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Brooks v. City of Pekin

United States District Court, C.D. Illinois, Peoria Division

August 9, 2019

JOHN BROOKS & GREGORY SIMMONS, Plaintiffs,
v.
CITY OF PEKIN, JOHN DOSSEY, DONALD BAXTER, SARAH NEWCOMB & JENNIFER MELTON, Defendants.

          ORDER & OPINION

          JAMES E. SHADID UNITED STATES DISTRICT JUDGE

         Before the Court is the Defendants' Motion to Dismiss for Failure to State a Claim. (D. 18).[1] The motion has been fully briefed and is ready for disposition. For the reasons stated herein, Defendants' Motion to Dismiss (D. 18) is GRANTED IN PART and DENIED IN PART.

         Background[2]

         Plaintiffs Gregory Simmons and John Brooks were both employees of Defendant City of Pekin's police department; Plaintiff Brooks was hired on May 26, 1995, and Plaintiff Simmons on October 9, 1995 (D. 17 at 2). In 2016, Plaintiff Simmons reported his shift commander, Lieutenant Gregory Burris, for making sexually offensive statements to him during an official department shift brief. Id. at 3. Those statements were restated several times, and included “Are you still dating [name omitted]? Did you f-k her?” Id. An investigation confirmed Burris engaged in the complained-of conduct; on May 1, 2017, Burris was disciplined, demoted to the rank of a patrol officer, and suspended without pay for twenty-one days. Id. at 4.

         Plaintiff Brooks, based on his seniority, was promoted to the first shift Lieutenant position previously occupied by Burris. Id. at 5. Soon after, Defendant Jennifer Melton, a patrol officer, requested to transfer to third shift; she did not like Plaintiff Brooks because he had previously disciplined her for dereliction of duty and therefore she did not wish to work under him. Id.

         On May 5, 2017, Defendant Melton referred to Plaintiff Simmons as a “jackass” during an official department shift brief and received counseling as a result on May 22, 2017. Immediately after, on May 25, 2017, Defendant Melton complained Plaintiff Simmons had made inappropriate comments about her breasts. Id. at 6. Plaintiff Simmons denied making the alleged comments, and another officer who was present corroborated his denial. Defendant Melton admitted she made the complaint because she was disciplined for calling Plaintiff Simmons a jackass. She also admitted to another officer she was not offended by fellow male officers' comments and actually initiated sex-related conversations with them. Additionally, on one previous occasion she tried to grope Plaintiff Simmons, but he refused her advance. Id.

         Plaintiff Brooks was ordered to investigate Defendant Melton's complaint about Plaintiff Simmons' alleged comments. On May 26, 2017, Plaintiff Brooks informed Defendant John Dossey and Defendant Donald Baxter, the Chief and Deputy Chief of the police department, that he felt it was inappropriate to discipline Plaintiff Simmons in light of his corroborated denial of Defendant Melton's allegations. Plaintiff Brooks was instructed to take no further action because Defendant Melton's complaint was “not a big deal.” Id. at 7. However, Defendants Baxter and/or Dossey immediately told Defendant Melton to resubmit her complaint, and she did so on May 27, 2017. On June 6, 2017, Defendant Dossey placed Plaintiff Simmons on administrative leave with pay and initiated a formal investigation into Defendant Melton's allegations (“the Melton investigation”). Id.

         Subsequent Facts Relating to Plaintiff Brooks

         On June 7, 2017, Plaintiff Brooks was interrogated, in connection with the Melton investigation, about Defendant Melton's complaint and his investigation into it. (D. 17 at 7). During the interrogation, Plaintiff Brooks stated that he believed Defendant Melton's allegations were not true and were made because her friend Burris was demoted and because she was disciplined for calling Plaintiff Simmons a jackass. Plaintiff Brooks also stated Defendant Melton regularly initiated conversations with coworkers about sex and had made sexual advances toward Plaintiff Simmons in the past. Id. at 8.

         On June 8, 2017, Plaintiff Brooks was informed he might be temporarily transferred to second shift because Defendant Melton was concerned Plaintiff Brooks would retaliate against her. On June 9, 2017, Plaintiff Brooks was told his transfer might be permanent even though his superiors were aware he could not work second shift because of his severe sleep apnea condition. Id. On June 16, 2017, Plaintiff Brooks was told the transfer was permanent, so he filed an accommodation request under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq., requesting to stay on first shift. His request was denied, and he learned he was transferred because of his statements during the Melton investigation. Id.

         In June 2017, Plaintiff Brooks filed a complaint with the Human Resources Department for retaliation and harassment and/or misconduct against Defendants Dossey, Baxter, and Melton, but the complaint was summarily dismissed. Plaintiff Brooks filed a second complaint one month later. It was also summarily dismissed, and Plaintiff Brooks was called a liar. Id. at 9.

         In October 2017, Plaintiff Brooks filed a charge of discrimination based on Defendant Pekin's refusal to accommodate his disability. On November 13, 2017, Plaintiff Brooks informed Defendant Pekin he disputed Pekin's dismissing his claims without discussing them with him. The same morning, he was placed on paid administrative leave. On March 12, 2018, Plaintiff Brooks filed a charge alleging discriminatory retaliation based on his participation in the Melton investigation. Thereafter, on March 27, 2018, he was placed on unpaid administrative leave. Id.

         Two days later, Defendant Dossey filed a complaint with the Board of Fire and Police Commissioners (Board) to terminate Plaintiff Brooks' employment. The reasons for termination stated therein were (1) being untruthful during the investigation of Defendant Melton's claims, (2) calling Dossey a liar, and (3) violating the Personnel Records Review Act. On July 7, 2018, Plaintiff Brooks submitted his retirement benefit application, a move he felt forced to take because he could not risk the loss of insurance and other retirement benefits. Id. at 10.

         Subsequent Facts Relating to Plaintiff Simmons

         Although having been ordered to refrain from discussing the investigation with other officers while on paid administrative leave during the Melton investigation, Plaintiff Simmons consulted his immediate supervisor, Plaintiff Brooks, shortly after being placed on leave because he was confused about conflicting instructions given by Defendant Baxter regarding the investigation and his administrative leave. (D. 17 at 7). On June 19, 2017, Plaintiff Simmons was formally interrogated by Defendant Baxter, during which time he initially and accidentally denied speaking to Plaintiff Brooks about the investigation. He later corrected his statement to admit that he had spoken to Plaintiff Brooks. Id. at 10. On July 21, 2017, Plaintiff Simmons was placed on unpaid administrative leave. Id. at 7.

         On August 23, 2017, Defendant Dossey filed a complaint with the Board requesting Plaintiff Simmons' termination based on Defendant Melton's allegations and his false statement that he had not spoken with Plaintiff Brooks during his leave.

         Id. at 10. Plaintiff Simmons challenged the request for his termination based on his collective bargaining agreement (CBA); specifically, he alleged Defendant Dossey's proffered reasons for termination did not meet the “just cause” standard contained therein. Plaintiff Simmons also demanded arbitration per Illinois Law. Id. at 11. On or about January 22, 2018, Plaintiff Simmons filed a sex and age discrimination charge with state and federal authorities. Notwithstanding the unresolved dispute over “just cause” and Plaintiff Simmons' demand for arbitration, Defendant Dossey proceeded with a hearing before the Board in Plaintiff Simmons' absence. Id.

         The Board terminated Plaintiff Simmons' employment on March 13, 2018. Plaintiff Simmons submitted his retirement benefit application thereafter and is presently receiving pension benefits, but Defendant Pekin refuses to contribute to his insurance premiums. Id.

         Legal Standard

         The Defendants have moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing the Plaintiffs' Amended Complaint (D. 17) is devoid of any valid claim. (Doc. 18). To survive a motion to dismiss pursuant to Rule 12(b)(6), the complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must describe the claim in sufficient detail to put defendants on notice as to the nature of the claim and its bases, and it must plausibly suggest that the plaintiff has a right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint need not allege specific facts, but it may not rest entirely on conclusory statements or empty recitations of the elements of the cause of action. See Erickson v. Pardus, 551 U.S. 89, 93 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Many of the Plaintiffs' claims allege employment discrimination. The standards for dismissal in employment discrimination cases pose “some unresolved tension” between the Twombly and Iqbal decisions and the Swierkiewicz decision, in which the Supreme Court rejected a heightened pleading requirement for complaints of employment discrimination in light of notice pleading standards. Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-14 (2002). Although Twombly replaced the notice pleading standard with a requirement that complaints contain enough facts, taken as true, to suggest plausible entitlement to relief, it explicitly upheld Swierkiewicz. To reconcile these two standards, the Seventh Circuit has applied a rule that “in order to prevent dismissal under Rule 12(b)(6), a complaint alleging sex discrimination need only aver that the employer instituted a (specified) adverse employment action against the plaintiff on the basis of her sex.” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008); Tate v. SCR Medical Transp., 809 F.3d 343, 346 (7th Cir. 2015); Luevano, 722 F.3d at 1028; see also Freeman v. Metro. Water Reclamation Dist. of Greater Chi., 927 F.3d 961, 965 (7th Cir. 2019) (“A plaintiff alleging race discrimination need not allege each evidentiary element of a legal theory to survive a motion to dismiss. Rather, to proceed against the District under § 1983 or Title VII, Freeman needed only allege- as he did here-that the District fired him because of his race.”).

         Discussion

         In their Amended Complaint, the Plaintiffs allege seventeen separate claims (D. 17), each of which the Defendants challenge in the instant Motion. (D. 18). The Court will address each claim in turn.

         I. Counts I and II - Plaintiff Brooks' ADA Claims for Failure to Accommodate and Disparate Treatment

         Plaintiff Brooks first alleges claims for failure to accommodate his disability (Count I) and disparate treatment (Count II) in violation of the ADA, 42 U.S.C. § 12112. (D. 17 at 14, 15). The Defendants argue Plaintiff Brooks has failed to allege he suffers a disability as defined by the ADA, thus precluding either claim. (D. 18 at 4-7).

         The ADA prohibits discrimination against qualified individuals “on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” § 12112(a). “The ADA then defines ‘discriminate against a qualified individual on the basis of disability' to include disparate treatment and failure to accommoDated: ‘not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee . . . .' ” Scheidler v. Indiana, 914 F.3d 535, 541 (7th Cir. 2019), reh'g and suggestion for reh'g en banc denied (Mar. 1, 2019) (quoting § 12112(b)(5)(A)) (emphasis in original). “A claim for disparate treatment based on disability under the ADA . . . requires proof (1) plaintiff was disabled; (2) plaintiff was qualified to perform essential functions with or without reasonable accommodation; and (3) disability was the “but for” cause of adverse employment action.” Id. (emphasis omitted). “A claim for failure to accommodate under the ADA . . . requires proof (1) plaintiff was a qualified individual with a disability; (2) defendant was aware of his disability; and (3) defendant failed to accommodate his disability reasonably.” Id. (emphasis omitted).

         To survive a Rule 12(b)(6) motion, a plaintiff alleging either form of ADA discrimination must, at the very least, adequately plead she is a qualified individual with a disability. Kotwica v. Rose Packing Co., 637 F.3d 744, 748 (7th Cir. 2011) (“If [the plaintiff] cannot establish that she is a qualified individual with a disability, then her claim automatically fails, as she bears the burden of showing that she falls within the scope of the ADA's anti-discrimination provisions.”). “The term ‘qualified individual' means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). An individual is disabled within the meaning of the ADA if (A) he or she suffers from “a physical or mental impairment that substantially limits one or more major life activities, ” (B) there exists “a record of such an impairment, ” or (C) he or she is regarded “as having such an impairment.” 42 U.S.C. § 12102(1)(A)-(C). “Major life activities” include, inter alia, working, sleeping, and breathing. § 12102(2)(A).

         Whether a plaintiff has adequately pleaded he is a qualified individual with a disability thus depends on four operative questions: (1) whether he is a qualified individual, (2) whether he suffers from a physical or mental impairment, (3) whether such an impairment affects a major life activity, and (4) whether such an effect amounts to a ...


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