to resign or be terminated. In early 2001, plaintiff, through her attorney, contacted IDOC and as a
result, in October 2001, was placed in the AEP, though plaintiff's employment status remained
inactive.

Plaintiff alleges that she made repeated requests to IDOC for reinstatement during 2001 but
was not offered a job or returned to active employment status. Plaintiff further alleges that IDOC
did not discuss reasonable accommodations with plaintiff during this time period.

In March 2002, plaintiff applied for a Residential Counselor’s position. She was not hired,
and plaintiff alleges that an individual in IDOC’s personnel department told her she was ineligible
for the position because she was on the inactive list and IDOC had classified her as “non-
occupational” when she should have been classified as “occupational.”

On July 19, 2002, plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) and the Illinois Department of Human Rights. Plaintiffreceived
aright-to-sue letter from the EEOC dated September 10, 2002. On November 8, 2002, plaintiff filed
a complaint against IDOC alleging discrimination for the period January 3, 1994, through July 19,
2002. Following the filing of defendants’ motion to dismiss her complaint on grounds of sovereign
immunity, plaintiff filed an amended complaint naming Shallcross, Bounds, and Griffin as
defendants in their official capacities.

DI ON

in their reply brief, defendants argue for the first time that plaintiffs claims
against Griffin and Bounds in their official capacities are redundant to plaintiff's claims against
Shallcross, IDOC’s Superintendent, and must be dismissed pursuant to Jungels v. Pierce, 825 F.2d

1127, 1129 (7" Cir. 1987). As plaintiff correctly points out, however, Jungels involved claims pled



consider in making this determination, the most important of which is the degree of permanence.
Id. \nother words, “Does the act have the degree of permanence which should trigger an employee's
awareness of and duty to assert his or her rights, or which should indicate to the employee that the
continued existence of the adverse consequences of the act is to be expected without being dependent
on a continuing intent to discriminate?” Jd. The other two factors to consider are the frequency of
the alleged acts and whether all of the acts involve the same subject matter. Jd.

Inthe instant case, defendants’ alleged refusal to accommodate plaintiff's disability persisted
for more than eight years. As early as 1994, IDOC repeatedly rebuffed plaintiff’s attempts to be
reinstated as a Youth Supervisor II, telling her that her file was lost or that no positions were
available. In May 2000, plaintiff's request for reinstatement or a reasonable accommodation was
allegedly ignored by then-Superintendent Levandowski. Then, in January 2001, Lackman allegedly
told plaintiff that she would have to resign or be terminated. Although these acts may not have had
the “permanence” of being fired or demoted, by January 2001, at the latest, defendants’ consistent
refusal to accommodate plaintiff’s alleged disability and/or reinstate her to “active” status certainly
should have triggered plaintiff's “awareness of and duty to assert” her rights. The continuing
violation doctrine, therefore, is inapplicable to the instant case. See also Filopovic v. K & R Exp.
Systems, Inc., 176 F.3d 390, 397 (7" Cir. 1999) (quoting Se/an, 969 F.2d at 567) (“LA] two-year gap
between allegedly discriminatory incidents ‘weighs heavily against finding a continuing

violation.””).?

Plaintiff further contends that the 300-day limit should be tolled under theories of
equitable tolling and equitable estoppel. The court notes, however, that plaintiff has not alleged
that defendants were “responsible for creating the false impression of achieved or imminent
resolution” of her discrimination claim, or that she was otherwise prevented from obtaining vital

(continued...)



Between January 1994 and early 2000, plaintiff claims to have made numerous efforts to
become reinstated as a Youth Supervisor II and was initially told that the Center had lost her file, and
was later repeatedly told that there were no open positions available.

In early 2000, plaintiff's attorney confirmed, through the State Retirement System, that
plaintiff was still employed by IDOC and was on a “non-service connected” leave of absence.
Through her attorney, plaintiff then requested a job with IDOC with or without accommodation for
her disability. The Central Management Services for IDOC allegedly took the position that plaintiff
could either arrange to resume her duties as Youth Supervisor Il if she were no longer disabled or,
if she was unable to resume her duties, apply for participation in IDOC’s Alternative Employment
Program (“AEP”).

In May 2000, plaintiff informed then-Superintendent Levandowski that she wanted to return
to work at the Center either in her former position or some other position that reasonably
accommodated her disability. According to plaintiff, Levandowski did not approve plaintiff's return
to work and failed to engage in discussions with plaintiff regarding the possibility of providing any
reasonable accommodation.

In June 2000, IDOC’s Employee Service Administrator, Patricia Lackman, concluded that
plaintiff suffered from a permanent disability that prevented her from acting as a Youth Supervisor
II in any capacity. According to plaintiff, Lackman did not make an effort to discuss her disability
and whether it would, in fact, prevent plaintiff from acting as a Youth Supervisor II. Lackman then
referred plaintiff to the IDOC Personnel Manager, Nancy Bounds, for placement in the AEP.

In November 2000, plaintiff was informed that she was not eligible to participate in the AEP

because of her disability. In January 2001, Lackman informed plaintiff that she would either have



against a city and its officials, which are not protected by sovereign immunity. Further, rather than
dismissing the city officials from the case, the Jungels court noted that suing both the local
government and the official “makes no practical difference” because “the city is liable for the official
actions of its senior policy making official.”

In the instant case, in response to defendants’ motion to dismiss plaintiff's first complaint
against IDOC on grounds of sovereign immunity, plaintiff filed an amended complaint naming the
appropriate IDOC employees in their official capacities. This does not contravene Jungels, and thus
defendants’ motion to dismiss Griffin and Bounds is denied."

Defendants next argue that plaintiffs complaint must be dismissed as untimely because the
alleged distinct acts upon which she bases her claims occurred more than 300 days prior to the filing
of her EEOC discrimination charge against IDOC. In the alternative, defendants argue all claims
based on IDOC’s or defendants’ actions prior to September, 21, 2001, should be dismissed and

plaintiff should not receive any remedy for alleged violations of the ADA occurring before that date.

The ADA adopts the enforcement procedures governing Title VII actions, including filing
procedures and timing requirements. See 42 U.S.C. § 12117(a); Fairchild v. Forma Scientific, Inc.,
147 F.3d 567, 574 (7" Cir. 1998). Thus, under the ADA, as under Title VII, a claimant in Illinois
must file a charge with the EEOC within 300 days of the occurrence of the alleged unlawful
employment practice. Id.; Conley v. Village of Bedford Park, 215 F.3d 703,710 (7" Cir. 2000);

Christner v. American Eagle Airlines, Inc., 2003 WL 21267105, at *4 (N.D.IIl. May 30, 2003). The

‘In addition, as plaintiff points out, the request to dismiss Griffin and Bounds was not
made until it was included in defendants’ reply brief. As such, it was waived. See Budget Rent-
A-Car Corp. v. Crescent Ace Hardware, et al., 2003 WL 21673932, at *5 n. 7 (N.D.IIL. Jan. 16,
2003).



This conclusion does not compel dismissal of plaintiff's amended complaint, however.
Defendants acknowledge that, (1) plaintiff was placed on the AEP list in October 2001, and (2) in
March 2002, plaintiff applied for another position, which was denied to her because she was on an
“inactive” list. Plaintiff's July 2002 EEOC charge timely raised these incidents, which are certainly
adequate to state a claim under Fed. R. Civ. P. 12(b)(6). Further, recognizing that factual allegations
relating to incidents prior to September 21, 2001, may be relevant to plaintiff's timely-filed claims,
the court declines to order plaintiff to strike any of the factual allegations in her complaint.

CONCLUSION

For the reasons stated herein, defendants’ motion to dismiss plaintiff's claim against Griffin
and Bounds is denied. Defendants’ motion to dismiss the instant action for lack of timeliness is also
denied, with the condition that plaintiff may proceed only on properly pled incidents of
discrimination occurring subsequent to September 21, 2001.

ENTER: September 16, 2003

“\OR.Dw. (Ci

Robert W. Gettleman
United States District Judge

2c. continued)
information in support of her discrimination claim, after January 2001. See Frazier v. Delco
Electronics Corp., 263 F.3d 663, 665 (7" Cir. 2001). Thus, the court declines to toll the statute of
limitations on equitable grounds.



oye 5 aon) * -
+7" | Mini Ondes Form (0697) co hii foN

United Svaces District Court, Northern Distrrec of Illinois

None aftetenet ase | Robert W. Gettleman | Skint uutir ote

CASE NUMBER 02 C 8126 DATE September 16, 2003
CASE Dana Malone v Janice Shallcross, et al
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

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

(2) ao Brief in support of motiondue_

(3) Oo Answer brief to motion due___. Reply to answer, brief due___.

(4) oO Hearing

6) oO Status hearing

(6) o Pretrial conference[held/continued to] [set for/re-set for]on___——ssetfor_——at__s

(7) im) Trial[set for/re-set for]on saat .

(8) Qa {Bench/Jury trial] [Hearing] held/continued to. at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OO General Rule21 OFRCP41(a)(1) O FRCP41(a)(2).

(10) a Memorandum opinion and order entered: Accordingly,

defendants’ motion to dismiss plaintiffs claim against Griffin and Bounds
is denied. Defendants’ motion to dismiss the instant action for lack of
timeliness is denied.

@ for further details see order on reverse

X | Nonotices required, advised in open

court.

No notices required. number of notices
Notices mailed by judge’s staff. REP \

Notified counsel by telephone. KMocule
Docketing to mail notices.

Mail AO 450 form. Cicetifp Meputy initials

Copy to judge/magistrate judge.

date mailed notice
courtroom

Gps deputy’s
initials

Date/time received in
central Clerk’s Office mailing deputy initials



300-day limit begins running when the defendant takes the action that injures the plaintiff and when
the plaintiff knows he was injured, not when he determines that the injury was unlawful. Sharp v.
United Airlines, Inc., 236 F.3d 368, 372 (7" Cir. 2001).

Defendants contend that any decision by IDOC to deny plaintiff an accommodation in 1993
or failure to return plaintiff to an active status occurred before September 21, 2001, the date marking
the 300-day period preceding the filing of plaintiff's EEOC charge. Defendants further contend that
plaintiff's EEOC charge contains only two instances of alleged discrimination within the 300-day
period prior to the filing of the charge: 1) being placed on the “Alternative Employment” list in
October 2001; and 2) being told she was ineligible for a Residential Counselor’s position in March
2002 because [DOC had kept her on the “inactive” list. In response, plaintiff argues that she has
alleged facts supporting a “continuing violation” that suffice to overcome defendants’ statute of
limitations defense (at least until the factual record is further developed).

“The continuing violation theory allows a plaintiff to reach back to get relief for an act of
discrimination that occurred outside the statute of limitations by linking it as one continuous act with
a discriminatory act that took place within the limitations period.” Hale v. Renee-Baker, 2002 WL
1613765, *3 (N.D. Ill. July 19, 2002), quoting Place v. Abbott Laboratories, 215 F.3d 803, 807 (7"
Cir. 2002). For the purposes of the limitation period, courts treat such a combination as one
continuous act that ends within the limitations period. Selan v. Kiley, 969 F.2d 560 (7" Cir. 1992).

The question in the instant case, then, is whether defendants’ acts were “related closely
enough to constitute a continuing violation” or “merely discrete, isolated, and completed acts which
must be regarded as individual violations.” Selan, 969 F.2d at 565, quoting Berry v. Board of

Supervisors of L.S.U., 715 F.2d 971, 981 (5" Cir. 1983). The Fifth Circuit has suggested factors to



ww

IN THE UNITED STATES, DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DANA MALONE, )
)
Plaintiff, )
) No. 02C 8126
v. )
) Judge Robert W. Gettleman
JANICE SHALLCROSS, in her official capacity)
as Superintendent of the Illinois Youth Center- )
St. Charles, Illinois Department of Corrections; )
NANCY BOUNDS, in her official capacity as )
Personnel Manager of the Illinois Department of _)
Corrections; WILLIAM GRIFFIN, in his official _) bog
capacity as Employee Services Administrator, ) KE 1), 17)
Illinois Department of Corrections, ) S&p
) 9 2093
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Dana Malone filed an amended complaint against defendants Janice Shallcross
(“Shallcross”), Superintendent of the IDOC Youth Center, Nancy Bounds (“Bounds”), IDOC
Personnel Manager, and William Griffin (“Griffin”), IDOC Employee Services Administrator,
alleging violations of Title I of the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq., and Title V of the ADA, 42 U.S.C. § 12203. Defendants have filed motions to dismiss
plaintiff's complaint with prejudice pursuant to Fed, R. Civ. P. 12(6)(1) and 12(b)(6) asserting the
following: 1) plaintiff's ADA claims against Griffin and Bounds in their official capacity are
redundant to the ADA claim alleged against Shallcross; and 2) all claims brought pursuant to the
ADA that arose before September 21, 2001, are barred by the 300 day statute of limitations and
should be dismissed with prejudice. For the reasons stated below, defendants’ motion to dismiss

plaintiff’s claims against Griffin and Bounds is denied. Defendants’ motion to dismiss the instant



action for lack of timeliness is also denied, with the condition that plaintiff may proceed only on
properly pled incidents of discrimination occurring subsequent to September 21, 2001.
FACTS

The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to rule on
its merits. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7" Cir. 1990). When considering a
motion to dismiss, the court accepts the factual allegations of the complaint as true and views the
facts in the light most favorable to the plaintiff. See Travel All Over the World, Inc. v. Kingdom of
Saudi Arabia, 73 F.3d 1423, 1428 (7" Cir, 1996). °.

Plaintiff was hired by the St. Charles, Illinois. Youth Center (“Center”) - Illinois Department
of Corrections (“IDOC”) in 1984. Immediately prior to 1993, plaintiff was working as a Youth
Supervisor II at a youth residence within the Center.

In May 1993, plaintiff suffered an injury to her knee while breaking up a fight at the Center.
She was immediately placed on leave of absence by Jerry Butler, then-Superintendent of the Center.
On August 10, 1993, plaintiff was allegedly placed on a “Non-Service Connected Medical Leave”
for which she did not receive benefits.

Plaintiff underwent surgery to repair her knee in August 1993. According to plaintiff, Butler
informed her that she must return to work or face termination in September 1993, despite his
awareness that plaintiff had not yet recovered from the surgery. When plaintiff was cleared to work
in January 1994, subject to permanent restrictions, she alleges that IDOC did not allow her to return

to work at the Center and she was forced to remain on leave with no explanation for many years.