United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
E. SHADID UNITED STATES DISTRICT JUDGE
the Court is the Defendants' Motion to Dismiss for
Failure to State a Claim. (D. 18). 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.
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.
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.
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.
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.
Facts Relating to Plaintiff Brooks
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.
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.
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.
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.
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.
Facts Relating to Plaintiff Simmons
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.
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
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.
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.
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).
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
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.
Counts I and II - Plaintiff Brooks' ADA Claims for
Failure to Accommodate and Disparate Treatment
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).
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).
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. §
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 ...