Venticinque v. City of Chicago Dep't of Aviation

1

PAUL A. VENTICINQUE, Plaintiff, v. CITY OF CHICAGO DEPARTMENT OF AVIATION, Defendant.

No. 21-cv-3084

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

September 7, 2022

MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr. United States District Judge

Plaintiff Paul Venticinque (“Plaintiff') brings suit against his former employer, the City of Chicago Department of Aviation (“Department”) for retaliation in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq. (“ADA”) and Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000c et seq. (“Title VII”), and retaliatory discharge and intentional infliction of emotional distress in violation of Illinois state law. Currently before the Court is Defendant's motion to dismiss the complaint in part [11]. For the following reasons, Defendant's motion to dismiss [11] is granted in part and denied in part. Plaintiffs Title VII and retaliatory discharge claims are dismissed. Plaintiffs request for punitive damages is stricken. The City of Chicago (“City”) shall be substituted as Defendant and the caption shall be amended accordingly. The motion to dismiss is otherwise denied. Plaintiff is given until October 7, 2022 to file an amended complaint, to the extent he can do so consistent with this opinion and Rule 11. See Fed.R.Civ.P. 11. If Plaintiff wishes to stand on the existing complaint, he should contact the Courtroom Deputy so that a status hearing can be set in this matter.

I. Background

The following facts are taken from the complaint [1] and assumed to be true for purposes of Defendant's motion to dismiss. See Zimmerman v. Bornick, 25 F.4th 491, 493 (7th Cir. 2022). Plaintiff is an honorably discharged veteran of the United States Army. He began the Department's training academy as a probationary Aviation Security Officer (“ASO”) on June 28,2010. On July 2, 2010 Plaintiff injured his shoulder during a training drill at the academy. On July 14, 2010, while Plaintiff was unable to physically participate in training, the Department alleged that Plaintiff got into a verbal altercation with one of his fellow recruits. Two days later, the Department terminated him for the alleged verbal altercation. The other recruit allegedly called Plaintiff out for what the recruit believed was Plaintiff malingering because he was not participating in the physical drills, even though that was at the direction of the Department. The other recruit was not disciplined and Plaintiff was terminated.

On July 27, 2010, Plaintiff filed discrimination charges against the Department with the Illinois Human Rights Commission alleging that he was terminated because of discrimination based on perceived disability (his shoulder), actual disability (the shoulder), and his military status. See [1-1]. Nearly eight years later, a trial was held in in the matter and ALJ Michael Evans ruled in Plaintiffs favor on all counts. In accordance with ALJ Evans' ruling, the Department was ordered to take Plaintiff back as an ASO and assign him to basic training once again so that he could obtain the training necessary to perform the duties of an ASO. ALJ Evans also ordered that once Plaintiff successfully completed his training, the Department should immediately place him into an ASO slot with the salary, benefits, and seniority he would have had if he had never been discharged and pay him more than $279,000 in back pay, which would continue to accrue until he was reinstated as a probationary ASO.

In November 2018, Plaintiff entered a class of recruits with the Department. Plaintiff alleges that “before he even started his training with the Department, everyone there, all the supervisors, all the clerical people, everyone, seemed to know the moment he showed up, who he was and that he was there under Commission order.” [1] at 7. “They all seemed to know he was awarded a judgment that was contingent on him successfully completing his training,” and “[t]hey all seemed determined to make sure that he did not successfully complete his training, no matter what.” Id. Plaintiff alleges that the Department, through its employees, retaliated against him on multiple occasions, making it clear its mission was to drive him out of the Department to avoid paying him his award.

On February 11, 2019, the Department assigned Plaintiff to test 42 automated external defibrillators or AEDs, all in a single night at O'Hare Airport. Plaintiff alleges that the Department deliberately did not give him a key to the units to turn the alarms off when tested and did not provide him with ear coverings to protect his hearing when the AED alarms went off. Each AED rang at a volume of up to 120 decibels for up to three minutes. If Plaintiff had the keys, he could have turned the alarms off immediately. After testing about half of the units, Plaintiff lost his hearing in one ear. He complained to his Sergeant and filled out a work-related injury form. However, the Department did not treat Plaintiffs hearing loss as work-related and forced him to call off work every day that he remained off following the incident, even though this was not standard policy. The Department subsequently denied his work-related hearing claim and then terminated him on June 25, 2019.

Plaintiff alleges that the Department's actions were all done in retaliation for having won the trial in his underlying charge of disability, perceived disability and military status discrimination and to avoid paying back pay. Plaintiff filed a charge of discrimination with the EEOC on December 16, 2019 and the United States Department of Justice issued a “right to sue” letter on April 15, 2021. Plaintiff filed his complaint with this Court on June 8, 2021. It contains four counts, for retaliation in violation of the ADA (Count I) and Title VII (Count II), retaliatory discharge (Count III), and intentional infliction of emotional distress (Count IV).

II. Legal Standard

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to plead “a short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint that fails to meet this standard may be dismissed under Rule 12(b)(6) for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When evaluating the complaint, the Court must “treat all allegations as true” and “draw all reasonable inferences in the plaintiffs favor.” Zimmerman, 25 F.4th at 493.

To survive a motion to dismiss, “the complaint must ‘contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Flores v. City of South Bend, 997 F.3d 725, 728-29 (7th Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is plausible if it contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The Seventh Circuit has interpreted this to require the plaintiff to “‘give enough details about the subject-matter of the case to present a story that holds together.'” West Bend Mutual Ins. Co. v. Schumacher, 844 F.3d 670,675 (7th Cir. 2016) (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010)). “In other words, the court will ask itself could these things have happened, not did they happen.” Id. At the end of the day, “the plausibility determination is ‘a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.'” McCauley v. City of Chicago, 671 F.3d 611,616 (7th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).

The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011); Spearman v. Elizondo, 230 F.Supp.3d 888, 89293 (N.D. Ill. 2016). It is proper for the Court to “consider, in addition to the allegations set forth in the complaint itself, documents that are attached to the complaint, documents that are central to the complaint and are referred to in it, and information that is properly subject to judicial notice.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013) (citing Geinosky v. City of Chicago, 675 F.3d 743, 745 n.l (7th Cir.2012)); see also Fed.R.Civ.P. 10(c).

III. Analysis

A. Retaliatory Discharge

Defendant argues that Plaintiffs retaliatory discharge claim is preempted by the Illinois Human Rights Act, 775 ILCS 5, et seq. (“IHRA”). The Court agrees and will dismiss the retaliatory discharge claim.

In Count III of the complaint, Plaintiff alleges that Defendant terminated him “in retaliation for filing his Illinois Department of Human Right's complaint when previously wrongfully terminated on or about July 27,2010.” [ 1 ] at 13. Plaintiff alleges that this “violates a clear mandate of public policy in Illinois as Illinois has a clear public policy prohibiting employers from terminating public employees in retaliation for exercising their rights.” Id.

According to Defendant, Plaintiffs retaliatory discharge claim is barred by the IHRA, which sets out an administrative procedure for certain civil rights claims and specifies that ‘“no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.'” Hussaini v G4S Secure Solutions (USA) Inc., 379 F.Supp.3d 679, 683 (N.D. Ill. 2019) (quoting 775ILCS 5/8-111(D)). “To draw the line between preemption versus not, the Illinois Supreme Court has boiled down the inquiry as follows: whether a court ‘may exercise jurisdiction over a tort claim depends on whether the tort claim is inextricably linked to a civil rights violation such that there is no independent basis for the action apart from the Act itself.'” Richards v. U.S. Steel, 869 F.3d 557,...