The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Edward Sanders, filed suit against Defendant,
Express Latino O'Hare, alleging employment discrimination under
Title VII of the Civil Rights Act of 1964 ("Title VII"),
employment discrimination under the Age Discrimination in
Employment Act of 1967 ("ADEA"), and a violation of the Family
Medical Leave Act ("FMLA"). Presently pending before the court is
the Defendant's Motion to Dismiss Plaintiff's Amended Complaint.
Plaintiff has also filed a Motion to File a Second Amended
Complaint, and Defendant has filed a Motion to Stay Discovery.
A reading of Sanders' Amended Complaint supports the following
summary of the alleged conduct of the parties.
Plaintiff was employed as a shuttle bus driver by Defendant for
over two years. During the summer of 2002, Plaintiff informed
Defendant of his wife's serious medical condition. Plaintiff
informed the Defendant that in order to care for his wife,
Plaintiff would have to miss parts of certain work days. After
arriving late to work on August 25, 2002, Defendant terminated
Plaintiff's employment. Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC"), alleging employment
discrimination based on Plaintiff's race and age. Shortly
thereafter, Plaintiff notified the EEOC and the post office of
his change of address. On February 28, 2003, the EEOC issued
Plaintiff a right-to-sue letter based on his charges. The EEOC
addressed the letter to Plaintiff's former address. Plaintiff did
not receive the letter until May 3, 2004. Plaintiff filed the
original Complaint in this matter on July 29, 2004, and an
amended Complaint on April 29, 2005.
In reviewing a motion to dismiss, the court reviews all facts
alleged in the complaint and any inferences reasonably drawn
therefrom in the light most favorable to the plaintiff.
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 exception found in
Federal Rule of Civil Procedure 9. See Swierkiewicz v. Sorema,
534 U.S. 506, 511 (2002) (Swierkiewicz); Walker v. Thompson,
288 F.3d 761, 764 (7th Cir. 2002). A filing under 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.
See Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003).
Dismissal is warranted only if "it appears beyond a doubt that
the plaintiff can prove no set of facts in support of its claims
that 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 the facts, consistent with the complaint
that would make out a claim." Graehling v. Village of Lombard,
Ill, 58 F.3d 295, 297 (7th Cir. 1995). The simplified notice
pleading relies upon liberal discovery and summary of motions to define disputed issues and facts and to
dispose of unmeritorious claims. See Swierkiewicz,
534 U.S. at 513.
The Defendant presents several arguments as to why Plaintiff's
Amended Complaint should be dismissed.
The Defendant argues that the Plaintiff's FMLA claim should be
dismissed because it was not filed within the time permitted by
Claims brought under the FMLA must be brought within two years
of the alleged violation, or within three years if that violation
was willful. "An action may be brought under this section not
later than two years after the date of the last event
constituting the alleged violation for which the action is
brought." 29 U.S.C. § 2617(c)(1). If a claim is brought for a
willful violation of the FMLA, "such action may be brought within
three years of the date of the last event constituting the
alleged violation for which the action is brought."
29 U.S.C. § 2617(c)(2). Plaintiff filed the Amended Complaint to include the
FMLA claim on April 29, 2005. Plaintiff was terminated from his
employment on August 25, 2002. Whether Defendant willfully
terminated Plaintiff's employment in light of the FMLA is a
question of fact that cannot be determined at this stage of the
proceedings. Plaintiff sufficiently alleges in the Amended
Complaint that Defendant "engaged in willful disregard of
Plaintiff's rights under the FMLA." Therefore, Plaintiff has
sufficiently pled that he brought the action within the three
years specified in the statute.
Defendant also argues that Plaintiff failed to comply with
statutory requirements necessary to make a claim under FMLA.
Specifically, Defendant contends that Plaintiff failed to provide
30 days' notice or as much as is practicable when he sought
leave. "[T]he employee shall provide the employer with not less than 30 days' notice, before the date the
leave is to begin . . . except that if the date of the treatment
requires leave to begin in less than 30 days, the employee shall
provide notice as is practicable." 29 U.S.C. § 2612(e)(2)(B).
Plaintiff alleges in the Amended Complaint that he "informed
Defendant during the summer and fall of 2002 that his wife
suffered from a serious health condition . . . and that he needed
to provide care and support for her." Plaintiff further alleged
that "due to his wife's condition, he would sometimes need to
miss certain parts of certain days, for instance, reporting to
work after the normal starting time." Plaintiff has sufficiently
alleged that he gave defendant practicable notice of his wife's
condition and his need to take leave of work.
Defendant also argues that Plaintiff failed to make a
reasonable effort to avoid disrupting the operations of the
Defendant. The FMLA states that the employee "shall make a
reasonable effort to schedule the treatment so as not to disrupt
unduly the operation of the employer." 29 U.S.C. § 2612(e)(2)(A).
Plaintiff sufficiently alleged in the Amended Complaint that he
gave Defendant advance notice of his wife's condition. Whether
the notice was a reasonable effort to avoid disrupting the
operations of the Defendant is a question of fact that cannot now
be decided in a motion to dismiss.
Finally, Defendant argues that Plaintiff failed to submit
evidence of his wife's condition upon request. "An employer may
require that a request for leave under subparagraph (c) of
section 2612(a)(1) of this title be supported by a certification
issued by the health care provider of the eligible employee or of
the . . . spouse . . . of the employee. The employee shall
provide, in a timely manner, a copy of such certification to the employer."
29 U.S.C. § 2613(a). Whether the Defendant requested evidence of
Plaintiff's wife's condition is also a ...