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Gallagher v. Dart

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

April 5, 2018

BRIAN GALLAGHER, Plaintiff,
v.
THOMAS J. DART, SHERIFF OF COOK COUNTY ILLINOIS, THE COOK COUNTY MERIT BOARD; JAMES P. NANNY, CHAIRMAN; VINCENT T. WINTERS, BOARDMEMBER; PATRICK BRADY, BOARDMEMBER; GRAY MATEO-HARRIS, KIM R. WIDUP, BOARDMEMBER; BYRON T. BRAZIER, BOARDMEMBER; JENNIFER E. BAE, BOARDMEMBER and JOHN J. DALICANDRO, BOARDMEMBER, Defendants.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE UNITED STATES DISTRICT COURT JUDGE.

         Defendant Thomas J. Dart, Sheriff of Cook County, Illinois, has moved to dismiss Counts II, III, and IV of the Amended Complaint.[1] (R. 11.) For the following reasons, the Court grants in part and denies in part Sheriff Dart's motion.

         BACKGROUND

         The Amended Complaint alleges that Sheriff Dart and certain administrative offices[2] filed a string of pretextual disciplinary complaints against Plaintiff Brian Gallagher to push him out of his position as Cook County Court Services Deputy Sheriff for having taken work time off as a result of his medical disability.

         Gallagher started as Deputy Sheriff in 1995. (R. 1-1, Am. Compl. ¶ 1.) From 2005 until his termination in 2017, he worked at the criminal courthouse at 26th Street and California Avenue. (Id. ¶ 2.) In 2003, Gallagher underwent gastric bypass surgery, “which resulted in continuing medical problems necessitating his taking time off of work.” (Id. ¶ 3.) In 2014, Gallagher had another operation-this time, a full left adrenalectomy-which “left him with continuing medical problems necessitating his taking time off of work.” (Id. ¶ 5.) Gallagher claims to have a “disability” as defined by the Americans with Disabilities Act (citing Title VII, 42 U.S.C. §§ 12111, 12102(2)), elsewhere phrased as “a recurring serious health condition which results in his inability to work.” (Id. ¶ 16.) Each year, from his surgery in 2003 until his suspension in 2016, Gallagher applied for and received leave under the Family Medical Leave Act. (Id. ¶¶ 4, 20.) He claims that he was qualified for his position and performed his duties reasonably. (Id. ¶¶ 18.)

         On October 14, 2015, the Office of Professional Review filed a disciplinary complaint against Gallagher seeking his termination for having allowed a “detainee to escape.” (Id. ¶ 22.) The Amended Complaint does not state how that matter was resolved. Two days later, however, on October 16, 2015, Sheriff Dart and the Office of Professional Standards filed a complaint against Gallagher with the Cook County Sheriff's Merit Board seeking his termination for having taken unauthorized absences from scheduled shifts from August 2012 to October 2014. (Id. ¶¶ 7-8, 24.) Apparently beginning in March 2016, Gallagher served a without-pay suspension pending resolution of that complaint. (See Id. ¶¶ 9, 20.) The Merit Board held a hearing on September 20, 2016, and on February 7, 2017, the Merit Board ruled against Gallagher and ordered him terminated effective October 16, 2015. (Id. ¶¶ 11-12.)

         Gallagher faced additional complaints during this period. On December 28, 2015, the Office of Professional Standards filed a complaint against Gallagher alleging that he had violated employment rules by taking up secondary employment. (Id. ¶ 25.) That complaint, too, sought Gallagher's termination. (Id.) It went to a hearing on December 1, 2016, but no decision has issued. Another complaint was filed (the Amended Complaint does not say by whom) on August 27, 2016, against Gallagher alleging that he had failed to report a February 9, 2015 “incident of actual excessive force” and again seeking his termination. (Id. ¶ 9, 23.) It went to a hearing in September and October 2016, but the Merit Board has not issued a decision. (Id.) Gallagher claims that, before this series of complaints, he had never been subject to any significant disciplinary actions in his 20 years of service. (Id. ¶ 21.) He also claims that the facts underlying “each and every” complaint did not warrant discipline, let alone the termination. (Id. ¶ 26.)

         Based on these events, Gallagher asserts four causes of action. First, he petitions for review of the Merit Board's February 7, 2016 decision. Second, Gallagher claims a violation of the ADA, in that Sheriff Dart discriminated against him on the basis of his disability. Third, he asserts a claim under the FMLA, alleging that Sheriff Dart retaliated against him in filing the complaint and ultimately causing his termination because he exercised his right under the FMLA to take time off. Fourth, Gallagher claims that Sheriff Dart violated the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) by failing to notify him that he could continue to receive health insurance for up to 18 months after his termination.

         LEGAL STANDARD

         “A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014); see also Hill v. Serv. Emp. Int'l Union, 850 F.3d 861, 863 (7th Cir. 2017). Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a Rule 12(b)(6) challenge, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). Courts, of course, accept all well-pleaded facts as true and draw reasonable inferences in the plaintiff's favor. See, e.g., Forgue v. City of Chicago, 873 F.3d 962, 966 (7th Cir. 2017). After “excising the allegations not entitled to the presumption” of truth, courts “determine whether the remaining factual allegations plausibly suggest an entitlement to relief.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).

         ANALYSIS

         Sheriff Dart challenges the sufficiency of Counts II, III, and IV on various grounds. The Court addresses those arguments in turn.[3]

         I. Count II: Retaliation in Violation of the ADA

         Sheriff Dart first challenges Count II, alleging a violation of the ADA. He argues that Gallagher has failed to exhaust his administrative remedies, failed to allege adequately a “disability, ” and failed to do the same with respect to “retaliation.” In response to Sheriff Dart's first argument, Gallagher concedes both that the ADA requires exhaustion of administrative remedies and that he has failed to do so. Gallagher, however, asks that the Court dismiss Count II without prejudice and grant him leave to amend to bring a claim under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), which does not have an exhaustion requirement. Sheriff Dart agrees, of course, that the Court should dismiss Count II, and he does not dispute that a Section 504 claim need not be administratively exhausted in this case; but he counter argues that the Court should not grant leave because Gallagher has still failed to allege a “disability” under the ADA, which courts treat as similar to a “handicap” under the Rehabilitation Act. Accord Dennis v. Curran, No. 16 ...


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