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SULLIVAN v. PROGRESSIVE CASUALTY INSURANCE COMPANY

July 26, 2004.

KAREN B. SULLIVAN, Plaintiff,
v.
PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant.



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Karen B. Sullivan has sued defendant Progressive Casualty Insurance Co. for discriminating against her on the basis of sex pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for retaliatory discharge pursuant to the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., and breach of contract for Defendant's failure to pay Plaintiff her year-end bonus and reimburse her for her mileage. Defendant filed an answer to Counts I-III, and before the Court is Defendant's motion to dismiss Count IV of the complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). For the reasons provided in this Memorandum Opinion and Order, the motion is granted.

FACTS

  On July 7, 1991, Plaintiff was hired by Defendant as a Territory Sales Manager Trainee. (Compl. ¶ 4.) On January 5, 1992, Plaintiff was promoted to Territory Sales Manager, and in January 1994, she was thereafter promoted to Senior Territory Sales Manager. (Id. ¶¶ 5-6.) Defendant alleges Plaintiff's promotion to Senior Territory Sales Manager occurred in January 1995. (Id. ¶ 6.) In June 2000, Plaintiff was ultimately promoted to District Sales Manager, and remained in that position until December 2001. (Id. ¶ 7.) Plaintiff alleges she received compliments from her supervisors, fellow employees, and customers on her work performance and was always among the best employees in her position. (Id. ¶ 8.)

  In late spring of 2000, Plaintiff discovered she was pregnant with a baby due in late January 2001. (Id. ¶ 9.) On December 8, 2000, Plaintiff went on maternity leave, which was covered by the FMLA, and on January 16, 2001, Plaintiff gave birth to a baby girl. (Id. ¶ 10.) Plaintiff alleges that her maternity leave was extended by use of her sick time and vacation time, and that she returned to work upon the expiration of her Family and Medical Leave on April 13, 2001. (Id. ¶¶ 12-13.)

  As a District Sales Manager, Plaintiff received a company car, which Defendant permitted her to retain while on maternity leave. (Id. ¶ 14.) Defendant's policy on company cars entitled managers in Plaintiff's position to a mileage reimbursement for business use of the car, including driving to auto mechanics for normal maintenance, car washes for normal cleaning, and gas stations for fueling. (Id. ¶¶ 15-16.)

  Defendant's policy on company cars also provides that managers in Plaintiff's position were entitled to five-hundred personal miles per month, that any personal miles not used in a month rolled over for use in subsequent months, and that any personal miles not used by the year's end could be redeemed by the employee for a mileage reimbursement as long as, Defendant argues, employees did not claim such mileage fraudulently. (Id. ¶ 15; Def.'s Answer Counts I-III Compl. ("Def.'s Answer") ¶ 16.) Defendant also argues that its policy did not prohibit employees on Family and Medical Leave from claiming business and/or personal mileage so long as such mileage was not claimed fraudulently. (Def.'s Answer ¶ 16.) While on leave, Plaintiff alleges she occasionally used the company car for business purposes falling within Defendant's policy, and accrued a total of 1,345 business miles during the months of January, February, and March 2001, at Defendant's then-applicable rate of 32.5 cents per mile, equaling $437.12. (Compl. ¶ 17.) Plaintiff further claimed 1,200 miles of personal mileage. (Id. at 18.) On June 1, 2001, Plaintiff gave Defendant a written account of her business and personal mileage while on Family and Medical Leave for the months of January and February 2001, and on or about June 15, 2001, Plaintiff gave Defendant a written account of such mileage for March 2001. (Id. ¶ 19.)

  Plaintiff alleges that Defendant terminated her on December 7, 2001 for having claimed mileage while on Family and Medical Leave. (Id. ¶ 20.) Defendant then gave Plaintiff's duties to the Regional Sales Manager, who was male, and did not replace her with a new District Sales Manager. (Id. ¶ 21.) Plaintiff alleges that, contrary to its policies, Defendant refused to allow her to appeal her termination to a neutral third party and failed or refused to pay Plaintiff $738.90 for the 2,412 miles she had accrued. (Id. ¶ 23.) Plaintiff also alleges that Defendant failed to pay her any or all of her bonus for 2001 because she was not employed on December 17, 2001. (Id. ¶ 24.) Defendant argues she was ineligible for such a bonus. (Def.'s Answer ¶ 24.)

  DISCUSSION

  The purpose of a motion to dismiss, pursuant to Rule 12(b)(6) is to examine the adequacy of the complaint, not to decide the merits of the case. Fed.R.Civ.P. 12(b)(6); see Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, the court must construe all reasonable inferences drawn from the facts of the complaint in the light most favorable to the plaintiff, and all well-pleaded facts and allegations in the complaint must be taken as true. See Roots P'ship v. Lands' End, Inc., 965 F.2d 1411, 1416 (7th Cir. 1992); Branch v. Costa, No. 00 C 4765, 2000 WL 1671495, at *1 (N.D. Ill. Nov. 3, 2000). Defendants must meet a high standard in order to have a complaint dismissed for failure to state a claim, and the allegations of a complaint should not be dismissed unless it appears beyond a doubt that the plaintiff cannot prove any set of facts in support of her claim entitling her to relief. Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997); Hamros v. Bethany Homes & Methodist Hosp. of Chicago, 894 F. Supp. 1176, 1178 (N.D. Ill. 1995).

  With regard to Defendant's motion to dismiss, Defendant argues that Plaintiff's Illinois common law claim for retaliatory discharge under the FMLA (Count IV) should be dismissed due to a failure to state a claim. Defendant argues that every federal district court in Illinois to address the same issue has uniformly rejected the creation of this new public policy tort by holding that the Illinois Supreme Court would refuse to extend the tort of retaliatory discharge to include claims based on the FMLA. Moreover, Defendant argues that because Plaintiff has not relied upon a statute in support of her retaliatory discharge claim that embodies a public policy, the claim cannot survive a motion to dismiss.

  Plaintiff alleges that she was discharged by Defendant, her employer, for exercising her rights under the Family and Medical Leave Act of 1993, and that such dismissal gives rise to claims under both the FMLA and the Illinois state law tort of retaliatory discharge. (Compl. ¶¶ 45-47.) The purpose of the FMLA is to promote equal employment opportunities for men and women and to prevent gender-based discrimination in the workplace. Nevada Dep't. of Human Res. v. Hibbs, 538 U.S. 721, 727-28 (2003). This Act entitles eligible employees to take up to twelve work weeks of unpaid leave annually for several reasons, including serious health conditions, and allows the plaintiff to seek both equitable relief and money damages against any employer, if the employer interferes with the plaintiff's right to exercise rights under the FMLA. Id. at 724-25.

  In the present matter, Plaintiff argues that the FMLA embodies important federally mandated public policies which must be protected from retaliation by Illinois law, just as state policies are protected by Illinois law. (Pl.'s Resp. Def.'s Mot. Dismiss ("Pl.'s Resp.") ¶ 3.) She alleges that she has established a cause of action because Defendant discharged her for claiming mileage for her company car while on maternity leave while male and non-pregnant employees were not terminated for claiming mileage after taking leave, and Defendant then replaced her with a male employee. (Compl. ¶¶ 20-21, 32-33.) Plaintiff further alleges that Defendant never reimbursed her for that mileage in retaliation for her having taken maternity leave. (Id. ¶ 23.) Defendant argues that Plaintiff was terminated for claiming her mileage fraudulently, in violation of company policy and that fraudulently claimed mileage is not reimbursed. (Def.'s Mot. ¶ 2.)

  Illinois has recognized the limited and narrow tort of retaliatory discharge as an exception to the general rule of at-will employment. Balla v. Gambro, Inc., 584 N.E.2d 104, 107 (Ill. 1991); see Alexander v. Somer, No. 01 C 1908, 2002 WL 31557607, at *9 (N.D. Ill. Nov. 18, 2002); Callozzo v. Office Depot, Inc., No. 97 C 5308, 1998 WL 111628, at *2 (N.D. Ill. Mar. 6, 1998). In order to establish a cause of action for retaliatory discharge, the plaintiff must show that: (1) she was discharged in retaliation for her activities; and (2) the discharge is a violation ...


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