available only to the Secretary of Labor, not a private plaintiff.
Section 2617(a) authorizes a civil action against the employer by the "eligible employee." An employer is liable to the employee only for violations of § 2615. 29 U.S.C. § 2617(a). The notice provisions are contained in § 2619. Accordingly, the Court finds that a private plaintiff who qualifies as an "eligible employee" has no basis to seek relief by asserting a violation of § 2619's notice requirement. See Jessie v. Carter Health Care Center, Inc., 926 F. Supp. 613, 617 (E.D. Ky. 1996) ("[A] private right of action does not exist for a violation of the notice requirement."); see also, Hendry v. GTE North, Inc., 896 F. Supp. 816, 828 (N.D. Ind. 1995). Thus, Blumenthal has not stated a claim for relief under the FMLA regarding the alleged notice violations.
2. The Americans With Disabilities Act
Blumenthal's complaint also alleges that Defendants' conduct violated the ADA. Defendants argue that because Blumenthal failed to file a charge with the Equal Employment Opportunity Commission complaining of the discrimination, he cannot maintain a suit in federal court. The Court agrees. See 42 U.S.C. § 12117(a); Martini v. A. Finkl & Sons Co., 1996 U.S. Dist. LEXIS 17082, No. 96 C 0756, WL 667816 *5 (N.D. Ill. November 15, 1996) ("The ADA, which adopts the procedures set forth in Title VII, requires the filing of a timely charge with the EEOC and the receipt of notice of right to sue in order to commence a federal suit under its provisions."); Luna v. Walgreens, 888 F. Supp. 87, 88 (N.D. Ill. 1995). Blumenthal's response failed to address the issue; thus, apparently he concedes that his ADA claim is a loser.
3. The Rehabilitation Act
Finally, Blumenthal's complaint states that Defendants' conduct violated the Rehabilitation Act.
Defendants argue that Blumenthal's complaint lacks the requisite allegations to state a claim under the Rehabilitation Act. The Court agrees.
To establish a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must demonstrate that: (1) he is handicapped within the meaning of the Act; (2) he is otherwise qualified for the position at issue; and (3) he was excluded or discharged from the position solely because of his handicap. See Randle v. Bentsen, 19 F.3d 371, 374 (7th Cir. 1994). Here, Blumenthal fails to allege that he is a handicapped person within the meaning of the Rehabilitation Act. Accordingly, the Rehabilitation Act claim is dismissed for failure to state a claim upon which relief can be granted.
The FMLA and ADA claims are dismissed with prejudice. The Rehabilitation Act claim is dismissed without prejudice. The plaintiff is given 10 days to file an amended complaint as to the Rehabilitation Act claim only.
Date: DEC O5 1996
JAMES H. ALESIA
United States District Judge