Lawsuit McNeal v. Oak Park

Case: 1:14-cv-10402 Document #: 1 Filed: 12/29/14 Page 1 of 19 PageID #:1
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.
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 PARKS 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.
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 PARKS 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, MCNEALS 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 PARKS Human Resources Director, Frank Spataro,
sent MCNEAL correspondence regarding her return to work for OAK PARK. This correspondence
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 PARKS 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 MCNEALS 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 MCNEALS employment up to April 26, 2012. In fact, during
MCNEALS employment with OAK PARK, booting was a task that never was evenly distributed
among OAK PARKS 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
boots from vehicles, notwithstanding the absence of these particular tasks as part of the express
job description for OAK PARKS Parking Enforcement Officers. Mr. Spataros memorandum stated
that OAK PARK had no choice but to terminate MCNEALS 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 MCNEALS 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 PARKS
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 EEOCs investigation of MCNEALS 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 EEOCs efforts through its conciliation process, the EEOC
eventually referred MCNEALS charge to the U.S. Department of Justice, Civil Rights Division,
Disability Rights Section.
23.
For the past year, the Department of Justice investigated and considered the
possibility of filing a lawsuit against OAK PARK on MCNEALS 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 MCNEALS 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 ADAs interpretative guidelines specify that reassignment to a vacant
position is a reasonable accommodation, OAK PARK failed and refused to reassign MCNEAL to an
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 PARKS 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 MCNEALS 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 MCNEALS 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
7
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.

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 II Violation of the Americans with Disabilities Act

(Disability Discrimination Title II)
33.
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 PARKS 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.
36.
protected rights under the ADA.
37.
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 MCNEALS rights under Title II of
the ADA;
C.
discriminates on the basis of disability;
D.
that provide equal employment opportunities for qualified individuals with
disabilities and that eradicate the effects of its past and present unlawful
E.

F.

G.

H.

I.
J.
K.
and just.
Count III Violation of Title VII

(Race Discrimination)
38.
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.

10
40.
Other employees of OAK PARK in positions similar to MCNEALS prior employment
position who were not African-American were treated disparately and more favorably.
41.
No lawful basis existed for OAK PARKS failure and refusal to treat MCNEAL in the
same manner as her non-African-American counterparts.

42.
protected rights under Title VII.
43.
humiliation, embarrassment, and future lost income and benefits, all based on OAK PARKS
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 MCNEALS rights under Title VII;
C.
discriminates on the basis of race;
D.
that provide equal employment opportunities for qualified individuals of all
races and that eradicate the effects of its past and present unlawful
E.

11
F.

G.

H.

I.
J.
K.
and just.
Count IV Violation of the Age Discrimination in Employment Act

(Age Discrimination)
44.
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 PARKS termination of her employment, MCNEAL was 60 years
46.
Other employees of OAK PARK in positions similar to MCNEALS prior employment
of age.
position who were younger than 40 years of age were treated disparately and more favorably.
12
47.
No lawful basis existed for OAK PARKS failure and refusal to treat MCNEAL in the
same manner as her younger counterparts.

48.
protected rights under the ADEA.
49.
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 MCNEALS rights under the ADEA;
C.
discriminates on the basis of race;
D.
that provide equal employment opportunities for qualified individuals of all
races and that eradicate the effects of its past and present unlawful
E.

F.

13
G.

H.

I.
J.
K.
and just.
Count V Retaliation
50.
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 PARKS unilateral change in the Parking Enforcement Officers job description.
53.
On April 26, 2012, OAK PARK terminated MCNEALS employment.
54.
OAK PARK terminated MCNEALS employment in retaliation for her unions
aforesaid actions.
14
55.
On or about April 30, 2012, SEIU Local 73 filed a grievance on MCNEALS 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.

57.
willfully, and wantonly and with malice or with reckless indifference to MCNEALS rights under
state and federal employment laws.
58.
unlawful retaliation against her.
A.
Enter a finding that OAK PARKS termination of MCNEALS employment and

failure and refusal to accommodate her or retain her employment
constituted retaliation;
B.
constitutes retaliation;
C.
that provide equal employment opportunities for qualified individuals and
that eradicate the effects of its past and present unlawful employment
practices;
D.

E.

15
F.

G.

H.
I.
J.
and just.
Count VI Violation of 775 ILCS 5/2-102

59.
above as and for Paragraph 59 of Count VI of this complaint as if such allegations were fully set
forth herein.
60.
willfully, and wantonly and with malice or with reckless indifference to MCNEALS rights under
state and federal employment laws.
61.
unlawful employment practices undertaken against her.
16

A.
Enter a finding that OAK PARKS termination of MCNEALS employment and

failure and refusal to accommodate her or retain her employment
constituted unlawful employment practices;
B.
participation with them, from engaging in any unlawful employment
practices;
C.
that provide equal employment opportunities for qualified individuals and
that eradicate the effects of its past and present unlawful employment
practices;
D.

E.

F.

G.

H.
I.
J.
and just.
17
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:
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
18
/s/ J. Matthew Pfeiffer

One of Her Attorneys

Lawsuit McNeal v. Oak Park

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

IN THE UNITED STATES DISTRICT COURT

VILLAGE OF OAK PARK,

TRIAL BY JURY DEMANDED

committed within the Northern District of Illinois.

Case: 1:14-cv-10402 Document #: 1 Filed: 12/29/14 Page 2 of 19 PageID #:2

domiciled in Oak Park, Illinois.

the ADA, 42 U.S.C. 12111(2).

Factual Allegations Common to All Counts

approximately 52,000 residents.

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

Officer, beginning in 1999.

Case: 1:14-cv-10402 Document #: 1 Filed: 12/29/14 Page 3 of 19 PageID #:3

Case: 1:14-cv-10402 Document #: 1 Filed: 12/29/14 Page 4 of 19 PageID #:4

MCNEAL elected to return to her position with an

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

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

MCNEAL disclosed these recommended restrictions to OAK PARK and sought

accommodation for these restrictions.

Case: 1:14-cv-10402 Document #: 1 Filed: 12/29/14 Page 5 of 19 PageID #:5

Case: 1:14-cv-10402 Document #: 1 Filed: 12/29/14 Page 6 of 19 PageID #:6

Count I Violation of the Americans with Disabilities Act

MCNEAL restates and incorporates herein by reference Paragraphs 1 through 23

Even if booting vehicles actually was an essential function of the Parking

While the ADAs interpretative guidelines specify that reassignment to a vacant

Case: 1:14-cv-10402 Document #: 1 Filed: 12/29/14 Page 7 of 19 PageID #:7

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.

OAK PARK committed the aforesaid unlawful employment practices intentionally,

Enter a finding that MCNEAL was subjected to disability discrimination by

Enter a finding that OAK PARK willfully engaged in disability discrimination

Case: 1:14-cv-10402 Document #: 1 Filed: 12/29/14 Page 8 of 19 PageID #:8

participation with them, from engaging in any employment practice which

Order OAK PARK to make MCNEAL whole by providing appropriate back

Order OAK PARK to make MCNEAL whole by providing the affirmative

Order OAK PARK to make MCNEAL whole by providing compensation for

Order OAK PARK to make MCNEAL whole by providing compensation for

Case: 1:14-cv-10402 Document #: 1 Filed: 12/29/14 Page 9 of 19 PageID #:9

Count II Violation of the Americans with Disabilities Act

MCNEAL restates and incorporates herein by reference Paragraphs 1 through 28

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.

OAK PARK committed the aforesaid unlawful employment practices intentionally,

Enter a finding that MCNEAL was subjected to disability discrimination by

Enter a finding that OAK PARK willfully engaged in disability discrimination

Case: 1:14-cv-10402 Document #: 1 Filed: 12/29/14 Page 10 of 19 PageID #:10

Order OAK PARK to make MCNEAL whole by providing appropriate back

Order OAK PARK to make MCNEAL whole by providing the affirmative

Order OAK PARK to make MCNEAL whole by providing compensation for

Order OAK PARK to make MCNEAL whole by providing compensation for

Count III Violation of Title VII

MCNEAL restates and incorporates herein by reference Paragraphs 1 through 23

MCNEAL is an African-American woman.

Case: 1:14-cv-10402 Document #: 1 Filed: 12/29/14 Page 11 of 19 PageID #:11

Other employees of OAK PARK in positions similar to MCNEALS prior employment

same manner as her non-African-American counterparts.

OAK PARK committed the aforesaid unlawful employment practices intentionally,

Enter a finding that MCNEAL was subjected to race discrimination by OAK

Order OAK PARK to make MCNEAL whole by providing appropriate back

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

Order OAK PARK to make MCNEAL whole by providing the affirmative

Order OAK PARK to make MCNEAL whole by providing compensation for

Order OAK PARK to make MCNEAL whole by providing compensation for

Count IV Violation of the Age Discrimination in Employment Act