United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey United States District Judge
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 . For the reasons
explained below, the motion is granted.
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
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.
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).
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.
The City is the Proper Defendant
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).
Plaintiff's § 1983 Claim Fails
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.
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) (“proper analysis requires us to separate
two different ...