Leskovisek v. Ill. Dep't of Transp.

305 F.Supp.3d 925

Nicholas LESKOVISEK, by his next friend, Lori Stanley, and Chad Underwood, by this next friend, Kim Underwood, Plaintiffs,

v.ILLINOIS DEPARTMENT OF TRANSPORTATION and Illinois Department of Central Management Services, Defendants.

No. 3:17–CV–03251

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

Signed April 10, 2018

Bebe Novich, Rachel M. Weisberg, Equip for Equality Inc., Chicago, IL, for Plaintiffs.

Anupama Paruchuri, Office of the Attorney General, Springfield, IL, for Defendants.

SUE E. MYERSCOUGH, U.S. District Judge.

Plaintiffs Nicholas Leskovisek, by his next friend, Lori Stanley, and Chad Underwood, by his next friend, Kim Underwood, filed a five-count First Amended Complaint alleging violations of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA). This cause is now before the Court on the Motion to Dismiss (d/e 17) filed by Defendants Illinois Department of Transportation (IDOT) and Illinois Department of Central Management Services (CMS).¹ For the reasons that follow, Count V is dismissed without prejudice as to CMS with leave to replead. The Motion is denied in all other respects.

I. JURISDICTION

This Court has subject matter jurisdiction because Plaintiffs' claims are based on the ADA, a federal law. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States"). Venue is proper because a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in this district. 28 U.S.C. § 1391(b)(2).

II. LEGAL STANDARD

Defendants move to dismiss Plaintiffs' First Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6).

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move for dismissal of a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When considering a Rule 12(b)(1) motion to dismiss for lack of standing, this Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the plaintiff. Alicea–Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 701 (7th Cir. 2003). However, "[i]f a defendant raises a factual challenge to standing, the plaintiff bears the burden of proving standing by a preponderance of the evidence." Laurens v. Volvo Cars of N. Am., LLC, 868 F.3d 622, 625 (7th Cir. 2017). Defendants only make a facial challenge to subject matter jurisdiction here.

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458 (7th Cir. 2007). To state a claim for relief, a plaintiff need only provide a short and plain statement of the claim showing he is entitled to relief and giving the defendants fair notice of the claims. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

When considering a motion to dismiss under Rule 12(b)(6), the Court construes the complaint in the light most favorable to the plaintiff, accepting all well-pleaded allegations as true and construing all reasonable inferences in the plaintiff's favor. Id. However, the complaint must set forth facts that plausibly demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A plausible claim is one that alleges factual content from which the Court can reasonably infer that the defendants are liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Merely reciting the elements of a cause of action or supporting claims with conclusory statements is insufficient to state a cause of action. Id.

III. FACTS ALLEGED IN THE COMPLAINT

The complaint contains the following allegations, which the Court accepts as true for purposes of the motion to dismiss. Tamayo, 526 F.3d at 1081.

Leskovisek is a 31–year–old man with autism who is unable to use speech to communicate. Underwood is a 27–year–old man with autism who has an impaired ability to communicate and interact with others.

Leskovisek and Underwood entered IDOT's Students with Disabilities Program in 2008 and 2010, respectively, with the job title of Tech Trainee. The Students with Disabilities Program was a program administered by IDOT in collaboration with School District 186 and United Cerebral Palsy Land of Lincoln. The Program was intended to provide job training and employment experience to individuals with disabilities, with the goal of enabling them to obtain permanent, competitive employment.

In early 2011, IDOT assigned Plaintiffs to work in its Traffic Safety Division, Statistical Coding Unit (Unit). Plaintiffs successfully performed the essential functions of this position and were consistently top performers within the Unit. However, as participants in the Program, Plaintiffs earned less than their co-workers and did not receive any employment benefits.

After working as Tech Trainees for over three years in the Unit, Plaintiffs inquired about working in full-time competitive employment. Two barriers stood in their way: (1) American Federation of State, County, and Municipal Employees (AFSCME) trade union bidding rights and (2) the State of Illinois' hiring process for non-exempt positions, which Plaintiffs refer to as the " Rutan process." See Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (holding that hiring, promotion, transfer, and recall may not be based on party affiliation or support but must be based on the merits and qualifications of candidates). Equip for Equality attorney, Barry Lowy, successfully negotiated a solution with AFSCME to the first barrier.

Plaintiffs allege that they were not as successful on the second barrier. According to Plaintiffs, the State of Illinois created a structured application and interview process for applicants for most State positions. Defendant CMS is the State agency that administers the process. Under the process, applicants for State employment must undergo testing for particular job classifications, regardless of whether there is a position currently vacant or being advertised. If a position becomes available, and the applicant scores a sufficiently high grade on the test, the applicant undergoes a structured interview. Plaintiffs allege that, due to the nature of their disabilities, they could not pass the test or participate in an interview without a reasonable accommodation, despite having already demonstrated their ability to perform the job.

In June 2014, Lowy contacted IDOT Chief Counsel, Michael Forti, to request a reasonable accommodation. Lowy explained that Plaintiffs were not capable of passing the CMS entrance test or interviewing for the position without an accommodation. Lowy further explained that the testing and interview requirements, as applied to Plaintiffs, were not job-related or consistent with business necessity, as both men had demonstrated their ability to perform the essential functions of the positions.

In a July 2014 response, Chief Counsel Forti responded that Plaintiffs were satisfactorily performing the essential functions of their assigned duties. Chief Counsel Forti also indicated that IDOT " ‘does not object to a waiver of the testing and interviewing requirements’ but, because CMS administers this process, CMS, not IDOT, must grant the accommodation request." First Am. Compl. ¶ 37 (d/e 14).

On August 28, 2014, Lowy contacted CMS to request a reasonable accommodation. On October 17, 2014, CMS attorney Jeff Shuck responded that CMS was in the process of researching the feasibility of bypassing the testing and interviewing procedures required for Rutan-covered, Personnel Code-covered vacancies. In early December, after hearing nothing further, Lowy left a phone message for Shuck. On December 10, 2014, Lowy contacted Shuck by email asking for a firm date by which CMS would provide a response to Plaintiffs' requests for reasonable accommodations. On December 19, 2014, Shuck responded that he needed additional information. Lowy provided the requested information that same day. After December 19, 2014, neither CMS nor IDOT contacted Plaintiffs or Lowy to seek additional information, discuss the request, or grant or deny the requested accommodation.

On June 15, 2015, Plaintiffs each filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) regarding CMS's and IDOT's failure to provide a reasonable accommodation and engage in the interactive process. On July 30, 2015, Plaintiffs were informed that they would be moved to a new workspace isolated from everyone else. After their job coach contested the move, IDOT agreed not to move Plaintiffs.

On September 2, 2015, IDOT sent a letter to its Program partners notifying them that IDOT was terminating the Program effective December 31, 2015. Plaintiffs continued to express their desire to remain employed by IDOT. Plaintiffs allege, on information and belief, that IDOT had vacancies for comparable data entry positions between August 28, 2014 and the present day. Plaintiffs also allege that, on information and belief, IDOT hired individuals to fill such positions and/or hired temporary or seasonal employees to complete the Unit's data entry.

On October 31, 2017, Plaintiffs filed a Complaint against IDOT and CMS. On January 18, 2018, Plaintiffs filed a First Amended Complaint.

Plaintiffs bring four claims alleging a violation of Title I of the ADA: (1) failure to provide a reasonable accommodation to the State's required pre-employment testing and interviewing requirements and failure to engage in the interactive process (Count I); (2) failure to hire Plaintiffs (Count II); (3) maintaining qualification standards that screen out individuals with disabilities (Count III); and (4) participating in an arrangement that has the effect of...