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Brown v. GC America

November 15, 2005

DOUGLAS BROWN, PLAINTIFF,
v.
GC AMERICA, INC., A DELAWARE CORPORATION, KENT FLETCHER, DOMINIC BARAZZA, AND GEORGE GESSE, DEFENDANTS.



The opinion of the court was delivered by: Judge Manning

MEMORANDUM AND ORDER

Currently before the court is the defendants' motion to dismiss the complaint with prejudice and in its entirety pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, the motion to dismiss is denied in part and granted in part.

I. Background

The following facts are taken from the plaintiff's complaint and accepted as true for purposes of this motion. The plaintiff, Douglas J. Brown, DDS, is a dentist and suffers from reflex sympathetic dystrophy (RSD), also known as complex regional pain syndrome, a disorder of the nervous system. Although no longer able to practice dentistry as a result of his disease, Brown was hired by defendant GC America, Inc. ("GCA") as its director of clinical affairs and professional relations in November 2002, an executive-level position which also placed him on the American board of directors of GCA. According to the defendants' motion to dismiss, GCA is a manufacturer and distributor of dental materials, such as impression materials, glass ionomer, restoratives and bonding agents, and composite resins. Defendant Kent Fletcher is the president of GCA.

Fletcher and GCA were aware of Brown's disabilities when he was hired. While Brown alleges that he did an exemplary job in his new position, he states that defendant Dominic Barazza, the then-director of marketing at GCA, confronted Brown soon after he was hired and told him that GCA did not need a "disabled dentist" as its director of professional relations. According to Brown, Barazza began a "continuous course of abusive conduct intended to force Brown out of GCA." Comp. at ¶12. These incidents included instructing employees not to cooperate with Brown, telling employees to stack boxes in front of Brown's office so that he could not gain entrance, and telling individuals both inside and outside the company that he did not think that Brown, a non-practicing dentist, should be in the position for which he was hired.

Brown reported the behavior to Fletcher, his supervisor at the time, and told him that Barazza's conduct was damaging his health. Fletcher assured Brown that he "would address" the problem, but never took any action and only told Brown that "change takes time." According to Brown, because of the continued poor treatment by members of the marketing department, Brown's RSD flared up and he was afflicted with vertigo. At this time, in or around June 2004, Brown alleges that Fletcher no longer even feigned support for Brown and had in fact told other GCA executives that he wanted to "disengage" the company from Brown. According to Brown, GCA began to marginalize him in various ways, including not offering or not considering him for positions within GCA for which he was particularly qualified.

As GCA's alleged campaign to get Brown to resign continued, Brown's health declined further, including a relapse of his RSD and the diagnosis of a new heart condition. Brown alleges that he was forced to take a medical leave of absence "because of the discriminatory conduct of GCA."

Brown's claims include: a violation of the American with Disabilities Act ("ADA") (Count I); intentional infliction of emotional distress ("IIED") (Count II); defamation against Fletcher and GCA (Count III); defamation against Gesse and GCA (Count IV). The defendants have moved to dismiss each count.

II. Standard on Motion to Dismiss

The court may dismiss claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. McCullah v. Gadert, 344 F.3d 655, 657 (7th Cir. 2003). On a motion to dismiss, the "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Cole v. U.S. Capital, Inc., 389 F.3d 719, 724 (7th Cir. 2004) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

III. Analysis

A. ADA

1. Hostile Work Environment

The defendants first argue that the Seventh Circuit has not recognized a cause of action for hostile work environment under the ADA and the statutory scheme does not provide for it. However, as noted by the parties, while not expressly ruling that such a cause of action exists, the Seventh Circuit has assumed that it does. Silk v. City of Chicago, 194 F.3d 788, 803-04 (7th Cir. 1999). See also Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005) (noting that the Seventh Circuit has assumed the existence of a hostile work environment claim under the ADA and that "the standards for proving such a claim would mirror those we have established for claims of hostile work environment under Title VII") (citations omitted). Given this assumption by the Seventh Circuit, the court will not dismiss the ADA claim on this basis.

The defendants next argue that the hostile work environment claim should be dismissed because Brown has failed to allege that the alleged hostile environment was sufficiently severe or pervasive to be actionable. Mannie, 394 F.3d at 982 ("A hostile work environment exists where an employee experiences harassment that is 'so severe or pervasive as to alter the conditions of employment and create an abusive working environment.'") (citation omitted). In order to determine whether conduct is severe or pervasive, courts look to such factors as "the frequency, severity, and threatening or humiliating nature of the discriminatory conduct and whether it unreasonably interferes with [her] work performance." Id. at 983.

Brown argues that it is premature to dismiss the case because he will be able to produce evidence, presumably at summary judgment or trial, that the defendants created a hostile working environment. While acknowledging that other courts have dismissed hostile work environment claims at the pleading stage, this court is unwilling to make that determination at this time in light of the allegations in Brown's complaint and the liberal notice pleading standards in the federal rules. Cole, 389 F.3d at 724 (at the motion to dismiss stage, the "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims"). Because Brown has adequately pled a hostile work environment claim under Fed. R. Civ. P. 8, the court denies the defendants' motion to dismiss the hostile work environment claim.

2. Constructive Discharge

The defendants assert that no cause of action exists for constructive discharge under the ADA. However, the Seventh Circuit has reached the merits of a constructive discharge ADA claim. See Rooney v. Koch Air, LLC, 410 F.3d 376, 382-83 (7th Cir. 2005). Again, given that the Seventh Circuit assumed such a ...


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