Evoy v. Illinois State Police

• Decision Date: 03 May 2006
• Docket Number: No. 05 C 5113.,05 C 5113.
• Citation: 429 F.Supp.2d 989
• Court: U.S. District Court — Northern District of Illinois
• Parties: Thomas EVOY, Plaintiff, v. ILLINOIS STATE POLICE and Leonard Stallworth, Defendants.

429 F.Supp.2d 989

Thomas EVOY, Plaintiff, v. ILLINOIS STATE POLICE and Leonard Stallworth, Defendants.

No. 05 C 5113.

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

May 3, 2006.

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Margaret Megan O'Malley, John Paul Madden, O'Malley & Madden, P.C., Chicago, IL, for Plaintiff.

Barbara N. Flores, Office of the Attorney General, Deborah Joyce Allen, Illinois Attorney General's Office, Jennifer Y. Wu, Board of Education of the City of Chicago, Law Department, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

KENNELLY, District Judge.

Thomas Evoy has sued his employer, the Illinois State Police, and his commanding officer, Leonard Stallworth. Evoy alleges that the defendants discriminated against him based on a disability and his age and retaliated against him for opposing unlawful employment actions in violation of the Americans with Disabilities Act and the Age Discrimination in Employment Act (Counts 1 & 2); interfered with his exercise of rights under the Family and Medical Leave Act (Count 3); retaliated against him for opposing employment actions made unlawful under Title VII of the Civil Rights Act of 1964 (Count 4); and intentionally inflicted emotional distress upon him (Count 5). Defendants have moved to dismiss each claim except the FMLA claim and have also moved to strike certain aspects of Evoy's request for damages.

Facts

Evoy alleges that he was hired by the ISP in 1984 and currently serves as a Master Sergeant. He says that during his employment, he was diagnosed with a disability (the nature of which his complaint does not disclose) and that the ISP was aware of this. As a result of the disability, Evoy alleges, he was granted intermittent FMLA leaves.

Starting in late 2002, Evoy contends, he was placed on "sick time proof status" by Lieutenant Stallworth, his commanding officer, and was required to verify each absence with medical documentation. Evoy says he objected to this on the ground that other officers, who unlike him were women, members of racial minorities, and/or non-disabled, were not subjected to similar requirements even though they used at least as much sick leave as Evoy did.

Evoy alleges that in October 2002, he filed an internal complaint, alleging discrimination based on race, gender, and disability, and that in March 2003 the director of the ISP found that the "proof status" requirement had been unfairly applied to Evoy and that Stallworth's order would be rescinded. Despite this, Evoy alleges, Stallworth insisted on documentation when Evoy took sick leave in September 2003. Evoy says he complained about this internally and that as a result, Stallworth removed him from "proof status." Shortly thereafter, Evoy says, he learned that an internal complaint about his use of sick leave had been filed, likely by Stallworth. This allegedly resulted in interference with Evoy's previously approved secondary employment and in the denial of a requested transfer to a different ISP district.

In January 2004, Evoy alleges, he filed another internal complaint, alleging retaliation and age discrimination; Evoy says this complaint was partially upheld by the ISP's director in July 2004. However, an administrative proceeding was initiated against Evoy in September 2004 based on his use of sick leave time. In February 2005, Evoy was recommended for discharge and in May 2005, he was suspended without pay pending discharge.

On May 17, 2005, Evoy filed a charge of discrimination with the EEOC. A copy of the charge is attached to Evoy's complaint in this case. In the narrative section of the charge, Evoy alleged discrimination based on age and disability in violation of the ADEA and ADA, and in retaliation for filing discrimination complaints, again in violation of the ADEA and ADA. In the narrative, he stated, among other things, that "[i]n 2002, I filed an internal complaint of discrimination and in January 2004, I filed an internal complaint of retaliation due to my complaining of age and disability discrimination." Compl., Ex. A. In addition to the narrative section, the charge form includes a series of boxes under the heading "DISCRIMINATION BASED ON (Check appropriate box(es).)." Evoy checked off the boxes for retaliation, age, and disability. Id.

Discussion

Defendants have moved to dismiss Counts 1, 2, 4, and 5 of Evoy's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. They argue that Evoy's claims of discrimination and retaliation under the ADA and ADEA that arose before January 1, 2004 are barred by the Eleventh Amendment; that any claims under the ADA and ADEA that arise from actions before July 23, 2004 are time-barred; that Evoy cannot assert a Title VII claim because he did not make that claim in his EEOC complaint; that Stallworth is not a proper defendant on the ADA, ADEA, and Title VII claims; and that Evoy's claim for intentional infliction of emotional distress is preempted by the Illinois Human Rights Act and in any event is time-barred to the extent it arises from actions before September 6, 2003; and that various elements of the damages Evoy requests are not recoverable. In assessing defendants' motion, the Court reads the complaint liberally and may dismiss a claim only if Evoy can prove no set of facts consistent with his allegations that would entitle him to relief. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

1. ADA and ADEA claims—Eleventh Amendment

The ISP has moved to dismiss Evoy's ADA and ADEA claims to the extent they arose before January 1, 2004, contending that the claims are barred by the Eleventh Amendment. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by the Citizens and Subjects of any Foreign State." U.S. Const., amend. 11. Despite this provision's language barring suits by a citizen of one state against a different state, the Supreme Court has consistently held that it extends to suits filed by a citizen in federal court against his own state. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). A state agency like ISP is treated as the state for purposes of the Eleventh Amendment. See, e.g., Kroll v. Bd. of Trustees of Univ. of Ill., 934 F.2d 904, 907 (1991).

There are two recognized exceptions to a state's Eleventh Amendment immunity. First, Congress may abrogate the states' immunity under section five of the Fourteenth Amendment. See Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (citing Kimel, 528 U.S. at 73, 120 S.Ct. 631). Second, a state may waive its immunity and consent to suits by private citizens. Kimel, 528 U.S. at 73, 120 S.Ct. 631.

The Supreme Court has held that Congress' attempts in the ADEA and in the portion of the ADA at issue here to abrogate the states' Eleventh Amendment immunity were invalid exercises of Congress' section five power. Kimel, 528 U.S. at 82-83, 120 S.Ct. 631 (ADEA); Garrett, 531 U.S. at 374, 121 S.Ct. 955(ADA). Evoy contends, however, that Illinois has waived its Eleventh Amendment immunity as to both ADA and ADEA suits.

Illinois adopted a statute, effective January 1, 2004, which provides that

(a) An employee, former employee, or prospective employee of the State who is aggrieved by any conduct or action or inaction of the State that would constitute a violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq., as amended, if committed by an employer covered by that Act may bring an action under the Age Discrimination in Employment Act of 1967 against the State in State circuit court or federal court.

. . . . .

(d) An employee, former employee, or prospective employee of the State who is aggrieved by any conduct or action or inaction of the State that would constitute a violation of the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., as amended, if committed by an employer covered by that Act may bring an action under the Americans with Disabilities Act of 1990 against the State in State circuit court or federal court.

745 ILCS 5/1.5(a), (d). This statute was adopted as an amendment to the State Lawsuit Immunity Act, 745 ILCS 5/1. See Ill. Pub. Act 93-414, § 5. The Lawsuit Immunity Act, as amended by section five of Public Act 93-414, reads as follows: "[e]xcept as provided in the Illinois Public Labor Relations Act, the Court of Claims Act, and the State Officials and Employees Ethics Act, the State of Illinois shall not be made a defendant or party in any court." 745 ILCS 5/1.

Though 745 ILCS 5/1.5, by its terms, permits an aggrieved employee to bring an action against the State for any action that would violate the ADEA or ADA, the ISP asserts that allowing Evoy to pursue claims for actions that arose before the statute's effective date of January 1, 2004 would constitute an impermissible retroactive application of the statute's waiver of Illinois' immunity from suit.

Two courts in this District and one in the Southern District of Illinois have considered this question, and all three have concluded that section 1.5 waives Illinois' Eleventh Amendment immunity only as to suits involving conduct that occurred after its effective date. See Holliday v. WSIE 88.7 FM Radio Station, No. 04-CV-0237-MJR, 2005 WL 3312633, at *3 (S.D.Ill. Dec.7, 2005) (Reagan, J.); Blalock v. Ill. Dep't of Human Servs., 349 F.Supp.2d 1093, 1096 (N.D.Ill.2004) (Bucklo, J.); Bottoms v. Ill. Dep't of Human Servs., No. 03 C 1881, 2004 WL 1403811, at *3 (N.D.Ill. June 22, 2004) (Plunkett, J.).¹ The courts in each of these cases addressed the issue pursuant to...