointments three times each week to treat his medical condition. “[O]n or around September of 2009 Plaintiff asked [Defendant] for a reasonable accommodation in the form of a schedule change so that he could attend his dialysis sessions, or alternatively, to put him on some type of light duty or transfer him to light duty, as recommended by his doctors.” [35] at 4 (emphasis added). On October 13, 2009, Defendant's “Disability Review Committee” informed Plaintiff that it had decided to place Plaintiff in a program called Temporary Medical Disability (TMD) Area 605 (“Area 605”). [35] at 4-5. The Committee's letter stated that Plaintiff's return to his previous job classification would be dependent on Defendant's medical approval clearance and a budgeted vacancy. [35] at 5. On December 15, 2009, Defendant responded to Plaintiff's request for an accommodation and told Plaintiff that it understood that Plaintiff could not perform the essential functions of bus operator and was unable to place him in a “lighter duty” position because no position was available that had the hours he requested. [35] at 22. The SAC refers to this as Defendant's “first formal denial of his request for accommodations.” Id. at 18. In March 2010, Plaintiff filed an EEOC complaint against Defendant. Id. See [35] at 27 (first page of EEOC intake questionnaire). Additionally, “[o]n various occasions” between September 2009 and March 2013, Plaintiff made additional “requests for reasonable accommodations”-including but not limited to rescheduling, switching bus routes, a 30 minute lunch break to take his medication, reassignment, and change in schedule-which would allow him to return to work. Id. at 8. In July 2012, Defendant terminated Plaintiff's employment. Id. at 7.

         In the failure to accommodate claim itself (Count II), the SAC alleges that Defendant violated the Rehabilitation Act by, among other things, failing to place him in a vacant position for which he was qualified and instead “hiring outside employees for jobs which he was capable of performing, as well as contracting with employment placement agencies in order to find less expensive workers, ” despite the fact that “Plaintiff regularly updated [Defendant] with medical records and requests to be placed in his bus driving position, or some like position.” [35] at 11 (emphasis added). Count II also incorporates by reference Plaintiff's allegation in Count I that Defendant barred him and all other employees in Section 605 from viewing available open positions within the CTA. [35] at 9, 10. Plaintiff requests to be reinstated “to the position of bus driver or some other position which is available.” Id. at 12 (emphasis added).

         The Court concludes that these allegations are sufficient to state a claim that Defendant failed to provide a reasonable accommodation for his disability, in violation of the Rehabilitation Act, by refusing to transfer Plaintiff to vacant positions for which he was qualified.

         2. ...

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