United States District Court, N.D. Illinois, Eastern Division
July 9, 2004.
RODRIGO LOZANO, Plaintiff,
KAY MANUFACTURING COMPANY, Defendant.
The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
Rodrigo Lozano has sued Kay Manufacturing Company for its
alleged violations of the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101, et seq., the Family Medical Leave
Act ("FMLA"), 29 U.S.C. § 2601, et seq. and state law. Kay
has filed a Federal Rule of Civil Procedure ("Rule") 12(b)(6)
motion to dismiss all of the claims asserted against it. For the
reasons set forth below, the motion is granted.
In February 1999, plaintiff started to work for Kay as a
machinist, operating machines that modify metal pieces according
to customer specifications. (Compl. ¶¶ 3, 5.) Plaintiff's job
required him to insert metal parts into the clamp or "chuck" of a
machine and tighten the chuck around the parts. (Id. ¶ 5.)
Plaintiff worked on both manual and automatic chuckers, which
differ only in the amount of force the machinist is required to
exert to operate them. (Id. ¶ 6.) As the name implies, the automatic chuckers require far less manual grasping and
applied force than do the manual chuckers. (Id.)
At some point, plaintiff developed ulnar neuropathy in his
right hand, which made it difficult for him to operate the manual
chuckers and to meet Kay's production standards. (Id. ¶¶ 7, 9.)
Plaintiff told Kay about his medical condition and asked that he
be allowed to work exclusively on the automatic machines. (Id.
¶¶ 7, 8.) Kay refused his request, failed to offer him medical
leave and terminated him for failing to meet its production
standards. (Id. ¶¶ 8, 10-11.)
The Legal Standard
On a Rule 12(b)(6) motion to dismiss, the Court accepts as true
all well-pleaded factual allegations of the complaint, drawing
all reasonable inferences in plaintiff's favor. Midwest Grinding
Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1992). No claim will
be dismissed unless "it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations." Hishon v. King & Spalding, 467 U.S. 69, 73
In Count I of his complaint, plaintiff alleges that Kay
terminated him in violation of the ADA. That statute makes filing
a charge of discrimination with the EEOC and receiving a right to
sue letter from it prerequisites to filing suit. See
42 U.S.C. § 12117 (stating that "[t]he . . . procedures" applicable to
Title VII claims apply to ADA claims); Rush v. McDonald's
Corp., 966 F.2d 1104, 1110 (7th Cir. 1992) (noting that
filing a timely EEOC charge and receiving a right to sue letter are prerequisites to Title VII suit). Plaintiff does not
allege that he satisfied either of those requirements. Thus, his
ADA claim must be dismissed.
In the second count of his complaint, plaintiff alleges that
Kay violated the FMLA. That statute entitles an eligible employee
to up to twelve workweeks of leave if, among other reasons, "a
serious health condition . . . makes the employee unable to
perform the functions of [his] position."
29 U.S.C. § 2612(a)(1)(D). To state an FMLA claim, plaintiff must allege
that: (1) he is an eligible employee, i.e, that he was employed
for at least twelve months by Kay and worked at least 1,250 hours
for Kay during the twelve-month period preceding his leave
request (29 U.S.C. § 2611(2), 2612(a)(1)); (2) Kay is an
employer covered by the statute, i.e., that Kay is "engaged in
. . . an industry or activity affecting commerce [and]
employ[ed] 50 or more employees for each working day during each
of twenty or more calendar workweeks in the current or preceding
calendar year" (29 U.S.C. § 2611(4)); (3) he was entitled to
leave because he had "a serious health condition that ma[de]
[him] unable to perform the functions of [his] position"
(29 U.S.C. § 2612(a)(1)(D)); and (4) Kay was aware of his need for
leave but refused to provide it (29 U.S.C. § 2615(a)(1);
29 C.F.R. § 825.302-03.). Plaintiff has not alleged any of these
elements. Consequently, his FMLA claim must be dismissed.
In the last count of his complaint, plaintiff alleges that
Kay's actions constitute intentional infliction of emotional
distress ("IIED") under Illinois law. To the extent plaintiff's
IIED claim is grounded in Kay's alleged disability
discrimination, it is preempted by the Illinois Human Rights Act
("IHRA"), which vests the Illinois Human Rights Commission with
exclusive jurisdiction over "alleged civil rights violation[s]."
775 ILL. COMP. STAT. 5/8-111(C) ("No court of this state shall
have jurisdiction over the subject of an alleged civil rights
violation other than as set forth in this Act."). An employer commits a civil rights violation when, among
other things, it discharges an employee "on the basis of unlawful
discrimination." 775 ILL.COMP.STAT. 5/2-102(A). "Unlawful
discrimination" includes "discrimination against a person because
of his . . . handicap." 775 ILL. COMP.STAT. 5/1-103(Q). Thus, we
have no jurisdiction over plaintiff's IIED claim if it is based
on Kay's alleged discrimination against him because of his
If, however, the IIED claim is premised solely on Kay's refusal
to provide plaintiff medical leave, it escapes preemption. As Kay
concedes, refusal to provide medical leave is not conduct within
the scope of the IHRA. (See Def.'s Mem. Supp. Mot. Dismiss at 6
n. 3.) Thus, an IIED claim based on such conduct would be
preempted only if it were so "inextricably linked" to the
disability discrimination claim that there was no independent
basis for it. Maksimovic v. Tsogalis, 687 N.E.2d 21, 23 (Ill.
1997). It is not. Whether Kay was justified in terminating
plaintiff and whether it was justified in refusing to provide him
medical leave are two distinct questions. Because the medical
leave IIED claim could exist even in the absence of the
disability discrimination claim, it is not preempted by the IHRA.
The fact that the claim is not preempted does not, however,
mean that it is viable. To state a viable IIED claim, plaintiff
must allege that: (1) Kay's conduct was extreme and outrageous;
(2) Kay intended to cause plaintiff severe emotional distress or
knew that such distress was substantially certain to result; and
(3) plaintiff did, indeed, suffer extreme emotional distress.
Public Fin. Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976).
Moreover, the first and last elements are satisfied only if the
challenged conduct "go[es] beyond all possible bounds of decency"
and the resulting distress is "so severe that no reasonable
[person] could be expected to endure it." Id. (internal
quotation marks and citations omitted); see, e.g., Pavilon
v. Kaferly, 561 N.E.2d 1245, 1251-52 (Ill.App. Ct. 1990) (upholding IIED claim asserted against defendant who knew
plaintiff was susceptible to emotional distress, repeatedly
propositioned her and offered her money for sex, fired her when
she refused his advances, threatened to kill and rape her,
harassed her family and psychotherapist, threatened to challenge
custody of her child, and harassed her new employer with letters,
phone calls and spurious complaints to government officials).
Kay's alleged failure to provide plaintiff medical leave does not
rise to the level of outrageousness required to state an IIED
For the reasons stated above, Kay's motion to dismiss is
granted. Plaintiff's intentional infliction of emotional distress
claim grounded in disability discrimination, which is preempted
by the IHRA, is dismissed for lack of jurisdiction. The remaining
claims are dismissed with leave to amend. Plaintiff has
twenty-one days from the date of this Memorandum Opinion and
Order to file an amended complaint, if he can do so and remain in
compliance with Rule 11.
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