Simmons v. Ill. Dep't of Human Rights

OPINION

SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE

This cause is before the Court on Defendant Illinois Department of Human Rights' Motion to Dismiss (d/e 6) the pro se complaint filed by Plaintiff Kenneth Simmons. For the reasons that follow, the Motion is GRANTED.

I. INTRODUCTION

On September 16, 2020, Plaintiff Kenneth Simmons, proceeding pro se, filed a four-count complaint alleging the Illinois Department of Human Rights (the Department) violated the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12101 et

seq., as well as Simmons' rights under the First Amendment and the Due Process Clause.

The Department moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The Department asserts Simmons lacks standing to seek prospective relief, lacks standing on Counts II and III, and fails to state a claim on all counts.

II. BACKGROUND

Simmons' claims primarily relate to a fact-finding conference held by the Department under the Illinois Human Rights Act. By way of background, the Illinois Human Rights Act prohibits discrimination in connection with employment, real estate transactions, access to financial credit, availability of public accommodations, and education. See 775 ILCS 5/2-101 et seq. (2020), 5/3-101 et seq., 5/4-101 et seq., 5/5-101 et seq., 5/5a-101 et seq.; see also 775 ILCS 5/6-101 (additional civil rights violations); Blount v. Stroud, 232 Ill.2d 302, 309 (2009). Under the Act, a person who believes that he has been discriminated against has an administrative process to enforce the right to be free from such discrimination. See Cooper v. Bombela, 34 F.Supp.2d 693, 695 (N.D. Ill. 1999), aff'd 196 F.3d 809 (7th Cir. 1999).

Specifically, the complainant files a charge of discrimination with the Department. 775 ILCS 5/7A-102(A). The Department serves the respondent and conducts an investigation to determine whether the allegations are supported by substantial evidence. 775 ILCS 5/7A-102(C); 56 Ill. Admin. Code § 2520.430(a) (providing that, after a charge is filed, the Department “shall institute an investigation to ascertain the facts relating to the civil rights violation as alleged in the charge and any amendments”). As part of its investigation, the Department may hold a fact-finding conference for the purpose of obtaining evidence, identifying the issues, ascertaining the parties' positions, and exploring the possibility of settlement. 56 Ill. Admin. Code § 2520.440(a); 775 ILCS 5/7A-102(C)(4) (providing the Department shall conduct a fact-finding conference except in certain circumstances). “No tape recording, stenographic report or other verbatim record of the conference can be made.” 56 Ill. Admin. Code § 2520.440(c); see Cooper, 34 F.Supp.2d at 695 (noting the parties and investigator are permitted to take notes).

Each charge investigated “shall be the subject of a report to the Director.” 775 ILCS 5/7A-102(D)(1). The report is a

confidential document subject to review by the parties. 775 ILCS 5/7A-102(D)(1). The Director determines whether there is substantial evidence that an alleged civil rights violation has been committed. 775 ILCS 5/7A-102(D)(2). If the Director determines there is not substantial evidence, the Director dismisses the charge and gives the complainant notice of his right to seek review before the Commission or commence a civil action in the appropriate circuit court. 775 ILCS 5/7A-102(D)(3). If the Director determines there is substantial evidence, the Director gives notice to the parties of the complainant's right to commence a civil action in the appropriate circuit court or to request that the Department file a complaint with the Human Rights Commission on the complainant's behalf. 775 ILCS 5/7A-102(D)(4) (also providing that if the complainant fails to timely request the Department to file the complaint, the complainant may file his complaint with the Commission or commence a civil action in the circuit court). When a complaint is filed with the Commission, the Commission holds a hearing that provides the opportunity to examine and cross-examine witnesses, the testimony is made under oath, and a transcript is made, and the testimony is subject to the same rules

of evidence that apply in Illinois courts in civil cases. 775 ILCS 5/8A-102(G).

III. FACTS ALLEGED IN THE COMPLAINT

The Complaint here contains the following allegations. Simmons has osteoarthritis in his back, both hips, both knees, and a wrist. Compl. ¶ 9. Simmons has used a physician-prescribed mobility device for the past sixteen years. Id. at ¶ 16. The Illinois Secretary of State issued Simmons a permanent disability parking placard in November 2018. Id. at ¶10.

Simmons uses, as prescribed by a family doctor, “high concentrated THC” to help with the pain related to his disability. Id. at ¶ 6. He also takes tizanidine to “control muscle spasms related to his joint diseases both myalgia and myositis that are related to his ADA qualifying condition.” Id. at ¶ 8. Simmons takes diclofenac for his osteoarthritis. Id. at ¶ 9. The THC, tizanidine, and diclofenac make Simmons drowsy and cause him to fall asleep. Id. at ¶¶ 7, 8, 9.

On February 14, 2020, Simmons requested from the Department an accommodation to allow him to participate in the telephone fact-finding conference that was between Simmons and

the Village of Minier. Id. at ¶ 14. Specifically, Simmons stated, via email:

With the amount of medical cannabis I use legally and muscle relaxers it[']s hard for me to write notes or keep up during conversations sometimes so recording the phone call is best for me so I can review it when [I'm] not very medicated and will ask a court to intervene if needed. You must provide case law and statute as to why I can not record.

Id., Ex. (d/e 1, at 10). A second email provided, “Ada [sic] request. My meds are directly related to my disability and this is a[n] ADA request below.” Id. Simmons alleges he intended to have his wife turn on her cell phone while she sat in the living room with him. Compl. ¶ 17. He also alleges a stay-at-home order prevented others from leaving the house to help him and prevented him from leaving his home for help with the conference. Id. at ¶ 13.

The fact-finding conference occurred on April 7, 2020. Id. At ¶ 19. The Department refused Simmons' request for an accommodation during the fact-finding conference when the Department declared, after confirming Simmons still intended to record the conference, that “Plaintiff is being uncooperative.” Id. The Department hung up but continued the fact-finding conference with the Village of Minier employees, attorneys, paralegals, and

other employees monitoring the conference. Id. Simmons also alleges he refused to discuss a settlement and told all parties he would hang up if the subject were brought up during the fact-finding conference. Id. at ¶ 18.

In Count 1, Simmons alleges he has a qualifying disability pursuant to the ADA and was denied a reasonable accommodation to record the fact-finding conference. Compl. ¶¶ 17, 19. He seeks $75, 000 in damages, a finding that the Department violated the ADA, and an order preventing the Department from committing further ADA violations. Id. at ¶¶ 20-24.

In Count 2, Simmons alleges the Department has a policy, practice, or procedure of telling persons with disabilities they are not entitled to disability parking and an access aisle for their mobility devices in parking lots open to the public. Compl. ¶ 25. Simmons seeks $75, 000 in damages, a finding that the Department violated the ADA, and an order preventing the Department from committing further ADA violations. Id. at ¶¶ 27-31.

In Count 3, Simmons alleges the Department has a policy, practice, or procedure as an administrative review agency of telling public bodies that they do not have to provide persons with

disabilities with disability parking or an access aisle for mobility devices in parking lots open to the public. Compl. ¶ 32. Based on this policy, practice, or procedure, public bodies have refused to provide disability parking for persons with disabilities in parking lots open to the public. Id. at ¶ 33. Simmons seeks $75, 000 in damages, a finding that the Department violated the ADA, and an order preventing the Department from committing further ADA violations. Id. at ¶¶ 35-39.

In Count 4, Simmons alleges that the Department refused to allow him to lawfully record the fact-finding conference on April 7, 2020, and the Department hung up on Simmons because Simmons engaged in constitutionally protected speech. Id. at ¶¶ 40-41. Simmons was not allowed to record and review public officials doing their public duties “while he slept, gathered his thoughts etc. or attempted to follow along during the conference or to review later or post on social media.” Id. at ¶ 43. Simmons alleges he wanted to make sure the public officials were doing their jobs, and the Department did not want the public to see they were violating the ADA and not doing their job. Id. at ¶¶ 45-46. The conference was recorded until the Department hung up. Id. at ¶ 47. The call was

posted on YouTube on May 7, 2020, and the Department is aware the call is on YouTube. Id. at ¶¶ 48, 49. Simmons has not been questioned by law enforcement about the recording. Id. at ¶ 49. Simmons seeks $75, 000 in damages, a declaratory judgment, a finding that the Department violated Simmons' due process or First Amendment rights, and an order preventing further violations. Id. at ¶¶ 50-54.

IV. ANALYSIS

Simmons brings three of his claims pursuant to the ADA, which prohibits discrimination in three major areas: employment (Title I), public services,...