Piquard v. City of East Peoria

• Decision Date: 28 April 1995
• Docket Number: No. 94-1130.,94-1130.
• Citation: 887 F. Supp. 1106
• Parties: Mark PIQUARD and Jerome Duran, Plaintiffs, v. CITY OF EAST PEORIA, a Corporation, and the Board of Trustees of the City of East Peoria Police Pension Fund, Defendants.
• Court: U.S. District Court — Central District of Illinois

887 F. Supp. 1106

Mark PIQUARD and Jerome Duran, Plaintiffs, v. CITY OF EAST PEORIA, a Corporation, and the Board of Trustees of the City of East Peoria Police Pension Fund, Defendants.

No. 94-1130.

United States District Court, C.D. Illinois, Peoria Division.

April 28, 1995.

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Patricia C. Benassi, Benassi & Benassi, Peoria, IL, for plaintiffs.

Thomas R. Davis and Patrick A. Murphey, Miller, Hall & Triggs, Peoria, IL, for defendant City of East Peoria.

James L. Dobrovolny, Urbana, IL, for defendant Bd. of Trustees of City of East Peoria Police Pension Fund.

ORDER

MIHM, Chief Judge.

This matter is before the Court on the City of East Peoria's ("City") Motion to Dismiss (# 10), the Board of Trustees of the City of East Peoria Police Pension Fund's ("Board") Motion to Dismiss (# 11), Plaintiffs' Motion for Summary Judgment (# 18), the City's Motion to Strike Affidavit of Jerome Duran (# 25), the City's Motion to Strike Affidavit of Mark Piquard (# 26), Plaintiffs' Combined Motion and Memorandum in Support of Motion to Strike Portions of Affidavit of Donald Stoner (# 38), Plaintiffs' Motion to Strike City of East Peoria's Response to Plaintiffs' Combined Motion and Memorandum in Support of Motion to Strike Portions of Affidavit of Donald Stoner (# 41), the City's Motion to Dismiss Count IV of Complaint (# 45), and the Board's Motion to Dismiss Count IV of Complaint (# 47).

For the reasons stated below, the City's Motion to Dismiss (# 10) is DENIED, the Board's Motion to Dismiss (# 11) is DENIED, Plaintiffs' Motion for Summary Judgment is GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART, the City's Motions to Strike Affidavits of Jerome Duran and Mark Piquard (# 25 and # 26) are GRANTED IN PART and DENIED IN PART, Plaintiffs' Motion to Strike Portions of Affidavit of Donald Stoner (# 38) is DENIED, Plaintiffs' Motion to Strike the City's Response to Plaintiffs' Motion to Strike Portions of Affidavit of Donald Stoner (# 41) is GRANTED, the City's Motion to Dismiss Count IV (# 45) is DENIED, and the Board's Motion to Dismiss Count IV (# 47) is DENIED.

Motions to Dismiss (# 10, # 11, # 45, and # 47)

Counts I and II allege violations of Title II of the Americans with Disabilities Act ("ADA") against the Board and the City respectively, Count III asserts an identical claim under Section 504 of the Vocational Rehabilitation Act, 29 U.S.C. § 794, against the City, and Count IV alleges violations of Title I of the ADA against the City and the Board. The Board has moved to dismiss Count I of Plaintiffs' Complaint pursuant to Fed.R.Civ.P. 12(b)(6). The City has moved to dismiss Counts II and III of the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and/or (6). Both the City and the Board have moved to dismiss Count IV of the Complaint pursuant to Rules 12(b)(1), 12(b)(6), and 12(b)(7). When considering a motion to dismiss, the Court accepts the factual allegations of the complaint as true and draws all reasonable inferences from the allegations in the plaintiff's favor. Wiemerslage v. Maine Tp. High School Dist. 207, 29 F.3d 1149, 1151 (7th Cir.1994). A motion to dismiss will only be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

The following facts are taken as true. Mark Piquard ("Piquard") has been employed as a police officer by the City since 1990 and is being denied the opportunity to participate in the City's Police Pension Fund solely because of his spondylolisthesis. Jerome Duran ("Duran") has been employed as a police officer by the City since 1967 and is being denied the opportunity to participate in the City's Pension Fund solely because of an astigmatism. On April 29, 1990, the Board originally denied Piquard's application for membership in the City of East Peoria's Police Pension Fund ("Fund"). The Board denied Duran's application for admission to the Fund in 1967 or 1968. On August 16, 1993, Piquard reapplied for admission into the Fund, and his application was denied on August 20, 1993. Duran reapplied on January 28, 1994, and the Board has failed to respond to that application. Piquard filed a charge of discrimination alleging a violation of Title I of the ADA with the EEOC on December 23, 1993. Duran filed his Title I charge with the EEOC on February 22, 1994.

Defendants argue that Counts I, II, and III are barred by the applicable statute of limitations. The limitations period for claims under Section 504 and Titles I and II of the ADA is two years. Cheeney v. Highland Community College, 15 F.3d 79, 82 (7th Cir.1994) (Rehabilitation Act); Bush v. Commonwealth Edison Co., 990 F.2d 928, 933 (7th Cir.1993) (Rehabilitation Act).¹ Plaintiffs' Complaint was filed on March 10, 1994, and the denials of their first applications occurred more than two years before that date. Defendants also argue that the discriminatory acts complained of occurred before the Acts' effective dates and that the Acts are not to be applied retroactively. The initial denials of Plaintiffs' applications predate January 26, 1992, the effective date of Titles I and II of the ADA. Duran's denial also predates the enactment of Section 504 in 1973. Defendants further argue that Plaintiffs' Title I charges were not timely filed with the EEOC. Under the ADA, an EEOC charge must be filed by the aggrieved party within 180 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e)(1).

Plaintiffs do not and cannot dispute that the ADA may not be applied retroactively. Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d 538, 545 (7th Cir.1995). Instead, they contend that Defendants violate the ADA every day they are employed and not provided benefits because of their disabilities. Specifically, Plaintiffs allege that Defendants' conduct constitutes "systemic" and "serial" violations of the ADA. Plaintiffs also contend that the Board violated the ADA when it denied Plaintiffs' second applications to the Fund dated August, 1993 and January, 1994.

"The continuing violation doctrine allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period." Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.1992). The Seventh Circuit has discussed three viable continuing violation theories, only two of which are alleged here. Jones v. Merchants Nat. Bank & Trust Co. of Indianapolis, 42 F.3d 1054, 1057-58 (7th Cir.1994); Selan, 969 F.2d at 565. The "systemic" continuing violation theory involves an employer's express, openly espoused policy that is alleged to be discriminatory. Selan, 969 F.2d at 565 & n. 5; see also Mack v. Great Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 185 (1st Cir.1989). A "serial" continuing violation occurs when an employer covertly follows a practice of discrimination over a period of time. In such a case, the plaintiff can only realize that he/she is a victim of discrimination after a series of discrete acts has occurred. The limitations period begins to run when the plaintiff gains such insight. Jones, 42 F.3d at 1058; Selan, 969 F.2d at 565.²

Plaintiffs argue that Defendants' conduct constitutes a systemic continuing violation because Defendants are responsible for discriminatory practices and policies that treat similarly situated employees differently based on disabilities (e.g., allowing persons without disabilities to participate in the Fund but denying participation in the Fund to persons with disabilities). In Bazemore v. Friday, 478 U.S. 385, 395, 106 S.Ct. 3000, 3006, 92 L.Ed.2d 315 (1986), the Supreme Court considered discriminatory salary disparities created prior to Title VII's effective date and perpetuated thereafter. The Court held that each week's paycheck that delivered less to a black employee than a similarly situated white employee was a wrong actionable under Title VII, regardless of the fact that the discriminatory pattern began prior to the effective date of Title VII. Id.

A pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet been become effective, became a violation upon Title VII's effective date, and to the extent an employer continued to engage in that act or practice, it is liable under that statute. While recovery may not be permitted for pre-1972 acts of discrimination, to the extent that this discrimination was perpetuated after 1972, liability may be imposed.

Id.

The Seventh Circuit has held that active employees may challenge a discriminatory retirement plan. In Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th Cir.1971), a female employee challenged a retirement plan which treated men and women differently with respect to retirement ages. The defendant argued that the only potentially unlawful practice under a retirement plan is the actual discharge and not the overall maintenance of the plan and thus, plaintiff should have waited until the actual date of her retirement before filing a charge with the EEOC. The Seventh Circuit disagreed and allowed the plaintiff to proceed. The Bartmess court stated:

We have no difficulty in concluding that the actual maintenance of a discriminatory retirement plan can be one of the acts which "adversely affect an individual's status as an employee, because of such individual's sex" and that retirement plan should be viewed as "conditions of employment" within the meaning of Section 703 of Title VII. (42 U.S.C. 2000e-2(a)).

The collective bargaining agreement in force at the time plaintiff filed her charge provided that female employees must retire three years prior to their male counterparts. If such a contract is found to be discriminatory, its mere presence in a collective bargaining agreement would

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