HALE v. PACE
| Decision Date | 31 March 2011 |
| Docket Number | No. 09 C 5131,09 C 5131 |
| Parties | DARLENE HALE and TRONEEKO FRENCH Plaintiffs, v. PACE, CDT, MICHAEL ROGERS, DISPATCHER 1, STAFF 1, DRIVER 2, DISPATCHER 2, SCR, and STAFF 2 Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
OPINION TEXT STARTS HERE
MEMORANDUM OPINION AND ORDER
Darlene Hale and Troneeko French have sued Pace, CDT Transportation ("CDT"), Michael Rogers, Staff 1, SCR Transportation ("SCR"), Driver 2, Dispatcher 2 and Staff 2 for violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12131(A)-(B), § 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794, 42 U.S.C. §§ 1983, 1985, as well as violations of state law, including claims of false imprisonment, intentional infliction of emotional distress, defamation, negligent hiring, training and supervision and breach of contract. Defendants have moved to dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). For the reasons set forth below, the Court grants in part and denies in part the motion.
Defendant Pace is a suburban bus agency that provides "paratransit services" in the city of Chicago to disabled passengers who have difficulty riding regular public transportation. (Second Am. Compl. ¶ 1.) Pace contracts with defendant CDT, a private carrier, to provide paratransit service to parts of the City of Chicago on Pace's behalf. (Id. ¶ 2.) At all times relevant to the complaint, defendants Michael Rogers, Dispatcher 1 and Staff 1 were employees of CDT. (Id. ¶ 3.) Pace also contracts with defendant SCR, another private carrier, to provide paratransit service to other parts of the City of Chicago on Pace's behalf. (Id. ¶ 70.) Driver 2, Dispatcher 2 and Staff 2 are or were employees of SCR. (Id. ¶ 71.)
Plaintiff French is a severely disabled adult, who has been deemed eligible to use paratransit services. (Id. ¶ 10.) Plaintiff Hale is French's mother, legal guardian and caregiver. (Id. ¶ 9.) As French's mother and caregiver, Hale has frequently traveled with French on Pace's paratransit service as his "Personal Care Assistant" ("PCA"). (Id. ¶ 11.)
On August 25, 2007, plaintiff's were riding Pace paratransit with Rogers as their driver. (Id. ¶¶ 20, 21.) During the ride, Rogers demanded that Hale pay a fare and threatened to "put them out of the car by the side of the road if they did not comply." (Id. ¶¶ 20-22.) Hale complied with the demand and paid two fares, but she felt that Rogers' demand was improper because she believed that Pace's procedure dictated that a PCA accompanying a disabled individual did not have to pay a fare. (Id. ¶¶ 23-24.) Plaintiffs do not base any of their claims on the August 25, 2007 incident.
Hale called Pace twice and complained to a Pace official. (Id. ¶ 33.) Hale also discussed the incident in person with Melinda Metzger, Pace's Deputy Executive Director, and TomGroeninger, Pace's Regional Manager for Paratransit, at a meeting. (Id. ¶¶ 28, 31.) Metzger advised Hale that: (1) French's file should be "PCA-coded," meaning that he is on record as someone who always rides with a PCA, (2) such information should have been available to the drivers and dispatchers and (3) she should not have been charged a fare. (Id. ¶¶ 29-30.) Metzger also told Hale that even if a driver were to call the police in a similar situation, Hale would "come out as having acted correctly in declining to pay two fares (rather than just one)." (Id. ¶ 32.)
Another incident occurred on November 23, 2007. (Id. ¶ 12.) At about 1:30 a.m., plaintiffs boarded a paratransit vehicle driven by Michael Rogers, operated by CDT and under contract to Pace. (Id. ¶¶ 12, 16.) After driving several blocks, Rogers told the plaintiffs, (Id. ¶¶ 18-19.) During the course of this incident, Rogers communicated with Dispatcher 1 and other personnel who approved his actions. (Id. ¶ 39.) After Rogers referenced the August 25 incident and demanded that she pay two fares, Hale recalled the advice she had been given by Metzger and refused to pay a second fare, stating, "You can take us back where we were." (Id. ¶¶ 34-35.) Instead of taking Hale and French back to their starting point of 356 West 95th Street, Rogers instead drove them to the vicinity of 95th Street and Dan Ryan, a location where the plaintiffs did not know anyone. (Id. ¶¶ 12, 36, 38.) Rogers stopped the car, turned off the heat and lights and called the police. (Id. ¶¶ 36, 40.)
When the police arrived at the scene, Rogers told the officer that the plaintiffs were not willing to pay any fare. (Id. ¶ 41.) Hale responded by informing the officer that she was willingto pay one fare but that she refused to overpay. (Id. ¶ 42.) The police declined to take any action against the plaintiffs and drove them home. (Id. ¶ 53.)
On December 19, 2008, plaintiffs Hale and French again attempted to use Pace's paratransit services. (Id. ¶ 75.)1 As plaintiffs approached the Pace vehicle, Driver 2 locked the doors and "called in" plaintiffs as "no shows." (Id. ¶ 79.) Hale subsequently called the Pace control center to resolve the problem. (Id. ¶ 80.) Driver 2 spoke to the plaintiffs, saying, (Id. ¶ 81.) Driver 2 also stated that other paratransit workers, drivers and dispatchers would support his version of the event. (Id. ¶ 82.) Ultimately, Driver 2 allowed plaintiffs to board the vehicle, but Driver 2 continued to use "profane and disparaging language toward them," including calling Hale "bitch" approximately ten to fifteen times, and refused to move the vehicle for ten to fifteen minutes. (Id. ¶¶ 83-84.)
Hale took exception to being addressed as "bitch" and argued with Driver 2 that it was not right for him to refuse service. (Id. ¶ 86.) Driver 2 contacted the dispatcher and requested that another vehicle be sent because Hale was "directing profane language at him." (Id. ¶ 87.) After Hale challenged Driver 2 to report what he had said to her and turn on the vehicle's camera, he refused to do so. (Id. ¶¶ 88-89.) Driver 2 eventually took plaintiffs to their destination, and Hale paid one fare for French. (Id. ¶¶ 91-92.) Following this incident, and on the advice of her physician, Hale has reduced the frequency with which she utilizes paratransit totravel with her son, but due to her son's condition, she continues to "utilize paratransit from time to time." (Id. ¶ 160.)
On February 4, 2009, Hale attended a Pace Board of Directors meeting where she expressed pointed criticism of the administrators of Pace paratransit. (Id. ¶¶ 94-95.) On a date not specified in the complaint, Pace told Hale that her ridership privileges were going to be suspended and subsequently conducted a telephonic hearing with Hale regarding her suspension from ridership. (Id. ¶ 97.) Thomas Ciecko, Pace's general counsel, participated in the hearing and also represented Pace in the suit filed by the plaintiffs. (Id. ¶ 98.) Ciecko rejected Hale's request to move the hearing to another day because French had had a seizure as well as her attempt to present a defense regarding Driver 2's behavior. (Id. ¶¶ 98-99.) On February 5, 2009, Pace sent a letter to Hale informing her that based on the December 19 episode, she would be "suspended" from utilizing Pace paratransit from February 9, 2009 through March 25, 2009. (Id. ¶ 96.)
When ruling on a Rule 12(b)(6) motion, the court must "tak[e] the factual allegations pleaded by the plaintiffs as true and draw[] all reasonable inferences in their favor." London v. RBS Citizens, N.A., 600 F.3d 742, 745 (7th Cir. 2010). "The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits." Gibson v. Chi., 910 F.2d 1510, 1520 (7th Cir. 1990) (quotation omitted). A plaintiff's complaint must provide "only a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the defendant "fair notice" of the plaintiff's claims and the basis for those claims. Bell Atl. Corp. v.Twombly, 550 U.S. 544, 555 (2007). A dismissal under Rule 12(b)(6) is required if the complaint fails to describe a claim that is "plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Plaintiffs have named as defendants "Staff 1," "Driver 2," "Dispatcher 2" and "Staff 2." Plaintiffs had the opportunity to identify these defendants during discovery but they have failed to do so, and discovery is now closed. Because plaintiffs have failed to amend their complaint to identify these defendants and the docket does not show that summonses as to these individuals were returned executed, the Court dismisses any defendant not specifically named. See Williams v. Rodriguez, 509 F.3d 392, 402 (7th Cir. 2007). Therefore, the Court grants defendants' motion to dismiss the Second Amended Complaint as to the unnamed defendants.
In Counts VIII and XV, plaintiffs allege that remaining defendants discriminated against them in violation of Title II of the ADA by: (1) failing to provide them with paratransit service that is comparable to the level of service provided to individuals without disabilities; (2) permitting an operational practice that severely limited their access to paratransit services; and (3) failing to provide plaintiffs with equal, meaningful access to...
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