Monroe v. Jewel Food Stores, Inc.

• Decision Date: 15 February 2023
• Docket Number: 18-cv-1499
• Parties: WILLIAM E. MONROE, Plaintiff, v. JEWEL FOOD STORES, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

WILLIAM E. MONROE, Plaintiff,
v.
JEWEL FOOD STORES, INC., Defendant.

No. 18-cv-1499

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

February 15, 2023

MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr. United States District Judge

Pro se Plaintiff William E. Monroe brings suit against Defendant Jewel Food Stores, Inc. (“Jewel”), alleging discrimination and retaliation under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. In an order entered on March 4, 2022 (“the March 4 Order”), the Court (1) dismissed Plaintiff's third amended complaint and (2) denied Plaintiff's motion for leave to file a fourth amended complaint. [124.] The Court then entered final judgment. [125.] Before the Court is Plaintiff's motion for reconsideration of that order and final judgment. [126.]

After careful review of Plaintiff's submissions, the Court agrees that it erred in two significant respects. First, the Court concludes that in dismissing Plaintiff's third amended complaint, it overlooked (and therefore did not address) a claim Plaintiff attempted to bring under 42 U.S.C. § 12112(a) and (d). These sections provide that overbroad medical examinations and inquiries may, under some circumstances, constitute unlawful disability discrimination under the ADA. In dismissing Plaintiff's third amended complaint, the Court construed Count I as asserting a failure-to-accommodate claim and held that Counts II and III were duplicative of this claim. [124, 7-8.] This was error. As the Court will explain below, Count I states a standalone claim under 42 U.S.C. § 12112(a) and (d) and should have been reviewed as such.

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Second, the Court agrees with Plaintiff that an unreasonable delay “may give rise to [liability] for failure to accommodate even where a reasonable accommodation is ultimately . . . provided.” [135, 8.] In dismissing Plaintiff's failure-to-accommodate claim, the Court-relying on Rehling v. City of Chicago, 207 F.3d 1009 (7th Cir. 2000)-reasoned that “where,” as in this case, a disabled employee's preferred “accommodation [is] ultimately given,” “a claim that a defendant's engagement in the [interactive] process was lacking, or even in bad faith, falls short of the mark.” [124, 12.] Regrettably, this was also error. Rehling stands for the limited proposition that a plaintiff may not state a claim under the ADA for a breakdown in the interactive process in and of itself. It does not, however, foreclose the argument that Plaintiff presses in this case-that Defendant's bad faith refusal to meaningfully engage in the interactive process led to an unreasonable delay in the accommodation of his disability. See, e.g., McCray v. Wilkie, 966 F.3d 616, 621 (7th Cir. 2020) (“An unreasonable delay in providing an accommodation for an employee's known disability can amount to a failure to accommodate his disability ....”); Swain v. Wormuth, 41 F.4th 892, 898 (7th Cir. 2022).

For these reasons, the Court will grant Plaintiff's motion in part, vacate the March 4 order in part, and vacate the final judgment entered in this case. The March 4 order is vacated in the following respects. First, the Court vacates the order to the extent that it characterizes Counts I through III of Plaintiff's third amended complaint as duplicative of a single failure-to-accommodate claim. Properly understood, Plaintiff's complaint asserts one claim under 42 U.S.C. § 12112(a) and (d) (Count I) and one failure-to-accommodate claim (Counts II and III). Second, the Court vacates the portion of the order dismissing Counts I and II-Count I because it asserts a claim that Defendant's motion to dismiss did not address and Count II in light of the Court's conclusion, explained below, that Plaintiff has stated a viable failure-to-accommodate claim under

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the proper legal standard. Because the Court stands by its conclusion that Counts II and III assert the same failure-to-accommodate claim, Count III remains dismissed.^[1]

The Court stands by all other aspects of the order, including its denial of Plaintiff's motion for leave to file a fourth amended complaint asserting an unexhausted claim of retaliation, [124, 13-15], and its conclusion that a plaintiff may not state a claim under the ADA solely alleging a breakdown in the interactive process, absent some additional contention that this breakdown resulted in delay in the provision of (or outright denial of) a reasonable accommodation, [Id. at 9]. To the extent Plaintiff's motion attacks these holdings, it is denied.

The unique procedural posture of this case, made all the more complex by today's partial vacatur, requires the Court to address two additional issues-one of basic procedure and one concerning Plaintiff's dormant request for appointed counsel in this case.^[2] The procedural issue is straightforward. Because the Court-having failed to recognize that Count I alleges a violation of 42 U.S.C. § 12112(a) and (d)-never explicitly granted Plaintiff leave to amend his complaint to assert such a claim, the Court must decide whether to allow him to do so under Federal Rule of Civil Procedure 15(a)(2). For the reasons explained below, the Court will do so without prejudice

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to any defenses or dispositive motions (including a new motion to dismiss) that Defendant may later choose to assert or file.^[3]

The question of attorney representation is not quite as clear-cut, and additional information from Plaintiff is necessary before the Court can assure itself that it has the statutory authority to request appointed counsel in this case. Although the Court commends Plaintiff on his diligent efforts to litigate his claims, the Court (and no doubt Defendant as well) has at times struggled to understand Plaintiff's pleadings and briefs. To this end, Plaintiff is encouraged-should he still be interested in the assistance of counsel-to file a new application for attorney representation that provides the information requested in Section III.B.3 of this opinion.

I. Background

The Court assumes familiarity with the facts and procedural history of this case, which are chronicled by prior decisions of the Court. See, e.g., [124.] The Court, nevertheless, must recount both in some detail.

A. Facts^[4]

Pro se Plaintiff William E. Monroe suffers from end stage renal disease for which he requires weekly dialysis treatments. [106, ¶ 8.] Plaintiff was diagnosed with that condition on January 27, 2017, after he was hospitalized for his symptoms. [Id. at ¶ 10.] At the time, he worked for Defendant Jewel Food Stores, Inc. (“Jewel”), as a part-time Loss Prevention Officer (“LPO”), a job he had held for more than a decade. [Id. at ¶¶ 1, 8.] In the aftermath of his diagnosis and

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hospitalization, Plaintiff suffered from “severe fatigue and shortness of breath,” which ultimately required him to take six months of medical leave. [46, Ex. A]^[5]; [106 at ¶ 11.]

This case arises out of mistreatment that Plaintiff allegedly suffered while attempting to return to work following that leave. By August 8, 2017, Plaintiff “had shown some recovery.” [46, Ex. D.] In light of that improvement, Plaintiff's physician certified that Plaintiff was “healthy enough to return to work starting” August 13, 2017, on the condition that Jewel schedule Plaintiff for shifts on Tuesdays, Thursdays, and Sundays beginning after 7:30 pm and lasting no longer than seven hours. [Id.]; [106 at ¶ 11.] Plaintiff claims that this schedule was necessary to accommodate his dialysis treatments, which he received every Monday, Wednesday, and Friday. [106 at ¶ 11.]

On August 11, 2017, Sharon Rosy-Defendant's Accommodation Coordinator-sought additional information from Plaintiff about his condition and the schedule recommended by his physician. [Id. at ¶ 14.] In particular, she asked why-given the fact that Plaintiff's dialysis treatments were scheduled for Mondays, Wednesdays, and Fridays-Plaintiff was unavailable to work on Saturdays (and, therefore, had no choice but to work on Sundays instead). See [Id.] Sunday shifts at Jewel were, pursuant to a collective bargaining agreement, compensated at overtime wages and ordinarily parceled out on the basis of seniority. [110, 3.] Rosy, among other things perhaps, wanted to ensure that giving Plaintiff priority access to these coveted shifts was absolutely necessary to accommodate his disability.

Plaintiff responded that he had to leave Saturdays open in case he needed to reschedule a dialysis appointment. [106, ¶ 14.] Presumably to confirm that this was a valid explanation based

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on Plaintiff's actual medical needs, Rosy asked Plaintiff if he would be willing to sign a “consent release form” to enable her to speak with his physician. [Id. at ¶ 15.] Plaintiff tentatively agreed. [Id.] The next day, Plaintiff dropped by the Jewel store at which he formerly worked (and to which he hoped to return) to pick up the form. [Id. at ¶ 16.] Upon inspection, however, Monroe realized that the form would not simply authorize Jewel to speak with his physician, as Rosy had explained over the phone. More broadly, it would authorize his healthcare providers to release all of Monroe's “medical information” to Jewel, including “medical information and reports; laboratory, scientific, and/or causal factors relating to [his] condition; and diagnosis and prognosis.” [Id. at ¶ 17]; [46, Ex. F.]

Although the form stated that Jewel would use the information “for the purposes of evaluating [Plaintiff's] job restrictions (if any),” Plaintiff was uncomfortable with its breadth. [46, Ex. F]; [106, ¶ 17.] On August 14, Plaintiff called Rosy and left a voice mail explaining that he would not sign the release as written, but was willing to sign a “modified release form” more limited in scope. [106, ¶ 17.] Over the next two days, Plaintiff attempted to reach Rosy to negotiate a more limited release. [Id. at ¶¶ 19-20.] Instead of returning one of Plaintiff's many calls, however...