United States District Court, N.D. Illinois, Eastern Division
June 7, 2005.
EPONINE J. SMITH FREDERIC, Plaintiff,
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.
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 beyond
doubt that the plaintiff can prove no set of facts in support of
his claims which would entitle him to relief." Conley v.
Gibson, 355 U.S. 41, 45-46 (1957).
1. Counts I through III
Plaintiff's First Amended Complaint arose from her three EEOC
Charges filed on January 24, 2003; July 18, 2003; and April 15,
2004. She originally attached EEOC Charges I and III and the
subsequent "right to sue" letters to her brief in response to
Defendant's motion to dismiss. The Court granted Plaintiff's unopposed motion to amend so that all three charges and "right to
sue" letters are now incorporated into Plaintiff's complaint.
Defendant argues that Counts I through III are barred because
they were not sufficiently included in her EEOC charges.
Defendant argues that several of the allegations included in
Plaintiff's complaint are foreclosed from consideration because
they are "outside the ambit of the predicate EEOC charge. . . ."
Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir.
1994). In general, a Title VII plaintiff may not bring claims in
a lawsuit that were not included in her EEOC charge. Id. This
rule serves two purposes: (1) permitting the EEOC to investigate
claims, so that there will be an opportunity before the plaintiff
files suit "to settle the dispute through conference,
conciliation and persuasion"; and (2) giving the employer "some
warning of the conduct about which the employee is aggrieved."
Id. Nevertheless, a Title VII plaintiff need not allege in her
EEOC charge each and every fact underlying each claim in his
complaint. Id. Rather, all claims set forth in a complaint are
cognizable that are "like or reasonably related to the
allegations of the charge" and can reasonably be expected to grow
out of such allegations. Id. (quoting Jenkins v. Blue Cross
Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en
banc) (citation omitted)). Claims "are not alike or reasonably
related unless there is a factual relationship between them. This
means that the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the
same individuals." Cheek v. W. & S. Life Ins. Co., 31 F.3d 497,
500-01 (7th Cir. 1994). "The standard is a liberal one in order
to effectuate the remedial purposes of Title VII, which itself
depends on lay persons, often unschooled, to enforce its
provisions." Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th
Plaintiff's EEOC Charge I deals with discrimination based on
disability and reasonable accommodation under the ADA from the
period between July 1, 2002 through January 24, 2003. The Charge
actually references specific instances of conduct, including her
forced leave of absence in 2002 by supervisor Jezuit.
EEOC Charge II is a bit more complex. Plaintiff checked the
race, retaliation, sex, disability, and national origin
discrimination boxes. In the body of the charge, she references
her earlier disability charge and that "[s]ince filing the
charge, I have been harassed by my supervisor." She then
discusses that she applied for several positions that "would
provide a reasonable accommodation for my disability," but "was
not selected for any position." Plaintiff adds a conclusory
statement that she has been discriminated against because of
national origin, race, sex, disability, and retaliation.
EEOC Charge III deals specifically with Plaintiff's
termination. She also generally reiterates the earlier claims in
her other two charges. a. Retaliation
Count I involves retaliation. Defendant concedes that in EEOC
Charge II Plaintiff sufficiently alleged retaliation based on
filing EEOC Charge I. Defendant argues, however, that any
allegations related to retaliation arising from internal
complaints are not reasonably related to Plaintiff's EEOC Charge
II, or any other charge. Defendant is correct that in EEOC
Charges II and III, Plaintiff solely and specifically
references retaliation based on the filing of EEOC Charge I
pursuant to ADA violations. Plaintiff does not state that she
also internally complained to supervisors or others at the
hospital. However, through an investigation, it is reasonable
that the EEOC would have discovered that in addition to filing an
EEOC Charge, Plaintiff internally complained to supervisors about
her disability and the hospital's failure to accommodate her.
Both types of complaints involve the same underlying conduct
related to her disability and both involve her immediate
supervisors. Accordingly, Defendant had constructive notice of
Plaintiff's retaliatory complaints.
To the contrary, any internal complaints regarding sexual
harassment a discrete and completely different discrimination
claim in which many of the allegations occurred sometime after
the disability issues began would not be reasonably related to
the allegations in her EEOC charges because they do not share a
similar factual basis. Those allegations are now foreclosed from
b. Retaliatory Discharge
Defendant's argument to dismiss Count II is unavailing. Count
II involves retaliatory discharge, which is the underlying basis
for Plaintiff's EEOC Charge III and explicitly mentioned in the
charge. Plaintiff therefore states a valid claim.
c. Sexual Harassment
Defendant argues that Count III involving sexual harassment in
a hostile work environment also is procedurally barred.
Plaintiff's EEOC Charge II the only charge relevant to this
claim checks both the retaliation and sex discrimination boxes
and states that "I filed a charge with the EEOC. . . . Since
filing the [ADA] charge, I have been harassed by my supervisor.
For example, my supervisor requires me to meet with him alone. . . .
I believe I have been discriminated against because of my . . .
sex (female). . . ." Defendant asserts that "retaliation during
employment and other forms of discrimination, including
harassment based on sex, are separate and distinct wrongs such
that `an administrative charge of one fails to support a
subsequent civil suit for the other.'" (Def. Br. at 6 (quoting
Noreuil v. Peabody Coal Co., 96 F. 3d 254, 259 (7th Cir.
1996)). Plaintiff's complaint alleges more than seven specific
instances of repeated sexually harassing conduct by supervisor
Curran and other co-workers, which includes being required to meet alone with Curran. Even when
reading EEOC Charge II liberally, the Court cannot construe her
statements to embody a factual basis for both retaliation and
sexual harassment claims. Her charge specifically references
retaliatory action and adds one example in support of the claim.
From the language of this charge, neither the EEOC nor Defendant
would be on even constructive notice regarding the many alleged
instances of sexual harassment. See Cheek, 31 F.3d at 500-01
(barring a sex discrimination claim where the factual basis was
not sufficiently pled in the body of the EEOC charge). An EEOC
investigation would only probe the retaliation claim by looking
into instances of harassment that possibly could constitute an
adverse action against Plaintiff.
Unfortunately for Plaintiff, the sexual harassment claim is not
sufficiently stated in her charge in light of the retaliation
context and her failure to include any sex related description of
conduct or other facts on which the sexual harassment charge is
predicated. The example of being required to meet alone with her
supervisor lends no inference of conduct specifically directed at
Plaintiff because she is female. See Heuer v. Weil-McLain,
203 F.3d 1021, 1022-23 (7th Cir. 2000). Even though she "is not
professionally trained as a lawyer," she can and must explain the
factual basis "with some degree of specificity the conduct she
considered to be discriminatory." Cheek, 31 F.3d at 502. Plaintiff is barred from bringing this claim because checking the
box and stating that "I have been discriminated against because
of my . . . sex" is not enough.
Accordingly, Defendant's Motion is granted in part and denied
in part on Count I, denied on Count II, and granted on Count III.
2. Count VI Intentional Infliction of Emotional Distress
Defendant contends that Count VI for IIED should be dismissed
for lack of subject matter jurisdiction because it is preempted
by the Illinois Human Rights Act ("IHRA"). See
775 ILCS § 5/8-111(C); see also id. §§ 5/2-102(D), 5/6-101(A). Under the
IHRA, "torts that are `inextricably linked' to civil rights
violations must be adjudicated before the Illinois Human Rights
Commission." Sunglap v. LaSalle Bank, FSB, 345 F.3d 515, 519
(7th Cir. 2003). A tort claim is inextricably linked to a civil
rights violation and preempted by the IHRA if there "is no
independent basis for imposing liability apart" from the Act
itself. Mindell v. Kronfeld, No. 03 C 4063, 2004 WL 1322931, at
*8 (N.D. Ill. June 9, 2004). However, "where a course of conduct
states an independent state law claim, that independent claim is
not preempted by the IHRA." Krocka v. City of Chicago,
203 F.3d 507, 516 (7th Cir. 2000).
Plaintiff suggests that the "inextricably linked" rule "has
been misapplied by both state and federal courts in Illinois, resulting in the dismissal of many tort claims that should have
been allowed to proceed to trial." (Pl. Resp. at 19). Plaintiff
is well aware that the Court is bound by the Seventh Circuit,
absent a contrary Supreme Court decision. Plaintiff's argument
regarding the misapplication of the preemption rule is
unpersuasive because several of the cases Plaintiff cites to
exemplify her point are from the Seventh Circuit. (Pl. Resp. at
21; see, e.g., Krocka v. City of Chicago, 203 F.3d 507 (7th
The conduct alleged to have caused Plaintiff's extreme
emotional distress is primarily the allegations relating to
Curran's sexual harassment of Plaintiff (Pl. Res. at 21) such
statements and conduct are offensive to Plaintiff to the extent
that they are discriminatory based upon her sex and are identical
to the factual allegations of her Title VII claim. See Quantock
v. Shared Mktg., 312 F.3d 899, 905 (7th Cir. 2002) (affirming
dismissal of plaintiff's IIED claim when supported solely by
allegations identical to the Title VII sex claim). Plaintiff's
IIED claim thus brings no independent tort or claim for relief,
and her IIED claim is thus inextricably related to her sexual
harassment claim, which the Court dismissed, see supra Part
II.B.2. See Johnson v. Chi. Bd. of Educ., No. 00 C 1800, 2002
WL 1769976, at *5 (N.D. Ill. Aug. 1, 2002) (and cases cited
therein). "As such, there is no independent ground for relief."
Eruteya v. City of Chicago, No. 04 C 1482, 2005 WL 563213, at *
8 (N.D. Ill. Mar. 9, 2005). Consequently, Plaintiff's IIED claim is preempted by the IHRA and
the Court lacks jurisdiction over the IIED claim. The Court need
not address Defendant's other 12(b)(6) argument because
Defendant's motion to dismiss Count VI is granted on
III. JUDGMENT ON THE PLEADING OF COUNTS IV AND V
A. Legal Standard
Judgment on the pleadings is appropriate under Federal Rule
Civil Procedure 12(c) when viewing the facts in the light most
favorable to the nonmoving party, and it is beyond a doubt that
the nonmoving party cannot plead facts to support his cause of
action. United States v. Wood, 925 F.2d 1580 (7th Cir. 1991).
This motion is subject to the same standard as a Rule 12(b)(6)
motion to dismiss. Thomason v. Nachtrieb, 888 F.2d 1202, 1204
(7th Cir. 1989).
Counts IV and V of the complaint involve Plaintiff's alleged
disability her ankle injury. Count IV is a discrimination claim
and Count V is a reasonable accommodation claim. Allegations in
Plaintiff's complaint describe that her injury makes her "unable
to walk without substantial impairment and incredible pain and
was ordered by her physicians to limit lifting and movement of
objects over 10 pounds." (Comp. ¶¶ 16, 19). To prevail on claims
arising from an alleged disability Plaintiff must show that (1)
she was disabled within the ADA's definition; (2) she was able to
perform her job's essential functions with or without reasonable
accommodation; and (3) she suffered adverse employment action
because of her disability. Nese v. Julian Nordic Construction
Co., 405 F.3d 638, 641 (7th Cir. 2005).
1. Disability Under the ADA and Plaintiff's Complaint
Defendant argues that Plaintiff cannot show that she is
actually disabled, as defined under the ADA. 42 U.S.C. § 12102(2)
(disability is "a physical or mental impairment that
substantially limits one or more of the major life activities"
with "a record of such impairment" or is "regarded as having such
an impairment"). Defendant states that when considering "the
nature and severity of the impairment," Plaintiff's ankle injury
does not qualify as a disability. See 29 C.F.R. § 1630.2(j).
Defendant's argument focuses on one particular word in
Plaintiff's complaint. The complaint states that "[a]fter
[Plaintiff] became seriously ill and developed a fever and high
heart rate, . . . Ms. Jezuit finally accommodated [Plaintiff's]
modest doctor's restrictions by allowing [Plaintiff] to provide
call agent support. . . ." (Comp. ¶ 20 (emphasis added)).
Defendant contends that the use of the term "modest" makes it
axiomatic that Plaintiff's injury is not a severe or substantial
enough impairment to limit one of Plaintiff's major life
activities. Defendant asserts that this admission has led Plaintiff to plead herself out of court. See Am. United
Logistics, Inc. v. Catellus Dev. Corp., 319 F.3d 921, 928 (7th
The Court cannot agree with Defendant's characterization of the
term "modest" in Plaintiff's complaint. Plaintiff's allegations
are sufficient to state a claim under the ADA and the term
"modest" does not undermine her allegations. Major life
activities that must be substantially impaired include "walking,
seeing, hearing, [and] performing manual tasks."
45 C.F.R. § 84.3(j)(2)(ii); see also Toyota Motor Mfg. v. Williams,
534 U.S. 184, 198 (2002) (finding that disabilities are long-term
when the impairment "prevents or severely restricts the
individual from doing activities that are of central importance
to most people's daily lives").
Plaintiff alleges throughout her complaint that her ankle
injury was substantial by describing the results of her surgery,
the pain and discomfort she continually feels, and her inability
to run or exercise on treadmills. (Comp. ¶¶ 16, 60, 68). She also
alleges that she has trouble walking and lifting by pointing to
doctor restrictions on lifting over ten pounds. (Id. ¶¶ 16-19).
Plaintiff then states that she can satisfactorily fulfill her job
duties by phone contact, which accommodates her disability,
rather than in-person contact, where she has to walk for periods
of time and lift equipment over ten pounds to service clients.
(Id. ¶¶ 20-22, 61, 69). The Court finds that Plaintiff's
explanation that "modest" refers to the reasonability of the accommodations
necessary for her post-injury is sufficient in light of her other
allegations. Accordingly, she has not pled herself out of court
as Defendant contends, and the motion for judgment on the
pleadings for Counts IV and V on the above ground is denied.
2. Time-Barred Allegations
Defendant's next argument focuses on the timeliness of several
of Plaintiff's disability allegations. "In Illinois, a Plaintiff
complaining of discriminatory treatment must file a complaint
within 300 days of the alleged discrimination with the [EEOC].
42 U.S.C. § 2000e-5(e)." Saldana v. City of Chicago,
972 F. Supp. 453, 455 (N.D. Ill. 1997) (citing Koelsch v. Beltone Elec.
Corp., 46 F.3d 705, 707 (7th Cir. 1995)). The Court has reviewed
the timeliness of all of Plaintiff's allegations and determines
that the bulk of the allegations relating to Plaintiff's time
under supervisor Jezuit are not actionable on her ADA claims.
Plaintiff filed EEOC Charge I on January 24, 2003. 300 days
prior to the filing of her charge is approximately ten months or
March 24, 2002. The charge states that the discrimination based
on Plaintiff's disability began on July 1, 2002, which is within
the 300-day period. However, the allegations in the complaint
contradict such time frame. (See Comp. ¶¶ 18-22). Plaintiff
alleges that on "September 18, 2001, [her supervisor] Jezuit
refused to accept [Plaintiff's] doctor's restrictions and
informed [Plaintiff] that she would be required to continue to traveling
[sic] around the Hospital campus by foot and moving computer
hardware as requested. . . ." (Id. ¶ 18). She then discusses
how she was forced to take unpaid FML "through late February of
2002 because the Hospital was unwilling to properly accommodate
her disability." (Id. ¶ 22). These allegations all took place
outside the 300-day period and led up to one discrete action, her
forced FML leave.
Plaintiff also claims that upon returning to work in March 2002
until July 2002, she "received a disproportionate amount of work
compared to other employees and in comparison to her previous
workload." (Id. ¶ 23). These discrimination allegations
occurred within the statutory time frame and were distinct
actions that post-dated her returning from FML. Although some of
Plaintiff's discrimination allegations that occurred under
Jezuit's supervision were timely, the continuing violation
doctrine, which "allows a plaintiff to get relief for a
time-barred act by linking it with an act within the limitations
period" does not apply to her other untimely allegations.
Saldana, 972 F. Supp. at 457. Plaintiff cannot establish that
her employer covertly followed a practice of discrimination over
a period of time because the only application of this doctrine is
where "it would be unreasonable to expect the plaintiff to sue
before the 300 days had expired, such as when the plaintiff could
recognize the actionable nature of the conduct only in light of subsequent, additional events that occurred within
the statutory time period." Raymond v. City of Chicago,
183 F. Supp. 2d 1060, 1067-68 (N.D. Ill. 2002).
The acts outside of the 300-day window are time-barred because
there is not a continuing action. The single event of forced
unpaid FML was a discrete act similar to being demoted, receiving
a job transfer, or an admonishment. See Daniels v. Fed. Reserve
Bank of Chi., No. 98 C 1186, 2004 WL 419796, at *5-7 (N.D. Ill.
Mar. 4, 2004) (explaining Seventh Circuit case law on the
continuing violation doctrine and separate discriminatory acts).
The Seventh Circuit has held that these events are discrete and
not continuing acts, and the discriminatory or retaliatory
character of those events should be apparent to the plaintiff at
the time of the decision. See id. (citing Place v. Abbott
Labs, 215 F.3d 803, 808 (7th Cir. 2000)).
Even though Plaintiff's time-barred allegations are not
actionable under the ADA, they are still relevant to her
disability claims. The facts can serve as background context for
the development of Plaintiff's timely claims. See id. at *6.
Therefore, they need not be stricken from her complaint.
For the foregoing reasons, Defendant's Motion to Dismiss is
granted in part on Count I, denied on Count II, and granted on
Counts III and VI. Defendant's Motion for Judgment on the Pleadings on Counts IV and V is granted with respect to
particular time-barred allegations, but is denied with respect to
judgment on the claims. Counts I, II, IV, and V remain.
IT IS SO ORDERED.
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