CHICAGO — A federal judge won’t let Illinois Gov. JB Pritzker end a discrimination lawsuit alleging the governor's COVID restrictions were unfairly imposed on programs for people with disabilities, violating the Americans with Disabilities Act.
John McDonald sued Pritzker and the Illinois Department of Human Services Secretary Grace Hou on June 23, 2020, saying it was wrong to keep Community Day Services programs closed under color of coronavirus mitigation while allowing comparable activities to resume. The parties quickly reached a deal allowing McDonald to return to the Community Workshop and Training Center in Peoria in early July, and U.S. District Judge Rebecca Pallmeyer terminated his motion for an emergency injunction.
In an opinion issued Sept. 27, Pallmeyer said things changed a few months later when a court declared McDonald incompetent and appointed his sister and caretaker, Karen Haney, as his legal guardian. With her substituted as plaintiff, the state renewed its motion to dismiss the complaint.
The state noted it partially reopened CDS programs on Aug. 1, 2020, and did so fully on Sept. 1, 2020. Pallmeyer said she generally agreed that reality mooted the call for an injunction, but that changed with a 2021 U.S. Seventh Circuit Court of Appeals opinion in Casell v. Snyders. In that case, concerning a church seeking to congregate with more than 10 members, the panel found that although the immediate circumstances were resolved and there was minimal prospect of renewed enforcement, “given the uncertainty about the future course of the pandemic, we are not convinced that these developments have definitively” negated the lawsuit.
Pallmeyer further wrote “the pandemic is not over,” pointing to the Delta variant and a rapid uptick of cases in neighboring Missouri earlier this summer. She also said the request for a judicial declaration “could still properly define the parties’ legal rights and obligations” and noted the active request for compensation for McDonald’s emotional distress, which would move forward even if the injunction requests stalled.
Haney suggested the issue could be resolved if the July 2020 order reflecting the voluntary agreement were enforceable going forward. However, Pallmeyer said that isn’t the case because allowing McDonald to return immediately to his program then wasn’t an indefinite agreement prevailing “regardless of how the pandemic unfolds.”
The state argued granting relief in McDonald’s case would have statewide effects on those who didn’t ask for programs to reopen. But Pallmeyer said she didn’t need to address the question of standing at this stage of litigation and denied the motion to dismiss on those grounds. She also wrote that recent U.S. Supreme Court opinions on COVID lawsuits don’t force her to “depart of the traditional analysis” of Americans with Disabilities and Rehabilitation acts.
“Defendants may well be correct that states retain the authority to suspend or discontinue federally funded programs, but this does not mean that a specific exercise of that authority will never constitute a violation of the ADA or Rehabilitation Act,” Pallmeyer wrote. Since Haney alleged McDonald was denied the benefits of his program, the question turned to if she adequately pleaded whether the denial came on account of the disability.
While the state said it based its decision to delay reopening based on contemporaneous guidance from medical professionals, Pallmeyer agreed with Haney the guidance “assesses cognitive abilities and COVID-19 susceptibility for disabled persons as a group,” which gives her intentional discrimination claim plausibility because McDonald’s individual circumstances were overlooked.
Haney also said the state failed to accommodate McDonald’s needs because, until the lawsuit, it wouldn’t consider modifying its COVID mitigations, even if individual participants could comply with safety guidelines. She argued able-bodied workers continued to perform work comparable to McDonald’s at his site and that Haney plausibly argued the state could’ve done more to respond to her brother’s individual situation.
Although Pallmeyer agreed Haney’s complaint didn’t sufficiently allege a “facially neutral policy that fell more harshly on a protected group,” defeating her effort at claims under a disparate impact theory, the remainder of her complaint is enough to survive a motion to dismiss.
Finally, Pallmeyer said Haney’s claim of an Equal Protection Clause violation also is sufficient. While allowing the state might be able to defeat that argument during a trial, Pallmeyer said dismissal is inappropriate because Haney’s allegations state “the challenged conduct was not rationally related to the safe operation of CDS programs or protecting public health.”
Haney and the plaintiffs have been represented by attorneys MIsha Tseytlin, Sean T.H. Dutton and Mary M. Weeks, of the firm of Troutman Pepper Hamilton Sanders, of Chicago and Atlanta; and Blake T. Hannafan, of Hannafan & Hannafan, of Chicago.