The opinion of the court was delivered by: MORAN
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.
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.
The regulations promulgated under the FMLA provide that "'son or daughter' means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis ...." 5 CFR § 630.1202.
Defendant argues that custody is not adoption or foster care, relying upon New York law and the federal regulations defining adoption and foster care. Plaintiff contends that, because he had no parental rights, the "law is clear" that his leave was protected, and current Seventh Circuit case law is clearly contrary to defendant's position. He does not cite any authority for those assertions. We are left, then, to struggle with that issue as best we can.
The Act clearly does not provide qualified leave for every family emergency. A call from a police station or from school authorities, a minor ailment that keeps a child home from school with no help immediately available, or a personal crisis in the life of a child or a parent may cause a severe conflict for an employee between work and family responsibilities. None is covered by the FMLA. It is not a general grant of leave protection covering all family crises. The legislative history makes it clear that the Act is intended to reach four situations: to provide home leave relating to the birth of a child or to the adoption or initial foster care of a child by one not his or her parent, to provide care for a seriously ill child, spouse or parent, or to attend to the employee's own serious health condition. The statute provides minimum protection in those circumstances and expressly is not intended to displace more far-reaching protection arising from state law or private arrangement.
Because we have dismissed the federal claim we dismiss Count II, grounded on state ...