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FREDERIC v. NORTHWESTERN MEMORIAL HOSPITAL

June 7, 2005.

EPONINE J. SMITH FREDERIC, Plaintiff,
v.
NORTHWESTERN MEMORIAL HOSPITAL, Defendant.



The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Eponine J. Smith Frederic (hereinafter, the "Plaintiff") filed suit against Defendant Northwestern Memorial Hospital (hereinafter, the "Defendant") based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Americans with Disabilities Act of 1990 (ADA), Id. § 12101. Before the Court is Defendant's Motion to Dismiss Counts I through III and VI, and Motion for Judgment on the Pleadings on Counts IV and V. For the following reasons, Defendant's Motions are denied in part and granted in part.

I. BACKGROUND

  Plaintiff alleges the following facts in her Second Amended Complaint (hereinafter, the "Complaint"). Plaintiff was a computer support professional in Northwestern Memorial Hospital's information technology department. She began her employment on October 16, 2000. In May 2000, Plaintiff shattered her ankle in a bike accident, and had three permanent metal plates with nine screws surgically affixed to her ankle. Since her accident, she has been in pain and has had trouble walking.

  In August 2001, Plaintiff was transferred to another information technology unit under the supervision of Mary Beth Jezuit ("Jezuit"). At that time, she sought further medical attention for her ankle injury and her doctor issued restrictions on lifting objects more than 10 pounds. She informed Jezuit of her restrictions, who then required Plaintiff to visit the hospital's employee health station where she received identical instructions. Even so, she continued to be required to walk around the hospital campus by foot and move computer equipment for service calls. Plaintiff continued to attend physical therapy. In October and November 2001, Plaintiff became ill and only then did Jezuit accommodate Plaintiff's work restrictions by allowing Plaintiff to provide call support for clients rather than in-person visits. Jezuit continued to require Plaintiff to make visits to the employee health center.

  Sometime in early 2002, a human resource consultant contacted Plaintiff and informed her that she could no longer work at the phone help desk and told her to take unpaid Family and Medical Leave ("FML"). She returned to work in March 2002 and felt that she received a disproportionate amount of work compared to other employees in her position. She expressed concerns over the amount of physical work she was required to do, but felt that she never received a satisfactory explanation.

  In August 2002, Plaintiff began reporting to Dan Curran ("Curran"), supervisor in the newly created Desktop Support Service division. She continued to feel that the hospital made no attempt to accommodate her physical restrictions. Further, she was criticized in her reviews for seeking assistance with lifting and other activities.

  During the period when Curran was her supervisor, Plaintiff alleges that he improperly touched her back, upper arm, knees, and breast; she attended closed door private meeting with Curran, despite the fact that she informed him she was uncomfortable; made a reference to the size of her chest; used the slang word "hos" when discussing company policy with her; kept an electronic picture of Plaintiff that emphasized her cleavage; and touched her knees with his knees when in meetings together. Plaintiff requested that Curran's supervisor, Mike Carper ("Carper"), attend her meetings with Curran, but he did not.

  In December 2002, Plaintiff met with Curran and another employee who told her that she again would have to take forced FML due to her lifting restrictions. They required her to leave the hospital immediately. Plaintiff filed an ADA EEOC charge (hereinafter "EEOC Charge I") while on leave based on her disability. Plaintiff returned to work in March 2003 and she alleges that the sexual harassment continued.

  In May 2003, Plaintiff could not get access to certain hospital servers required for her work. In addition, human resources informed her that Curran never filled out the appropriate paperwork for her access or for her to receive insurance, among other things. Plaintiff e-mailed Curran on May 5, 2003 to express her discontent. Curran then met with Plaintiff on May 8, 2003 to verbally warn Plaintiff about her "unprofessional" e-mail communications and to discuss her average number of "closed tickets per day." (For the present purposes, the Court assumes that a "closed ticket" is a completed customer service call, either in-person or telephonic.) Plaintiff alleges that Curran purposefully discounted her actual closing average of 5.4 tickets to 4.9 tickets. On July 18, 2003, Plaintiff filed another EEOC charge (hereinafter "EEOC Charge II").

  Plaintiff was terminated without warning on September 9, 2003 by hospital management. They informed her at the time that her termination was due to lack of funds. Plaintiff alleges that a short time later, her exact position was advertised and filled. Based on her termination, Plaintiff filed a third EEOC charge (hereinafter "EEOC Charge III"). Plaintiff's complaint includes charges of retaliation (Count I), retaliatory discharge (Count II), hostile work environment (Count III), discrimination based upon disability (Count IV), failure to reasonably accommodate disability (Count V), and intentional infliction of emotional distress (Count VI).

  II. MOTION TO DISMISS COUNTS I THROUGH III AND VI

  A. Legal Standard

  A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether the plaintiff has properly stated a claim upon which relief could be granted, not whether the plaintiff will ultimately prevail on the merits. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In ruling on a motion to dismiss under either 12 (b) (6) or 12(b) (1), a court must construe all well-pleaded allegations of the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id.; Reuth v. U.S. EPA, 13 F.3d 227, 229 (7th Cir. 1993) (per curiam). A motion to dismiss will not be granted unless it "appears ...


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