A federal judge said the family of a Chicago police officer who died after contracting COVID-19 must amend pleadings to continue pursuing allegations the city violated the Americans with Disabilities Act by refusing to reassign him, despite knowing he had cystic fibrosis and diabetes.
U.S. District Judge Gary Feinerman issued an opinion March 7 agreeing to dismiss the federal lawsuit from the estate of Marco DiFranco, who worked for the Chicago Police Department from May 1998 until his death in April 2020. His widow, Maria, accused the city of violating the ADA as well as the Illinois Human Rights and Wrongful Death acts, alleging the CPD failed to grant his request to work remotely or be socially distant from his colleagues.
DiFranco, who had cystic fibrosis and associated diabetes when he joined the city’s police force, was assigned to the narcotics division in 2005, through which he was based at CPD’s Homan Square facility. According to court documents, his doctor submitted an accommodation request on March 19, 2020, shortly after the CPD’s communications officer sent a memo concerning pre-existing conditions and complications with COVID-19.
The complaint further alleged DiFranco repeatedly called the department’s Medical Section but encountered full voice mail boxes and couldn’t get a return call. A March 23, 2020, call from DiFranco’s commanding officer, Ronald Kimble, allegedly resulted in DiFranco being “berated” for submitting his medical request. DiFranco continued reporting to work, using a handprint scanner for security access and riding communal elevators with unmasked colleagues.
DiFranco began experiencing COVID-19 symptoms on March 28 and died six days later, which the CPD classified as a line of duty death.
Feinerman disagreed with the city’s position that Maria DiMarco couldn’t pursue ADA claims because her husband didn’t file an Equal Employment Opportunity Commission charge before his death. He said the same general reasoning applies to her ability to file an Illinois Human Rights Act claim.
In allowing the failure to accommodate claims to survive, Feinerman rejected the city’s position its delay in responding to DiFranco’s request between his March 19 request and March 29 hospitalization wasn’t unreasonable, “because Maria’s allegations give rise to a plausible inference that the city’s delay in responding to Marco was unreasonable given the circumstances presented by the COVID-19 pandemic and also was in bad faith.”
However, Feinerman dismissed the discrimination claims under the ADA, because although DiFranco asked to be treated differently based on his medical condition, and the CPD didn’t grant the request, “the crux is that CPD did not treat Marco differently based on his disability,” Feinerman wrote. “Nor can Maria’s allegation that Kimble berated Marco for requesting an accommodation support a discrimination claim, as a single hostile call from a supervisor does not rise to the level of a materially adverse employment action.”
Turning to the Wrongful Death Act claim, Feinerman rejected the city’s argument DiFranco’s claim was barred by the Illinois Pension Code. The city had argued the pension law contains language forbidding common law actions for line-of-duty-deaths for officers. Although the city code has an ordinance approved in keeping with the Pension Code, suing under the Wrongful Death Act is a statutory claim, Feinerman said. The judge agreed Illinois state lawmakers amended the law in 1997 to remove the ban on such claims.
Feinerman dismissed DiFranco’s ADA and Human Rights Act discrimination claims without prejudice, giving Maria DiFranco until March 21 to file an amendment. If she does, the city has until April 11 to respond. But the judge said the city isn’t allowed to try to dismiss DiFranco’s failure to accommodate claims under those laws or the Wrongful Death Act claim.
DiFranco is represented in the action by attorney Steven M. Laduzinsky and Natalie Kay Wilkins, of Laduzinsky & Associates, of Chicago.
The city is represented by attorney Scott M. Crouch and others with the city’s Department of Law.