(Johnson v. Rivera, 272 F.3d 519, 520 (7% Cir. 2001)).
Federal Rehabilitation Act Claim

Count II alleges that defendants violated Federal
Rehabilitation Act (“Act”) §504, 29 U.S.C. §794,7 (1) by
requiring Roe to undergo medical examinations as part of his
application before making an offer of employment and (2) by
denying him employment because of his disability (Complaint 4432,
33). Roe asserts that he is a qualified individual with a
disability within the meaning of Act §705(20) (B) (Complaint 431) .?

Defendants' Motion 493 seeks the dismissal of Count II
because, even though Roe attempts to recover as a disabled person
under the Act, they say that Roe's factual allegations portray
him as a nondisabled individual. In that respect they point to
Complaint §20, which refers to the doctor's view that Roe would
be able to perform all duties required of him as a police
officer.

Act §705(20) (B) defines an “individual with a disability” as
any person who:

(i) has a physical or mental impairment which

substantially limits one or more of such person's major
life activities;

2 Further citations to that statute will take the form “Act
§ --,” using the Title 29 numbering rather than the Act's
internal numbering.

3 Roe incorrectly cites Act §706(8), which no longer
exists, as the statutory section that defines a qualified
individual with a disability.


For when state law creates a cause of action, the State
is free to define the defenses to that claim, including
the defense of immunity, unless, of course, the state
rule is in conflict with federal law.

* * *

When federal law is the source of the plaintiff's

claim, there is a federal interest in defining the

defenses to that claim, including the defense of

immunity. That interest, of course, is not present in

a case, such as this, arising under state law.
And the principle is alive and well today--contrast the immunity
analysis accorded to federal constitutional claims in Smith v.
City of Chicago, 242 F.3d 737, 742-43 (7" Cir, 2001) with the
same case's treatment of immunity as to state-law-based claims

(id. at 744). To the same effect, see this Court's decision in

Robinson v. Gerritson, 210 F.Supp.2d 1004, 1009, 1013 (N.D. Ill.

2002)).
In short, defendants have come up empty once again. This
last branch of their Rule 12(b) (6) motion is also denied.
Conclusion
Defendants! Rule 12(b) (6) motion has failed in its entirety.

They are ordered to answer all of Counts II, III and IV on or

Cath. )Seethean-

before March 3, 2003.

Milton I. Shadur
Senior United States District Judge

Date: February 21, 2003


doctor's opinion giving Roe a clean bill of health in terms of
his ability to do the job and the absence of any threats to
others, can surely be considered as reflecting a different
perception of his impairment--but still as considering it to bea
disqualifying impairment. In short, defendants' motion to
dismiss Roe's claim under the Act must be and is denied.

Section 1983 Equal Protection Claim

Count III alleges in Complaint $43 that defendants violated
Section 1983 because: “[a]cting under color of state law,
Westmont Defendants classified and treated Roe differently
because of his HIV infection, denying him employment on that
basis.” It goes on to assert that “Defendants have no sufficient
justification for their discriminatory treatment of Roe.”

Section 1983 requires Roe to make a two-tiered showing:
that defendants were acting under color of state law and that
their conduct deprived him “of rights, privileges, or immunities
secured by the Constitution or laws of the United States”
(Parratt v. Taylor, 451 U.S. 527, 535 (1981)). To state a viable
equal protection claim, Roe must allege (1) that he is a member
of a protected class, (2) that he is otherwise similarly situated
to the members of an unprotected class, (3) that his treatment
was different from that afforded to members of the unprotected
class and (4) that in so doing defendants acted with

discriminatory intent (McPhaul v. Bd. of Comm'rs, 226 F.3d 558,


(ii) has a record of such an impairment; or

(iii) is regarded as having such an impairment.
Because the Act's definition is almost identical to that under
the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12102(2),
courts have construed both statutes similarly (see Bragdon v.
Abbott, 524 U.S. 624, 642 (1998)). In fact Bragdon, id. at 642-
45 actually looked to the consistent treatment under the Act of
anyone who is HIV positive as being an “individual with a
disability” to reach the same result for ADA purposes. Hence the
factual portion of Roe's Complaint is entirely consistent with
the Act's definition of an “individual with a disability.”

Indeed, defendants would appear hard put to advance this
branch of their argument in light of Roe's rejection for the job
precisely because of his HIV-positive condition. That would
quite clearly seem to bring the third statutory alternative
(“regarded as having such an impairment”) into play.

That last point really torpedoes defendants' position, for
being evaluated by a doctor as qualified to work as a police
officer is not at all inconsistent with having a “disability” as
defined by the Rehabilitation Act. It will be remembered that
the major life activity implicated in HIV-infected individuals is
procreation, or even engaging in sexual relations (Bragdon, 524
U.S. at 642-43). Defendants' view that Roe could not be hired

because he is HIV positive, a view acted on in the teeth of the


was treated “differently because of his HIV infection” (Complaint
437) that other applicants who were hired were not HIV positive

(see Kiser v. Naperville Cmty. Unit, 227 F.Supp.2d 954, 972 (N.D.

Ill. 2002)), defendants' motion as to Count III is also denied.

Illinois Constitutional Claim

Count IV asserts (perhaps needlessly) that defendants also
violated Roe's right to equal protection under the Illinois
Constitution on the same premise that forms the gravamen of Roe's
federal claim of the same nature. Indeed, unless there is some
indication of a different substantive content being ascribed to
the two constitutional guaranties, this provides a good example
of the mischief often engendered by the flawed approach referred
to in this opinion's n.1.*

Not to be outdone, defense counsel launches a totally
irrelevant qualified immunity attack based entirely on the
federal law that applies to federal constitutional claims against
state officers. That type of muddied thinking has been rejected
for nearly a quarter century--as Justice Stevens put the matter
succinctly for a unanimous Supreme Court in Ferri v. Ackerman,

444 U.S. 193, 198 & n.13 (1979) (citations omitted):

4

In fact, because 42 U.S.C. §1988 provides for an award of
attorneys! fees to a successful Section 1983 plaintiff while
there is no corresponding provision under Illinois law, it is
especially difficult to understand why anyone would want to
pursue a substantively identical claim of violation of an
Illinois constitutional guaranty.

8


Meate Order Form (*6/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Milton I. Shadur Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 7256 DATE 2/21/2003
CASE Richard Roe vs. Village of Westmont, et al
TITLE

[In the following box (a) indicate the paely filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented]

MOTION:
DOCKET ENTRY:
(1) QO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Qa Answer brief to motion due___. Reply to answer brief due
(4) im Ruling/Hearing on__setfor___at
(5) a Status hearing[held/continued to] [set for/re-set for]on__setfor_ at,
(6) Qa Pretrial conference[held/continued to} [set for/re-set for]on__—— set for at
(7) a Trial{set for/re-set for]on at
(8) oa [Bench/Jury trial] [Hearing] held/continued toa
0 a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocal Rule 41.1 COFRCP4I(ay(1) OO FRCP41(a)(2).
(0) xf [Other docket entry] Defendant’s Rule 12(b)(6) motion has failed in its entirety and it is denied.

(9-1) They are ordered to answer all of Counts II, III and IV on or before March 3, 2003.

al) @f {For further detail see order attached to the original minute order.]
No notices required, advised in open court Document
umber
No notices required. umber of a0 “en
VY | Notices maited by judge's stalf. FR?? 7003
pe
Notified counsel by telephone. date docketed
Docketing to mail sotices QO
Mail AO 450 form. sn CON "
Copy to judge/magistrate judge.
2rei/3008
courtroom j Cys dle mule notice
SN deputy's sn
initials °

L central Clerk's Office tain pty nial



564 (7 Cir. 2000)).

Defendants' Motion 43(b) urges that Count III be dismissed
because Roe did not allege that he was treated differently from
other candidates sitting for the same examination. In that
respect defendants argue (1) that all applicants were subjected
to the same medical testing at the same time during the
application procedure and (2) that Roe does not allege that any
other candidates were not HIV positive. That, they say, fails to
meet the cited formula.

Unlike Roeé's Count I and II claims under ADA and the Act,
which focus on the medical examinations, Count III does not
contain any reference to those examinations other than in its
typical initial incorporation by reference of the earlier
Complaint paragraphs. Count III alleges that Roe's right to
equal protection was violated because defendants intentionally
“classified and treated Roe differently because of his HIV
infection, denying him employment on that basis” (Complaint 4437,
43). That express allegation prevails over any contention based
on other assertedly missing allegations.

To put the same point a bit differently, the requirements of
notice pleading are no more demanding than what Roe's counsel

have set out (Leatherman v. Tarrant Cty. Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 165, 168-69 (1993)). Because it

is surely a permissible inference from Roe's allegations that he


results of both tests.

About February 15, 2001 Roe underwent another HIV test and
medical examination, this time by a Board-selected physician.
During a follow-up appointment the physician advised Roe that he
had tested positive for HIV. Then the physician sent a letter to
the Board confirming that Roe was HIV positive, but stating
(1) that Roe was fully able to perform all duties required of him
as a police officer and (2) that he did not pose a threat in
performing those duties.

About a week later an attorney for Village told Roe that the
Board might not be able to hire him because of his HIV situation.
Then about March 5, 2001 Roe received a Board letter stating that
he did not meet the necessary requirements for the position of
police officer with Department and that his application would not
be reviewed further. Since then the Board has hired at least
five police officers and has continued its search for additional
officers.

Motion To Dismiss Standards

Courts may dismiss a complaint only if it is clear that no
relief could be granted under any set of facts that could be
proved consistent with its allegations (Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984)). In its analysis the court
must accept all of a plaintiff's well-pleaded factual allegations

as true, drawing all reasonable inferences in plaintiff's favor


What follows in the Background section is a précis of Roe's
Complaint, which must of course be taken as true for Rule
12(b) (6) purposes. In those terms all three of the challenged
claims survive.

Background

About September 27, 2000 Roe, a police academy graduate who
was already working as a police officer elsewhere, applied for a
position as an officer with Westmont's Police Department
(“Department”). About September 30 Roe took and passed the
initial applicant screening tests: a physical ability test, a
written exam and a written psychological test. About October 17
Roe interviewed with Board members, and soon after that the Board
posted a list ranking all applicants, with Roe placed fourth out
of the 15 remaining applicants.

After that posting but before it made any offers of
employment, the Board required all remaining applicants to submit
to medical examinations. About November 15 Roe took the
examination at a clinic designated by defendants. Roe was told
that the clinic had performed an HIV test but that the result was
inconclusive. Soon after that, Roe took a voluntary HIV test at

another clinic. Roe advised Board Commissioner Scott of the

(subject to the caveat contained in the preceding sentence),
because it facilitates the discussion and analysis here to use
that shorthand label as a proxy for the constant repetition of
the more precise “theory of recovery” or the like.

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD ROE,
Plaintiff,
v. No. 02 C 7256

VILLAGE OF WESTMONT, et al.,

DOCKETED

FEB y) 4 2003

Defendants.

MEMORANDUM OPINION AND ORDER

Richard Roe (*Roe”) has sued the Village of Westmont
(“Village”), its Board of Fire and Police Commissioners (“Board”)
and Robert Maciejewski, Robert Scott and Robert Kovada (both
individually and in their official capacities as Village
employees), charging that he has been the victim of employment
discrimination stemming from his infection with the human
immunodeficiency virus (“HIV”). Defendants, at the same time
that they have answered Count I of Roe's Complaint, have joined
ina Fed. R. Civ. P. (“Rule”) 12(b) (6) motion to dismiss
Complaint Counts II (which asserts a Federal Rehabilitation Act
claim), III (which is advanced under 42 U.S.C. §1983 (“Section
1983”) as an equal protection claim) and IV (which raises a like

equal protection claim under the Illinois Constitution) .?

* This Court of course recognizes that Roe really has a

single “claim for relief,” even though he advances a number of

theories of potential recovery on that claim (see the thoughtful
explication of that subject in NAACP v. Am. Family Mut. Ins. Co.,

978 F.2d 287, 292 (7 Cir. 1992)). But in this instance the

parties' misuse of “claim” (an extremely common practice) not

only will be indulged but will also be employed in this opinion 3 O