Nawara v. County Of Cook

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN NAWARA, )

)

Plaintiff, )

)

v. ) No. 17 C 2393

)

COUNTY OF COOK, a unit of local ) Judge Rebecca R. Pallmeyer

Government, THOMAS DART, in his )

official capacity as Sheriff of Cook County, )

Illinois, KAREN JONES-HAYES, MATTHEW )

BURKE, REBECCA REIERSON, and )

WINIFRED SHELBY, in their individual )

capacities, )

)

Defendants. )

MEMORANDUM ORDER AND OPINION

Plaintiff John Nawara filed this case in 2017 after the Cook County Sheriff's Office

("CCSO") placed him on unpaid leave from his position as a correctional officer. Nawara's

suspension followed his refusal to sign Health Insurance Portability and Accountability Act

("HIPAA") forms that would have permitted any of his health care providers to release all of his

medical records to CCSO. (Second Am. Compl. [89] § 55.) The County claims that the forms

were given to Nawara as part of a fitness-for-duty ("FFD") examination and that this "FFD

examination could not go forward without his medical records." (Dfs.' Memo. in Support of MTD

[104], at 3.) Consequently, because he refused to execute the HIPAA waiver, Nawara was placed

on unpaid administrative leave. Nawara has a much different view of events. He alleges that the

blank forms violate the ADA and were given to him for two separate retaliatory reasons: first, for

his participation in a lawsuit against Sherriff Dart Thomas Dart, see Burruss v. Cook Co. Sheriff's

Office, No. 08-cv-6621 (N.D. Ill); and second, because he filed a complaint against his supervisor,

Defendant Karen Jones-Hayes, for harassing, assaulting, and battering him. Nawara also alleges

that he was subsequently retaliated against for refusing to sign the HIPAA forms. All Defendants

move to dismiss Nawara's Second Amended Complaint [89] pursuant to FED. R. CIV. P. 12(b)(6).

For the reasons explained here, the motions are granted in part and denied in part.

BACKGROUND

At this stage in the proceedings, the court must "construe the complaint in the light most

favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible

inferences in [the plaintiff's] favor." Cannici v. Vill. of Melrose Park, 885 F.3d 476, 479 (7th Cir.),

cert. denied, 139 S. Ct. 288 (2018).

Plaintiff John Nawara began working for CCSO in September 1998. (Second Am. Compl.

[89] ¶ 10.) From 2002 to 2007, he was a correctional officer on a special team in the Cook County

Jail called the Special Operations Response Team ("SORT"). (Id. at ¶ 11.) After members of

SORT supported a candidate who challenged Sheriff Dart in the 2006 Cook County primaries,

SORT was disbanded. Twenty-one members of SORT, including Nawara, sued CCSO, Cook

County, Sherriff Dart, First Executive Assistant Scott Kurtovich, and several other Defendants for

retaliation. (Id. at. ¶¶ 100, 101).1 A jury found for Plaintiffs and against Defendants Cook County

and Kurtovich in September 2012. Burruss v. Cook Cty. Sheriff's Office, No. 08 C 6621, 2013 WL

3754006, at *3 (N.D. Ill. July 15, 2013). See also id. at *9, *18 (denying, in relevant part,

Defendants' judgment notwithstanding the verdict).

Despite the disbanding of SORT, Nawara never ceased to work for CCSO. By late 2016,

he had been "assigned to the basement of Cermak Hospital to monitor detainees." (Second Am.

Compl. [89] ¶ 32.) On September 28, 2016, Plaintiff Nawara was on duty in that role when "[a]

fight broke out between two inmates." (Id. at ¶ 32.) After breaking up the fight, Nawara "and two

other officers" called their supervisor, Defendant Jones-Hayes, "advising [her] . . . of the situation."

(Id. at ¶¶ 32–33.) Jones-Hayes came to the site of the incident, where Nawara alleges that she

1 For background, see Burruss v. Cook Cty. Sheriff's Office, No. 08-cv-6621, 2011

WL 856635 (N.D. Ill. Mar. 9, 2011) and Burruss v. Cook Cty. Sheriff's Office, No. 08-cv-6621,

2013 WL 3754006, at *3 (N.D. Ill. July 15, 2013).

"responded in a very insulting, provoking and demeaning manner, hit[ting] Plaintiff in his chest

with her finger several times . . . [and] sp[eaking] to Plaintiff in a condescending tone of voice."

(Id. at ¶¶ 33, 35.)2 Nawara "took a step back, feeling trapped, and told her to keep her hands off

of him, and that it was very unprofessional." (Id. at ¶ 35.) Nawara alleges that he "complained

about Defendant Jones-Hayes' conduct towards him to the other employees, including the

sergeant that was present." (Id. at ¶ 39.) The day after the incident with Jones-Hayes, Nawara

was moved from his post at Cermak to "external operations." (Id. at ¶ 40.) In external operations,

he "was assigned to transport detainees"; in that role, he was in contact with detainees, other

employees, and carried a firearm. (Id. at ¶ 41.) He does not allege any change in pay as a result

of the reassignment.

On October 13, Nawara "filed a formal complaint with his supervisor regarding Defendant

Jones-Hayes' harassment and assault and battery of him." (Id. at ¶ 42.) On November 18, he

was called into the Human Resources office, where he met with Defendants Winifred Shelby, an

Occupational Health Specialist for Human Resources ("HR") at CCSO, and Rebecca Reierson,

the Leave and Absence Manager at HR. Plaintiff alleges that Defendant Matthew Burke, Chief of

Staff for the CCSO Department of Corrections, "stated that” he requested that Shelby and

Reiersen meet with Nawara “’and determine whether a fitness for duty evaluation was

appropriate.'" (Id. at ¶ 51.) The Second Amended Complaint does not explain to whom, nor

when, Burke made this statement.

In the meeting, Shelby and Reierson asked Nawara whether he had threatened another

employee. He denied doing so, and Shelby and Reierson told Nawara that "this was 'not an

2 In the formal complaint Nawara later filed regarding the incident, he explained that

Jones-Hayes took issue with the way an inmate was "cuffed." (Ex. 7 to Dfs.' Memo. in Supp. of

MTD [104-1], at PageID # 1337 ("In a very insulting, provoking and demeaning action Supt. Jones-

hayes pushes her finger into my chest several times as she says, in a very condescending tone

of voice, 'Why isn't this inmate cuffed behind the back.' She pointed to a detainee that was not

either of the detainees that were involved in the altercation.").)

O.P.R. (Office of Professional Review) matter'"; Nawara alleges that OPR is the "division that

investigates officer misconduct." (Id. at ¶¶ 44–48.) Shelby and Reierson did not notify Nawara

of the existence of any "complaint or allegations against him,” but they did ask him to "sign two

(2) HIPAA release forms that were blank." (Id. at ¶ 45.) Nawara characterizes this request as a

demand from Sheriff Dart.3 He alleges that by giving him these blank forms, Defendants violted

the Americans with Disabilities Act ("ADA"), 42 U.S.C. ¶ 12112(d)(4)(A), and retaliated against

him both for his participation in the Burruss suit and for his complaint against Jones-Hayes.

Nawara did not sign the forms and, instead, contacted an attorney. (See Second Am. Compl.

[89] ¶¶ 70, 79.) Defendants assert that nsist that Nawara was being referred for an FFD exam

and that the HIPAA forms were a required part of that process.

Plaintiff Nawara did not attach the HIPAA forms to his Complaint, but copies of the two

forms appear as exhibits to Defendants' Memorandum in Support of their Motion to Dismiss

[104].4 One form, the "HIPAA Authorization for Disclosure of Protected Health Information"

("Disclosure Form"), appears as an attachment to an email sent by Nawara's then-attorney, Dana

Kurtz, to Reierson, Shelby, and Peter Kramer, whom Plaintiff identifies as "Defendants' counsel."

(Ex. 2 to Dfs.' Memo. in Support of MTD [104-1], at PageID # 1312; Second. Am. Compl. ¶ 70.)

The top of the Disclosure Form provides: "I, _____, authorize the Independent medical exam or

fitness for duty exam physician to disclose protected health information ('PHI') about me as

described below in this Authorization." (Ex. 2 to Defendants' Memorandum in Support of Motion

to Dismiss [104-1], at PageID # 1312.) The form goes on to authorize disclosure and review of

3 Plaintiff alleges that "Defendant Dart, through Defendants Burke, Shelby, and

Reierson, ordered Plaintiff to sign blank HIPAA release forms for his medical records," (Second

Am. Compl. [89] ¶ 49), and that "Defendant Dart, through Defendants Burke, Shelby, and

Reierson, told Plaintiff that he could not return to work until he signed the HIPAA release forms."

(Id. at ¶ 50.)

4 Plaintiff objects to the court’s consideration of these documents, but does not

suggest the forms are incorrect or falsified in any way. His objection to making them part of the

record on this ruling is overruled, as explained in the discussion section below.

“all medical records and information . . . that relates to my fitness for duty exam" and to permit

"[a]ny health care provider or facility . . . [to] disclose the above-described information to a

Disability Management Case Manager, for Cook County, employed by CorVel Corporation." (Id.)

The form also states that the undersigned "understand[s] that the information disclosed pursuant

to this authorization may no longer be protected by the federal health privacy rule . . . and may be

subject to re-disclosure by the recipient." (Id.) In total, the Disclosure Form states three times

that it relates to a fitness for duty exam. (Ex. 2 to Defendants' Memorandum in Support of Motion

to Dismiss [104-1], at PageID # 1312.)

The second form is much broader in scope than the Disclosure Form. It appears in

Exhibit 3 to Defendants' Memorandum in Support of their Motion to Dismiss [104], as one of two

attachments to a letter from Rebecca Reierson to Nawara dated February 28, 2017. The first

attachment is the Disclosure Form described above. The second is an "Authorization to Release

Healthcare Information" form ("Release Form"). (Ex. 3 to Dfs.' Memo. in Support of MTD [104-1],

at PageID # 1316.) The Release Form is a typical HIPAA form, with spaces for the person who

completes it to provide a name, date of birth, and Social Security number. CCSO's address is

identified on the form as the party to receive released records, but there is a blank space ermitting

the patient to designate the person/parties who are authorized to release information to CCSO.

Where the form states, "This request and authorization applies to: . . . ," the person completing it

is given three options: He or she may (1) describe specific information pertaining to particular

"treatment, condition, or dates"; (2) permit the release of all healthcare information; or (3) describe

some "other" scope of the authorization. On the form sent from Reierson to Nawara, the "[a]ll

healthcare information" box is pre-selected. (Id.)

Plaintiff Nawara never signed these forms. As a result, he alleges, he was "denied special

assignments, transfers to more desirable units, and training, as well as promotional opportunities."

(Second Am. Compl. [89] ¶ 69.)5 Nawara did, at some point, see "an independent doctor and

obtain[ ] a report" that found him fit for duty with no restrictions. (Second Am. Compl. [89] ¶¶ 77–

78.) He provided Defendants6 with a copy of the report on March 17, 2017, but Defendants

insisted that he needed to sign their HIPAA forms. (Id. at ¶¶ 79–80.) After Nawara stood by his

refusal to sign the forms, he was placed on unpaid leave,7 effective retroactively to November 18,

2016. (Id. at ¶¶ 65, 93.) While he was on unpaid leave, Nawara used up all of his personal time

off. (Id. at ¶¶ 40, 74.)

Nawara eventually underwent an FFD exam by CCSO's chosen doctor in August 2017,

after he "agreed to and signed a revised HIPAA release that ensured his medical records did not

go to the Sheriff's Office or Sheriff's personnel." (Id. at ¶ 91(b).) On September 16, 2017, the

"FFD examiner issued a report" finding Nawara "fit to return to duty, without restrictions," and he

was released from unpaid leave on September 27. (Id. at ¶¶ 92–93.) He alleges that the

retaliation against him has continued since he returned to work. "On or about January 29, 2018,

Plaintiff received notice that he was being ordered to appear before OPR as an accused based

5 Plaintiff makes similar allegations about being denied opportunities in two other

paragraphs in his Complaint. (See Second Am. Compl. [89] ¶ 114 ("Plaintiff has and continues

to suffer irreparable harm as a result of Defendants [sic] conduct and refusal to return him back

to work without valid or legal justification, including but not limited to running out of personal time,

being denied training, lateral transfers to special assignments, and promotional opportunities for

advancement of his career, and being threatened with disciplinary action and charges seeking his

termination."); id. at ¶ 122 ("Defendants intentionally subjected Plaintiff to unequal and retaliatory

treatment by denying him promotions, denying him training, denying him special assignments,

refusing to return him to work, and subjecting him to other adverse terms and conditions of his

employment in violation of the First Amendment and treating him in an overall disparate

manner.").)

6 The Second Amended Complaint does not specify to which of the Defendants he

sent the letter. It simply states that he "provided the report to Defendants." (Second Am. Compl.

at ¶ 78.)

7 Defendants argue that Nawara was not suspended, but that he took an

unauthorized unpaid absence. (Dfs.' Memo. in Support of MTD [104], at 27.) The court will refer

to his unpaid time away for work as an unpaid leave, without attaching any legal significance to

the term.

on Defendant Jones-Hayes making false allegations against him in regards to the incident on

September 28, 2016." (Id. at ¶ 98.)8 He further alleges that neither OPR nor CCSO has

responded to the complaint he filed against Defendant Jones-Hayes. (Id. at ¶ 98.)

Plaintiff filed a charge of discrimination with the EEOC on March 24, 2017. That charge

noted a "cause of discrimination based on" retaliation and disability. (See Ex. 6 to Dfs.' Memo. in

Supp. of MTD [104], at PageID ## 1327, 1333.) He filed this lawsuit on March 29, 2017. (Second

Am. Compl. [89] ¶ 81.) Count I of Plaintiff's Second Amended Complaint alleges that Cook County

and the CCSO violated § 12112(d)(4) of the ADA when they requested that Nawara sign HIPAA

forms providing them authorization to request "all healthcare information" for Nawara. 42 U.S.C.

§ 12112(d)(4). (Ex. 3 to Df.'s MTD [104-1], at PageID # 1316.) Count II charges all Defendants

with violation of the First Amendment, pursuant to 42 U.S.C. §§ 1983 and 1988 for allegedly

requesting the HIPAA releases in retaliation for Plaintiff's participation in Burruss. Count III

alleges that the CCSO violated Title VII by requesting the HIPAA release in retaliation for

Nawara's interaction with Jones-Hayes, in violation of Title VII, 42 U.S.C. § 2000e-3. Count IV

charges all Defendants with violation of the Illinois Whistleblower Act, 740 ILL. COMP. STAT.

174/15. Finally, Count V seeks a declaratory judgment against all Defendants for violation of the

Cook County Sheriff's Merit Board Act, 55 ILL. COMP. STAT. 5/3-7001 et seq., and for the violation

of both the Illinois and United States Constitutions. Defendants now move to dismiss all counts

against all Defendants.

DISCUSSION

I. Legal Standard

On a motion to dismiss, the court must determine whether a complaint "state[s] a claim to

relief that is plausible on its face." Kanter v. Barr, No. 18-1478, 2019 WL 1219564, ___ F.3d ___,

8 The Second Amended Complaint does not say whether Nawara ever did, in fact,

appear in front of the OPR.

at *3 (7th Cir. Mar. 15, 2019) (quoting Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir.

2016)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Forgue v. City of Chicago, 873 F.3d 962, 966 (7th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks

for more than a sheer possibility that a defendant has acted unlawfully." Forgue, 873 F.3d at 966

(quoting Iqbal, 556 U.S. at 678). In considering a motion to dismiss, the court "construe[s] the

second amended complaint in a light most favorable to [Nawara]." Spiegel v. McClintic, 916 F.3d

611, 616 (7th Cir. 2019).

II. Claims against Sheriff Dart

This court dismissed Plaintiff's claims against Sheriff Dart in his individual capacity on

September 19, 2017. (See Minute Entry [39] (granting in part and denying in part Defendants'

motion to dismiss the original complaint); Transcript [52], at 8:6–9 (confirming that Dart is

dismissed in his individual capacity).) The Second Amended Complaint makes no new

allegations against Sheriff Dart. All claims against him in his individual capacity are again

dismissed. Plaintiff also alleges that Sherriff Dart is liable, in his official capacity, for Constitutional

violations. A successful claim against Dart in his official capacity would simply render Defendant

Cook County liable. Estate of Sims, 506 F.3d at 514. Thus, the claim against Dart in his official

capacity is redundant.

III. The Court's Consideration of Documents Attached to Defendants' Motion to

Dismiss

"A plaintiff is under no obligation to attach to her complaint documents upon which her

action is based." Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.

1993). Thus, when a Defendant attaches documents to a 12(b)(6) motion to dismiss, the court

typically "must either convert the 12(b)(6) motion into a motion for summary judgment under

[FED. R. CIV. P.] 56 and proceed in accordance with the latter rule, or exclude the documents

attached to the motion to dismiss and continue under Rule 12." Levenstein v. Salafsky, 164 F.3d

345, 347 (7th Cir. 1998). Certain circumstances, however, permit a defendant to introduce

documents for the court's consideration through its motion to dismiss. "Documents that a

defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred

to in the plaintiff's complaint and are central to her claim." See Venture, 987 F.2d at 431. "Such

documents may be considered by a district court in ruling on the motion to dismiss." Wright v.

Associated Ins. Companies Inc., 29 F.3d 1244, 1248 (7th Cir. 1994) (upholding a district court's

consideration of an Agreement quoted in, but not attached to, a complaint, when that Agreement

was attached to Defendants' motion to dismiss). Here, Defendants attach a series of

correspondence between Nawara's counsel, Reierson, Shelby, and Peter Kramer.9 Attached to

that correspondence are two medical release forms—the Disclosure Form and the Release Forms

described above. (See Exs. 1–5 to Dfs.' Memo. in Supp. of MTD [104-1].) Defendants also attach

Nawara's EEOC Charge of Discrimination, his Amended Charge of Discrimination, and the

internal complaint that Nawara filed with CCSO regarding the incident with Jones-Hayes. (See

Exs. 6–7 to Dfs.' Memo. in Supp. of MTD [104-1].) The court concludes, contrary to Plaintiff’s

assertions, that it is appropriate to consider these exhibits during the motion to dismiss stage.

In Yassan v. J.P. Morgan Chase and Co., 708 F.3d 963 (7th Cir. 2013), the Seventh Circuit

upheld the district court's consideration of a document attached to a defendant's motion to

dismiss. In that case, an at-will employee was terminated from his job. In return for twenty-five

weeks of severance pay, the employee "agreed to sign a release" discharging the employer from

"all liability for any claims or potential claims relating to [the plaintiff's] employment." Id. at 966.

He later sued the employer, referencing the release in his complaint without attaching it as an

exhibit. The defendant then attached a copy of the release to its motion to dismiss, and the district

court "relied heavily on the text of the release" when it granted the motion to dismiss. Id. at 975.

9 Kramer appears to have been the County's counsel at the time.

The Seventh Circuit held that "because [the Plaintiff employee's] complaint repeatedly referenced

the release, it was proper for the district court to consider the text of the release in dismissing the

case." Id.

The Seventh Circuit came to a different conclusion on a different set of facts in

Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998). There, the Seventh Circuit upheld a

district court's decision not to consider a defendant's attachments to a motion to dismiss. The

Plaintiff in Levenstein had attached documents to his complaint filed against three officials of his

prior University-employer. The defendants responded by filing a motion to dismiss, to which they

attached "a raft of other documents." Id. The Seventh Circuit explained that the exception

permitting a district court to consider new documents on a motion to dismiss is a "narrow" one,

"aimed at cases interpreting, for example, a contract," and "not intended to grant litigants license

to ignore the distinction between motions to dismiss and motions for summary judgment."

Levenstein, 164 F.3d at 347.

This case is much more similar to Yassan. The medical disclosure forms are repeatedly

referred to by Nawara in his Complaint; he makes allegations about the contents of those

releases, calling them "blank," and they lie at the heart of his allegations. The "formal complaint"

he filed with CCSO also forms a central part of this case, and Plaintiff himself quotes from and

cites the complaint in his response brief. (Second Am. Compl. [89] ¶ 42; Pl.'s Resp. to Dfs.' MTD

[154], at 20.) The charge and amended charge Plaintiff filed with the EEOC are less-central to

Plaintiff's claim, but he again appears to forego his opposition to those exhibits when he cites the

EEOC Charge document in his brief. (See Pl.'s Resp. to Dfs.' MTD [154], at 21.). On these

grounds, the court will consider the contents of the medical releases, Nawara's formal complaint,

and his EEOC charges, without converting this motion to one for summary judgment. The court

declines to consider the contents of the correspondence attached to Defendants' brief, however,

because the correspondence between the parties is not central to Nawara's claims.

IV. ADA

The Americans with Disabilities Act of 1990 § 12112(d)(4) prohibits employers subject to

the ADA from inquiring about employees' medical histories, except in certain circumstances:

A covered entity shall not require a medical examination and shall not make

inquiries of an employee as to whether such employee is an individual with a

disability or as to the nature or severity of the disability, unless such examination

or inquiry is shown to be job-related and consistent with business necessity.

42 U.S.C. § 12112(d)(4)(A). An employer "may make inquiries into the ability of an employee to

perform job-related functions.” Id. at § 12112(d)(4)(B). These regulations regarding requests for

information protect "[a]ll employees, regardless of whether they have a qualifying disability under

the ADA." Wright v. Illinois Dep't of Children & Family Servs., 798 F.3d 513, 522 (7th Cir. 2015).

Plaintiff alleges that Defendants Cook County and CCSO violated the ADA when they required

him to sign the HIPAA medical releases.

Defendants argue that the signing of HIPAA forms is not a medical examination or inquiry

under the terms of § 12112(d)(4), and therefore falls outside of the scope of the ADA. The court

agrees that the two forms, themselves, do not constitute an examination—they do not require,

nor are they required for, Plaintiff to attend any appointment or to submit to any testing. The court

does consider the forms to constitute an inquiry within the meaning of § 12112(d)(4), however.

CCSO required the forms in order for Nawara to "go forward" with his FFD examination. (Df.'s

Memo. in Support of MTD [104], at 3. See id. at 8 (noting that "[t]he HIPAA release form Nawara

was asked to execute states on its face that it is part of the FFD process") (emphasis added).)

Without the broad medical releases signed, Plaintiff Nawara was placed on unpaid leave.

(Second Am. Compl. [89] ¶ 63; Df.'s Memo. in Support of MTD [104], at 23.) Thus, the court

concludes that the HIPAA forms were part of CCSO's inquiry into Plaintiff Nawara's fitness for

duty, and therefore fall within the scope of the ADA.

Defendants cite only one case in support of their argument against this finding, and that

case is unpersuasive. See Green v. Joy Cone Co., 278 F. Supp. 2d 526, 540 (W.D. Pa. 2003).

In Green, a job applicant signed a medical release form as part of a job application process. She

was not hired, and she sued, arguing that the medical release authorization violated the ADA. Id.

at 530. The statutory provisions at issue there differ slightly from those relevant in this case:

Permissible medical examinations and inquiries for job applicants and job offerees are covered

by § 12112(d)(2)–(3), which are not at issue here, while examinations and inquiries for current

employees are governed by (d)(4). Section 12112(d)(2) prohibits employers from conducting

medical examinations or making inquiries about job applicants' disabilities unless the inquiry

relates to "the ability of an applicant to perform job-related functions"; this language tracks (d)(4),

but (d)(2) does not include the business necessity defense of (d)(4). Section 12112(d)(3) provides

that employers "may require a medical examination after an offer of employment has been made

to a job applicant" only if "all entering employees are subjected to such an examination regardless

of disability," and if a host of other privacy measures are followed.

The Western District of Pennsylvania concluded that the employer's Release Form

does not come under the definition of a prohibited medical inquiry, as it does not

ask any questions about an individual's medical history or her limitations. . . . there

is no evidence that Joy Cone intends to uncover information about an individual's

disability or takes an individual's disability into consideration at the pre-offer stage.

Green, 278 F. Supp. 2d at 540 (emphasis in original). In the case before this court, however, the

employer’s medical inquiry was directed at an employee, not a job applicant. While all job

applicants may inevitably have to undergo a medical examination if offered the job, see 42 U.S.C.

§ 12112(d)(3), Nawara was individually suspected of having a disability that impacted his ability

to perform his job (thus, the referral for the FFD examination), and he was required to fill out broad

medical releases on the basis of his employer's perception. The court thus finds Green

distinguishable and determines that medical releases given to an employee, upon an employer's

specific suspicion of disability, and without which an employee may not return to work, are covered

by the ADA § 12112(d)(4).

To satisfy the ADA’s statutory restrictions on an “inquiry,” see § 12112(d)(4)(A), (B), the

broad HIPAA forms that Cook County required Nawara to sign would have to be either “job related

and consistent with business necessity," or inquiries "into the ability of an employee to perform

job-related functions." Defendants do not specify whether they consider their forms to be

permissible under sub-section (A) or (B). Instead, they simply insist that their inquiry was

"permissible," failing to articulate how a request of all of Nawara's medical records would be

permissible under a statute that only permits limited medical inquiries. Defendants' citation to

New York district court cases does little to bolster their permissibility argument. They cite Medlin

v. Rome Strip Steel Co., 294 F. Supp. 2d 279, 294 (N.D.N.Y. 2003) for the proposition that

"Section 12112(d) provides only for the release of confidential medical information to supervisors

or managers involved in the decisionmaking process with respect to a particular employee." Id.

That language provide no guidance in this case. The question in Medlin was whether confidential

medical information obtained by an employer through an FFD process was wrongly disclosed to

the plaintiff's co-workers, after the plaintiff had execited a limited "release authorizing the

disclosure of information generated as a result of the [FFD]." Id.10 In this case, there are no

debates about who was entitled to receive of Plaintiff Nawara's medical records; rather, the

question is whether anyone, at CCSO or otherwise, was entitled under the ADA to request his

entire medical history for purposes of an FFD examination. Medlin does not help answer that

question.

Similarly, Grassel v. Dep't of Educ. of City of New York, No. 12-CV-1016, 2017 WL

1051115, at *9 (E.D.N.Y. Mar. 20, 2017) is unpersuasive. Defendants' own parenthetical

summary of that case—"medical information form used as part of fitness for duty psychological

10 The Medlin court ultimately denied the defendant-employer's motion for summary

judgment on the ADA claim, finding that there were factual questions on whether there was any

disclosure of the employee's medical information and whether the plaintiff's co-workers were

entitled to learn that information under § 12112(d).

examination did not violate § 12112(d)(4)"—is misleading. (Df.'s Memo. in Support of MTD [104],

at 7.) The information form in Grassel was a questionnaire for the plaintiff to complete, covering

such topics as medications, accidents, and family history. Grassel, 2017 WL 1051115 at *9. The

plaintiff, a teacher, had been involved in multiple troubling incidents at work before the Department

of Education of the City of New York asked him to submit to a psychological exam, of which the

questionnaire was part, and he challenged the questionnaire as being insufficiently tailored to

determine whether he was fit for duty. Id. The district court concluded that the questionnaire

"was a reasonably effective method of assessing [the plaintiff's] capacity to teach," and that the

Department of Education "had a vital business necessity to determine [the teacher's] fitness to

perform his duties." Grassel, 2017 WL 1051115 at *10. Unlike Grassel, the forms in question in

this case are broad medical release forms that are untailored for any specific type of fitness for

duty exam. And, there is no indication in Grassel that the teacher was ever required to release

any medical records to the defendant itself. Finally, the defendants there argued that the

psychological examination was a business necessity. Defendants in this case have not

articulated how or why such a broad HIPAA form is a business necessity.

Defendants' final arguments to dismiss the ADA claims are unconvincing. They argue that

the medical releases need not have been "job related and consistent with business necessity"

because the FFD for which they were requested was itself job related.11 42 U.S.C.

§12112(d)(4)(A), (B). The fact that the FFD was job-related, however, does not make an inquiry

into Nawara's entire medical past job-related, nor does it cabin the Release Form to FFD-related

medical records. Defendants also claim that Nawara knew he was being referred for an FFD,

and that therefore the HIPAA forms were permissible. Nawara's knowledge of the purpose of

those release forms is not critical to his ADA claim, since he takes issue with the breadth of the

11 Plaintiff Nawara does not contest the propriety of the FFD itself—he ultimately

submitted to, and passed, two separate FFD examinations: one by an independent doctor, and

one by the CCSO-authorized examiner.

forms. Defendants finally argue that those HIPAA releases were not, in fact, blank. (Ex. 3 to Df.'s

Memo. in Support of MTD [104-1], at PageID # 1316.) This argument hardly creates a defense;

from the court’s review of the Release Form, it appears to seek “[a]ll healthcare information" from

any medical provider, without specifying any particular time-frame or medical condition about

which Cook County sought information, and would effectively permit Defendants access to a

wealth of information about Nawara unrelated to his fitness for duty. (Id.) The fact that Nawara

referred to these forms as “blank” does not defeat his ADA claim. Defendants' motion to dismiss

Plaintiff's ADA claim is denied.

V. Retaliation

A. Section 1983 First Amendment Retaliation

Section 1983 creates a cause of action for violations of a person's constitutional rights. 42

U.S.C. § 1983. "In order to state a claim pursuant 42 U.S.C. § 1983, [a] plaintiff[ ] must allege

that a government official, acting under color of state law, deprived them of a right secured by the

Constitution or laws of the United States." Estate of Sims ex rel. Sims v. Cty. of Bureau, 506 F.3d

509, 514 (7th Cir. 2007). A plaintiff may allege a § 1983 claim against an official acting in her

official capacity or her individual capacity. A plaintiff may also bring a § 1983 claim against a

municipality, but only if the complaint "allege[s] that an official policy or custom not only caused

[a] constitutional violation, but was 'the moving force' behind it." Estate of Sims, 506 F.3d at 514

(quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989)). See Monell v. Dep't of Soc.

Servs. of City of New York, 436 U.S. 658, 694 (1978). Plaintiff Nawara alleges that he was asked

to sign HIPAA forms in retaliation for his political opposition to Sherriff Dart in the 2006 primary

election and for his subsequent participation in the Burruss litigation, all in violation of his First

Amendment rights.12 Nawara also claims that he was retaliatorily suspended, denied promotions,

12 Nawara does not contend that he suffered retaliation in violation of the First

Amendment as a result of the complaint he filed against Jones-Hayes. (See Second Am. Compl.

[89] ¶ 120 ("The conduct of Defendants, specifically retaliating against employees who opposed

training, and special assignments, and that he suffered "other adverse terms and conditions of [ ]

employment." (Id. at ¶ 122.) He brings this claim against Cook County, the CCSO, Sherriff Dart

in his official capacity, and Jones-Hayes, Burke, Reierson, and Shelby in their individual

capacities.

The First Amendment protects a public employee's right to engage in certain types of

speech, including, in certain circumstances, speech as “a citizen addressing matters of public

concern." Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). It also protects public employees from

"be[ing] made to suffer adverse job actions because of their political beliefs," unless a defendant

"can demonstrate that party affiliation is an appropriate requirement for the effective performance

of the public office involved." Carlson v. Gorecki, 374 F.3d 461, 464 (7th Cir. 2004). Individuals

may not be retaliated against for engaging in protected First Amendment speech. "To state a

First Amendment retaliation claim, [a plaintiff] must plausibly allege that (1) he engaged in activity

protected by the First Amendment, (2) he suffered an adverse action that would likely deter future

First Amendment activity, and (3) the First Amendment activity was 'at least a motivating factor'

in the defendants' decision to retaliate." Santana v. Cook Cty. Bd. of Review, 679 F.3d 614, 622

(7th Cir. 2012) (quoting Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)).

Defendants argue that Plaintiff Nawara has failed to properly plead the third requirement

of the First Amendment retaliation test—that is, they claim that Nawara has failed to allege

sufficient facts to support a plausible inference that his participation in the Burruss litigation was

a motivating factor behind Defendants' alleged retaliation. The court agrees.13 Plaintiff fails to

the Sheriff politically, engaged in protected conduct by complaining about political discrimination

and retaliation, and denying employees the right to be free from political retaliation, was and

became the custom and practice of the Sheriff’s Office.") (emphasis added); id. at ¶ 125

("Defendants are aware that it is unlawful to retaliate or discriminate against someone because

of their political affiliation and/or perceived political affiliation.").)

13 Because the court determines that Plaintiff fails to adequately plead an actionable

constitutional violation, it need not exhaust its discussion of the County's Monell liability. "[I]f no

allege that any Defendants knew about the Burruss case or about Nawara's political activity

leading up to that case. Drawing reasonable inferences in favor of the Plaintiff, Sherriff Dart, who

was named as a Defendant in Burrus, knew about the case and also about Nawara’s status as

one of the Plaintiffs. But the Second Amended Complaint contains little more than formulaic

recitations linking Dart to the alleged retaliation against Nawara. (See Second Am. Compl. [89]

¶ 49 ("Defendant Dart, through Defendants Burke, Shelby, and Reierson, ordered Plaintiff to sign

blank HIPAA release forms for his medical records."); id. at ¶ 50 ("Defendant Dart, through

Defendants Burke, Shelby, and Reierson, told Plaintiff that he could not return to work until he

signed the HIPAA release forms.").) All other mentions of Dart in the Complaint deal with Dart's

role in failing to fire Scott Kurtovich, the alleged architect of the political retaliation at issue in

Burruss, after that litigation was complete.14 But Plaintiff cites no legal support to establish that

Dart's failure to fire Kurtovich constitutes retaliation against Nawara. Kurtovich is not named as

a Defendant in this suit, and there is no allegation that Nawara was required to undergo any

training or supervision from Kurtovich, or indeed, have any contact with Kurtovich since the

Burruss litigation ended. Thus, the court fails to see how Dart's interactions with Kurtovich would

establish that Dart took any retaliatory action against Plaintiff. With respect to the remaining

individual Defendants, the court cannot infer that they retaliated for events of which Nawara

himself has not alleged they had knowledge.

Without any direct allegations that Defendants retaliated against Nawara on the basis of

his protected First Amendment activity, Plaintiff next relies on the timing between Burruss and the

constitutional violation occurred in the first place, a Monell claim cannot be supported." Petty v.

City of Chicago, 754 F.3d 416, 424 (7th Cir. 2014)

14 Plaintiff alleges that Dart "promoted Scott Kurtovich to be the Director over the

Training Academy and in charge of training, including training on the Sheriff’s policy on political

discrimination and retaliation in the workplace," despite the finding of liability against Kurtovich in

Burruss. (Id. at 105.) This promotion came despite "Defendant Dart’s own 'written policy' that

political retaliation will not be tolerated in the Sheriff’s Office and will be subject to termination."

(Id. at ¶ 130.)

alleged retaliation to establish an inference of retaliation. This court entered its order granting in

part and denying in part the Burruss defendants' motion for judgment notwithstanding the verdict

on July 15, 2013; after settlement negotations, the court terminated the case on March 21, 2014.

Nawara construes the period between Burruss and the beginning of Defendants' retaliation as

Defendants "wait[ing] in the weeds" for the perfect moment to retaliate. Veprinsky v. Fluor Daniel,

Inc., 87 F.3d 881, 891 n.6 (7th Cir. 1996).15 Plaintiff's reliance on Veprinsky case comes from a

partial quotation of a footnote. (See Pl.'s Resp. to Dfs.' MTD [154], at 15–16 ("If the plaintiff has

evidence from which one may reasonably infer that her former employer waited in the weeds for

five or ten years and then retaliated against her for filing an EEOC charge, we see no difficulty

with allowing the case to go forward." (quoting Veprinsky, 87 F.3d at 891 n.6).). The more-

complete quote, however, states:

If the plaintiff has evidence from which one may reasonably infer that her former

employer waited in the weeds for five or ten years and then retaliated against her

for filing an EEOC charge, we see no difficulty with allowing the case to go forward.

If, on the other hand, the plaintiff has no proof of a nexus between her protected

activity and the employer's purported act of belated retaliation, we are confident

that her case will be disposed of in short order.

Veprinsky, 87 F.3d at 891 n.6. (emphasis added). That is precisely the circumstance in which

Nawara finds himself here. He alleges no well-pleaded facts that would allow the court to infer

that any individual Defendants knew of his prior protected speech, nor that they suddenly decided

to begin retaliating against him two and a half years after the termination of Burruss. Regardless

of the time that passed between the end of Burruss and the beginning of the alleged retaliation,

15 Veprinsky is a Title VII case, not a First Amendment retaliation case. Though

Plaintiff does not so explain, the test for First Amendment retaliation is similar to a method for

establishing Title VII retaliation. See Hobgood v. Illinois Gaming Bd., 731 F.3d 635, 642 (7th Cir.

2013) (explaining that, in order to establish Title VII retaliation, "a plaintiff must offer evidence: (1)

that he engaged in protected activity, (2) that he was subjected to an adverse employment action,

and (3) that there was a causal link between the protected activity and the employment action,"

and citing to both a Title VII retaliation case and a First Amendment retaliation case for support.)

(citing Brown v. Advocate South Suburban Hosp., 700 F.3d 1101, 1106 (7th Cir.2012) (Title VII

retaliation); Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir.2012) (First Amendment

retaliation)).

the court cannot, without more, plausibly infer that Defendants' required him to infer HIPAA forms,

denied him promotions, suspended him, or took any other adverse action against him because of

his prior protected First Amendment activities.

Finally, Nawara argues that "far more than just suspicious timing creates the mosaic of

evidence of Defendants’ retaliation." (Pl.'s Resp. to Dfs.' MTD [154], at 17.) He points to

"numerous examples of Defendants retaliating against the other Burruss plaintiffs, former

members of SORT, and those that supported Sheriff Dart’s political opponents. This alleged

circumstantial evidence is documented in" six Northern District of Illinois cases, Nawara asserts,

listing those cases for the first time in his responsive brief. (Pl.'s Resp. to Dfs.' MTD [154], at 16

(collecting cases).) Plaintiff’s complaint does not so much cite, quote, or identify those cases, let

alone provide information showing their substantive merit. Mentioning them in a reply

memorandum does not constitute adequate notice to Defendants of the grounds for Plaintiff's

claim. Further, Plaintiff's supposition that the court will track down and analyze each of those

cases in search of "circumstantial evidence" that supports Nawara's claim misapprehends the

court's role. "It is not the role of this court to research and construct the legal arguments open to

parties, especially when they are represented by counsel.” Doherty v. City of Chicago, 75 F.3d

318, 324 (7th Cir. 1996). Lastly, Plaintiff points to the HIPAA releases, along with a single vague

statement by Defendant Burke recounted in Nawara's Complaint (Second Am. Compl. [89]

¶ 51),16 and a statement by Defendant Reierson—not contained in the Complaint, but

documented in an exhibit to Defendants' motion to file excess pages on an issue unrelated to this

16 That paragraph reads: "As of [the] meeting on November 18, 2016, and according

to Defendant Matthew Burke, no decision had been made as to whether or not Defendants were

going to order Plaintiff for a fitness for duty examination. Defendant Burke stated that he

requested Shelby, and Reierson 'meet with Officer Nawara and determine whether a fitness for

duty evaluation was appropriate.'" (Second Am. Compl. [89] ¶ 51.)

motion to dismiss.17 These are, Plaintiff asserts, "ambiguous written statements" that support an

inference of causation. (Pl.'s Resp. to Dfs.' MTD [154], at 16–17 (citing Reierson Decl., Ex. 4 to

Dfs' Motion for Leave to File Memo. in Excess of Fifteen Pages in Supp. of Dfs.' Motion to

Disqualify Counsel for Nawara [78-1], at PageID # 499).) But the Burke statement, at best,

suggests that Shelby and Reierson called Nawara into a meeting in November 2016 to determine

whether he should be referred for an FFD. And Reierson's statement merely echoes Burke's.

Taken in combination with the HIPAA forms, these three "ambiguous statements" do not lead to

a plausible inference that Nawara was retaliated against for his involvement in Burruss. Thus,

Plaintiff fails to properly plead that his protected speech was a motivating factor in Defendant's

alleged retaliation against him. Defendants' motion to dismiss Count II is granted as to all

Defendants.

B. Title VII Retaliation

Plaintiff next alleges that the CCSO "subjected [him] to retaliatory treatment in retaliation

for his complaints about Defendant Jones-Hayes' assault and battery of him," in violation of Title

VII, 42 U.S.C. § 2000e-3. (Second Am. Compl ¶ 35.) Title VII prohibits an employer from

"discriminating against any of his employees or applicants for employment . . . because he has

opposed any practice made an unlawful employment practice by [Title VII] . . . or because he has

made a charge, testified, assisted, or participated in any manner in an investigation, proceeding

or hearing." 42 U.S.C. § 2000e-3(a). To plead a Title VII retaliation claim, a Plaintiff must

establish that he was retaliated against because he "engage[d] in a[ ] statutorily-protected

activity." Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 718 (7th Cir. 2018). "Statutorily-protected

17 Reierson's Declaration states: "Prior to speaking with Superintendent Jones-

Hayes and Mr. Nawara, I did not believe there was enough information to refer Mr. Nawara to

CorVel for a FFD evaluation and reported as much to [my supervisor] Ms. Williams." (Pl.'s Resp.

to Dfs.' MTD [154], at 16–17 (citing Reierson Decl., Ex. 4 to Dfs' Motion for Leave to File Memo.

in Excess of Fifteen Pages in Supp. of Dfs.' Motion to Disqualify Counsel for Nawara [78-1], at

PageID # 501).)

activity 'requires more than simply a complaint about some situation at work, no matter how valid

the complaint might be.' . . . Rather, 'the complaint must indicate [that] discrimination occurred

because of sex, race, national origin, or some other protected class.'" Skiba, 884 F.3d at 718

(quoting Cole v. Bd. of Trs. of N. Ill. Univ., 838 F.3d 888, 901 (7th Cir. 2016); Tomanovich v. City

of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006)).

Defendants argue that Nawara has not pleaded that he engaged in any protected activity

under Title VII because none of his complaints about Jones-Hayes accused her of harassing or

assaulting him on the basis of his membership in a protected class. (Dfs.' Memo. in Support of

MTD [104], at 19; Dfs.' Reply Memo. in Supp. of MTD [170], at 23.) Plaintiff responds by re-

casting the allegations in his Second Amended Complaint as allegations of sexual harassment,

or as retaliation on the basis of sex. (Pl.'s Resp. to Dfs.' MTD [154], at 20 ("Plaintiff, a male

employee, was harassed by Defendant Jones-Hayes, a female supervisor, and assaulted,

inappropriately touched, demeaned, and embarrassed in violation of Title VII. Due to his

supervisor’s inappropriate contact with him, Plaintiff Nawara filed a 'Discrimination/Harassment/

Sexual harassment Complaint Form' with OPR documenting the inappropriate contact by his

female supervisor.") (citing Ex. 7 to Dfs.' Memo. in Support of MTD [120]).) Actionable Title VII

sexual harassment "arises when the [alleged] conduct has 'the purpose or effect of unreasonably

interfering with an individual's work performance or creating an intimidating, hostile, or offensive

work environment.'" Hertzberg v. SRAM Corp., 261 F.3d 651, 657–58 (7th Cir. 2001) (quoting

Wolf v. Northwest Ind. Symphony Soc'y, 250 F.3d 1136, 1143 (7th Cir. 2001)). "[T]he conduct at

issue must be sufficiently severe or pervasive that a reasonable person would find it hostile and

that the victim subjectively sees it as abusive." Hertzberg, 261 F.3d at 657–58. The EEOC further

explains that actionable "[h]arassment on the basis of sex" includes:

[u]nwelcome sexual advances, requests for sexual favors, and other verbal or

physical conduct of a sexual nature constitute sexual harassment when (1)

submission to such conduct is made either explicitly or implicitly a term or condition

of an individual's employment, (2) submission to or rejection of such conduct by an

individual is used as the basis for employment decisions affecting such individual,

or (3) such conduct has the purpose or effect of unreasonably interfering with an

individual's work performance or creating an intimidating, hostile, or offensive

working environment.

29 C.F.R. § 1604.11.

The Second Amended Complaint contains several references to Nawara's September 28,

2016 interaction with Jones-Hayes, and to his subsequent complaints. None of those assertions

give rise to a plausible inference that he complained to CCSO about sexual harassment at the

hands of Jones-Hayes, nor about her berating him on the basis of his sex. Nawara alleges in his

Second Amended Complaint that, on September 28, "Defendant Jones-Hayes (female)

responded [to the scene] and in a very insulting, provoking and demeaning manner, hit Plaintiff

in his chest with her finger several times." (Second Am. Compl. [89] ¶ 33.) She again "hit Plaintiff

in the chest with her finger several times, at which time Plaintiff took a step back, feeling trapped,

and told her keep her hands off of him, and that it was very unprofessional." (Id. at ¶ 35.) Nawara

"complained about Defendant Jones-Hayes’ conduct towards him to the other employees,

including the sergeant that was present" at the time of the incident. (Id. at ¶ 39.) "On October

13, 2016, Plaintiff filed a formal complaint with his supervisor regarding Defendant Jones-Hayes’

harassment and assault and battery of him." (Id. at ¶ 42.) Nawara alleges that he has since been

"singled [ ] out because he complained about Defendant Jones-Hayes' assault and battery of

him," and that Jones-Hayes had "ma[de] false allegations against him in regards to the incident

on September 28, 2016." (Id. at ¶¶ 87, 98.) Finally, he notes that OPR has not responded to his

"complaints of harassment and retaliation against him by Defendant Jones-Hayes." (Id. at ¶ 99.)

Drawing all reasonable inferences in favor of Nawara, no assertions in the Second

Amended Complaint allow the court to infer that Nawara submitted a complaint against Jones-

Hayes because she had sexually harassed him. His reference to her sex ("female") and the fact

that she poked him in the chest do not give rise to any inference that he submitted a complaint

about her for sexual harassment or sex-based discrimination. His EEOC filing corroborates as

much: the EEOC filing form provides nine checkboxes providing options for a claimant to describe

their "cause of discrimination." Those options include race, color, sex, religion, national origin,

age, retaliation, disability, and other. Plaintiff's Charge and Amended Charge both select

retaliation and disability, leaving the box for sex unchecked. (See Ex. 6 to Dfs.' Memo. in Supp.

of MTD [104].) Because Plaintiff has not alleged that he was retaliated against for complaining

about harassment based on his membership in a protected class, Defendants' motion to dismiss

Count III is granted.

VI. Illinois Whistleblower Act, 740 ILL. COMP. STAT. 174/15

The Illinois Whistleblower Act, 740 ILL. COMP. STAT. 174/15 ("Whistleblower Act") prohibits

an employer from "retaliat[ing] against an employee who discloses information in a court, an

administrative hearing, or before a legislative commission or committee, or in any other

proceeding, where the employee has reasonable cause to believe that the information discloses

a violation of a State or federal law, rule, or regulation." Id. at 174/15(a). The Act also prohibits

retaliation against an employee who "disclos[es] information to a government or law enforcement

agency, where the employee has reasonable cause to believe that the information discloses a

violation of a State or federal law, rule, or regulation." Id. at 174/15(b). Plaintiff asserts that all

Defendants have violated the Whistleblower Act by retaliating against him for his participation in

Burruss, and for his "complain[ts] that forcing him to sign a HIPAA release was unlawful."18

(Second Am. Compl. [89] § 141.)

The court believes Plaintiff's claim based on Burruss may fall within the scope of § 15(a).

Defendants, however, "assum[e] [that] Nawara's participation in the Burruss litigation falls under

the protection of either 740 [ILL. COMP. STAT.] 174/15(b) or 740 [ILL. COMP. STAT.] 174/20."19

18 He does not assert that the alleged retaliation resulting from his complaint about

Jones-Hayes violated the Whistleblower Act.

19 Plaintiff never mentions any whistleblower claim or retaliation claim arising under

§ 174/20, so the court will not address that statute here.

Plaintiff does not contest that assumption. In any case, the particular sub-section of § 15 is of no

consequence here, as either sub-section by its own terms would require Plaintiff to establish a

causal relation between Nawara's participation in Burruss and the alleged retaliation. As

explained above, Nawara has failed to adequately plead that Defendants took any adverse action

against him because of his activity related to Burruss.

On the other hand, § 15(b) appears to be the only frame of analysis under the

Whistleblower Act for Plaintiff's claim based on Defendants' requirement that Plaintiff sign two

HIPAA waivers. That claim could generously be construed to refer to Nawara's EEOC charge

alleging Defendants violated the ADA, or it could refer to his notifying Defendants that he believed

their HIPAA forms violated the ADA. "[I]n order to establish a claim under section 15(b) . . ., the

employee must show: '(1) an adverse employment action by his or her employer, (2) which was

in retaliation (3) for the employee's disclosure to a government or law enforcement agency (4) of

a suspected violation of an Illinois or federal law, rule, or regulation.'" Runge v. Bd. of Educ. for

Cmty. Unit Sch. Dist. No. 300, 2019 IL App (2d) 180190-U, ¶ 35 (quoting Sweeney v. City of

Decatur, 2017 IL App (4th) 160492, ¶ 15).

Defendants argue that requiring Plaintiff to sign the HIPAA forms or face unpaid leave is

not an adverse employment action under the § 15(b) test. Therefore, Defendants claim, they

cannot have violated the Whistleblower Act. The court is less certain. First, the court does not

agree that the HIPAA forms and the FFD examination support the same analysis. Plaintiff has

not argued that his referral for an FFD examination was unlawful, nor has he refused to take an

FFD examination; instead, he only argues that the HIPAA forms, required as one step of the FFD,

were unlawful under the ADA. Thus, Defendants' reliance on cases like Freelain v. Village of Oak

Park, 888 F.3d 895, 904 (7th Cir. 2018), finding an employer's requirement for a medical exam

not to be a materially adverse action, is unhelpful. There, a police department ordered an officer

to undergo a psychological evaluation before returning to work, after the officer "t[ook] several

weeks off due to stress-related medical symptoms." Id. The officer sued for retaliation in violation

of the Family and Medical Leave Act and the ADA. Id. The Seventh Circuit affirmed the district

court's grant of summary judgment for the defendant on this issue, reasoning that "[a] reasonable

jury could not find that the village acted unreasonably by ordering [plaintiff] to undergo a fitness

for duty evaluation" under these circumstances. Id. Indeed, in Freelain, the court held the exam

to be reasonable, but no HIPAA waivers were required by the defendant employer in order for the

employee to complete the exam.

Next, Defendants argue that Plaintiff's complaint fails to establish any causal connection

between Nawara's complaints about the HIPAA forms and the alleged retaliatory actions against

him. Defendants themselves, however, explain that Nawara was placed on unpaid leave because

of his refusal to sign the HIPAA forms. (Dfs.' Memo. in Supp. of MTD [104], at 3 ("Nawara and

his attorney repeatedly were informed that Nawara’s continued refusal to execute the medical

release forms prevented the FFD examination from going forward, and that, as a result, his status

of paid administrative leave would have to be changed to unpaid status because the leave was

unauthorized.").) Plaintiff's placement on unpaid leave closely followed his complaints about the

HIPAA forms violating the ADA. This timing is sufficient for the court to plausibly infer that Nawara

suffered suspension and other alleged adverse action as a result of his protest that the HIPAA

forms violated the ADA. Defendants' motion to dismiss Count IV is granted in part and denied in

part.

VII. The Merit Board Act, the Illinois Constitution, and the United States Constitution

Count V of Plaintiff's Complaint asks the court to enter a declaratory judgment that

Defendants violated the Merit Board Act, 55 ILL. COMP. STAT 5/3-7012, and suspended Plaintiff

without a hearing in violation of Article I of the Illinois Constitution and the due process clause

United States Constitution. (Second Am. Compl [89], at ¶¶ 150, 151, 152(a).) The damages in

this case have already accrued, and Plaintiff is back at work.20 The court will not enter a

declaratory judgment here. See Green v. Mansour, 474 U.S. 64, 73 (1985) (declining to enter a

declaratory judgment when "[t]here [was] no claimed continuing violation of federal law, and

therefore no occasion to issue an injunction."). Instead, the court construes Plaintiff's claims

under the Merit Board Act, the Illinois Constitution, and the U.S. Constitution as claims for

damages.

A. Merit Board Act

Defendants argue that the Merit Board Act, 55 ILL. COMP. STAT 5/3-7001 et seq. ("MBA")

is inapplicable here. Section 3-7012 of the act provides that

no deputy sheriff in the County Police Department, [and] no full-time deputy sheriff

not employed as a county police officer or county corrections officer . . . shall be

removed, demoted or suspended except for cause, upon written charges filed with

the Board by the Sheriff and a hearing before the Board [formed to hear such

issues under the Act].

Id. at § 5/3-7012. Prior to August 17, 2018, § 5/3-7011 of the MBA provided that the Sherriff could

only suspend an officer as a "disciplinary measure" for "a reasonable period, not exceeding 30

days" without a Board hearing. Sheriffs—Disciplinary Proceedings—Cook County, 2018 ILL.

LEGIS. SERV. P.A. 100-912 (H.B. 5303).21 Defendants argue that Plaintiff's suspension was not

disciplinary, but rather a result of his refusal to participate in the FFD process. The court

20 Plaintiff argues that his harm is ongoing because he has not yet been made whole,

citing Holder v. Illinois Dep't of Corr., 751 F.3d 486, 498 (7th Cir. 2014), as corrected (Nov. 2,

2015) for the proposition that a case or controversy exists until a Plaintiff receives make-whole

relief. (Pls.' Resp. to Dfs.' MTD [154], at 25.) His citation to that case is misplaced. Holder did

not deal with a declaratory judgment, but with a question of mootness. The Defendant had offered

to pay part of Plaintiff's demand on the eve of trial. The Defendants then sought to keep the issue

on which they had promised to pay from reaching trial on grounds of mootness. The Seventh

Circuit found that Defendants' offer to pay was not a "full offer to pay all of what was due, but

rather all of what the defendants believed was due under the defendants' theory." Holder, 751

F.3d at 499. Therefore, the court held that there remained a case or controversy. Here, no party

here alleges that there is no longer a case or controversy. Holder is inapposite.

21 That statute was modified, effective August 17, 2018 to permit any disciplinary

action but "termination or demotion" without a Board hearing. 55 ILL. COMP. STAT. ANN. 5/3-7011.

The Defendants' brief, submitted on August 21, 2018, does not address this change in statute.

disagrees. Nawara’s allegations give rise to a plausible inference that his suspension was

discipline for his refusal to sign the CCSO's broad HIPAA waivers. (See, for example, Second.

Am. Compl. [89] ¶ 69 (explaining that "Defendants [ ] threatened Plaintiff with disciplinary action

and that charges may be brought seeking his termination" after he refused to sign the HIPAA

waivers.) The fact that Nawara has not frequently used the word "discipline" in his Second

Amended Complaint does not alter this conclusion, nor does Defendants' citation to Deen v.

Darosa, 414 F.3d 731, 734–35 (7th Cir. 2005). In that case, the Seventh Circuit ruled that an

officer who had been on medical leave had no property interest in reinstatement after his leave,

even if staying on leave meant "the eventual exhaustion of medical leave pay and benefits." Id.

at 734. Plaintiff Deen framed his failure to be reinstated as a termination and argued that his

termination was for disciplinary reasons and not medical reasons. The court found that "Deen

ha[d] not presented any evidence that the [defendant's] approach to his reinstatement from

medical leave was a pretext for removing him because of misconduct." Id. at 735. Here,

however, Plaintiff Nawara has alleged facts that allow the court to infer that his leave of absence

was disciplinary. The MBA claim will not be dismissed on this ground.

Defendants make two other arguments in support of their motion to dismiss, one which

the court cannot decipher, and the other which comes too late. First, they contend that Nawara

fails to "alleg[e] that the Merit Board Act even applies to him," stating in a footnote: "This

presumably is an attempt to avoid reference to relevant collective bargaining agreements which

provide grievance procedures and remedies for an employee who feels he is wrongly being

denied pay thereby limiting the availability of such agreements to Defendants on a motion to

dismiss." The court cannot interpret this argument, when Defendants have mentioned neither

collective bargaining agreements nor remedy exhaustion elsewhere. Second, in its reply brief

[170], Defendants argue, without expounding, that the MBA lacks a private right of action. (Dfs.'

Reply in Supp. of MTD [170], at 28.) While Defendants had the opportunity to raise this argument

in their initial brief in support of their motion to dismiss [104], they failed to do so. The court will

not dismiss a claim on a ground on which Plaintiff has not had an opportunity to respond.

Defendants' motion to dismiss Plaintiff's MBA claim is denied.

B. Due Process

Finally, Plaintiff asserts that the MBA grants Nawara a protected property interest in his

job, and that his suspension without a hearing deprived him of his due process rights under the

Fourteenth Amendment to the U.S. Constitution and Article I of the Illinois Constitution.

"Procedural due process in constitutional law generally involves a familiar line of inquiry: (1) is

there a property or liberty interest protected by due process; and (2) if so, what process is due,

and when must that process be made available?" Simpson v. Brown County, 860 F.3d 1001,

1006 (7th Cir. 2017).

Defendants make only one argument for the dismissal of Plaintiff's due process claims,

claiming that "due process does not require more process than Nawara already received for the

determination whether he was fit for duty." (Dfs.' Memo. in Supp. of MTD [104], at 29.) This

"process" included what Defendants frame as an "investigat[ion] by HR and an interview wherein

[Nawara] had the opportunity to address Defendants’ concerns about his fitness."22 (Id.) Again,

Defendants rely on Deen, 414 F.3d, for support. That case was brought by a state police officer

against the Illinois State Police ("ISP"), pursuant to the State Police Act, 20 ILL. COMP. STAT. §§

2610/1 et seq. for Deen's alleged termination. "Under 20 [ILL. COMP. STAT.] § 2610/14, ISP

officers may not be removed, demoted, or suspended except for cause, and only following the

examination and hearing procedure set forth in the statute." Deen, 414 F.3d at 733–34. The

Seventh Circuit determined that the State Police Act did not "confer[ ] [Deen] a full-fledged,

constitutionally protected property interest in reinstatement to active duty, [but rather] . . . 'a

property interest in being returned to the department for an opportunity to demonstrate [his] fitness

22 Defendants do not attempt to frame these two steps as a Board hearing under the

MBA, and nor do they claim that Nawara ever received a hearing.

for active duty." Deen, 414 F.3d at 735 (quoting Buttitta v. Chicago, 9 F.3d 1198, 1203 (7th

Cir.1993)). See Deen, 414 F.3d at 735 (analyzing the process provided by the State Police Act

in cases of medical leave, and determining that Deen had been given full process under the

statute).

Seizing on Deen's fitness for duty language, Defendants argue that Nawara, too, is limited

to alleging a property interest an FFD process, and they frame Nawara as "persistently refus[ing]

to use the opportunity to establish he was fit for duty." (Dfs." Memo. in Supp. of MTD [104], at 29.)

Such framing is disingenuous. Nawara did not refuse to participate in the FFD process. He had

an independent doctor conduct an FFD examination, and he completed an FFD examination with

the CCSO's preferred examiner after CCSO's HIPAA waiver was modified. What Nawara did

refuse was CCSO’s demand for broad access to his entire medical history by way of a HIPAA

waiver. Also significant is the fact that in Dean, the plaintiff was granted a hearing in front of the

ISP Medical Review Board, as required by the pertinent statute. Nawara was afforded no hearing,

and Defendants simply argue that the process Nawara received was enough. Defendants’ motion

to dismiss Count V is denied.

CONCLUSION

Defendants’ motion to dismiss [98] is granted in part and denied in part. Defendants are

directed to answer the counts that survive this ruling within 21 days. Status conference is set for

May 1, 2019 at 9:00 a.m. The parties are encouraged to discuss settlement.

ENTER:

Rereere SGpehaese—

Dated: March 28, 2019

REBECCA R. PALLMEYER

United States District Judge

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