UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

John McDonald,

Plaintiff,

v.

J.B. Pritzker, in his official capacity as 

Governor of Illinois, and Grace B. Hou, 

in her official capacity as Secretary of 

the Illinois Department of Human 

Services,

Defendants.

Case No. 1:20-cv-03653

Chief Judge Pallmeyer

PLAINTIFF’S REPLY IN SUPPORT OF EXPEDITED RENEWED 

MOTION FOR A PRELIMINARY INJUNCTION 

INTRODUCTION 

Through this lawsuit, Plaintiff asked this Court to remedy Defendants’ 

discriminatory treatment of disabled persons, both for himself and for other disabled 

Community Day Services (“CDS”) participants. In asking for relief beyond only 

himself, Plaintiff followed carefully the Seventh Circuit’s decision in City of Chicago 

v. Barr, 961 F.3d 882 (7th Cir. 2020), which Plaintiff respectfully submits articulates 

reasoning applicable to cases just like this one. That is, the government has adopted 

a uniform and unlawful policy such that it would be impractical for all vulnerable 

individuals harmed by the policy to each find their own lawyer to fight against the 

State’s broad-based illegality, and proceeding as a class action is impractical due to 

the length of time needed to certify a class and the immediacy and ongoing nature of 

the discriminatory conduct. If this Court denies the type of relief that City of Chicago
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envisions, as Defendants urge, this would consign many disabled persons to the type 

of suffering that Plaintiff labored under until this Court’s intervention. Plaintiff

submits that federal courts would not allow such a blanket discriminatory reopening 

policy to stand against a minority group or a gender, and disabled persons deserve no 

less. And while Defendants blithely assert that the disabled should not receive the 

same respect in court because they are not a suspect class under the Equal Protection 

Clause, Dkt. 32 at 14, Congress has afforded the disabled capacious protection under 

the Rehabilitation Act and the Americans with Disabilities Act (“ADA”), making the 

analogy—which this Court referenced at the first preliminary injunction hearing, 

Transcript of June 25, 2020 Hearing at 23:8–15—entirely apt.

In structuring his request for relief in his Renewed Motion, Plaintiff has taken 

special and careful cognizance of this Court’s concerns at previous preliminary 

injunction hearings, and has not asked this Court to “reopen the [CDS] program 

immediately statewide.” Transcript of June 30, 2020 Hearing (“6/30/20 Tr.”) at 4:23–

5:2. Rather, Plaintiff only asks this Court for tailored, limited relief, which follows 

from the logic of the Rehabilitation Act, the ADA, and the Equal Protection Clause:

requiring Defendants to conduct the August 1 reopening—which is Defendants’ own, 

new reopening date, in response to this lawsuit—in a way that does not continue to 

place disabled individuals into second-class citizenship status. That is, when 

Defendants reopen CDS programs starting on August 1—which, it bears emphasis,

is occurring two months after Defendants reopened comparable programs for ablebodied persons—Defendants cannot impose special, blanket limitations and rules on
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such reopening that Defendants have not imposed on able-bodied persons. Plaintiff 

has standing to request such relief for himself because Defendants intend to impose 

those discriminatory conditions on him and Community Workshop and Training 

Center (“CWTC”) in just over two weeks, and City of Chicago explains why this Court

can and should extend such relief more broadly to all disabled CDS participants.

ARGUMENT 

I. Defendants Are Continuing To Make Disabled Persons Second-Class Citizens 

As Part Of Their Reopening 

The primary issue for purposes of this Renewed Motion is whether Defendants 

are still excluding Plaintiff and other disabled individuals from a nondiscriminatory 

reopening. Defendants have no serious answer to Plaintiff’s argument that their 

reopening plan is discriminatory in at least three respects.

A. Discriminatory Timing And Capacity Limits 

Defendants continue to discriminate against the disabled as to the timing and 

capacity of their reopening. Defendants have barred CDS programs from reopening 

until at least August 1, and will not permit most CDS programs to reopen until 

September 1. See Dkt. 16 at 13–14; Dkt. 26-3; 6/30/20 Tr. at 5:12–24. And, most 

importantly for present purposes, even these plans for reopening restrict CDS 

programs to mere fractions of their prior occupancy—25% for any program opening 

in August, and 50% in September. Dkt. 26-3. In contrast, all manufacturing and

non-essential businesses can open without any limits on participants and workers. 

Dkt. 9-2; Dkt. 9-6. Furthermore, State guidance for childcare facilities, schools, and 

workplaces does not impose anything like 25%/50% limits. Dkt. 20-2; Dkt. 20-3.
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In their opposition, Defendants fail to provide any nondiscriminatory 

justification for their capacity and timing restrictions on CDS programs. Defendants, 

instead, claim that these limits are not discriminatory because “businesses permitted 

to reopen under Phase 4 are subject to a capacity limit ranging from 25 percent to 50 

percent capacity.” Dkt. 32 at 12 (citing Restoring Illinois – Protecting Our 

Communities FAQs, https://dph.illinois.gov/restore/restore-faqs). This is misleading, 

to put it generously. The guidance Defendants cite explains that “non-essential 

stores,” such as “[r]etail stores,” “shopping malls,” “movie theatres,” and restaurants 

are subject to 25% and 50% restrictions for customers coming and going, see

Restoring Illinois – Protecting Our Communities FAQs, supra, which is obviously a

different issue from limits on workers and program participants as it relates to the 

spread of COVID-19. That is why the State does not impose 25%/50% limits for any 

able-bodied workers in any workplaces, or for any able-bodied participants in any

other programs, such as daycares, schools, day camps and the like. Dkt. 29 at 8-9. 

Instead, “[a]ll manufacturing [can] open with IDPH approved safety guidance,” such 

as social distancing and masking rules, “[a]ll employees” may “return to work with 

IDPH approved safety guidance,” Dkt. 9-2, and all daycare and summer camps can 

reopen without any 25% or 50% limits, Restoring Illinois – Protecting Our 

Communities FAQs, supra. Thus, so far as the record reflects, the only workplaces 

and services in this State that will be subject to strict 25%/50% worker/participant 

limits come August 1 and September 1 are those for disabled individuals.
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B. Questions About The Health Of Disabled Persons And Their Families 

Defendants’ “COVID-19 Risk Benefit Discussion Tool” requires CDS 

participants and their families to submit to invasive questioning about their medical 

histories before disabled persons can return to CDS programming. See Dkt. 26-1. 

This line of questioning is not present in the State’s generally applicable reopening 

plans for the able-bodied. See Dkt. 9-16; Dkt. 20-2; Dkt. 20-3. 

Defendants’ efforts to show that these questions are nondiscriminatory fail. 

They assert that these questions are not targeted only at the disabled because of an 

online survey apparently circulated by schools, see Dkt. 32 at 11 n.6, but that survey 

only asks whether anyone in a student’s household has any “health concerns,” and 

does not require the disclosure of any family members’ medical conditions. 

Defendants also reference “information all state-funded CDS participants already 

provide during development of their Person-Centered planning documents,” see id. at 

9, but that information does not include any questions about family health, see Dkt. 

8-1. And while Defendants argue that these invasive, discriminatory questions are 

proper “in light of similar restrictions being implemented in other states, including 

New York, New Jersey, and others,” Dkt. 32 at 9, Defendants have not placed any 

document in the record suggesting that these States ask such questions. 

Furthermore, two wrongs do not make a right and this case is not about the 

restrictions being implemented in New York or New Jersey, but only Illinois. 

Defendants now claim that these questions are only intended to “guide” 

discussions and that disabled individuals can refuse to answer these questions 

without any consequence to their CDS participation. Dkt. 32 at 8. Given that 
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Defendants are representing to this Court that no disabled person will suffer any 

consequence whatsoever for declining to answer these discriminatory questions, 

Defendants should have no objection to this Court memorializing that concession in 

an order, and stating that fact in bold print at the beginning of the questionnaire. 

C. “Reinventing” Services For The Disabled, While “Restoring” Services For 

The Able-Bodied 

Defendants stated on the face of their official documents that they intend to 

“[r]einvent[ ]” CDS programming come August 1, Dkt. 26-2, inconsistent with the 

State’s treatment of programs and services for its able-bodied citizens, where the 

State is “[r]estor[ing]” pre-COVID-19 services. Dkt. 9-2. This “reinvention” includes 

the application of new qualifications for participating in these programs not found in 

the requirements for participation in services and jobs for able-bodied persons. See

Dkt. 29 at 4–5. For example, Defendants have decided that a potentially relevant 

risk factor for whether a disabled individual can and should return to CDS 

programming is if “[t]he individual has habits or behaviors such as putting his/her 

hands in their mouth, eyes or face,” or “requires physical prompting/assistance to 

complete . . . toileting, eating or mobility.” Id. The State does not impose any such 

requirement on children attending daycare. Dkt. 20-2. CDS participants also must 

“wear[ ] face coverings and gloves in alignment with CDC guidelines” Dkt. 26-2. But 

at daycare centers, the State does not even require children to wear a cloth face 

covering “[i]f the child cannot tolerate” it, and there is no mention of gloves. Dkt. 20-

2. Similarly, State guidance for child day camps makes no mention of gloves, requires 

face masks only “when within 6-ft. of others,” and allows exceptions “where 
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accommodations are appropriate.” Dkt. 9-16. And State guidance for workplaces 

similarly requires face masks only “when it is not possible to maintain at least 6 feet 

of space between you and another person.” Dkt. 20-3. 

While Defendants claim that these “[r]einvent[ion]” tools are not mandatory

on any CDS programs, Dkt. 32 at 8–10, it beggars belief that if a CDS program 

refused to comply with these requirements—and merely said that it will reopen 

consistent with Defendants’ generally applicable reopening guidelines for able-bodied 

persons—that Defendants would approve that CDS reopening on August 1. One need 

only look at how Defendants have treated CWTC in this litigation—repeatedly 

disparaging its safe reopening plan and forcing it to sign a waiver to have Defendant 

return to programing (even though CWTC had already safely returned charity-based 

disabled persons, consistent with all state guidelines), Dkt. 20-2; Dkt. 22-1—to see 

how Defendants would deal with any CDS program that decided that Defendants’ 

discriminatory “[r]einvent[ion]” tools should not be applied to disabled individuals.

Finally, although Defendants now submit that multiple government programs 

are facing “changes upon reopening in this new era of COVID-19,” Dkt. 32 at 11 

(emphasis added), they can point to no other programs for able-bodied persons for 

which the State intends to adopt the widespread transformation applicable to CDS 

programs. Plaintiff does not contest that “changes” abound in light of COVID-19; 

indeed, new mask requirements, social distancing rules, and increased sanitation 

practices are across-the-board changes to nearly every facet of society. But these
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generally applicable rules are non-discriminatory, as compared to the wholesale 

“[r]einvent[ion]” that Defendants envision only for CDS programming. Dkt. 26-2. 

II. Plaintiffs’ Reopening Plan Remains Unlawfully Discriminatory 

Defendants’ opposition shows that they are still unable to grapple with the 

basic requirements of this Nation’s nondiscrimination laws, meaning that Plaintiff 

has succeeded on all three independent bases for Rehabilitation Act and ADA liability 

(and, for some of the same reasons, under the Equal Protection Clause).1 

As to intentional discrimination, Dkt. 29 at 7–10, Defendants still have no 

lawful explanation for the fact that they admitted, in an official letter, that their 

decision to treat disabled individuals as second-class citizens in their reopening was 

made based upon what can only be described as “unfounded . . . stereotypes” about, 

or “paternalistic concerns” for, individuals with disabilities. See Knapp v. Nw. Univ., 

101 F.3d 473, 485–86 (7th Cir. 1996); Siefken v. Vill. of Arlington Heights, 65 F.3d 

664, 666 (7th Cir. 1995). Their opposition offers no explanation whatsoever as to why 

disabled persons, as a class, must continue to suffer this second-class status in this 

reopening, leaving no doubt that the discriminatory explanation that Defendants 

offered in their official letter to Plaintiff’s counsel continues to govern their conduct. 

As to failure to provide reasonable accommodations, Dkt. 29 at 10–11, 

Defendants did not “mak[e] changes in rules, policies, practices or services,” Dadian 

1 Defendants wisely do not mention their prior argument that Jacobson v. Massachusetts, 197 U.S. 

11 (1905), gives them license to discriminate because of COVID-19. Dkt. 16 at 22–25. As Plaintiff has 

explained, that decision says nothing about the non-discrimination requirements of the Rehabilitation 

Act and the ADA, and, in any event, does not countenance the government using a public-health crisis 

as a basis for discrimination. See Dkt. 19 at 4–5. 
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v. Vill. of Wilmette, 269 F.3d 831, 838 (7th Cir. 2001), to permit disabled individuals 

to return to work in the same manner and timeframe as able-bodied individuals. 

While Defendants point out that they allowed Plaintiff to return to work under a 

stopgap arrangement, in response to this lawsuit, Dkt. 32 at 12, they concede by 

silence that come August 1, Defendants will subject Plaintiff (and other disabled 

individuals) to discriminatory capacity limits, reopening rules, and questions not 

applicable to able-bodied individuals, Dkt. 29 at 7–11.

As to disparate impact resulting from the fact that Defendants are continuing 

to impose special, discriminatory conditions on reopening only for disabled persons, 

Dkt. 29 at 11–12, Defendants merely repeat their false assertion that the reopening 

rules they are imposing on the disabled are comparable to those that they have 

imposed on the able-bodied, Dkt. 32 at 11–12. As explained above, that is simply 

untrue, see supra Part I.A., and provides an independently sufficient basis for the 

conclusion that Defendants continue to violate the Rehabilitation Act and the ADA.

Turning to the Equal Protection Clause, while Defendants contend that their 

discrimination is unproblematic because it arises out of a desire “to provide safe 

programs to approximately 21,000 [disabled] participants” of CDS programs, Dkt. 32 

at 14, the disabled are not, as a class, more susceptible to COVID-19, Dkt. 9-14, and 

the State cannot rely on such an irrational classification under the Constitution, City 

of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985). 

Finally, Money v. Pritzker, ___ F. Supp. 3d ___, 2020 WL 1820660 (N.D. Ill. 

Apr. 10, 2020), on which Defendants repeatedly rely, Dkt. 32 at 6, 7, 8, 13, does not 
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support their position. There, disabled prisoners argued that the ADA required 

special treatment for the disabled in state custody, permitting them to be released 

from prison to avoid contracting COVID-19, and thus getting treatment different 

from the general prison population. Money, 2020 WL 1820660, at *18–19. Here, 

Plaintiff seeks only equal treatment with the able-bodied, requiring Defendants to 

conduct their reopening in a nondiscriminatory manner regardless of disability.

III. This Court Should Order Relief For Both Plaintiff And Non-Parties, Including 

For The Same Reasons The Seventh Circuit Articulated In City of Chicago 

This Court should grant Plaintiff the requested preliminary injunction because

he will suffer irreparable harm again on August 1, when Defendants will apply their 

discriminatory reopening rules against all disabled persons and CDS programs, 

including Plaintiff and CWTC. This will subject Plaintiff to irreparable psychological 

harm, including through limiting the number of days he can otherwise attend CWTC, 

see Dkt. 8 ¶¶ 12–13; Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. 

of Educ., 858 F.3d 1034, 1045–46 (7th Cir. 2017), as well as imposing on him

irreparable deprivation of his statutory and constitutional rights, see Ezell v. City of 

Chi., 651 F.3d 684, 699 (7th Cir. 2011); Chalk v. U.S. Dist. Court Cent. Dist. of Cal., 

840 F.2d 701, 709 (9th Cir. 1988). And this Court should extend this injunction more 

broadly, under a straightforward application of the Seventh Circuit’s recent decision 

in City of Chicago, which explains that relief benefiting nonparties is particularly

important in cases such as this one: when the government’s illegal actions are “swift 

in implementation, widespread in impact, and targeted toward those with the least 

ability to seek redress.” 961 F.3d at 918.
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Defendants’ various arguments to the contrary are legally insufficient. 

First, Plaintiff’s claim for relief is plainly not moot. See Dkt. 32 at 6. While 

Plaintiff has returned to CWTC, Defendants concede by silence that he will be subject 

to the discriminatory rules applicable to general reopening of CDS programs come 

August 1. The law does not require a Plaintiff to wait until his imminent harm has 

occurred before seeking preliminary injunctive relief: “[i]njunctions issue to curtail 

palpable risks of future injury; it is not essential to establish that the worst has come 

to pass.” Lakeview Tech., Inc. v. Robinson, 446 F.3d 655, 657 (7th Cir. 2006). 

Further, even if Defendants now say that Plaintiff can refuse to answer the 

discriminatory questions about his and his family’s health without any consequence, 

see Dkt. 32 at 8–9; see also supra p. 6, they concede by silence that they will apply 

their unequal reopening rules on CWTC itself—including the 25%/50% 

worker/participant capacity limits—which would necessarily limit the number of 

days Defendant will be able to attend CWTC after August 1, Dkt. 29 at 10.

Second, Defendants’ contention that only a class-action lawsuit would permit 

the relief that Plaintiff seeks is obviously foreclosed by City of Chicago. See Dkt. 32 

at 5. There, the Seventh Circuit acknowledged that in cases in which “the ability of 

persons affected by the ban to access the courts individually for redress [i]s extremely 

limited,” the “difficulties, expense, and delay inherent in pursuing a class action” 

often make it an unrealistic alternative to broader injunctive relief. 961 F.3d at 917.

Third, Defendants are incorrect in claiming that Plaintiff is asking this Court 

to “inject itself into a State agency’s management of its own programming.” Dkt. 32 
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at 6. All Plaintiff asks is that this Court enforce the clear, nondiscrimination rule 

embodied in the Rehabilitation Act, the ADA, and the Equal Protection Clause: the 

State can create whatever otherwise lawful reopening rules it wants for its citizens, 

it just cannot create different rules for the disabled without good reason. See Dkt. 29 

at 7–12. Put another way, so long as Defendants act otherwise lawfully, they can 

impose any generally applicable reopening rules that they want. What they cannot 

do is impose one special set of reopening rules on disabled persons (or minorities or a 

particular gender), while imposing more favorable rules for everyone else. That is 

why Defendants’ citation of Money is particularly inapt. See Dkt. 32 at 6. There, 

granting injunctive relief would have required the court to “run[ ]” and “oversee[ ]” 

the prison at issue, in order to direct “decisions about how best to manage [the] inmate 

population.” Money, 2020 WL 1820660, at *16. Here, the Court need only order 

Defendants to stop discriminating, and then allow Defendants to choose whatever 

nondiscriminatory rules for reopening the State that they deem advisable.

Finally, Defendants’ federalism and equities arguments miss the mark. 

Dkt. 32 at 15–16. While Defendants claim that this Court must afford them 

“appropriate deference and flexibility” in the operations of State programs, id. at 16 

(citations omitted), the purpose and design of this Nation’s nondiscrimination laws 

and the Equal Protection Clause is that States do not have such broad flexibility when 

imposing discriminatory rules on protected classes of persons. In that context, the 

overriding interest is “the Nation’s proper goals regarding individuals with 
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disabilities . . . to assure equality of opportunity, full participation, independent 

living, and economic self-sufficiency for such individuals.” 42 U.S.C. § 12101(a)(7). 

IV. Plaintiff’s Complaint Asks This Court To Enjoin Defendants’ Months’ Long 

Discriminatory Shuttering Of CDS Programs, And His Renewed Motion Here 

Seeks Only A Limited Subset Of That Relief 

Defendants’ assertion that this Court cannot grant the limited preliminary

injunctive relief that Plaintiff now seeks because that specific request for injunctive 

relief is “not included in his operative complaint,” Dkt. 32 at 4–5, is baseless. 

A complaint need only contain “a short and plain statement of the claim 

showing that the pleader is entitled to relief” and “a demand for the relief sought, 

which may include relief in the alternative.” Fed. R. Civ. P. 8(a)(2)–(3). Regarding 

claims for injunctive relief, which are “not subject to heightened Rule 9(b) pleading

standards,” Specht v. Google, Inc., 805 F. Supp. 2d 551, 559 (N.D. Ill. 2011), the 

complaint need only allege facts that: “1) no adequate remedy at law exists; 2) the 

moving party will suffer irreparable harm absent injunctive relief; 3) the irreparable 

harm suffered absent injunctive relief outweighs the irreparable harm the 

respondent will suffer if the injunction is granted; 4) the moving party has a 

reasonable likelihood of prevailing on the merits; and 5) injunctive relief will not 

harm the public interest.” U.S. ex rel. Walner v. NorthShore Univ. Healthsystem, 

660 F. Supp. 2d 891, 899–900 (N.D. Ill. 2009). 

Plaintiff’s Complaint here alleges that Defendants have shuttered CDS 

programs statewide since March 17, and that their closure would extend until at least 

September 1, three months after similar businesses and programs for the able-bodied 
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reopened under Defendant Governor’s Restore Illinois Plan. Dkt. 1 ¶¶ 20, 22, 28, 32–

33. The Complaint alleges that Plaintiff has suffered, and will continue to suffer, 

irreparable emotional and mental harms from Defendants’ discriminatory treatment, 

id. ¶¶ 47–48, 63, 73, 84, that he has no adequate legal remedy, that Defendants would 

suffer no harm if the Court issued an injunction, and that the public interest falls in 

Plaintiff’s favor, id. ¶¶ 64, 75, 85. The Complaint also makes clear that Plaintiff is 

seeking relief from Defendants’ “statewide closure of all Community Day Services

programs through at least August 31, 2020.” Id. at 23 ¶ a.ii, b.ii.

Plaintiff’s Renewed Motion here merely asks for a subset of the broader relief 

that the Complaint seeks. In response to Plaintiff’s Complaint and Emergency 

Motion for a Temporary Restraining Order & Preliminary Injunction, Defendants 

have given Plaintiff partial relief by permitting him to go back to work, under a 

limited, stopgap arrangement, as well as permitting a partial reopening of CDS 

programing one month earlier than August 31. But Plaintiff’s Complaint sought a 

full, nondiscriminatory reopening of CDS programs. Dkt. 1 at 23–24. Plaintiff’s 

limited requests for relief in their present, Renewed Motion—that this Court order, 

as a remedy for Defendants’ unlawful discrimination, that Defendants’ August 1 

reopening be conducted in a nondiscriminatory manner—is thus merely a subset of 

the full reopening request sought in the Complaint.

Plaintiff also notes that he believed that he was proceeding in the manner that 

this Court envisioned at the July 2 hearing, which is to review the tools that the State 

has submitted and to ask for renewed injunctive relief if those tools did not provide a
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nondiscriminatory reopening. See July 2, 2020 Hearing. Indeed, during the hearing 

on July 2, Plaintiff’s counsel informed this Court that they would review the tools 

Defendants had just filed and this Court stated that it would allow Plaintiff to brief 

any issues he had with those tools. Id. Having said that, if this Court has concerns 

on this front, Plaintiff is happy to file an Amended Complaint very promptly—which 

he can do as a matter of right, Fed. R. Civ. P. 15(a)—and the arguments in this fully 

briefed Renewed Motion will be ripe for resolution immediately thereafter. 

CONCLUSION 

This Court should grant Plaintiff’s Expedited Renewed Motion For A

Preliminary Injunction.

Dated this 15th day of July, 2020.

Respectfully submitted,

/s/ Misha Tseytlin 

MISHA TSEYTLIN

SEAN T.H. DUTTON

TROUTMAN PEPPER HAMILTON SANDERS LLP

227 W. Monroe Street, Suite 3900

Chicago, IL 60606

Telephone: (608) 999-1240

Facsimile: (312) 759-1939

misha.tseytlin@troutman.com

sean.dutton@troutman.com

BLAKE T. HANNAFAN

HANNAFAN & HANNAFAN, LTD.

180 N. Lasalle Street

Suite 3700

Chicago, IL 60601

(312) 527-0055

(312) 527-0220 (fax)

bth@hannafanlaw.com

Attorneys for Plaintiff John McDonald
CERTIFICATE OF SERVICE 

I hereby certify that on the 15th day of July, 2020, a true and accurate copy of 

the foregoing was served via the Court’s CM/ECF system upon all counsel of record.

/s/ Misha Tseytlin 

Misha Tseytlin

Troutman Pepper Hamilton Sanders LLP

227 W. Monroe Street 

Suite 3900

Chicago, IL 60606

(608) 999-1240

(312) 759-1939 (fax)

misha.tseytlin@troutman.com