jurisdictional grant to the Board found in 40 ILCS 5/6-185 “seems to be limited to
authorizing the payment of a benefit, and to increasing, reducing or suspending a
benefit.” Bell v. Retirement Board of the Fireman’s Annuity and Benefit Fund of Chicago,
No. 92 C 5197, 1993 WL 398612 at *4 (N.D. Ill. Oct. 6, 1993). The Board does not have
exclusive authority to hear this federal claim under the ADA and therefore we have
subject matter jurisdiction to hear Count Il.

Section 501(c) Exemption

Next the Board argues that Count Il should be dismissed because the Board is
exempt from such a claim pursuant to Section 501(c) of the ADA and we agree. King
brought his claim against the Board pursuant to Title II of the ADA, conceding that the
Board is a “public entity.” All parties also agree that the Board administers bona fide
benefit plans. Pursuant to Section 501(c) of the ADA, administrators of bona fide benefit
plans are exempt from the provisions of the ADA and thus Count I] should be dismissed
under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be
granted. See Rodriguez v. City of Aurora, 887 F. Supp. 162 (N.D. Ill. 1995).

To avoid dismissal, King cites to the last sentence of 501(c) which provides that
the provision shall not be used as a subterfuge to evade the purposes of Titles | and Ill of
the ADA. King argues that the Board committed a subterfuge in this case by making an
employment decision rather than merely administering benefits. King’s subterfuge
argument cannot save his claim. The subterfuge exception only applies to subchapters |
and Ill of the ADA. Rodriguez, 887 F. Supp. at 164. Count Il was brought pursuant to
subchapter || and therefore the subterfuge argument does not apply. /d.

The avoid the clear mandate in Rodriguez, King cites Piquard in support of his



from May 17, 2001 through December 3, 2002 and also notified King that he would begin
receiving his monthly duty disability payments thereafter.
Analysis

\n a motion to dismiss pursuant to Rule 12(b)(1), there is no presumption of truth
for the allegations in the complaint. Commodity Trend Service, Inc. v. Commodity
Futures Trading Commission, 149 F.3d 679, 685 (7th Cir. 1998). Instead, the court
may look beyond the pleadings to any evidence which calls its jurisdiction into question.
fd. In ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), the court “must accept as true all of the plaintiff's well-pleaded factual
allegations and the inferences reasonably drawn from them.” Gibson v. Chicago, 910
F.2d 1510, 1520-21 (7th Cir. 1990). Dismissal is appropriate only 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 (1957). Further, “the
purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide
the merits.” Triad Assoes., Inc. v. Chicago Hous. Authority, 892 F.2d 583, 586 (7th Cir.
1989) (reversed on other grounds).
Subject Matter Jurisdiction

We begin our analysis by establishing that this Court does have subject matter
jurisdiction to hear Count II of King's claim. The Board moved to dismiss Count Il
pursuant to Fed. R. Civ. P. 12(b)(1), arguing that this court lacked subject matter
jurisdiction to hear Count Il because the Board has exclusive original jurisdiction in all

matters relating to or affecting the Board pursuant to 40 ILCS 5/6-185. This argument

has already been addressed and rejected in Bell, where the district court found that the



subterfuge argument. See Piquard v. City of East Peoria, 887 F. Supp. 1106 (C.D. Ill,
1995). However, after reviewing the lengthy opinion in Piquard, we find that Rodriguez
controls the issue before this Court today.

Because we find that the Board is exempt from the claims alleged in Count Il
under Section 501(c) of the ADA, we will not address the Board's failure to state a claim
argument or the issue of res judicata.

Conclusion
For the reasons set forth above, defendant Board's motion to dismiss Count II of

plaintiff's First Amended Complaint is granted. It is so ordered.

ENTER:

MICHAEL T. MASON

United States Magistrate Judge

Dated: November 3, 2003



inte Order Fours (06057)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Michacl T. Mason

Sitting Judge if Other
than Assigned Judge

CASE NUMBER

02 C 2608

DATE

11/3/2003

CASE King vs. City of Chicago et al.
TITLE
[ln the following box (a) indicate the party filing the motion, c.g., plaintiff, detendant, 3¢d party plaintiff, and (b) state briefly the nature
MOTION: uf the motion being presented.)

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) aq Brief in support of motion duc __

3) im Answer bricf to motion duc . Reply to answer brief duc

(4) Oo Ruling/Ilearing on setfor_ att"

(5) a Status hearing|held/continucd to] [sct for/re-set for] on sctfor_ at

(6) o Pretrial conference[held/continued to] [set for/re-set for] on setfor ss at_

(7) oO ‘Trial[set forre-set for]on__ at.

(8) Oo [BenclyJury trial] [Hearing] held/continued to__at

(9) a ‘This case is dismissed [with/without] prejudice and without costs[by/agrcement/pursuant to]
OOFRCP4(m) Ci Local Rule 41.1 OFRCP4I(a\(1) OO FRCP41(a)(2).

qo) i (Other docket entry] For the reasons stated in the attached memorandum opinion and order,

defendant Board’s motion to dismiss Count LI of plaintiff's first amended complaint [40-1] is granted.
Defendant Retirement Board is dismissed as a party to this case. Ruling on the pending defendant City’s
motion to strike and motion for summary judgment to follow. Enter Memorandum Opinion and Order.

(1) Oo

No notices required, advised in open court

[For further detail sec order (on reverse side of/attached to) the original minute order.]

Document
Number

8

No notices required.

ov | Natices mailed by judge's staff.

Notified counsel by telephone.

Dockebing to mail notices.

Mil AQ 450 form, docketg deputy wining

Copy to judge/magistrate judge.

TARR

date mailed notice
courtruom

Kr depuly’s

ij «F
initials

Datestime received in!

central Clerk's Office entry, eit dential



IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED

WILLIAM KING, NOV 0 4 2003

, Plaintiff,
No. 02 C 2608
v.

Mag. Michael T. Mason
CITY OF CHICAGO,

Defendant.

MEMORANDUM OPINION AND ORDER

Michael! T. Mason, United States Magistrate Judge:

Plaintiff William King originally filed a two count complaint against defendant City
of Chicago (‘City’) alleging that the City violated the Americans with Disabilities Act of
1990 (“ADA”), 42 U.S.C. § 12101 ef. seg. King alleged that the City violated the ADA in
Count | by denying him reemployment with the Chicago Fire Department and not
providing reasonable accommodations for his injuries and in Count Il because the
Retirement Board of the Fireman’s Annuity and Benefit Fund of Chicago (“Board’)'
refused to reinstate King’s suspended duty disability benefits. On September 18, 2002
we dismissed Count II against the City because it was not the proper party. The Board,
not the City, retained exclusive jurisdiction over duty disability benefits and thus King
could not obtain the relief he was seeking in Count {I from the City. In light of that
decision King filed a two count First Amended Complaint substituting the Board for the

City as the named defendant in Count Il.

We referred to defendant Retirement Board of the Fireman’s Annuity and Benefit Fund of
Chicago as the ("Fund”) in previous opinions, however other case law refers to this entity as the (“Board”).
For clarity, we will now refer to defendant as the Board,



Count II of the First Amended Complaint alleges that the Board violated the ADA
when it refused to reinstate King’s suspended duty disability benefits. The Board
moves to dismiss Count II arguing that (1) this Court lacks subject matter jurisdiction to
consider Count Il, (2) the Board is exempt from the prohibitions of the ADA and (3)
plaintiff has failed to state a claim upon which the relief he seeks can be granted. For
the following reasons we grant defendant Board’s motion to dismiss Count II of the First
Amended Complaint.

Background

The City hired King as a fire paramedic in 1980 and he worked in that capacity
until 1996. During his employment, King suffered injuries that exacerbated a previous
back condition. Specifically, King has three disc hernias. On May 31, 1995, King injured
his back on a call and the Board provided him with duty disability benefits beginning on
July 24, 1996. He received these benefits from 1996 until 2001, On May 17, 2001, the
Board rescinded King’s benefits on the grounds that he was no longer disabled. On May
18, he requested reemployment with the Chicago Fire Department, and submitted to a
medical test for rehire on June 11, 2001. On July 20, 2001, the Chicago Fire Department
refused to rehire or accommodate King because his test showed an abnormal gait when
he walked. Because the Chicago Fire Department denied him re-employment, King
reapplied for his duty disability benefits from the Board. On February 19, 2002, after a
Circuit Court remand, the Board determined that King was not entitled to a reinstatement
of his benefits. On November 21, 2002, the Circuit Court reversed the Board's decision
to terminate King’s benefits and retroactively reinstated his disability benefits. On

January 8, 2003, the Board issued a retroactive payment to King for disability benefits