On March 9, 2020, the Governor of Illinois issued a Disaster Proclamation, and on March 13, the President declared a National Emergency related to COVID-19. The Proclamation declared that COVID-19 can lead to “serious, long-term complications in some cases.” According to the Centers for Disease Control and Prevention (CDC), individuals with underlying medical conditions, such as lung disease and diabetes, were at an increased risk of severe illness and death from COVID-19.
This concerned Marco DiFranco. DiFranco began working as an officer with the Chicago Police Department (CPD) in 1998. When he was hired, he notified the City that he had cystic fibrosis and cystic fibrosis-related diabetes. Since his assignment to the narcotics division in 2005, DiFranco had worked inside a CPD facility, Homan Square, and in the field.
Less than a week after the Proclamation, CPD’s chief communications officer advised all CPD employees of the CDC’s guidance regarding heightened risk for certain individuals. The email instructed employees who “believed that their medical condition places them at a higher risk of serious illness from COVID-19 to contact the medical section of the CPD to discuss next steps.” The email further instructed CPD employees to have their healthcare providers provide documentation related to their medical conditions via email to the medical services department and stated that, “Once your documentation is reviewed by the Medical Director, you will be contacted by medical services staff for instructions.”
DiFranco’s doctor contacted the medical section less than two hours after DiFranco received the email, reiterating DiFranco’s diagnoses. The letter further stated that, “with this underlying lung condition and these co-morbidities, DiFranco is at higher risk of developing serious illness from COVID-19,” and asked that he “be given the opportunity to work remotely or be provided with alternative accommodations to distance himself from others while at work.” But while that request was pending, DiFranco continued to work in the field and at Homan Square.
On March 23, several days after submitting the request, DiFranco was contacted by his commanding officer, Commander Ronald Kimble, who upbraided DiFranco for submitting the request, accusing him of unnecessarily seeking attention. DiFranco tried to explain the severity of his diagnoses, and told Kimble that his sister, who had the same conditions, had died after an infection. Kimble, after continuing to berate DiFranco, finally ordered DiFranco to advise his sergeant, Mark Vanek, of his conditions and of his request for an accommodation. He did so that day. Still, no City doctor contacted DiFranco as he continued to work as usual, constantly coming into contact with maskless individuals.
On March 28, DiFranco started to experience COVID-19 symptoms. The next day, he tested positive. On April 2, he died from COVID-related complications.
Later that fall, his widow, Maria DiFranco, brought claims against the City under the Americans with Disabilities Act and the Illinois Human Rights Act for failure to accommodate and discrimination, and a separate claim against CPD under the Illinois Wrongful Death Act for failing to offer DiFranco a reasonable accommodation, discriminating against him, and causing his death by failing to grant his request to work remotely or, alternatively, to socially distance from his coworkers. The City disputed this contention, asserting that Vanek assigned him to a one-man car and tasked him with inspecting City infrastructure, and that DiFranco expressed satisfaction with the assignment as an appropriate accommodation. The City also asserted that DiFranco’s exposure to COVID-19 came before his request for accommodation, invalidating a causal link between its conduct and his death.
The City brought a motion to dismiss, and in 2022, the discrimination claims were dismissed. In 2024, the City moved for summary judgment on the surviving claims, and Maria DiFranco moved for summary judgment on the ADA claim. The United States District Court for the Northern District of Illinois granted the City’s motion for summary judgment on all counts.
“It is not disputed that DiFranco submitted a request for accommodation at 4:33 p.m. on Thursday, March 19, 2020. This request was reviewed by CPD’s medical section that evening, which designated him at ‘high risk’ due to COVID-19. Chicago presents the deposition testimony of Captain Sanchez and Sergeant Vanek to establish it offered Officer DiFranco a reasonable accommodation, which he accepted. The Plaintiff does not put forward contrary testimony; instead, she resists summary judgment by casting doubt on Captain Sanchez and Sergeant Vanek’s truthfulness. In her view, because certain conversations were not documented until after-the-fact, they did not occur. Therefore, she argues, a ‘reasonable jury’ could conclude Chicago failed to accommodate Officer DiFranco and lied about it ‘after-the-fact.’ Yet, critically, the Plaintiff presents no evidence to cast doubt on the testimony of Captain Sanchez or Sergeant Vanek, only speculation. Without more, challenges to a witness’s credibility are insufficient to survive summary judgment.”
This reasoning, applied to the ADA and Illinois Human Rights Act claims, was applied in the same way to the Illinois Wrongful Death Act claim.
DiFranco v. City of Chicago, 2024 WL 4723743 (N.D. Ill., 2024).