IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) Civil Action No. ) 93 C 7741 v. ) Judge Manning ) STATE OF ILLINOIS, a State ) of the United States of ) America; CITY OF AURORA, ) a Municipality of the State ) of Illinois; and the BOARD ) OF TRUSTEES OF THE CITY OF ) AURORA POLICE PENSION FUND, ) ) Defendants. ) CONSENT DECREE On December 28, 1993, the United States brought this action against the State of Illinois, the City of Aurora, and the Board of Trustees of the City of Aurora Police Pension Fund to enforce Title I of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C.  12101 et seq. (the ADA). The United States' Complaint alleges that Defendants have pursued and continue to pursue policies and practices that discriminate in employment on the basis of disability and that deprive or tend to deprive qualified individuals with disabilities privileges of employment because of their disability in violation of Title I of the ADA. More specifically, the Complaint alleges that Defendants have implemented these policies and practices by: 01-05073 a. continuing to give force and effect to Sections 3-106 and 4-107(b) ... of the Illinois Annotated Statutes, Chapter 40, Act 5 (Smith-Hurd 1993), which [contain a physical and mental fitness determination that] ... discriminates against qualified individuals with disabilities; denies such individuals entry, on the basis of their disabilities, into Police Pension Funds and/or Firefighter Pension Funds that are mandated by the State of Illinois; and is contrary to and in conflict with provisions of Title I of the ADA; b. failing or refusing to take appropriate action since July 26, 1992, the effective date of Title I of the ADA, to eliminate the discriminatory policies and practices and to correct the continuing effects of these policies and practices; and c. failing or refusing to provide full relief to those individuals who have been harmed by the unlawful policies and practices. Complaint, para. 9. The Complaint seeks a declaration that the challenged pension code provisions violate the ADA, an injunction prohibiting Defendants from giving force and effect to those provisions, and make-whole relief for the victims of the alleged discrimination. Defendants have denied and continue to deny that they have violated any of the provisions of Title I of the ADA. On June 30, 1995, the State of Illinois passed an amendatory act ("amendment") which repealed the challenged physical and mental fitness requirement contained in 40 ILCS 5/3-106 and 40 ILCS 5/4-107(b). The amendment also permits police officers and firefighters who were denied pension fund membership because of the challenged pension fund fitness requirement to elect to participate by making a written application to their respective Board of Trustees of the police or firefighter pension fund - 2 - 01-05074 before July 1, 1996 and also to elect to establish creditable service for pension fund membership for prior periods of employment by payment of the required sums (see amended 40 ILCS 5/3-109(d) and 40 ILCS 5/4-107(c)). This Consent Decree is entered into for judicial and administrative economy with the understanding by the parties that it does not constitute an admission of fact, fault or liability. This Consent Decree reflects the entire understanding between the parties in regard to the resolution of this matter and is intended to resolve all remaining disputes between the parties. Accordingly, it is hereby STIPULATED: 1. It is the policy of the Defendants to follow the requirements of Title I of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C.  12111 et seq. 2. It is the policy of the Defendants not to retaliate against any person because that person has opposed policies or practices that are allegedly discriminatory under Title I of the ADA, because that person has filed a charge with the EEOC under Title I of the ADA regarding the statutory fitness requirement, or because of that person's participation in or cooperation with the initiation, investigation, litigation or administration of any stage of this matter. - 3 - 01-05075 3. The parties acknowledge that this Consent Decree does not prohibit future legislative action by the Illinois General Assembly. The parties also acknowledge that any amendment to the statutes challenged in this case must comply with Title I of the ADA. 4. The parties acknowledge that this Consent Decree does not otherwise preclude the Board of Trustees of the City of Aurora Police Pension Fund from exercising its statutory authority as provided under State law so long as the Board acts consistently with this Consent Decree and with Title I of the ADA. It is hereby STIPULATED and DECREED: 5. Within one month after the execution of this Decree, the State of Illinois shall provide a copy of this Decree and a copy of the statutory amendment to the Board of Trustees of every police and fire pension fund created by virtue of 40 ILCS 5/3-101 et seq. and 40 ILCS 5/4-101 et seq. and to every Municipality covered by 40 ILCS 5/3-103 and 40 ILCS 5/4-103. 6. By cover letter accompanying a copy of the Decree and the statutory amendment, the State shall request each Municipality and each Board of Trustees to, jointly or separately, complete each of the following, by no later than two months after the execution of this Decree: - 4 - 01-05076 a. Identify each individual employed as a municipal police officer or firefighter who is currently denied pension fund membership or who, at any time during his or her employment since July 26, 1992, has been excluded from pension fund membership because of the repealed fitness requirement; and b. Provide a copy of this Consent Decree to every individual employed as a municipal police officer or firefighter who is currently denied pension fund membership or who, at any time during his or her employment since July 26, 1992, has been excluded from pension fund membership because of the repealed fitness requirement; and c. Post a copy of this Consent Decree, in a prominent location, in each city hall, police station, fire station, and location where police officers and firefighters receive information or assignments; and d. Provide, in writing, the names and addresses of those persons identified pursuant to paragraph 5(a) to United States Department of Justice, Civil Rights Division, Disability Rights Section, P.O. Box 66738, Washington D.C. 20035-6738. Attention: U.S. v. State of Illinois et al. - 5 - 01-05077 7. Currently appointed police officers and firefighters who were excluded by the fitness requirements formerly contained in 40 ILCS 5/3-106 and 40 ILCS 5/4-107(b) who elect to participate in their respective pension funds may either pay, or have paid on their behalf, the sums required by 40 ILCS 3/-109(d) and 40 ILCS 5/4-107(c) in order to establish creditable service for periods of employment during which they were denied participation based upon the repealed fitness requirement. 8. The City of Aurora has agreed to pay on behalf of City of Aurora Police Officers Reynaldo Rodriguez and Kevin Holmes, all amounts necessary for those individuals to establish creditable service in the City of Aurora Police Pension Fund for the entire period of employment as police officers during which they were denied participation based upon the repealed fitness requirement. 9. The State of Illinois agrees to recognize the payments made by the City of Aurora under paragraph seven (7) of this Consent Decree as meeting the requirements of 40 ILCS 5/3-109(d) and 40 ILCS 5/4-107(c). The State further agrees that any similar payments made prior to January 1, 1997, by any municipality on behalf of any individual police officer or firefighter previously denied admission into the pension fund under former 40 ILCS 5/3-106 and 40 ILCS 5/4-107(b) shall be considered sufficient to meet the requirements of 40 ILCS/3-109(d) and 40 ILCS 5/4-107(c). - 6 - 01-05078 10. This Consent Decree does not preclude any individual affected by the fitness requirement challenged by this litigation from seeking additional relief in a private action or otherwise. 11. This Consent Decree shall not be construed to create any obligation upon the State of Illinois to make payments or contributions under 40 ILCS 5/3-109(d) or 40 ILCS 5/4-107(c). 12. Police officers and firefighters who were excluded by the fitness requirements formerly contained in 40 ILCS 5/3-106 and 40 ILCS 5/4-107(b) who elect to participate in their respective pension funds and to establish creditable service for pension fund membership for periods of employment during which they were denied participation based upon the repealed fitness requirement, shall have until January 1, 1997 to either pay the amounts owed pursuant to 40 ILCS 5/3-109(d) or 40 ILCS 5/4-107(c) or to have entered into a written contract for the payment of such amount on terms stipulated to by the local police officer or firefighter and his or her local pension board. 13. Individuals who were excluded by the fitness requirement formerly contained in 40 ILCS 5/3-106 and 40 ILCS 5/3-107(b) and who elect to participate in a pension fund by virtue of the provisions contained in 40 ILCS 5/3-109(d) and 40 ILCS 5/4-107(c) shall have the option of: - 7 - 01-05079 a. Electing to participate in the pension fund on a prospective basis only; b. Electing to establish creditable service for pension fund membership for the entire period of employment as a police officer or firefighter during which they were denied participation based upon the repealed fitness requirement; or c. Electing to establish creditable service for pension fund membership for less than the entire period of employment as a police officer or firefighter during which they were denied participation based upon the repealed fitness requirement. 14. This Consent Decree shall remain in effect until March 1, 1997. At that time, this Consent Decree shall terminate unless the United States moves for cause at the end of that period for an extension. 15. The Court retains jurisdiction over this case for the purposes of deciding any issue which may arise under this Consent Decree and for purposes of enforcement of this Consent Decree. Any party may bring such issues before the Court by filing an appropriate motion. 16. All parties shall bear their own attorneys fees, costs and expenses. - 8 - 01-05080 We consent and seek entry of this Decree: On behalf of the plaintiff, The United States by: Deval L. Patrick Assistant Attorney General John L. Wodatch L. Irene Bowen Alyse S. Bass Attorneys Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 On behalf of the defendant, State of Illinois by: James R. Carroll Roger Flahaven Tracy Lovi Hartlieb Office of the Attorney General State of Illinois 100 West Randolph, 13th Floor Chicago, Illinois 60601 On behalf of the defendant, Board of Trustees by: Charles H. Atwell, Counsel for Board of Trustees of the City of Aurora Police Pension Fund 111 West Downer Place Aurora, Illinois 60506 On behalf of the defendant, City of Aurora, by: Michael Weinstein, Corporation Counsel City of Aurora 44 East Downer Aurora, Illinois 60507 SO ORDERED this day of , 1995. The Honorable Blanche Manning United States District Judge 01-05081 FOR IMMEDIATE RELEASE CR TUESDAY, AUGUST 8, 1995 (202) 616-2765 TDD (202) 514-1888 POLICE OFFICERS AND FIREFIGHTERS WITH DISABILITIES IN ILLINOIS TO GET ACCESS TO BENEFIT PLANS DUE TO JUSTICE DEPARTMENT EFFORTS WASHINGTON, D.C. -- An Illinois law that prevented police officers and firefighters who had a disability at the time of their hiring from participating in retirement and disability plans has been dropped as a result of a lawsuit settled today between the Justice Department and the state of Illinois. The suit was the first one filed by the Justice Department under a federal law that became effective in 1992 that protects persons with disabilities from employment discrimination. In the December 1993 suit the Justice Department accused Illinois, the City of Aurora, and the Board of Trustees of the Aurora Police Pension Fund, of denying pension and retirement benefits to qualified police officers and firefighters with disabilities, in violation of the Americans with Disabilities Act. It alleged that the state pension code discriminated against persons with disabilities by requiring all hired police officers and firefighters to undergo a separate physical exam to become a 01-05082 member of a pension fund. As a result of the requirement, employees with disabilities, or those who were perceived to be "more prone to disability", were denied membership despite their ability to perform. The rejected employees could not have received disability benefits even if they were injured in the line of duty. After 18 months of litigation, the state in June repealed the challenged provisions of its pension code and permitted police officers and firefighters with disabilities to join their local pension fund. It also allowed them to obtain membership retroactive to the date they were originally denied entry into the pension fund provided that the retroactive payment was made to the pension fund. Under today's agreement, the state will: advise every municipality and every police and fire pension board of the rights of excluded police officers and firefighters to gain membership in pension funds; distribute copies of the agreement to every municipality and local police and firefighter pension board to be posted in prominent locations and provided to affected individuals; permit formerly excluded employees to gain membership retroactive to the date they started work, provided they pay into the fund, or have paid on their behalf the total amount they would have paid had they been a member since that date. "This change is a major victory for police officers and fire fighters with disabilities who now -- like their fellow officers -- can receive retirement and disability benefits," said Assistant Attorney General for Civil Rights Deval L. Patrick. "This agreement closes a chapter in the state's history of discrimination against employees with disabilities." 01-05083 The Justice Department became aware of the discriminatory practices after receiving a complaint from Kevin Holmes, a 10-year year veteran of the Aurora police department. He claimed he had been denied membership in his pension fund because he had diabetes and that he could not get disability benefits if he were shot in the line of duty. The agreement, filed today with Judge Blanche Manning in U.S. District Court in Chicago, must still be approved by the court. # # # 95-437 01-05084 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) v. ) No. 93 C 7741 ) STATE OF ILLINOIS, a State of the ) United States of America, CITY OF ) AURORA, a municipality of the ) State of Illinois, and BOARD OF ) TRUSTEES OF THE CITY OF AURORA ) POLICE PENSION FUND, ) ) Defendants. ) ) CITY OF AURORA, ) ) Cross-claimant, ) v. ) ) STATE OF ILLINOIS, BOARD OF ) TRUSTEES OF THE CITY OF AURORA ) POLICE PENSION FUND, ) ) Cross-defendants. MEMORANDUM OPINION AND ORDER Plaintiff United States brought this action pursuant to 42 U.S.C.  12117 contending that defendants' conduct violates Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.  12101-17. Named as defendants are the State of Illinois, the City of Aurora ("Aurora"), and the Board of 01-05085 Trustees of the City of Aurora Police Pension Fund (the "Fund"). Plaintiff contends that defendants violate the ADA by excluding police officers and firefighters with certain disabilities from qualifying for pension benefits. Aurora has filed crossclaims against the State and the Fund seeking indemnity and injunctive relief in the event that Aurora is found liable for violating the ADA. Presently pending are the State's and the Fund's motions to dismiss the claims and crossclaims against them. The motions are pursuant to both Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The complaint in this case contains few factual allegations. It consists almost entirely of a recitation of Illinois law pertaining to pensions for police officers and firefighters of municipalities with populations of less than 500,000.1 Illinois statutes establish rules for police and firefighter pensions in the covered municipalities. See 40 ILCS 5/3 & 4. The statutes provide that the pension funds are to be administered by a five-member board. 40 ILCS 5/3-128, 4-121.2 The provision challenged as being a violation of the ADA is the 1Under the pertinent state pension laws, a municipality is defined as: "Any city, village or incorporated town of 5,000 or more but less than 500,000 inhabitants, . . . and (2) any city, village or incorporated town of less than 5,000 inhabitants which, by referendum . . . adopts this Article." 40 ILCS 5/3-103 (police pensions). See also 40 ILCS 5/4-103 (firefighter pensions). Chicago is the only Illinois city with a population greater than 500,000. 2The powers and duties of the boards are set forth in 40 ILCS 5/3-131 to 3-140.1, 4-122 to 4-129.1. - 2 - 01-05086 provision permitting the pension board to separately determine whether a police officer or firefighter is physically and mentally fit to perform the duties of the job. See 40 ILCS 5/3-106(2), 4-107(b)(2).3 Persons found by their employing municipality to be physically and mentally fit to perform their duties can still be found ineligible by the Pension Board and thus continue in their employment without being eligible for pension benefits. See Holmes v. Illinois Municipal Retirement Fund, 185 Ill. App. 3d 282, 540 N.E.2d 1122, 1124 (2d Dist.), appeal denied, 127 Ill. 2d 616, 545 N.E.2d 110 (1989); Esner v. Board of Trustees of Fire Pension Fund of Village of North Riverside, 68 Ill. App. 3d 541, 386 N.E.2d 288, 290 (1st Dist. 1979). A finding of lack of fitness to qualify for pension coverage can be based on the employee being significantly more prone to disability than the average police officer or firefighter. Esner, 386 N.E.2d at 290. The complaint does not identify any particular police officer or firefighter who is currently disputing his or her 3The definition of a police officer under the statute includes being "found upon examination of a duly licensed physician or physicians selected by the board to be physically and mentally fit to perform the duties of a police officer." 40 ILCS 5/3-106(2). Similarly, the statute provides that firefighter eligibility for the pension system requires that, within three months after appointment, "he or she [be] found upon a medical examination by a duly licensed physician selected by the board to be then physically and mentally fit to perform the duties of a firefighter." Id. 5/4-107(b)(2). - 3 - 01-05087 eligibility for a police or fire pension. It is generally alleged that defendants "have pursued and continue to pursue policies and practices that discriminate in employment on the basis of disability . . . ." In plaintiff's memorandum in response to defendant State's motion to cite additional authority, plaintiff represents that there are approximately 560 state-mandated municipal pension funds and that subsequent to July 26, 1992, a number of police officers and firefighters in those plans have been denied admission to pension plans based on disability. Plaintiff identifies three specific individuals, one of whom, Kevin Holmes, is an Aurora police officer. Holmes was hired in 1985. That year, he was denied admission to the Fund on the ground that he was insulin-dependent. See Holmes v. City of Aurora, 1993 WL 512629 *1 (N.D. Ill. Dec. 9, 1993); Holmes v. Aurora Police Pension Fund Board of Trustees, 217 Ill. App. 3d 338, 577 N.E.2d 191, 193 (2d Dist.), appeal denied, 142 Ill. 2d 654, 584 N.E.2d 129 (1991). He applied again in 1988, but was turned down again and review was denied on the ground that the unappealed 1985 decision was res judicata. See id. Holmes is still an Aurora police officer. In Holmes v. City of Aurora, he is challenging the denial of his admission to the Fund on the ground that it violates Part A of Title II of the ADA, 42 U.S.C.  12131-34, which prohibits discrimination in services, - 4 - 01-05088 programs, and activities of a public entity, and the Rehabilitation Act of 1973, 29 U.S.C.  794.4 Defendants raise various grounds for dismissal of the complaint. The jurisdictional grounds will be considered first. The State contends there is no case or controversy. It argues that there is no allegation of any employee who is presently being affected by the State's enforcement of the challenged statutes. In response, however, plaintiff contends that three specific employees and a number of other unnamed employees are presently adversely affected by the statutes in that, consistent with the statutes, they are being denied admission to pension funds. There is an existing injury and an actual controversy. See EEOC v. City of Evanston, 854 F. Supp. 534, 538 (N.D. Ill. 1994); EEOC v. Bloomingdale Fire Protection District, 1990 WL 92883 (N.D. Ill. June 27, 1990). It is also contended that there is no case or controversy as to the State because it is not the employer of any affected employee. Resolution of that issue is dependent on determining whether the State is a covered entity against whom this Title I action may be brought. Both the State and the Fund contend they are not covered entities under Title I because they are not employers of the affected employees. Being an employer covered 4That is what was claimed as of December 1993. Holmes v. City of Aurora, 1993 WL 512629 at *1. The docket in this court, however, indicates the complaint has since been amended. - 5 - 01-05089 by the ADA is a jurisdictional requirement. Doe v. William Shapiro, Esq., P.C., 852 F. Supp. 1246, 1249 (E.D. Pa. 1994); Perra v. LaSalle County Veterans Assistance Commission, 1994 WL 444799 *1 (N.D. Ill. Aug. 15, 1994). Title I of the ADA prohibits discrimination by a "covered entity . . . against a qualified individual with a disability because of the disability of such individual in regard to . . . employee compensation . . . and other terms, conditions, and privileges of employment." 42 U.S.C.  12112(a). "The term 'covered entity' means an employer, employment agency, labor organization, or joint labor-management committee." Id.  12111(2). "The term 'employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person." Id.  12111(5)(A).5 "The term 'qualified individual with a disability' means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id.  12111(8). There is no express requirement that the covered entity be an employer of the qualified individual. The State's Eleventh Amendment 5At the time this case was filed, an employer had to have 25 or more employees. Whether that number or the lower number presently in effect applies to this case need not be decided; neither defendant is an employer of 15 to 24 employees. - 6 - 01-05090 immunity is expressly waived. Id.  12202. The parties agree that Title VII of the Civil Rights Act of 1964 ("Title VII") and Age Discrimination in Employment Act ("ADEA") contain provisions similar to the ADA, see 42 U.S.C.  2000e(b), 2000e-2(a); 29 U.S.C.  623(a)(1), 630(b), and that Title VII and ADEA cases are useful in construing the pertinent provisions of the ADA. See Janopoulos v. Harvey L. Walner & Associates, Ltd., 835 F. Supp. 459, 462 (N.D. Ill. 1993). The State concedes that it is an employer, but contends that it cannot be liable under the ADA because it is not the employer of the municipal police officers and firefighters allegedly discriminated against. Under Title VII, the Seventh Circuit has held that employers are prohibited from engaging in any unlawful activity prohibited by Title VII, even if not the employer of the person claiming discrimination. Doe v. St. Joseph's Hospital of Fort Wayne, 788 F.2d 411, 422-24 (7th Cir. 1986). See also Evanston, 854 F. Supp. at 537-38 (applying same holding to ADEA). There is nothing in the language of the ADA that suggests a different construction. The claim against the State satisfies the literal requirements of the ADA. The State is an employer and therefore is a covered entity under the ADA. By being denied admission to a pension plan because of a disability, a police officer may be denied compensation or a term, condition, or privilege of employment, see Northen v. City - 7 - 01-05091 of Chicago, 841 F. Supp. 234, 236 (N.D. Ill. 1993), because of a disability. The ADA is silent as to requiring a direct employment relationship for liability and, as the Seventh Circuit held in St. Joseph's Hospital, such a requirement should not be read into the statute. Other courts have concluded that state entities may be held liable under Title VII and the ADEA for enforcing statutes or regulations affecting employee compensation or benefits. See Evanston, 854 F. Supp. at 537-38; Barone v. Hackett, 602 F. Supp. 481, 483 (D.R.I. 1984); EEOC v. State of Illinois, 1990 WL 56147 *2 (C.D. Ill. Jan. 25, 1990). Fields v. Hallsville Independent School District, 906 F.2d 1017, 1020 (5th Cir. 1990), cert. denied, 498 U.S. 1026 (1991), is to the contrary, but it is inconsistent with Seventh Circuit precedent. Unlike the Seventh Circuit's holding in St. Joseph's Hospital, the Fifth Circuit requires a direct employer/employee relationship, including the right to control and direct the work. See Fields, 906 F.2d at 1019-20. See also Ehret v. State of Louisiana, 1992 WL 46347 *2-4 (E.D. La. March 4, 1992). This court has jurisdiction over the claim against the State, an employer under the ADA which affects the relevant employees' compensation or terms, conditions, or privileges of employment. See Evanston, 854 F. Supp. at 537-38 (holding that State is a proper party in ADEA suit involving firefighter pensions). - 8 - 01-05092 The Fund is different. The Fund's own employees number less than 15 persons. Therefore, the Fund is only a covered entity if it is considered to be an employer of the police officers or an agent of the police officers' employer, that is an agent of Aurora.6 Most courts that have considered the issue have held that the ADA does not apply to the administrator of a benefit fund. Pappas v. Bethesda Hospital Association, F. Supp. 1994 WL 460141 *2-3 (S.D. Ohio June 29, 1994); Dodd v. Blue Cross & Blue Shield Association, 835 F. Supp. 888, 891 (E.D. Va. 1993); Carparts Distribution Center, Inc. v. Automotive Wholesaler's Association of New England, 826 F. Supp. 583, 585-86 (D.N.H 1993). Contra Mason Tenders District Council Welfare Fund v. Donaghey, 1993 WL 596313 (S.D.N.Y. Nov. 19, 1993). However, a number of Title VII and ADEA cases have held that benefit funds may be liable under those acts. See Spirt v. Teachers Insurance & Annuity Association, 691 F.2d 1054, 1063 (2d Cir. 1982), vacated & remanded on other grounds, 463 U.S. 1223 (1983) (collecting cases); Grossman v. Suffolk County District Attorney's Office, 777 F. Supp. 1101, 1104-05 (E.D.N.Y. 1991). Contra Peters v. Wayne State University, 691 F.2d 235, 238 (6th Cir. 1982), vacated & remanded on other grounds, 463 U.S. 1223 (1983). 6The parties are silent as to the number of Aurora employees or Aurora police officers. It is assumed that both those numbers are 25 or more. The parties should bring the true number to the court's attention if it could affect jurisdiction. - 9 - 01-05093 In St. Joseph's Hospital, the Seventh Circuit favorably quoted the standard applied in Spirt. "Further, other circuits have held that an 'employer,' for purposes of a Title VII claim, may be 'any party who significantly affects access of any individual to employment opportunities, regardless whether that party may technically be described as an 'employer' of an aggrieved individual as that term has generally been defined at common law." St. Joseph's Hospital, 788 F.2d at 424 (quoting Spirt, 691 F.2d at 1063). Citing City of Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 718 n.33 (1978), Spirt also holds that an employer's delegation of responsibility for employee benefits to another will not insulate that agent from liability under Title VII. In the present case, the Fund has responsibility for determining who qualifies for admission to the pension plan. Therefore, it has the power to significantly affect access to employee benefits which are a portion of a police officer's or firefighter's compensation. While Aurora contributes to the Fund, it is left to the Fund to make decisions as to who qualifies.7 Thus, the administration of pension benefits has been delegated to the Fund. Here, the Fund may be held liable 7 State law determines the amount of benefits, as a percentage of the employee's salary. See 40 ILCS 5/3-111, 3-111.1, 3-114.1, 3-114.2, 4-109, 4-109.1, 4-109.2, 4-110, 4-110.1, 4-111. - 10 - 01-05094 under the ADA either because it is an employer under the ADA or an agent of the employer. Spirt, 691 F.2d at 1062-63. This court has jurisdiction over the claim against the Fund. Defendants argue that applying the ADA to them is retroactive enforcement of the ADA which did not go into effect until July 1992. However, persons, including Aurora police officer Kevin Holmes, continued to be denied admission to pension plans after July 1992. This is not retroactive enforcement of the ADA. Holmes, 1993 WL 512629 at *4-5. The Fund contends that the ADA's insurance exclusion excludes application of the ADA to it in this case. The ADA provides: Subchapter I through III of this chapter and title IV of this Act shall not be construed to prohibit or restrict-- (1) an insurer, hospital or medical service company, health maintenance organization, or any agent, or entity that administers benefit plans, or similar organizations from underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or (2) a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or (3) a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance. - 11 - 01-05095 Paragraphs (1), (2), and (3) shall not be used as a subterfuge to evade the purposes of subchapters I and III of this chapter. 42 U.S.C.  12201(c). The Board contends that classification of insurance risk consistent with state law is sufficient, that this statute does not require actual examination of the risk involved. It also contends that there can be no subterfuge because subterfuge is limited to affecting non-fringe benefit aspects of employment and because the classifications could not be intended as a subterfuge because based on a statute passed before the ADA went into effect. Plaintiff contends that a lack of a relationship to an underwriting risk is clear from the fact that people are either admitted to the pension plan or denied admission, not charged different rates based on actuarial risk. Plaintiff also contends that denial of qualification for regular retirement benefits bears no relationship to any risk that a person will become disabled prior to reaching the regular age for retirement. Plaintiff also contends that the fact that the statute and plan were in effect prior to the enactment of the ADA does not prevent them from presently being a subterfuge for the continued exclusion of disabled persons from the pension plan. In Holmes, 1993 WL 512629 at *6, the court denied summary judgment on this issue. "This court finds that there is a factual dispute regarding whether the insurance exemption should - 12 - 01-05096 apply in this case. Plaintiff argues that the Board's decision to deny plaintiff admission into the Pension Fund constitutes a subterfuge because it is based on stereotypical notions and myths about people with diabetes and not based on sound actuarial principles as is required by the ADA. Plaintiff contends that defendant Board did not consider the cost or feasibility of providing plaintiff with the retirement, disability and survivors' benefits that are part of the benefits provided to non-disabled police officers." Id. The holding in Holmes that actuarial facts can be considered is consistent with the ADA's legislative history. See, e.g., H.R. Rep. No. 485, 101st Cong., 2d Sess 71 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 494. Also, when the statute and plan went into effect are not factors to be considered in determining whether they presently are subterfuges for discrimination. 29 C.F.R. Part 1630, App.  1630.16(f); H.R. Rep. No. 485, 101st Cong., 2d Sess. 71 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 494. Whether the Fund is excluded from liability pursuant to  12201(c) cannot be resolved on this motion to dismiss. The Fund also contends that accommodating disabled employees would be an undue hardship and therefore is not required. See 42 U.S.C.  12112(b)(5)(A). Whether an accommodation would be an undue hardship is an affirmative defense that requires the consideration of a number of factors. - 13 - 01-05097 See 42 U.S.C.  12111(10)(B). It is not an issue that can be raised or resolved on a motion to dismiss. Last, the State alternatively moves for a more definite statement. As was previously stated in court, that motion will be denied. The State's and Fund's motions to dismiss the complaint will be denied. Still to be resolved are the motions to dismiss the crossclaims. Aurora has filed a crossclaim against the State alleging that, to the extent Aurora is found liable and has to pay increased benefits, it is entitled to reimbursement from the State pursuant to the Illinois State Mandates Act, 30 ILCS 805. To the extent it is found liable, it also seeks declaratory and injunctive relief as to the Illinois statutes that violate the ADA. Since, the declaratory and injunctive relief duplicates relief plaintiff seeks against the State, it is unnecessary to resolve whether Aurora can also seek that relief. That aspect of the claim will be dismissed without prejudice. It will only be considered whether Aurora can seek indemnity from the State. Aurora's only claim for monetary relief against the state is pursuant to the State Mandates Act. That claim is barred by the Eleventh Amendment unless the State has waived that immunity. See Atascadero State Hospital v. Scanlon, 473 U.S. 235, 237-40 (1985). The Mandates Act provides for judicial review of - 14 - 01-05098 administrative decisions. The statute provides: "The decision of the State Mandates Board of Appeals shall be final subject to judicial review." 30 ILCS 805/8(d). Lacking an express statement that such review may be sought in federal court, this provision is insufficient to constitute a waiver of Eleventh Amendment immunity. See In re Secretary of Department of Crime Control & Public Safety, 7 F.3d 1140, 1146-47 (4th Cir. 1993); cert. denied, 114 S. Ct. 2106 (1994). The crossclaim for monetary relief is barred by the Eleventh Amendment. The crossclaim against the State will be dismissed without prejudice. In its answer brief, Aurora represents that its crossclaim against the Fund is based on an Aurora ordinance that provides: "No City of Aurora employee shall be denied equal access to City benefits due to a disability as defined in 42 U.S.C.  12101." This ordinance establishes "personnel principles and policies." There is nothing in the ordinance indicating that it creates a right of action for damages. Since Aurora fails to point to a basis for claiming liability for a violation of the ordinance, the crossclaim against the Fund will be dismissed. IT IS THEREFORE ORDERED that defendant Board of Trustees' Rule 12 motion [7-1] is denied and its motion to dismiss crossclaim [36] is granted. Defendant State of Illinois's motion - 15 - 01-05099 to dismiss or alternatively to strike [9-1, 2] is denied and its motion to dismiss crossclaim [28-1] is granted. The crossclaim is dismissed. Defendants, the Board of Trustees and State of Illinois shall answer the complaint by September 23, 1994. ENTER: (Signature) ____________________________ UNITED STATES DISTRICT JUDGE Dated: SEPTEMBER 9, 1994 - 16 - 01-05100 (Form) UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF ILLINOIS 01-05101