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Milsap v. City of Chicago

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

May 25, 2017

DARRELL MILSAP, Plaintiff,
v.
CITY OF CHICAGO, Defendant.

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey United States District Judge

         Plaintiff Darrell Milsap filed this pro se complaint against his employer, the City of Chicago Department of Streets and Sanitation. In his amended complaint [28');">28], Plaintiff alleges disability discrimination in violation of the Americans with Disabilities Act (“ADA”), and also includes allegations suggesting he may be attempting to assert claims under the Age Discrimination in Employment Act (“ADEA”), and under 42 U.S.C. § 1983. The case is before the Court on Defendant's motion to dismiss Plaintiff's amended complaint [36]. For the reasons explained below, the motion is granted.

         A. Plaintiff's Complaint

         Plaintiff filed his First Amended Complaint [28');">28] in the Court's employment discrimination complaint form, checking only the box marked “disability” in paragraph 9, which asks for the bases of the discrimination; he did not check the box marked “age.” See [28');">28], pp. 3-4. In paragraph 13, which asks the pro se plaintiff to list the facts supporting his discrimination claim, Plaintiff wrote that he had taken “intermittent FMLA since my back injury of October 2006. I was approved by my employer the City of Chicago. But when I started taking my approved days to go to my doctor visits for spinal treatments my employer started writing me up. Saying I was creating a pattern.” [28');">28], p. 5. Plaintiff attached to his complaint an EEOC charge he previously filed, alleging age and disability discrimination. In the “statement of harm” section of the charge, Plaintiff indicated that his employer “discriminated against me due to my age and disability” and “fostered an ongoing hostile work environment where I was subjected to disparate treatment and harassment because of my need for ongoing medical treatment for a disability as defined by the ADA.” Plaintiff also indicated that he had received accommodations for his disability to perform clerical work, but then “the Commissioner took away our accommodations and required is to do manual labor, or face termination from employment.” Id. These facts suggest that Plaintiff intended to pursue a straightforward employment discrimination claim.

         Plaintiff also attached to his complaint a document entitled “Description of Incidents, ” which details about an on-the-job vehicle accident that occurred on December 10, 2012. In brief, Plaintiff alleges that he was fired after he refused to lie and say that he was driving the city vehicle at the time of the accident when, in fact, the driver was Kenny Austin, the son of Alderman Carrie Austin. [28');">28], pp. 9-13. None of this has anything to do with a disability discrimination claim, though the narrative does include a sentence indicating that Plaintiff “[a]lso felt that the city was retaliating against me due to a back injury case in which I won my case and was [given] a settlement.” Id., p. 11. Plaintiff's complaint also includes a separate, handwritten sheet listing three paragraphs, two of which relate to his back injury, and one of which relates to alleged Shakman violations. See [28');">28], p. 14.

         B. Legal Standard

         A motion to dismiss under Rule 12(b)(6) “challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted.” Gen. Elec. Capital Corp. v. Lease Resolution Corp., 28');">28 F.3d 1074');">128');">28 F.3d 1074, 1080 (7th Cir. 1997). A motion to dismiss tests the sufficiency of a complaint, not the merits of a case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). To survive a motion to dismiss, a complaint must first provide a “short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice” of what the claim is “and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Additionally, the complaint must contain “sufficient factual matter” to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). That is, the allegations must raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs. Inc., 496 F.3d 773, 776 (7th Cir. 2007). A claim has facial plausibility “when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The “amount of factual allegations required to state a plausible claim for relief depends on the complexity of the legal theory alleged, ” but “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Limestone Dev. Corp. v. Vill. Of Lemont, 520 F.3d 797, 803 (7th Cir. 2008). In evaluating the complaint, the Court accepts all well-pleaded allegations as true and draws all reasonable inferences in favor of Plaintiff. Iqbal, 556 U.S. at 678. The Court need not, however, accept legal conclusions or conclusory allegations. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).

         C. Analysis

         The City has moved to dismiss Plaintiff's complaint, arguing that Plaintiff has: (1) named the wrong entity; (2) failed to state a claim for municipal liability under § 1983; (3) failed to provide fair notice of the grounds for any age discrimination claim; (4) failed to plead certain required elements of his ADA claim; and (5) failed to articulate a basis for any punitive damages award. The Court considers each argument in turn below.

         1. The City is the Proper Defendant

         Initially, Defendant argues that Plaintiff has improperly named the City of Chicago Department of Streets and Sanitation as Defendant; the Court agrees. City departments “are merely organizational divisions of the City and have no separate legal existence; hence, they are not suable entities.” Perkins v. City of Chicago, No. 04 C 28');">2855, 2005 WL 782695, at *1 (N.D. Ill. Apr. 6, 2005) (citing West v. Wagmire, 114 F.3d 646, 647 (7th Cir. 1997) (Chicago police department); Dr. Martin Luther King, Jr. Movement v. City of Chicago, 28');">289');">435 F.Supp. 128');">289, 1294 (N.D.Ill. 1977) (Chicago department of streets and sanitation)). The City is the real party in interest, and the Clerk is accordingly directed to strike the Department of Streets and Sanitation as a Defendant in this lawsuit and substitute the City of Chicago as the proper defendant. See Fed. R. Civ. P. 17(a), (b); Foreman v. King, No. 12 C 50419, 2014 WL 2712518, at *2 (N.D. Ill. June 16, 2014), aff'd sub nom. Foreman v. Wadsworth, 844 F.3d 620 (7th Cir. 2016).

         2. Plaintiff's § 1983 Claim Fails

         Next, the City argues that Plaintiff fails to state a claim under § 1983 and fails to allege facts in support of a Monell claim. It is not clear that Plaintiff is actually attempting to pursue a claim under § 1983, but to the extent he is, the Court agrees that his current complaint falls short.

         To state a valid § 1983 claim against the City, Plaintiff “must aver that the alleged constitutional deprivations resulted from a municipal policy or custom.” Jackson v. Vill. of Bellwood, No. 91 C 7089, 1992 WL 92031, at *2 (N.D. Ill. Apr. 29, 1992) (citing Monell v. New York City Department of Social Services, 436 U.S. 658, (1978)). Monell established that a municipality cannot be held liable on a § 1983 claim based on the doctrine of respondeat superior; rather, a municipality may be held liable “only for acts for which it is actually responsible.” Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986). See also Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992) (‚Äúproper analysis requires us to separate two different ...


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