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MCKAY v. TOWN & COUNTRY CADILLAC

November 24, 1997

A. ROBERT McKAY, Plaintiff,
v.
TOWN AND COUNTRY CADILLAC, INC. and MAX COHEN, Defendants.



The opinion of the court was delivered by: NORDBERG

 Plaintiff A. Robert McKay ("McKay") brings this action against Town and Country Cadillac, Inc. ("Town & Country") and Max Cohen alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. Additionally, McKay alleges state law claims of intentional infliction of emotional distress and defamation. Before the Court is Defendants' Motion to Dismiss pursuant to Fed. R. Civ. Proc. 12(b)(6).

 I. Factual Background

 For the purposes of this motion, the Court finds Plaintiff sufficiently alleges the following relevant facts.

 From June of 1995 until June 26, 1996, Town & Country employed McKay as its New Car Sales and Lease Manager. Born on June 17, 1951, McKay was over forty years of age during his entire tenure at Town & Country. Cohen was the owner and president of Town & Country and, at all times relevant, "was acting as the alter ego" of Town & Country. Comp. P 6.

 On or about May 30, 1996, the following events occurred: (1) McKay informed Cohen that McKay was a recovering alcoholic, (2) Cohen "verbally abused" McKay concerning his alcoholism, (3) Cohen called McKay a "drunk" and a "drug addict"; (4) Cohen accused McKay of driving his demonstration vehicle under the influence of alcohol and of allowing his alcoholism to negatively affect his job; (5) Cohen told McKay he was taking away McKay's demonstration vehicle because of his alcoholism and ordered a Town & Country employee to do so. *fn1" Cohen repeated the above statements to other employees of Town & Country and, on information and belief, to other third parties.

 Between May 30, 1996 and June 26, 1996, Cohen charged McKay for all personal phone calls made since his hiring; docked McKay for personal leave days taken prior to May 30, 1996; implemented a less-favorable pay plan for McKay; and directed McKay to reimburse Town & Country for previous draws against his commission. Each of these actions were "contrary to the custom and practice of [Town & Country] and the auto sales/leasing industry and were taken against no other management employee. Comp. PP 32, 33.

 At all times relevant, Cohen was "adequately performing his duties" and "was able to perform the essential functions [of his job] with or without reasonable accommodations." Comp. PP 15, 16. Prior to May 30, 1996, McKay's performance had not been criticized and, on the contrary, Cohen congratulated McKay numerous times regarding McKay's performance. After May 30, 1996, McKay's performance was "consistently criticized" and was given "unrealistic goals and expectations to meet." Comp. P 36.

 On June 26, 1996, Town & Country terminated Plaintiff at Cohen's direction. He was replaced by a younger, "non-disabled" individual. On or about November 29, 1996, McKay filed discrimination charges against Town & Country and Cohen with the Equal Employment Opportunity Commission ("EEOC") and the Illinois Department of Human Rights. On or about January 22, 1997, McKay received a Notice of Right to Sue from the EEOC.

 II. Standards for Motion to Dismiss

 The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of a complaint. See Adams v. Cavanagh Communities Corp., 847 F. Supp. 1390, 1396 (N.D. Ill. 1994). In order to survive a motion to dismiss, a complaint must allege sufficient facts to outline a cause of action. Davis v. Frapolly, 747 F. Supp. 451 (N.D. Ill. 1989). The complaint "must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory." Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Dev. Co., 758 F.2d 203, 207 (7th Cir. 1985).

 The Court must accept as true all well pleaded factual allegations in the complaint and view them, along with the reasonable inferences to be drawn from them, in the light most favorable to the plaintiff. Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993). While the plaintiff can plead conclusions, the conclusions must provide the defendant with at least minimal notice of the claim." Jackson v. Marion County, 66 F.3d 151, 154 (7th Cir. 1995); see also, Homeyer v. Stanley Tulchin Associates, Inc., 91 F.3d 959, 961 (7th Cir. 1996). However, the Court need not accept as true conclusory legal allegations. Baxter v. Vigo County School Corp., 26 F.3d 728, 730 (7th Cir. 1994). When evaluating the legal sufficiency of a plaintiff's factual allegations, courts are held to a strict standard. A motion to dismiss may 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, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Cushing v. City of Chicago, 3 F.3d 1156, 1159 (7th Cir. 1994).

 III. Analysis

 Defendants seeks dismissal of Count II (ADA), Count III (intentional infliction of emotional distress) and Count IV (defamation). Furthermore, Cohen seeks to be dismissed from the ...


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