MEMORANDUM AND ORDER
According to the complaint, plaintiff, employed by defendant, was supposed to work on October 22 through October 25, 1993. On Friday, October 22, 1993, plaintiff received a telephone call from his mother in Brooklyn, New York, who said that ten-year-old Shaneequa Nichole Forbes was subject to a Brooklyn proceeding to cause her to become a ward of the state. Plaintiff then determined that "he would seek custody of Shaneequa for foster care or adoption." He alleges he learned he had to go to New York to gain custody and, after receiving telephone authorization from two of defendant's supervisory-level employees, he left for New York. He returned to work on October 29, 1993, and was then terminated, allegedly because of unscheduled absences from work and poor performance.
The second amended complaint advances two claims. One is that his absence was a qualified leave under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. and 5 U.S.C. § 6381 et seq. (FMLA). The other is that defendant, by approving his leave and then terminating him, and by thereafter opposing his application for employment benefits and by providing negative and derogatory employment references, intentionally inflicted emotional distress, an injury compensable under Illinois law. Defendant now moves to dismiss, and that motion is granted.
Defendant contends that plaintiff, in prior pleadings, has made binding judicial admissions that Shaneequa is his biological daughter and that leave to obtain custody of one's own child is not within the purview of the FMLA. It relies upon the allegation in the original complaint that plaintiff took the leave to obtain custody of his own child. It also points out that plaintiff, in representations on the record to this court, did not dispute that he believed he was the father and only recently came to have a question about that; that a letter from the New York authorities he submitted to justify his absence refers to his efforts to obtain custody of his daughter; and that the second amended complaint studiously avoids any allegation of the relationship between Shaneequa and plaintiff. Plaintiff contends that he has not made a binding judicial admission as claimed, that he was entitled to a qualified leave in any event, and that defendant is improperly relying upon "outside matters" to support its motion to dismiss.
Plaintiff's earlier pleading is certainly a judicial admission which any trier of fact is entitled to hear about, but is it conclusive, foreclosing plaintiff from changing his position in a subsequent pleading? It may well be conclusive, but we do not rest on that. It is clear from the original complaint that plaintiff considered Shaneequa to be his biological daughter when he went to New York and that, from his perspective, he needed leave because of what was happening there, and he so informed defendant. He said so in his original complaint; his statement in court is consistent with that position and his allegations in the second amended complaint are not to the contrary. It is unclear how the letter from the New York authorities got into the court record and perhaps we should not consider it on a motion to dismiss, although it is hard to ignore it. The letter obviously was sent to defendant at plaintiff's request to ask the employer to be forbearing in the circumstances. It is, however, merely cumulative of plaintiff's representations by pleadings and statements on the record, and it is not determinative here. We would indeed be putting on blinders if we concluded that artful pleading had obfuscated what is obviously the fact: plaintiff claims he went to New York to seek custody of a child he then believed to be his daughter and that he so advised defendant.
We have no doubt that the defendant can rely upon the reason given. It need not be clairvoyant. But does the reason given take plaintiff outside the protection of FMLA? 5 U.S.C. § 6381 et seq. is irrelevant to the determination. It relates to federal employees, which plaintiff was not. The relevant provision is 29 U.S.C. § 2612 (a)(1)(A):
... An eligible employee shall be entitled to ... leave ...
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.