MEMORANDUM OPINION AND ORDER
Vincent J. Krocka brings this action under Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12111 et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, to remedy allegedly unlawful employment practices and discrimination on the basis of disability. In addition, Krocka brings a claim pursuant to 42 U.S.C. § 1983 for deprivation of constitutional rights and claims pursuant to state common law. Defendants now move to dismiss the complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and to strike certain portions of the complaint.
I. STATEMENT OF FACTS
Under Rule 12(b)(6), the court must accept as true all factual allegations of the complaint and draw all reasonable inferences in favor of the plaintiff.
Powe v. City of Chicago,
Krocka was hired by the CPD on January 28, 1980. In July 1990, his internist, Dr. Glenn Cabin, diagnosed him with hypertension. In October 1990, Dr. Michael Bresler diagnosed Krocka as suffering from a dysthymic disorder that resulted in symptoms of depression, including a sleep disorder, low self-esteem, sad affect, irritability and pessimism. A dysthymic disorder is endogenous, which means that it is physiologically or biologically based. Pursuant to this diagnosis, Dr. Cabin prescribed 20 mg per day of the medication Prozac. Without this medication, Krocka’s depression makes it nearly impossible for him to get out of bed for most of the day, which significantly restricted his ability to carry out his duties as a police officer or lawyer to the point of seriously limiting or eliminating his ability to work. Within weeks of beginning treatment with Prozac, Krocka’s condition improved significantly. For the first eight to ten months of treatment, Dr. Bresler evaluated Krocka’s condition weekly, but in August 1991, Drs. Cabin and Bresler agreed that the evaluations could be reduced to once every three months. According to both doctors, treatment with Prozac significantly reduced Krocka’s depression symptoms without impairing his cognitive skills, reaction time, driving skills, or general performance or ability, and allowed Krocka to carry out his duties as a police officer without impediment.
*1336 On November 29,1992, Krocka fell down a flight of stairs while on duty, which rendered him unconscious and injured his head and neck. Because of those injuries, Krocka was placed on Medical Roll until December 7, 1992. On December 8, 1992, Krocka reported to the Medical Services Section of the CPD and disclosed that he was taking the following medications: Calan for blood pressure, Meveeor for cholesterol levels and Prozac for depression. At that time, Krocka was released to return to duty.
On January 7, 1993, Krocka returned to work after a vacation and was told to report the next day to defendant James Bransfield, Chief Surgeon of the CPD. At that meeting, the first question Bransfield asked was, “Are you still taking the Prozac?” When Krocka indicated that he was, Bransfield responded, “Oh no, Oh God. You know we’re going to have to put you on medical.” Upon learning that Krocka was a licensed attorney, Bransfield responded, “Oh no, Oh God.” Bransfield placed Krocka on Medical Roll and also ordered him to submit to a physical exam and psychological evaluation. That day, Krocka had the physical exam, which found his health to be “essentially normal” except for an abnormal EKG and high blood pressure.
On January 25, 1993, Krocka was given a psychological exam by a staff member at Stanard & Associates. The resulting evaluation stated that Krocka was not referred for disciplinary reasons but because he “disclosed to the Department that he was taking Prozac.” The evaluation also stated that Krocka was “a man who sought treatment for a depressive condition, and has experienced considerable relief through psychotherapy and the use of Prozac.” On February 9, 1993, Dr. Cabin sent a letter to Bransfield that Krocka was being closely monitored by both Dr. Cabin and Dr. Bresler, and that while on Prozac, Krocka was able to fully perform his duties as a police officer.
On February 10,1993, defendant Steven J. Stanard stated in a letter to defendant Richard Wedgbury, Director of Personnel for the CPD, that based on the information in Dr. Cabin’s letter, Krocka should return to full active duty. He further recommended, however, that Krocka be placed in the Personnel Concerns Program for the duration of his treatment with Prozac. On the same day, defendant Bradford Woods, the Personnel Concerns Program Manager, started a Personnel Concerns Program log on Krocka with the notation that the log was “Per Steven Stanard Psych request 12 mos.” On February 23, 1993, Krocka was returned to full active duty. Prior to placing Krocka in the Personnel Concerns Program, the City performed no test to determine whether he was a direct threat to the health or safety of others as a result of his treatment with Prozac.
On May 26, 1993, Woods sent an internal memorandum to Wedgbury requesting that Krocka be placed in Personnel Concerns based on Stanard’s recommendation. Under the heading “Recent Disciplinary History,” Woods typed “None.” Woods recommended that Krocka be placed in Personnel Concerns although he knew that Krocka did not meet the criteria for placement in the program. Wedgbury approved Krocka’s designation as a “Personnel Concern.”
On June 21, 1993, a Personnel Concerns Conference took place at the 16th District to place Krocka into the Personnel Concerns Program. The conference was attended by, among others, Krocka, Woods and defendant Patricia Riegler, a Sergeant in the 16th District who was a Personnel Concerns Supervisor. At that time, Krocka was informed that his placement in the program was effective March 1, 1993, through March 1, 1994. Sixteenth District Commander Bergamin was not present at the conference even though program rules required his attendance. Commander Bergamin has since stated that as Krocka was not a disciplinary problem, he fails to see why Krocka was placed in the Personnel Concerns Program, considering its disciplinary criteria.
The Personnel Concerns Program requires all police divisions and departments to monitor officers and review their records for “unacceptable pattem[s] of behavior.” These unacceptable behaviors, called Behavioral Alert Indicators, are: (1) excessive force, (2) complaint/disciplinary history, (3) repeated Medical Roll use, (4) repeated minor trans *1337 gressions in a 12-month period, (5) significant reduction in performance, (6) poor traffic safety record and (7) significant deviations from an officer’s normal behavior. Krocka alleges that his treatment with Prozac does not fall under any of the Behavior Alert Indicators. Under the Personnel Concerns Program, a “Personnel Concern” is a person who has “not responded to routine corrective action or the increased supervisory attention that results from Behavioral Alert System Indicators.” In Krocka’s case, the defendants bypassed the many administrative steps required to effect Krocka’s placement into the program.
A “Personnel Concerns Supervisor” is defined as a “specially trained supervisor who has the responsibility to closely monitor, evaluate, guide and improve the perfor-. manee of an assigned personnel concern.” According to Commander Bergamin, this special training consists of a one-day training session. On June 21, 1993, Riegler was assigned as Kroeka’s Personnel Concerns Supervisor. According to Krocka’s complaint, Riegler was not adequately trained to make the psychological or medical evaluations required in monitoring individuals being treated with psychotropic medication. Krocka alleges that prior to being assigned as Krocka’s Personnel Concerns Supervisor, Riegler had taken a leave of absence due to a “stress disorder,” and at some time had threatened suicide or to cut her wrists.
The disciplinary nature of the Personnel Concerns Program makes placement in it highly stigmatizing within the CPD. It was common knowledge within the 16th District that Krocka was a Personnel Concern because of his Prozac treatment, and as a result Krocka became the butt of Prozac jokes and writings on the bathroom wall. Because a Personnel Concern draws scrutiny from supervisors, other police officers did not want to work with Krocka for fear of intense observation. On at least one occasion, Riegler told another officer that Krocka was “a nut case.”
On August 7, 1993, Riegler was the Sergeant assigned to evaluate Krocka for his semi-annual efficiency rating. Although Krocka had previously received a rating of 85, Riegler tried to rate Krocka in .the low 60s for abuse of the Medical Roll. However, as Bransfield had ordered Kroeka’s most recent medical leave, Riegler’s rating was overruled after Krocka submitted a grievance. Krocka asserts that this event was the first in a lengthy series of attempts to manufacture a linkage between Krocka and Behavioral Alert Indicators in order to justify his retention in the Personnel Concerns Program, with the intended goal being Kroeka’s eventual removal from the police force because of his Prozac use.
In October 1993, Riegler began intensive supervision of Krocka, appearing constantly at jobs, following him on duty and monitoring him during personal and meal times. During the fall of 1993, Dr. Bresler was required to increase Krocka’s appointment schedule from every three months to every two to three weeks. Dr. Bresler noted that Krocka felt increasingly anxious because of his placement in Personnel Concerns and had expressed concerns about the harassment he had endured. During this time, Riegler refused to allow Krocka to see the Personnel Concerns Progress Reports about him.
Prior to the time that Krocka requested an accommodation with regard to a new shift assignment, all of Riegler’s Personnel Concerns Reports about him noted “no unusual behavior” and cited no code infractions or admonishments. In mid-December 1993, Krocka, as a result of the shift-bidding process, was assigned to work the 1st Watch (12:00 a.m. to 8:00 a.m.). For approximately the previous ten years, Krocka had been assigned to the 3rd Watch (4:00 p.m. to 12:00 a.m.). At about this time, Dr. Cabin wrote to Bransfield and requested that Krocka be accommodated on the 3rd Watch for health reasons. On December 27, 1993, Krocka met with Bransfield, who commented that only diabetics were allowed shift accommodations because of their medication schedules. He refused to honor Dr. Cabin’s request.
On January 27, 1994, Riegler wrote her first Personnel Concerns Report on Krocka since his request for shift change. In it she criticized Krocka for “poor production” and noted that he would be kept on 3rd Watch *1338 until his term in Personnel Concerns was concluded. The following day, Riegler called Kroeka in for a “counselling session” and admonished him for an alleged uniform violation, another alleged infraction and tardiness. On February 2, 1994, Riegler issued another semi-annual evaluation of Kroeka, lowering his efficiency rating from 84 to 82 and noting that Kroeka “[n]eed[ed] more than normal supervision.”
On the same day, Kroeka entered a 7-11 store at Irving and Central. Three other officers entered shortly thereafter. After making a purchase, Kroeka left thé store. Riegler witnessed these events. That night, at the 16th District and in front of police desk personnel and midnight shift supervisors, Riegler orally reprimanded the other three officers, but selectively singled out Kroeka and initiated a Summary Action Punishment Request against him for “inattention to duty.” Riegler further threatened, “the next time, it’ll be days.” On February 3, 1994, Kroeka was informed by Commander Bergamin that he had received a call from Woods, and informed Kroeka that' he either had to work the 1st Watch or go on Medical Roll. He also told Kroeka that he would remain in Personnel Concerns as long as his Prozac treatment continued.
On February 4, 1994, Kroeka felt ill while on duty. Krocka’s partner took him to Resurrection Hospital, where he was admitted and diagnosed as having a cardiovascular attack, angina, an irregular heartbeat and severely acute hypertension. An emergency room nurse informed Kroeka that he had almost suffered a stroke. Kroeka was hospitalized for six days in the Coronary Care Unit as a result of this attack, and the bill for his stay and follow-up medical services totaled $16,348. Additional fees for psychological consultation since the fall of 1993 totaled $1,000. Kroeka was released into the care of Dr. Cabin and placed on Medical Roll. Krocka asserts that this cardiovascular attack was the result of continuous employment stress generated by defendants’ conduct, harassment and retaliation for Krocka’s attempt to seek a reasonable accommodation on account of his disability.
On February 17, 1994, Dr. Cabin wrote to Bransfield and informed him that Kroeka was being “closely monitored” in regularly scheduled exams, which consisted of blood workups, blood pressure, EKG readings and lengthy discussions about how Kroeka was responding to Prozac treatment. On March 1, 1994, Kroeka met with Bransfield, who ordered Kroeka to submit to a blood test to measure the level of Prozac in his system. Kroeka did not voluntarily submit to the blood test and objected to Bransfield’s order. Bransfield responded by informing Kroeka that he was in violation of a direct order and threatening him with disciplinary action if he did not comply. On March 10, 1994, Kroeka underwent the blood test at Dr. Cabin’s office. Dr. Cabin informed Kroeka that the test was unnecessary and had no therapeutic value as treatment for Krocka’s dysthymic disorder.
On March 15,1994, Kroeka again met with Bransfield and gave Bransfield another letter from Dr. Cabin requesting that Kroeka be returned to limited duty with non-stressful activity on the 3rd Watch. Bransfield refused to accommodate the request on the grounds that he had yet to receive the blood test results. On March 25, 1994, those test results arrived and indicated that Krocka’s Prozac level was well below reference range. In light of those results, Kroeka wrote to Woods and inquired about his status as a “personnel concern.” Woods responded on April 8, 1994, informing Kroeka that it was the policy of Wedgbury and Bransfield to keep Kroeka in Personnel Concerns as long as Kroeka continued Prozac treatment. Kroeka asserts that this policy was deliberately designed to discriminate against him and effect his eventual removal from the police force because of his Prozac use.
On April 15,1994, Kroeka filed a charge of disability discrimination with the Equal Employment Opportunity Commission (“EEOC”) based on the defendants’ conduct. On April 25, 1994, he filed a complaint in the Circuit. Court of Cook County against Riegler, Wedgbury, Bransfield, Rodriguez and the City, alleging slander, intentional infliction of emotional distress and handicap dis *1339 crimination under the Illinois Human Rights Act.
On May 9, 1994, Krocka met with Bransfield, who at that time removed Krocka from Medical Roll and placed him on limited duty. At the 16th District, Commander Bergamin assigned Krocka to limited duty at Our Lady of the Resurrection Hospital. On June 30, 1994, a Complaint Register was issued against Krocka based on an anonymous tip alleging that Krocka appeared as an attorney at a court hearing while on Medical Roll. The tip was allegedly provided to Internal Affairs by an agent or employee of the City who had access to Krocka’s Medical Services file and had investigated his attorney schedule. On July 19, 1994, Krocka filed an additional charge with the EEOC, alleging that the above Complaint Register was initiated in retaliation for the filing of Krocka’s state court complaint.
On August 1, 1994, Sergeant Wenger conducted Krocka’s semiannual efficiency rating. Wenger raised the rating Riegler had given Krocka and noted that he “[r]equire[d] little or no supervision.” In September 1994, while Commander Bergamin was on vacation, Krocka was removed from his post at Resurrection Hospital and assigned to the downtown Communications Department to answer 911 emergency calls, which was a more stressful assignment. Krocka asserts that this transfer was in violation of Dr. Cabin’s orders and in retaliation for Krocka’s attempts to pursue his rights against discrimination. On September 20, 1994, Dr. Cabin saw Krocka and noted that he had suffered a relapse of his hypertension from his placement in the Communications Department. On October 3, 1994, Dr. Cabin wrote to the City and stated that Krocka was fit to return to full active duty at the 16th District if he remained on the 3rd Watch. In October 1994, Krocka was returned to full active duty, although his official assignment remains on the 1st Watch. At the time Krocka filed the complaint, he was still classified as a Personnel Concern in the Personnel Concerns Program and had not yet received official notice from the City that his request for an accommodation assignment to the 3rd Watch had been granted.
II. DISCUSSION
A. THE ADA CLAIM
In Count I, Krocka maintains that defendants have engaged in various employment practices that constitute discrimination on the basis of a disability in violation of the ADA, including: his classification as a Personnel Concern, his placement in the Personnel Concerns Program, his forced submission to medical testing, defendants’ alleged failure to provide plaintiff with a reasonable accommodation for his disability, and their retaliation against him for requesting an accommodation and for pursuing his rights under the ADA. 1
Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” All that a complaint must do is provide notice of the claim by advising the defendant of the event being sued on.
Daniels v. USS Agri-Chemicals,
The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... [the individual’s] terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Defendants argue that Krocka has failed to state a claim for relief under the ADA because his depression does not qualify as a “disability” under the ADA.
The ADA defines a “disability” as:
*1340 (A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). According to defendants, plaintiff alleges “that at the time of his diagnosis, he was prescribed Prozac and, as a result of this medication, ‘the detrimental symptoms of his depression’ were alleviated, thus allowing him to perform fully all the essential functions of his position as police officer.” Defendants argue that because the complaint alleges that Krocka is qualified to perform his duties as a police officer and also as.an attorney, it necessarily fails to allege that he is “disabled.”
Defendants misconceive the nature of the ADA. The entire thrust of the ADA is to prohibit discrimination against those individuals with disabilities who
are
qualified to perform the essential functions of their job with or without reasonable accommodation.
See
42 U.S.C. § 12111(7). The fact that Krocka alleges that he is able to perform his duties as a police officer as long as he takes Prozac does not imply that he does not suffer a substantial impairment of a major life activity; therefore, it does not mean that he is not “disabled” within the meaning of the ADA. The condition at issue is to be considered “without regard to mitigating measures such as medicine.” Interpretive Appendix § 1630.2(h).
2
Therefore, defendants’ focus on plaintiffs performance when he is taking medication is improper. Any mental or psychological disorder, including emotional or mental illness, is' considered a “mental impairment” under the ADA. 29 CFR § 1630.2(h)(2). Depression is among the mental impairments that may rise to the level of a protected disability.
“Doe” v. Marshall,
Additionally, defendants contend that the complaint fails to state that even without treatment or medication, Krocka’s depression substantially limits a major life activity because the inability to perform one job or work a particular shift does not affect a person’s ability to work to the degree that constitutes a disability. For an impairment to be a protected disability under the ADA, it must substantially limit one or more “major life activities,” a term that includes earing for one’s self, performing manual tasks, walking, seeing, speaking, breathing, learning and working. 42 U.S.C. § 12102(2)(A); 29 CFR § 1630.2(g), (i). Defendants’ assert that plaintiffs disability only prevented him from working the 1st Watch or other particularly stressful assignments and that this does not “substantially limit” his ability to work because other positions or jobs remain available.
See Roth v. Lutheran General Hospital,
The court disagrees with defendants’ comparison of Roth to the facts as alleged in this case, and with their conclusion that the complaint alleges only that Krocka’s depression prevents him from performing one job or shift. According to the complaint, Kroeka’s depression does substantially limit a major life activity. Krocka stated that without Prozac, his ability to get out of bed — and as a result to work and to care for himself — is *1341 substantially limited by his depression. Although defendants contend that Krocka is a licensed attorney and can perform his duties as a police officer, the allegations in the complaint indicate that without medication and treatment, Kroeka’s depression would render him unable to perform these positions and their duties. At this stage, the court cannot find that the allegations in the complaint preclude a finding that Krocka suffers from a mental impairment that substantially limits a major life activity and qualifies as a “disability” for purposes of the ADA.
Even though Kroeka’s depression constitutes a “disability” within the meaning of the ADA, defendants argue that Krocka has failed to state a claim that he was discriminated against based on his depression. Specifically, defendants argue that Kroeka’s placement in the Personnel Concerns Program did not violate the ADA. According to defendants, one of the Behavioral Alert Indicators that may lead the CPD to place an officer in the Program is when there has been a “significant deviation from the officer’s normal behavior.” Defendants maintain that Krocka exhibited such a behavioral deviation when he began using Prozac and fell down a flight of stairs on November 29, 1992.
The ADA identifies a variety of prohibited employment practices that it defines as “discrimination” against an employee with a disability. These include limiting, segregating or classifying an individual because of his or her disability in a way that adversely affects job opportunities or status. 42 U.S.C. § 12112(b). Krocka’s complaint asserts a variety of separate incidents that, at least on their face, constitute “discrimination” under this definition. First, Krocka asserts that he was placed in the Personnel Concerns Program because he was taking Prozac, and that as a result of being classified as a Personnel Concern, he was subjected to intensive scrutiny on the job that led to other officers refusing to work with him.
It is clear that placement in the Personnel Concerns Program, with its attendant close supervision and stigmatization, tends to “limit[ 3, segregative], or classifi[y]” an employee “in a way that adversely affects the opportunities or status of [the] employee.” On the other hand, the Program is designed to assist employees with behavioral problems so that they can continue to work. While it is possi-' ble that “segregating” an employee in the PCP — which could adversely affect the employee’s status — might result from a condition qualifying as a disability, it would be ironic if the ADA were interpreted to make employers liable for taking steps to help employees suffering from behavioral problems. Regardless, this potential quandary does not arise in this case because the court understands Krocka’s position to be that while there is nothing inherently wrong with placing someone with behavioral problems in the Program, Krocka did not have behavioral problems warranting such placement. He argues that the only reason he was placed in the Program was his disability and that, considering the negative connotations associated with being placed in the Behavioral Concerns Program, using it as a program to monitor officers’ disabilities could clearly constitute impermissible limitation, segregation or classification based on disability.
Defendants argue, of course, that Krocka was an appropriate candidate for the Program because of his Prozac use and his fall down the stairs. It is certainly not clear at this stage, as defendants claim, that these constitute “significant deviations” from an officer’s “normal behavior” as used in the CPD standards. Krocka asserts that his Prozac use had no connection to the fall and that he had been taking Prozac for two years before the CPD learned that it had been prescribed for him. The court concludes that Krocka has stated a claim for discrimination under the ADA. The court cannot say that Krocka could prove no set of facts that would enable him to prevail on his claim that his placement in the Program was inconsistent with CPD standards and motivated by impermissible attitudes toward his disability.
Defendants also argue that Count I should be dismissed because Krocka has failed to plead that he was denied a “reasonable accommodation.” Failure to make a “reasonable accommodation” is one of the discriminatory employment practices prohibited by the ADA See 42 U.S.C. *1342 § 12112(b)(5)(A). In his response, Krocka suggests that defendants failed to make a reasonable accommodation by refusing to place him on limited duty following his heart attack, reassigning him to the more stressful 911 post answering emergency calls, and failing to provide him with official notification granting his request for assignment to the 3rd Watch. Defendants respond by pointing out that Krocka was given limited duty posts — one at Our Lady of the Resurrection Hospital and one at the Communications Department answering 911 calls. Defendants also point oxit that Krocka has since been returned to his preferred assignment, the 3rd Watch.
Initially, the coxrrt notes that defendants’ alleged failure to provide Krocka with a reasonable accommodation is just one of the allegedly discriminatory employment practices mentioned in the complaint. Krocka also alleges that defendants discriminated against him by: placing him in the Program, making him take medical tests, and retaliating against him for opposing acts made unlawful by the ADA and for requesting a reasonable accommodation. Even if Krocka failed to plead that defendants had not provided him with a reasonable accommodation, that would not entitle defendants to dismissal of Count I in its entirety.
See Vande Zande v. State of Wisconsin Dept. of Admin.,
The complaint contains the following allegations as to the failxxre to provide a reasonable accommodation. In mid December 1993, Krocka was randomly assigned the 1st Watch (12:00 a.m. to 8 a.m.), after having worked the 3rd Watch (4:00 p.m. to 12:00 a.m.) for the previous ten years. Dr. Cabin subsequently wrote a letter to Bransfield requesting that Krocka be reassigned to the 3rd Watch for health reasons. On December 27, 1993, Bransfield told Krocka that only diabetics were allowed shift accommodations because of their medication schedules and he refused to assign Krocka to the requested shift. In April 1994, Krocka initiated litigation concerning his claim of discrimination. On May 9,1994, Bransfield placed Krocka on limited duty and assigned him to Oxxr Lady of the Resurrection Hospital. In September 1994, Krocka was placed in a more stressful environment in the Communications Department answering emergency 911 calls. In October, after Dr. Cabin requested that Krocka be reassigned to the 3rd Watch, Krocka was retximed to that assignment.
Therefore, although Krocka was working his preferred assignment at the time he filed the complaint, it appears that he was denied this assignment for eight months. Defendants argue that such a delay was not unreasonable “in a large metropolitan police department, where personnel scheduling and coverage are complex and critical to operations.” However, defendants’ assertion that the delay was simply caused by the sehedxiling problems is belied by the fact that Bransfield refused outright the requested shift accommodation. Thus, according to the allegations of the complaint, the delay was not caused by the complexity of sehedxiling problems but because only diabetics were permitted shift accommodations. It was not xintil after Krocka initiated litigation that he was relieved from working the 1st Watch. Even then, he was not placed on the. 3rd Watch, where he had been working for the past 10 years. According to the complaint, it was not xrntil October 1994 that he finally received that assignment.
Without determining whether the particular accommodations were reqxiired in this case, the coxxrt finds that an unreasonable delay in implementing a “reasonable accommodation” can constitute a discriminatory act. This is especially trae when, as is alleged here, the employer initially refused outright to consider any accommodation for that particular disability. 42 U.S.C. § 12112(b)(5). The com*t cannot say that the eight-month delay was, under the circumstances of this case, a reasonable delay as a matter of law. Thus, defendants’ motion to dismiss Count I for failxire to plead that Krocka was denied a “reasonable accommodation” is deixied.
Count I will be dismissed against Stanard & Associates because Krocka failed to name it in his EEOC charge.
See Perkins v.
*1343
Silverstein,
B. THE § 1983 CLAIM
Count II of the plaintiffs complaint alleges that defendant Bransfield, in his individual capacity as Chief Surgeon of the Chicago Police Department, deprived Kroeka of his Fourth Amendment right to be secure from “unreasonable searches and seizures” by ordering Kroeka to undergo a mandatory blood test to determine the level of Prozac in his system. Bransfield moves to dismiss this count, arguing that the mandatory blood test was reasonable, noninvasive and undertaken with probable cause. Therefore, he argues, it was not a deprivation of Krocka’s Fourth Amendment rights. 3
As an initial matter, the court rejects defendants’ argument that the case does not implicate the Fourth Amendment at all because Bransfield did not conduct the blood test himself and it took place at the office of plaintiffs own physician. According to the Supreme Court, “it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable.”
Skinner v. Railway Labor Executives’ Assn.,
In the instant case, it is clear the City has a legitimate interest in ensuring that its police officers are both emotionally and men-
*1344
tally fit to perform their duties.
See Von Raab,
In light of the facts as alleged, Krocka has stated a claim for the violation of his Fourth Amendment rights. According to the complaint, the City’s safety concerns about Krocka arising from his use of Prozac are essentially nonexistent. There is no indication that testing the level of Prozac in Krocka’s blood would have provided the CPD with any information that he was a danger to himself or the public. On the other hand, Krocka has a substantial privacy interest in his bodily integrity. On the facts alleged, Krocka’s privacy interests outweigh the City’s safety concerns. Skinner and Von Raab are distinguishable because, in those cases, the government’s measures actually advanced its legitimate interest in public safety because the tests were for illegal drugs or alcohol, which affected performance or behavior. In contrast, when viewing the facts in the light most favorable to Krocka, Bransfield’s testing of Krocka for the level of Prozac in his system did nothing to advance the City’s legitimate interest in public safety. Thus, the complaint states a claim that Bransfield violated Krocka’s Fourth Amendment rights.
Bransfield argues that, even if the complaint states a claim for a violation of Krocka’s Fourth Amendment rights, he is qualifiedly immune from liability. Although more often raised at the summary judgment stage, the qualified immunity defense may be raised at the 12(b)(6) stage.
Kernats v. O’Sullivan,
Krocka bears the burden of establishing that the constitutional or statutory right allegedly violated was clearly established at the time Bransfield acted.
Lawshe v. Simpson,
Krocka has offered no closely analogous case demonstrating that Bransfield’s conduct was unlawful. Instead, he argues that prior to the blood test, “federal statutory law clearly established ... that it was unlawful to require a medical examination and to make inquiries ‘as to the nature and severity of the disability’ ” (citing 42 U.S.C. § 12112(d)(4)(A)). In other words, to defeat Bransfield’s qualified immunity defense to the Fourth Amendment claim, Krocka argues that Bransfield violated the ADA — clearly
*1345
established statutory law of which a reasonable person would have known. This argument fails. A government official does not lose his immunity “by violating the clear command of a statute or regulation — of federal or state law — unless that statute or regulation provides the basis of the cause of action sued upon.”
Davis v. Scherer,
Although he cannot cite an analogous case, Kroeka also argues that at the time Bransfield acted, “the law was clearly established that the Fourth Amendment proscribes all searches and seizures which are
unreasonable.”
He cites
Schmerber v. California,
Bransfield responds by arguing that existing law permitted him to order the blood test. In essence, his argument is that his alleged actions did not violate the Fourth Amendment. However, the court has already determined that Kroeka stated a claim for such a violation. The question is whether the law at the time was sufficiently clear that a reasonable official in Bransfield’s position would have known that he was violating Krocka’s rights.
See Anderson v. Creighton,
Given the facts that must be presumed true at this stage, the court concludes that the law was sufficiently clear that Bransfield should have known that ordering a blood test to measure levels of a legally prescribed drug was a violation of Krocka’s Fourth Amendment rights. Although Kroeka has not pointed to any case where a public official ordered an employee to undergo a blood test to measure the level of Prozac in the employee’s system, this does not conclusively establish that Bransfield’s conduct was objectively reasonable. The cases the parties do cite all involve tests for either illegal narcotics or alcohol.
See Von Raab,
The facts alleged in the complaint demonstrate that Bransfíeld had no legitimate safety concern with respect to the level of Prozac in Krocka’s system. There was no evidence that Prozac caused Krocka to be dangerous to himself or others. Indeed, Bransfíeld, who is a doctor, had been informed twice by Krocka’s doctors that Krocka was being closely monitored and that he was able to perform fully his duties as a police officer. Therefore, Bransfíeld had no reason to believe that he had a reasonable basis for monitoring the level of Prozac in Krocka’s system. A mandatory blood test that fails to serve any governmental interest is violative of an individual’s Fourth Amendment rights. The court concludes that, on the facts alleged in the complaint, Bransfíeld is not entitled to qualified immunity. Therefore, the court denies Bransfield’s motion to dismiss Count II.
C. THE STATE LAW CLAIMS
Counts III, IV and VII are Krocka’s pendent state law claims. 5 Count III is a willful and wanton conduct claim against Riegler. Krocka alleges that Riegler’s actions towards him were based on corrupt or malicious motives, and were taken deliberately and wilfully or with such gross negligence as to indicate a wanton and reckless disregard for Krocka’s rights and safety. Count IV is a respondeat superior claim against the city for Riegler’s alleged willful and wanton conduct, and Count VII is a claim for intentional infliction of emotional distress against Riegler, Wedgbury, Bransfíeld and the City.
Defendants have moved for dismissal of these state law claims for lack of subject matter jurisdiction pursuant to the Illinois Supreme Court’s holding in
Geise v. The Phoenix Company of Chicago,
Courts in the Northern District of Illinois are “routinely” dismissing common law torts that are brought in conjunction with civil rights claims.
Daulo v. Commonwealth Edison,
Predictably, plaintiffs response is that the allegations in his state law claims are not “inextricably linked” to disability discrimination because he would have a cause of action whether or not he is disabled and whether or not defendants’ actions toward him were motivated by his disability. The problem with this argument is that plaintiff has not separated the allegations in the complaint from his disability and instead has inextricably linked them to his depression or to his taking Prozac. As defendants point out, in each of his state law counts, plaintiff repeats and realleges each allegation that made up his ADA count. In fact, Count III contains no additional allegations. Although plaintiff provides additional information in Count VII, some of these allegations relate directly to plaintiffs disability. For example, he states that Riegler made disparaging comments to him about his hypertension and depression and that Bransfíeld based Krocka’s placement in the Personnel Concerns Program solely on his taking Prozac. Plaintiff cannot separate his state law claims from his claims of discrimination based on disability. Because they are “inextricably linked,” Geise preempts them. Accordingly, the defen *1347 dants’ motion to dismiss Counts III, IV and VII is granted.
ORDERED: Defendants’ motion to dismiss is granted in part and denied in part: Defendants’ motion to dismiss Count I is granted as to Riegler, Wedgbury, Bransfield, Woods, Rodriguez, Standard, and Stanard & Associates; and denied as to the City. Defendants’ motion to dismiss Count II is denied; and the motion to dismiss Counts III, IV and VII is granted. Defendants Riegler, Wedgbury, Woods, Rodriguez, Standard, and Stanard & Associates are dismissed from the action. Remaining claims include the ADA claim against the City of Chicago, and the Fourth Amendment claim against Bransfield.
Notes
. Plaintiff has voluntarily withdrawn his claims under the ADA and 42 U.S.C. § 1981a against the individual defendants, citing the Seventh Circuit’s ruling in
EEOC v. AIC Security Investigations, Ltd..,
. The EEOC interpretation gives an analogous example. It states: "For example, an individual with epilepsy would be considered to have an impairment even if the symptoms of the disorder were completely controlled by medicine.” Interpretive Appendix, 29 CFR § 1630.2(h).
. Bransfield has moved to strike ¶¶ 35-39 of the complaint because they are time-barred by the two-year statute of limitations governing § 1983 claims. Plaintiff's response is that he included those paragraphs, which recount Bransfield’s reaction to the information that Kroeka was taking Prozac and his placing Kroeka on the medical roll, simply as background material. He asserts that the gravamen of his claim against Bransfield is the order that plaintiff submit to a blood test to determine the level of Prozac in his system. Bransfield does not dispute that this order occurred within the two-year limitations period. The court therefore denies the motion to strike the cited paragraphs of the complaint.
. Because the search in this case was not conducted for the ordinary purposes of law enforcement, the traditional probable-cause standard is unhelpful in analyzing the reasonableness of the search.
See Von Raab,
. Krocka has voluntarily dismissed the state law claims contained in Counts V and VI.