(C) being regarded as having such an impairment.
Although the ADA does not define "major life activities," the Equal Employment Opportunity Commission ("EEOC") regulations interpret the term as including "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. " 29 C.F.R. 1630.2(i) (Emphasis added.). "Substantially limits" means a person is unable to perform a major life activity or "significantly restricted as to the condition, manner or duration under which [he] can perform a particular major life activity," as compared to the average person in the general population. 29 C.F.R. 1630.2(j)(1)(i).
Respondents argue that plaintiff has pleaded himself out of court because his amended complaint reveals that he does not have a "disability" under the ADA. See Thomas V. Farley, 31 F.3d 557, 558-59 (7th Cir. 1994) (where a plaintiff pleads particular facts that show that he has no claim, he has pleaded himself out of court). Specifically, plaintiff has admitted that he would have been able to continue his job and perform all of the major functions of his job if his formal request for a transfer had been approved. From this statement, respondents infer that plaintiff's impairment limits only his ability to perform in his particular position at the North Aurora office under particular supervisors. To qualify as a "disability" under the ADA, however, plaintiff's impairment must do more; it must substantially limit his ability to perform a class of jobs or a broad range of jobs in various classes. Weiler, 101 F.3d 519, 1996 WL 683096, at *3-4 (anxiety and stress caused solely by particular job and supervisor does not amount to "disability" under ADA); 29 C.F.R. § 1630.2(j)(3)(i).
In support of its arguments, respondents cite numerous summary judgment cases where the court looked beyond the pleadings to determine that the plaintiffs were not disabled under the ADA because of their inability to work at particular positions. These cases, however, are not controlling at this stage of the pleadings. Respondents have filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), not a motion for summary judgment. Accordingly, this court must decide the motion based only on the pleadings. See Weiler, 101 F.3d 519, 1996 WL 683096, at *7, n.1. (decision that plaintiff pled facts sufficient to withstand Rule 12(b)(6) motion was not ruling on the merits).
Contrary to respondents' assertions, plaintiff has not alleged that his job and supervisors caused his "adjustment disorder with anxiety and anxiety disorder," nor has plaintiff alleged that his disability would completely disappear were he to have been transferred to another location or position. Rather, plaintiff seems to suggest that, were he to have been transferred, his symptoms would not have been aggravated to the extent they were at the North Aurora office. Based on these observations, plaintiff has not pleaded himself out of court. Respondents' motion to dismiss plaintiff's amended complaint is denied.
While not pleading himself out of court, plaintiff has also failed to properly plead himself into court. Plaintiff has specifically alleged that he is disabled because of an "adjustment disorder with anxiety and anxiety disorder." Plaintiff has not, however, alleged that he is disabled within the meaning of the ADA. In order to do this, plaintiff must allege that he is "substantially limited in one or more of his major life activities." 42 U.S.C. § 12102(2). The closest that plaintiff comes to this is stating that his "disability is work related in that the management of IDES' North Aurora office uses confrontation, harassment and hostility as its preferred methods of administration, which exacerbated Fedor's anxiety related disorders and symptoms." Although plaintiff contends that the IDES aggravated his symptoms, he never states that his impairment substantially limits a major life activity such as working, which he must do to plead disability discrimination under the ADA. Accordingly, on its own motion, the court dismisses plaintiff's complaint without prejudice.
III. CLAIMS AGAINST PLAINTIFF'S SUPERVISORS
Respondents have also moved to dismiss Counts VI and V against Caruso and Seiler because they are not "employers within the ADA. Employer is defined by the EEOC as, "a person engaged in an industry affecting commerce who has 15 or more employees, and any agent of such persons." 29 C.F.R. 1630.2(e)(1). The term "agent" was used to impose respondeat superior liability upon employers for their agents' actions. U.S. Equal Employment Opportunity Commission v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir. 1995). Individual liability, however, was never intended. Id. Therefore, individuals who do not otherwise meet the "employer" definition are not liable under the ADA. Id. at 1282. Caruso and Seiler, as supervisors, do not meet the definition of "employer." Thus, their motion to dismiss with prejudice is granted.
Respondents have moved to dismiss plaintiff's retaliation claim because plaintiff failed to establish a causal link between protected expression and an adverse employment action in his allegation. Plaintiff responds, however, that he has not alleged a separate claim of retaliation. Thus, respondents' motion to dismiss this count is denied as moot.
Respondents motion to dismiss Counts IV and V against Caruso and Seiler is granted with prejudice. Respondents' motion to dismiss plaintiff's retaliation claim is denied as moot. Counts I, II, and III are dismissed without prejudice. Plaintiff is granted leave to file an amended complaint consistent with this opinion on or before January 20, 1997; defendant shall respond to the amended complaint on or before February 10, 1997. The status set for December 31, 1996 is vacated, and the matter is set for a report on status on February 13, 1997, at 9:00 a.m., at which time the parties are directed to present a definitive discovery plan.
ENTER: December 23, 1996
Robert W. Gettleman
U.S. District Court Judge
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