Lawsuit McNeal v. Oak Park

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

EASTERN DIVISION

ALVIA MCNEAL, an individual, Plaintiff, v. CASE NO. VILLAGE OF OAK PARK, an Illinois municipality, TRIAL BY JURY DEMANDED Defendant.

VERIFIED COMPLAINT

The Plaintiff, ALVIA MCNEAL (“MCNEAL”), by and through her attorneys, PFEIFFER LAW

OFFICES, P.C., complains of the Defendant, VILLAGE OF OAK PARK, an Illinois municipality (“OAK

PARK”), as follows:

Jurisdiction and Venue

1. The actions set forth in this complaint arise under and are instituted pursuant to

Section 107(a) of the Americans with Disabilities Act of 1990, as amended (the “ADA”); Section

203 of the ADA; 42 U.S.C. §12117(a), which incorporates by reference Section 706(f)(1) and (3)

of Title VII of the Civil Rights Act of 1964 (“Title VII”); 42 U.S.C. §2000e-5(f)(1) and (3); and

Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a.

2. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331, and 1343.

3. During all times relevant to this complaint, the violations of law alleged herein were

committed within the Northern District of Illinois.

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Case: 1:14-cv-10402 Document #: 1 Filed: 12/29/14 of 19 PageID #:1

Parties

4. During all times relevant to this complaint, MCNEAL was and is a resident of and

domiciled in Oak Park, Illinois.

5. During all times relevant to this complaint, OAK PARK was and is a municipality

organized and operating under the laws of the State of Illinois with its principal place of business

in Oak Park, Illinois. MCNEAL is one of OAK PARK’S former employees.

6. At all relevant times, OAK PARK has continuously been and is now an employer

within the meaning of Section 101(5) of the ADA, 42 U.S.C. § 12111(5); and Section 101(7) of

the ADA, 42 U.S.C. § 12111(7); which incorporates by reference Sections 701(g) and (h) of Title

VII, 42 U.S.C. §§ 2000e(g) and (h).

7. At all relevant times, OAK PARK has been a covered entity under Section 101(2) of

the ADA, 42 U.S.C. § 12111(2).

Factual Allegations Common to All Counts

8. OAK PARK covers a geographic area of roughly 4.5 square miles and has

approximately 52,000 residents.

9. OAK PARK employs Parking Enforcement Officers who are responsible for

patrolling parking lots and streets and issuing citations for vehicles that violate its ordinances.

Parking Enforcement Officers work three shifts, referred to as “watches.” Each officer is assigned

to patrol a specific area within OAK PARK and perform various duties pursuant to a written job

description.

10. MCNEAL was employed by OAK PARK for 12 years as a Parking Enforcement

Officer, beginning in 1999.

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11. During her employment with OAK PARK, MCNEAL performed her duties well and

with attentiveness and pride, received regular pay increases, and was perceived as a leader among

her peers in the Parking Enforcement Officer group. MCNEAL was not subject to any disciplinary

action while employed with OAK PARK.

12. When MCNEAL started working full time for OAK PARK on April 4, 2003, as a

Parking Enforcement Officer, she occasionally was ordered to immobilize vehicles by placing

vehicle immobilization devices on them, a procedure commonly referred to as “booting.”

13. Booting vehicles was not (and, upon information and belief, still is not) mentioned

anywhere in the job description for OAK PARK’S Parking Enforcement Officer position when she

commenced work as a full-time employee. Initially, booting vehicles was handled by several

classifications of personnel for Oak Park, including Parking Enforcement Officers and Community

Service Officers. Starting in 2007, when the Parking Enforcement Officers were placed under the

authority of the Oak Park Police Department, booting vehicles became the exclusive province of

the Parking Enforcement Officers, although not all officers were required to boot and, in some

instances, they were exempted from the requirement of booting.

14. In 2011, MCNEAL sought leave to undergo surgery on her shoulder, an injury that

was deemed non-work related but believed to have been exacerbated by her work as a Parking

Enforcement Officer for OAK PARK. On June 24, 2011, MCNEAL’S physician filed a U.S.

Department of Labor certification of her condition under the Family and Medical Leave Act

(FMLA) with OAK PARK. As a result of her surgery, MCNEAL was off work from July of 2011

through March of 2012.

15. On February 20, 2012, OAK PARK’S Human Resources Director, Frank Spataro,

sent MCNEAL correspondence regarding her return to work for OAK PARK. This correspondence

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gave MCNEAL the option to return to work with an accommodation or to find another open

employment position with the village. MCNEAL elected to return to her position with an

accommodation and submitted to a functional capacity evaluation on February 27, 2012, by a

physician at Loyola Medical Center.

16. On March 28, 2012, Loyola Medical Center issued a return-to-work evaluation

noting that MCNEAL could perform all six of the essential functions of the Parking Enforcement

Officer job as articulated in OAK PARK’S job description for such position. The evaluation also

recommended that MCNEAL limit her lifting, carrying, pulling or pushing not to exceed specified

limitations. MCNEAL disclosed these recommended restrictions to OAK PARK and sought

accommodation for these restrictions.

17. In the past during MCNEAL’S employment with OAK PARK, it previously had

accommodated her lifting restrictions for a significant period of time by not requiring her to boot

vehicles. More specifically, there were occasions during her employment with OAK PARK when

MCNEAL went on “light duty” due to surgeries that she had undergone, and she continued to remain

on “light duty” until she fully recuperated. Part of this “light duty” included not having to boot

vehicles. During such occasions, MCNEAL would not boot vehicles herself; instead, she would

call one of the other officers who was close to her area, and that officer would apply the boot while

she prepared the necessary related paperwork. This practice was known to OAK PARK and

condoned by OAK PARK during MCNEAL’S employment up to April 26, 2012. In fact, during

MCNEAL’S employment with OAK PARK, booting was a task that never was evenly distributed

among OAK PARK’S Parking Enforcement Officers.

18. On April 10, 2012, Mr. Spataro issued a memorandum to MCNEAL stating that she

was unable to perform the essential functions of the job of installing boots upon and removing

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boots from vehicles, notwithstanding the absence of these particular tasks as part of the express

job description for OAK PARK’S Parking Enforcement Officers. Mr. Spataro’s memorandum stated

that OAK PARK had no choice but to terminate MCNEAL’S employment as a Parking Enforcement

Officer due to her alleged inability to perform the “essential functions” of the job.

19. OAK PARK, which previously had accommodated MCNEAL’S lifting restrictions for

a significant period of time, refused to continue to do so and ultimately terminated her employment

on April 26, 2012, despite her request for and its obligation to provide a reasonable accommodation

to her.

20. More than 30 days prior to the commencement of this lawsuit, MCNEAL filed a

charge with the Equal Employment Opportunity Commission (the “EEOC”) alleging OAK PARK’S

disability discrimination, race discrimination, and age discrimination as violations of the ADA,

Title VII, and the Age Discrimination in Employment Act of 1967, as amended.

21. On July 22, 2013, after the EEOC’s investigation of MCNEAL’S charge, the EEOC

rendered a Determination in which it concluded that the evidence obtained in its investigation was

sufficient to establish reasonable cause that she was discriminated against because of her race and

because of her disability in violation of Title VII and ADA. On July 23, 2013, the EEOC rendered

an Amended Determination limiting its conclusion solely to a violation of the ADA. A true and

accurate copy of said Amended Determination is attached hereto and incorporated herein by

reference as Exhibit 1.

22. Following the EEOC’s efforts through its conciliation process, the EEOC

eventually referred MCNEAL’S charge to the U.S. Department of Justice, Civil Rights Division,

Disability Rights Section.

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23. For the past year, the Department of Justice investigated and considered the

possibility of filing a lawsuit against OAK PARK on MCNEAL’S behalf. On or about October 6,

2014, MCNEAL received from the EEOC a Notice of Right to Sue Within 90 Days with respect to

her charge of discrimination. A copy of said right-to-sue notice is attached hereto and incorporated

herein by reference as Exhibit 2.

Count I – Violation of the Americans with Disabilities Act (Disability Discrimination – Title I) �

24. MCNEAL restates and incorporates herein by reference Paragraphs 1 through 23

above as and for Paragraph 24 of Count I of this complaint as if such allegations were fully set

forth herein.

25. OAK PARK based its termination of MCNEAL’S employment upon her being unable

to perform an alleged “essential function” of the Parking Enforcement Officer position (which it

labeled as to the placement of boots upon and removal of boots from vehicles). However, while

booting may have been an occasional duty of Parking Enforcement Officers, it was not an

“essential function” of this employment position.

26. Even if booting vehicles actually was an “essential function” of the Parking

Enforcement Officer position, OAK PARK lacked just cause to terminate MCNEAL because it failed

to reasonably accommodate her by either (1) placing her in light duty (performing all Parking

Enforcement Officer duties except booting) as it had done in the past for her and other employees,

or (2) placing her in an equivalent alternative employment position that she could perform.

27. While the ADA’s interpretative guidelines specify that reassignment to a vacant

position is a reasonable accommodation, OAK PARK failed and refused to reassign MCNEAL to an

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equivalent vacant alternative position that she could perform. Instead, OAK PARK required that

MCNEAL apply for such alternative positions.

28. But for the newly-enforced booting requirement, MCNEAL could have continued to

perform as a Parking Enforcement Officer for OAK PARK. She also most certainly could have

performed in any equivalent vacant alternative position that did not involve lifting in excess of the

restrictions her physicians imposed (i.e., a “desk job”).

29. Based on the foregoing facts, OAK PARK intentionally discriminated against

MCNEAL on the basis of her disability in violation of Title I of the ADA.

30. The effect of OAK PARK’S practices of which MCNEAL complains has been to

deprive her of equal employment opportunities and otherwise adversely affect her status as an

employee because of her disability in violation of Title I of the ADA.

31. OAK PARK committed the aforesaid unlawful employment practices intentionally,

willfully, and wantonly and with malice or with reckless indifference to MCNEAL’S federally

protected rights under the ADA.

32. As a direct and proximate result of said acts, MCNEAL has suffered loss of

employment, loss of income and other employment benefits, great expense, emotional distress,

humiliation, embarrassment, and future lost income and benefits.

WHEREFORE, MCNEAL respectfully requests that this Honorable Court:

A. Enter a finding that MCNEAL was subjected to disability discrimination by OAK PARK in violation of Title I of the ADA;

B. Enter a finding that OAK PARK willfully engaged in disability discrimination

with malice and reckless indifference for MCNEAL’S rights under Title I of the ADA;

C. Grant a permanent injunction enjoining OAK PARK and its board, manager,

officers, successors, and assigns, and all persons in active concert or

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participation with them, from engaging in any employment practice which discriminates on the basis of disability;

D. Order OAK PARK to institute and carry out policies, practices, and programs

that provide equal employment opportunities for qualified individuals with disabilities and that eradicate the effects of its past and present unlawful employment practices;

E. Order OAK PARK to make MCNEAL whole by providing appropriate back pay and lost benefits with pre-judgment interest, in amounts to be determined at trial;

F. Order OAK PARK to make MCNEAL whole by providing the affirmative relief necessary to eradicate the effects of its unlawful practices including, but not limited to, reinstatement or employment or front pay, including lost benefits, as necessary in lieu of reinstatement;

G. Order OAK PARK to make MCNEAL whole by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above including, but not limited to, job search expenses and medical expenses, in amounts to be determined at trial;

H. Order OAK PARK to make MCNEAL whole by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices described above including, but not limited to, emotional pain, suffering, loss of enjoyment of life, and humiliation, in an amount to be determined at trial;

I. Order OAK PARK to pay MCNEAL punitive damages for its malicious or reckless conduct as described above, in an amount to be determined at trial;

J. Award MCNEAL her costs of suit and attorneys’ fees incurred in this matter, to the extent permitted by law; and

K. Grant MCNEAL such other and further relief as this Court deems appropriate and just.

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Count II – Violation of the Americans with Disabilities Act (Disability Discrimination – Title II) �


above as and for Paragraph 33 of Count II of this complaint as if such allegations were fully set

forth herein.

34. Based on the foregoing facts, OAK PARK intentionally discriminated against

MCNEAL on the basis of her disability in violation of Title II of the ADA.

35. The effect of OAK PARK’S practices of which MCNEAL complains has been to

deprive her of equal employment opportunities and otherwise adversely affect her status as an

employee because of her disability in violation of Title II of the ADA.



protected rights under the ADA.



humiliation, embarrassment, and future lost income and benefits.


A. Enter a finding that MCNEAL was subjected to disability discrimination by OAK PARK in violation of Title II of the ADA;

B. Enter a finding that OAK PARK willfully engaged in disability discrimination

with malice and reckless indifference for MCNEAL’S rights under Title II of the ADA;

C. Grant a permanent injunction enjoining OAK PARK and its board, manager,

officers, successors, and assigns, and all persons in active concert or participation with them, from engaging in any employment practice which discriminates on the basis of disability;

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D. Order OAK PARK to institute and carry out policies, practices, and programs that provide equal employment opportunities for qualified individuals with disabilities and that eradicate the effects of its past and present unlawful employment practices;

E. Order OAK PARK to make MCNEAL whole by providing appropriate back

pay and lost benefits with pre-judgment interest, in amounts to be determined at trial;

F. Order OAK PARK to make MCNEAL whole by providing the affirmative

relief necessary to eradicate the effects of its unlawful practices including, but not limited to, reinstatement or employment or front pay, including lost benefits, as necessary in lieu of reinstatement;

G. Order OAK PARK to make MCNEAL whole by providing compensation for

past and future pecuniary losses resulting from the unlawful employment practices described above including, but not limited to, job search expenses and medical expenses, in amounts to be determined at trial;

H. Order OAK PARK to make MCNEAL whole by providing compensation for

past and future non-pecuniary losses resulting from the unlawful employment practices described above including, but not limited to, emotional pain, suffering, loss of enjoyment of life, and humiliation, in an amount to be determined at trial;

I. Order OAK PARK to pay MCNEAL punitive damages for its malicious or

reckless conduct as described above, in an amount to be determined at trial; J. Award MCNEAL her costs of suit and attorneys’ fees incurred in this matter,

to the extent permitted by law; and K. Grant MCNEAL such other and further relief as this Court deems appropriate

and just.

Count III – Violation of Title VII (Race Discrimination) �


above as and for Paragraph 38 of Count III of this complaint as if such allegations were fully set

forth herein.

39. MCNEAL is an African-American woman.

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40. Other employees of OAK PARK in positions similar to MCNEAL’S prior employment

position who were not African-American were treated disparately and more favorably.

41. No lawful basis existed for OAK PARK’S failure and refusal to treat MCNEAL in the

same manner as her non-African-American counterparts.



protected rights under Title VII.



humiliation, embarrassment, and future lost income and benefits, all based on OAK PARK’S

unlawful discrimination against her on account of her race.


A. Enter a finding that MCNEAL was subjected to race discrimination by OAK PARK in violation of Title VII;

B. Enter a finding that OAK PARK willfully engaged in race discrimination with

malice and reckless indifference for MCNEAL’S rights under Title VII; C. Grant a permanent injunction enjoining OAK PARK and its board, manager,

officers, successors, and assigns, and all persons in active concert or participation with them, from engaging in any employment practice which discriminates on the basis of race;


that provide equal employment opportunities for qualified individuals of all races and that eradicate the effects of its past and present unlawful employment practices;


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Count IV – Violation of the Age Discrimination in Employment Act (Age Discrimination) �


above as and for Paragraph 44 of Count IV of this complaint as if such allegations were fully set

forth herein.

45. At the time of OAK PARK’S termination of her employment, MCNEAL was 60 years

of age.

46. Other employees of OAK PARK in positions similar to MCNEAL’S prior employment

position who were younger than 40 years of age were treated disparately and more favorably.

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47. No lawful basis existed for OAK PARK’S failure and refusal to treat MCNEAL in the

same manner as her younger counterparts.



protected rights under the ADEA.




unlawful discrimination against her on account of her age.


A. Enter a finding that MCNEAL was subjected to age discrimination by OAK PARK in violation of the ADEA;

B. Enter a finding that OAK PARK willfully engaged in age discrimination with

malice and reckless indifference for MCNEAL’S rights under the ADEA; C. Grant a permanent injunction enjoining OAK PARK and its board, manager,

officers, successors, and assigns, and all persons in active concert or participation with them, from engaging in any employment practice which discriminates on the basis of race;


that provide equal employment opportunities for qualified individuals of all races and that eradicate the effects of its past and present unlawful employment practices;



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Count V – Retaliation


above as and for Paragraph 50 of Count V of this complaint as if such allegations were fully set

forth herein.

51. During her employment with OAK PARK, MCNEAL was a member of Service

Employees International Union Local 73 (“SEIU Local 73”).

52. On or about April 16, 2012, SEIU Local 73 demanded to bargain over what they

believed to be OAK PARK’S unilateral change in the Parking Enforcement Officer’s job description.

53. On April 26, 2012, OAK PARK terminated MCNEAL’S employment.

54. OAK PARK terminated MCNEAL’S employment in retaliation for her union’s

aforesaid actions.

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55. On or about April 30, 2012, SEIU Local 73 filed a grievance on MCNEAL’S behalf

regarding her wrongful termination.

56. OAK PARK failed and refused to accommodate MCNEAL or to retain her as an

employee in retaliation for her union filing the aforesaid grievance.


willfully, and wantonly and with malice or with reckless indifference to MCNEAL’S rights under

state and federal employment laws.




unlawful retaliation against her.


A. Enter a finding that OAK PARK’S termination of MCNEAL’S employment and failure and refusal to accommodate her or retain her employment constituted retaliation;

B. Grant a permanent injunction enjoining OAK PARK and its board, manager, officers, successors, and assigns, and all persons in active concert or participation with them, from engaging in any employment practice which constitutes retaliation;

C. Order OAK PARK to institute and carry out policies, practices, and programs

that provide equal employment opportunities for qualified individuals and that eradicate the effects of its past and present unlawful employment practices;

D. Order OAK PARK to make MCNEAL whole by providing appropriate back pay and lost benefits with pre-judgment interest, in amounts to be determined at trial;

E. Order OAK PARK to make MCNEAL whole by providing the affirmative relief necessary to eradicate the effects of its unlawful practices including,

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but not limited to, reinstatement or employment or front pay, including lost benefits, as necessary in lieu of reinstatement;

F. Order OAK PARK to make MCNEAL whole by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above including, but not limited to, job search expenses and medical expenses, in amounts to be determined at trial;

G. Order OAK PARK to make MCNEAL whole by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices described above including, but not limited to, emotional pain, suffering, loss of enjoyment of life, and humiliation, in an amount to be determined at trial;

H. Order OAK PARK to pay MCNEAL punitive damages for its malicious or reckless conduct as described above, in an amount to be determined at trial;

I. Award MCNEAL her costs of suit and attorneys’ fees incurred in this matter, to the extent permitted by law; and

J. Grant MCNEAL such other and further relief as this Court deems appropriate and just.

Count VI – Violation of 775 ILCS 5/2-102


above as and for Paragraph 59 of Count VI of this complaint as if such allegations were fully set

forth herein.


willfully, and wantonly and with malice or with reckless indifference to MCNEAL’S rights under

state and federal employment laws.




unlawful employment practices undertaken against her.

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A. Enter a finding that OAK PARK’S termination of MCNEAL’S employment and failure and refusal to accommodate her or retain her employment constituted unlawful employment practices;

B. Grant a permanent injunction enjoining OAK PARK and its board, manager, officers, successors, and assigns, and all persons in active concert or participation with them, from engaging in any unlawful employment practices;

C. Order OAK PARK to institute and carry out policies, practices, and programs

that provide equal employment opportunities for qualified individuals and that eradicate the effects of its past and present unlawful employment practices;

D. Order OAK PARK to make MCNEAL whole by providing appropriate back pay and lost benefits with pre-judgment interest, in amounts to be determined at trial;

E. Order OAK PARK to make MCNEAL whole by providing the affirmative relief necessary to eradicate the effects of its unlawful practices including, but not limited to, reinstatement or employment or front pay, including lost benefits, as necessary in lieu of reinstatement;

F. Order OAK PARK to make MCNEAL whole by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above including, but not limited to, job search expenses and medical expenses, in amounts to be determined at trial;

G. Order OAK PARK to make MCNEAL whole by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices described above including, but not limited to, emotional pain, suffering, loss of enjoyment of life, and humiliation, in an amount to be determined at trial;

H. Order OAK PARK to pay MCNEAL punitive damages for its malicious or reckless conduct as described above, in an amount to be determined at trial;

I. Award MCNEAL her costs of suit and attorneys’ fees incurred in this matter, to the extent permitted by law; and

J. Grant MCNEAL such other and further relief as this Court deems appropriate and just.

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DEMAND FOR JURY TRIAL

MCNEAL hereby makes a demand for trial by jury on all issues herein that are triable to a

jury.

Respectfully submitted,

ALVIA MCNEAL, Plaintiff

By: /s/ J. Matthew Pfeiffer � One of Her Attorneys J. Matthew Pfeiffer, Esq. IL Atty. No. 6272868 Nicole M. Anderson, Esq. IL Atty. No. 6312258 PFEIFFER LAW OFFICES, P.C. 1725 S. Naperville Road Suite 205 Wheaton, Illinois 60189 Tel: (630) 517-0808 Fax: (630) 517-0809

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Lawsuit McNeal v. Oak Park

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Transcript of Lawsuit McNeal v. Oak Park