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ULATOWSKI v. JOHN STERLING CORPORATION

June 16, 2004.

CINDY ULATOWSKI, Plaintiff,
v.
JOHN STERLING CORPORATION, et al., Defendants.



The opinion of the court was delivered by: SUZANNE CONLON, District Judge

MEMORANDUM OPINION AND ORDER

Cindy Ulatowski ("Ulatowski") sues John Sterling Corporation ("JSC"), Amerisure Mutual Insurance Company ("Amerisure"), Wayne Stolarik ("Stolarik"), Debra Gaertner ("Gaertner"), Steven Jarabek ("Jarabek"), and Charles Carroll IV ("Carroll") for discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq., (Count I), intentional infliction of emotional distress (Count II), retaliatory discharge (Count III), fraudulent conspiracy to coerce plaintiff to abandon rights (Count IV), and constructive fraud and conspiracy to commit fraud (Count V). Defendants JSC, Amerisure and Stolarik separately move for dismissal of Ulatowski's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).

BACKGROUND

  The following facts are taken from Ulatowski's amended complaint. JSC is an Illinois corporation engaged in the manufacture of home hardware products. Amerisure is a Michigan company that insures JSC for workers compensation. Stolarik and Gaertner are JSC human relations employees, Jarabek is one of Amerisure's claims adjusters, and Carroll is a physician at Chicago's Northwestern Memorial Hospital. Ulatowski is a former JSC employee. She worked on a production line, assembling and packaging closet rods using a Doboy machine.

  In February 2002, Ulatowski was diagnosed with carpel tunnel syndrome ("CTS") after experiencing forearm and hand pain and disability. Ulatowski's doctor placed her under medical restrictions of no repetitive work. JSC reported Ulatowski's condition to Amerisure. The restrictions did not alleviate Ulatowski's symptoms, and surgery on both arms was recommended in March 2002. After surgery in May 2002, Ulatowski's work activities were more specifically restricted by her physician, Dr. Grossman. He stated that Ulatowski was limited to finger tasks with her splinted right hand and could not perform repetitive tasks with her left hand These restrictions prevented Ulatowski from operating the Doboy machine. JSC assigned Ulatowski to light office work, such as filing and other sedentary tasks.

  In July 2002, Stolarik and Gaertner consulted with Jarabek and met with Dr. Grossman regarding Ulatowski's work restrictions. Ulatowski believes that Stolarik and Gaertner fraudulently induced Dr. Grossman to alter her work restrictions by misrepresenting her job description and reporting that she had indicated to them that she could perform finger tasks. After this meeting, Stolarik told Ulatowski that her work restrictions had been modified; he ordered her to resume assembly work on the production line or lose her job. Ulatowski then contacted Dr. Grossman, who denied releasing her to perform assembly work. Nevertheless, Ulatowski was required to return to her position on the production line until her pain became unbearable. As a result, Ulatowski's injuries were aggravated.

  In September 2002, Ulatowski underwent a second surgery for CTS. JSC again assigned her non-repetitive, light office work. After surgery, Ulatowski repeatedly provided defendants with medical reports about her inability to perform assembly work on the production line. JSC continued to provide Ulatowski with non-repetitive, light office work.

  After several months, Amerisure requested Ulatowski to submit to an independent medical examination on April 11 by Carroll. Ulatowski's allegations challenge the independence of the examination. She contends that the other defendants furnished Carroll with written and videotape material misrepre senting her typical job requirements on the production line (including the requirements of the Doboy machine) and further engaged in ex parte communications with him regarding her condition "for the purpose of influencing the doctors' [sic] recommendations as to [her] ability and work capacity." Am. Compl. at ¶ 35. Carroll never asked Ulatowski about her job requirements or told her about receiving materials from and speaking with the other defendants. After the examination, Carroll prepared two reports that indicated Ulatowski could return to work on the production line, but suggested that her return would be complicated by subjective complaints. Ulatowski was not provided with copies of the reports.

  In late May 2003, Ulatowski was told that further non-repetitive, light office work was no longer available, but that she could take a leave of absence under the federal Family Medical Leave Act ("FMLA"). In connection with the leave, Ulatowski was directed to complete FMLA paperwork and was told to apply for short term disability payments, as opposed to workers' compensation benefits through Amerisure. She refused.*fn1

  Ulatowski claims she was effectively terminated on June 2, but that JSC continued the termination date to August 19, the date on which the FMLA leave she rejected expired. Sometime between August 19 and 22, JSC reiterated to Ulatowski that no further light office work was available and that Carroll believed her to be capable of performing assembly work on the production line. JSC informed Ulatowski that she would "self terminate" effective August 25 unless she returned to the production line.

  Ulatowski believes defendants engaged in a conspiracy to defraud her of employment and benefits. In particular, she points to written and video tape materials furnished to Carroll and to Jarabek's failure to alert JSC of Carroll's concern that "subjective complaints . . . could make optimal return to work difficult for all parties." Am. Compl. at ¶¶ 31, 37. During this period, Ulatowski repeatedly provided defendants with medical reports from her "treating physicians and therapists that [she] was disabled from performing her Doboy production line job but that she could do office type desk and filing type work." Id. at ¶ 45. As of August 21, Ulatowski was restricted to light duty; she could not use her hands above mid-chest level and could only lift up to ten pounds, push and pull up to twenty pounds, and engage in repetitive tasks for no more than one hour at a time for a maximum of three hours a day. Id. at Ex. H. On August 22, Ulatowski requested "a job consistent with [her] current doctor's orders, ie, [sic] light duty type work." Id. at Ex. F. After termination, Ulatowski filed an EEOC complaint against JSC for wrongful discharge under the ADA. The EEOC issued Ulatowski's right to sue letter in September 2003. Ulatowski has undergone two additional surgeries for CTS.

  DISCUSSION

  I. LEGAL STANDARD

  For purposes of motions to dismiss, the court accepts all well-pleaded allegations in the complaint as true and draws all reasonable inferences in favor of Ulatowski. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429 (7th Cir. 1996). In ruling, the court considers "whether relief is possible under any set of facts that could be established consistent with the allegations." Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 839 (7th Cir. 1999), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Ulatowski's claims may be dismissed only if there are no sets of facts that would entitle her to relief based on the allegations in the amended complaint. Conley, 355 U.S. at 45-46. However, ...


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