The opinion of the court was delivered by: Stiehl, District Judge
Before the Court are the parties' motions in limine, to which responses have been filed. Upon review of the record, the Court rules as follows:
A. Defendant's Motion in Limine (Doc. # 51).
1. Defendant first seeks to exclude any evidence of damages relating to wages, salary, employment benefits or other compensation denied or lost to plaintiff by reason of his claim that defendant violated the FMLA.
On October 26, 2004, plaintiff was adjudged by an Administrative Law Judge to be disabled as defined under the Social Security Act since January 8, 2003.
Defendant claims that this finding is significant because this is the date upon which plaintiff initially suffered the event that gave rise to the FMLA leave. Defendant argues that, pursuant to the findings of the Social Security Administration, plaintiff was unable to perform the work required of him in his job at Challenge Unlimited, Inc. as of January 8, 2003 to the present. Therefore, defendant asserts, plaintiff is not entitled to any damages or relief that arise out of employment he should or could have had with Challenge Unlimited because he was totally and permanently unable to work, and that no evidence should be permitted in this trial with respect to any such damages pursuant to the FMLA.
Plaintiff, on the other hand, claims that the Court should prohibit any mention of the October 26, 2004 ALJ's Order regarding plaintiff's social security disability claim. Plaintiff argues that the ALJ's Order does not establish the elemental and crucial facts as they pertain to defendant's alleged FMLA violations and plaintiff's resultant harm or injury, and that, rather, the ALJ's Order only establishes facts necessary to adjudicate an award of disability benefits within the parameters of the SSA statute and regulations.
Plaintiff points to the Supreme Court's decision in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 119 S.Ct. 1597 (1999), which states that "the SSA and other similar disability statutes, such as the ADA, do not employ the same criteria in assessing an individual's ability to work. For example, the ADA envisions that someone with a disability may be able to work, but only with a reasonable accommodation (e.g., job restructuring, reassignment to a different position, part-time work, and so forth). The SSA, on the other hand, does not take potential accommodations into account in assessing one's ability to continue working." 526 U.S. at 803, 119 S.Ct. at 1602. The Court went on to hold that the "pursuit, and receipt, of SSDI benefits does not automatically estop a recipient from pursuing an ADA claim or erect a strong presumption against the recipient's ADA success." 526 U.S. at 805, 119 S.Ct. at 1603. See, also, Haschmann v. Time Warner Entm't Co., 151 F.3d 591 (7th Cir. 1998).
Here, plaintiff applied for social security disability benefits in January 2003, but was denied. Defendant allowed him to return to work on April 28, 2003; plaintiff claims he was constructively discharged three months later on July 30, 2003. Plaintiff reapplied for disability benefits in August 2003 and his application was approved. The ALJ in its October 2004 Order retroactively dated plaintiff's benefits to commence on January 8, 2003. Plaintiff argues that, as in Cleveland, his first application for disability benefits does not estop him from asserting he was harmed or injured by defendant's conduct between April 2003 and July 2003 when he returned to work from his FMLA leave. See, e.g., Cleveland, 526 U.S. at 804-05, 119 S.Ct. at 1603 ("an individual might qualify for SSDI under the SSA's administrative rules and yet... remain capable of performing the essential functions of her job" and "the SSA sometimes grants SSDI benefits to individuals who not only can work, but are working")(internal cite omitted). Defendant's own company-selected medical provider found plaintiff to be fit-for-duty on April 28, 2003, and concluded that he could return to work without restrictions.
The Court finds that plaintiff's claim for social security benefits does not preclude his FMLA claims. Accordingly, defendant's motion on this ground is DENIED.
2. Defendant next seeks to exclude any mention that the Court granted summary judgment in favor of plaintiff with respect to his claim that defendant violated the FMLA by not allowing plaintiff to return to work in March 2003, but instead requiring him to seek additional medical approval prior to returning to work. Plaintiff objects, claiming that the fact that defendant has already been found to have violated plaintiff's substantive rights with regard to its failure to reinstate plaintiff on March 10, 2003, is material to plaintiff's claim that his job duties were diminished. The Court agrees.
Defendant's motion on this ground is DENIED.
3. Finally, defendant objects to plaintiff's assertion in the Final Pretrial Order that he is claiming relief under the state law tort of retaliatory discharge. Specifically, the Final Pretrial Order states that plaintiff "seeks declaratory relief and actual, compensatory, nominal and punitive damages under the Illinois state tort claim of wrongful discharge."
There is no state law claim in the complaint. The Court first notes that plaintiff already attempted to amend his complaint to add state law tort claims (although not a claim for retaliatory discharge); that motion was denied by the magistrate judge.
Further, insofar as plaintiff now seeks to amend the complaint so as to include a state law claim for retaliatory discharge (in the form of constructive discharge) for the exercise of plaintiff's rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., the Court notes that a majority of courts have concluded, and this Court agrees, that the Illinois Supreme Court would refuse to extend the tort of retaliatory discharge to include claims based on the exercise of rights under the FMLA.*fn1 See, e.g., Sullivan v. Progressive Cas. Ins. Co., 2004 U.S. Dist. LEXIS 14322, at * 15-16 (N.D. Ill. July 27, 2004); Hamros v. Bethany Homes and Methodist Hosp. of Chicago, 894 F. Supp. 1176, 1179 (N.D. Ill. 1995); Handel v. Belvedere USA Corp., 2001 WL 1286842, at *3-4 (N.D. Ill. Oct. 22, 2001) (unreported) (citing cases).
Accordingly, defendant's motion on this ground is GRANTED. Plaintiff shall be limited at trial to proving his claims of substantive violations of the FMLA, see, 29 U.S.C. § 2615(a)(1), and his claims of retaliation and constructive discharge under the FMLA, see, 29 U.S.C. § 2615(a)(2). His damages sought shall be limited to those available under the FMLA, see, 29 U.S.C. § 2617, and may not ...