United States District Court, N.D. Illinois, Eastern Division
June 17, 2004.
GEORGE DRWIEGA Plaintiff,
INFRARED TESTING, INC., Defendant.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, George Drweiga, filed suit, pro se, against
Defendant, Infrared Testing, Inc. ("Infrared"). Subsequently,
Plaintiff was appointed counsel and filed an Amended Complaint,
alleging intentional national origin discrimination (Count I),
intentional age discrimination (Count II), and that the Defendant
violated § 1140 of the Employee Retirement Income Security Act
("ERISA") by intentionally interfering with Plaintiff's rights to
benefits (Count III). Presently before the Court is Infrared's
Motion to Dismiss Count III of the Plaintiff's Amended Complaint
for failure to state a cause of action for which relief may be
granted pursuant to Fed.R.Civ.P. 12(b)(6).
A reading of the Amended Complaint supports the following
summary of the alleged operative conduct of the parties.
Drwiega is a former employee of Infrared who held the position
of thermographer. Drwiega's position is a potentially dangerous
job due to the presence of high voltages of electricity.
Infrared promised Drwiega that he would be eligible for health
insurance as an employee of Infrared. However, Infrared engaged
in deceptions and irregularities designed to keep Drwiega from
receiving his due benefits. Infrared failed to provide Drweiga
with an employee handbook and a letter to confirm his compensation and benefits. He was promised
such information, but it was repeatedly denied to him even though
he attempted to apply for health insurance on several occasions.
Drwiega was told his requests had not been received, and Infrared
engaged in subterfuges designed to lead Drwiega to believe he had
applied. When corporate personnel gave Drwiega forms to fill out
to receive the health insurance, he was later told that he had
submitted the wrong materials. During this process, Drwiega
worked for Infrared without insurance for several months. He was
later able to obtain insurance, albeit at a higher price than he
would have paid if he had been insured via Infrared's group
Drwiega alleges Infrared discriminated against him on the basis
of his national origin and age by interfering with his right to
the healthcare coverage that Infrared offered its employees. The
denial of health insurance coverage, combined with Infrared's
lulling Drwiega into believing he would receive coverage, forced
Drwiega to leave his job on June 30, 2001.
In reviewing a motion to dismiss, the court considers all facts
alleged in the complaint and any reasonable inferences drawn
therefrom in the light most favorable to the plaintiff. See
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326
(7th Cir. 2000). A plaintiff is not required to plead the facts
or the elements of a claim, with the exceptions found in Federal
Rule of Civil Procedure 9. See Swierkiewicz v. Sorema,
534 U.S. 506, 511 (2002); Walker v. Thompson, 288 F.3d 1005, 1007 (7th
Cir. 2002) (Walker). Dismissal is warranted only if "it appears
beyond a 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 (1957). The "suit should not be
dismissed if it is possible to hypothesize facts, consistent with
the complaint, that would make out a claim." Graehling v. Vill. of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995). A filing
under the Federal Rules of Civil Procedure need not contain all
the facts that will be necessary to prevail. It should be "short
and plain," and it suffices if it notifies the defendant of the
principal events. Hoskins v. Poelstra, 320 F.3d 761, 764 (7th
Cir. 2003). The simplified notice pleading relies upon liberal
discovery and summary judgment motions to define disputed issues
and facts and to dispose of unmeritorious claims. Swierkiewicz,
534 U.S. at 513.
Defendant argues that the Plaintiff's ERISA claim (Count III)
should be dismissed because Drwiega failed to sufficiently plead
he was constructively discharged.
Section 1140 of ERISA provides that it is unlawful for an
employer to discriminate against any employee for obtaining
benefits to which he is entitled. 29 U.S.C. § 1140. This
prohibited discrimination includes claims of constructive
discharge to prevent an employee from attaining a right protected
by ERISA. See Deeming v. American Standard, Inc.,
905 F.3d 1124, 1128 (7th Cir. 1990).
In Count III, Drwiega alleges that Defendant's discriminatory
conduct of preventing him from obtaining health insurance, in
violation of Section 1140 of ERISA, led to his constructive
discharge. While Defendant contends that Drwiega did not
sufficiently plead the elements of a constructive discharge,
Drwiega need not plead the elements of his cause of action and
has sufficiently pled a violation of Section 1140 of ERISA. See
Swierkiewicz, 534 U.S. at 511.
In its reply brief, Infrared presents the new argument that
Section 510 of ERISA does not mandate employer benefit programs,
especially those similar to that of Infrared and that, thus,
ERISA protection would not extend to Drwiega. This argument is
waived. A party cannot "circumvent the adversarial process by
raising new arguments in [a] reply." See Parillo v. Commercial
Union Insurance Co., 85 F.3d 1245, 1250 (7th Cir. 1996); see also,
Petri v. Gatlin, 997 F. Supp. 956, 977 (N.D. Ill. 1997). As such,
this Court does not consider, nor rules upon, the merits of such
For the foregoing reasons, Defendant's Motion to Dismiss Count
III of Drwiega's Amended Complaint is denied.
© 1992-2004 VersusLaw Inc.