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FEDOR v. ILLINOIS DEP'T OF EMPL. SEC.

December 23, 1996

MICHAEL R. FEDOR, Plaintiff
v.
ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY, STATE OF ILLINOIS, KATHY CARUSO, and PEGGY SEILER, Defendants.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff, Michael R. Fedor, has filed a five count complaint against the State of Illinois, the Illinois Department of Employment Security ("IDES"), Peggy Seiler ("Seiler"), and Kathy Caruso ("Caruso"), alleging disability discrimination and harassment under the Americans With Disabilities Act ("ADA"). Respondents have filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, defendant's motion is granted in part and denied in part.

 FACTS

 Plaintiff was hired for the North Aurora office by IDES on May 1, 1991. The IDES administers the state's employment security program. Plaintiff's responsibilities at IDES included receiving and processing applications for employment insurance benefits.

 In late January 1994, IDES granted plaintiff disability leave because he was suffering from "adjustment disorder with anxiety and anxiety disorder." Plaintiff contends that his disorder was work-related because it worsened when he was subjected to his supervisors' methods of administration, including confrontation, harassment, and hostility. On February 2, 1995, plaintiff returned to work, allegedly upon IDES' order that he do so in order to keep his employment benefits, including health, dental, and life insurance, pension eligibility, and possibility of promotion.

 Prior to plaintiff's return to work, plaintiff's physician submitted a statement to the State of Illinois informing it of plaintiff's medical condition and diagnosis. The statement advised that plaintiff would be better able to perform his job if his tasks were simplified, if he received criticisms and feedback in private, and if he were transferred to another position or location.

 Despite this notification, plaintiff claims that, after he returned from disability leave and filed for employment compensation, the harassment and hostility increased. Plaintiff argues that the IDES management at the North Aurora office intentionally created a environment which they knew plaintiff would not be able to tolerate and which would harm plaintiff so that he would eventually resign. Among other alleged abusive acts, plaintiff's supervisors openly criticized him, gave plaintiff responsibilities without proper training, confronted plaintiff for behavior that would be tolerated when done by other employees, and continually reassigned him so that he was unable to settle into a routine. Although plaintiff allegedly told officials outside of the North Aurora office about the problems he was having and requested a transfer, no action was taken. Pursuant to his physician's recommendation, plaintiff resigned on October 23, 1995.

 On December 13, 1995, plaintiff filed charges with the Equal Employment Opportunity Commission against IDES for disability discrimination. Plaintiff received a right to sue letter on April 30, 1996. Thereafter, plaintiff filed a five count complaint in this court. Count I, against IDES, and Count II, against the State of Illinois, allege that plaintiff was discriminated against because of his disability in violation of Section 102 of the Americans with Disabilities Act, 42 U.S.C. § 12112 ("ADA"). Count III, against IDES and the State of Illinois, alleges that plaintiff was discriminated against because of his disability in violation of Section 202 of the ADA, 42 U.S.C. § 12132. Count IV, against Caruso, and Count V, against Seiler, allege that plaintiff was harassed by his supervisors because of his disability in violation of Title I of the ADA, 42 U.S.C. § 12101 et seq. Respondents move to dismiss plaintiff's complaint because: 1) plaintiff's pleadings fail to allege a disability within the meaning of the ADA; 2) respondents Caruso and Seiler are not employers within the ADA; and 3) plaintiff's retaliation claim does not establish a causal link between the adverse employment action and the protected expression.

 DISCUSSION

 I. STANDARD

 A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) does not examine the merits of the case, but rather tests the sufficiency of the complaint. Triad Assoc., Inc. v. Housing Authority, 892 F.2d 583, 586 (7th Cir. 1989), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 97, 111 S. Ct. 129. All factual allegations and reasonable inferences in the plaintiff's favor are accepted as true and viewed in a light most favorable to the plaintiff. Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993). A motion to dismiss for failure to state a claim will be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 II. "DISABILITY" UNDER THE ADA

 In order for a plaintiff to be within the protected class under the ADA, the plaintiff must have a "disability" as defined by that statute. Weiler v. Household Finance Corp., 101 F.3d 519, 1996 WL 683096, at *2 (7th Cir. 1996); see also Homeyer v. Stanley Tulchin Assoc., 91 F.3d 959, 961 (7th Cir. 1996). The ADA (42 U.S.C. § 12102(2)) defines "disability" as:

 (A) a physical or mental impairment that substantially limits one or more of the major life ...


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