This matter comes before the Court upon the defendants' motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 9). Plaintiff Arthur McLorn, III, ("McLorn") has responded to the motion (Doc. 19), and the defendants have replied to that response (Doc. 22).
I. Standard for Dismissal
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts all allegations as true and draws all reasonable inferences in favor of the plaintiff. Brown v. Budz, 398 F.3d 904, 908 (7th Cir. 2005); Holman v. Indiana, 211 F.3d 399, 402 (7th Cir. 2000). The Court should not grant a motion to dismiss unless it appears beyond doubt that the plaintiff cannot prove his claim under any set of facts consistent with the complaint. Brown, 398 F.3d at 908-09; Holman, 211 F.3d at 405. "[I]f it is possible to hypothesize a set of facts, consistent with the complaint, that would entitle the plaintiff to relief, dismissal under Rule 12(b)(6) is inappropriate." Brown, 398 F.3d at 909 (internal quotations omitted).
II. Allegations in Complaint
McLorn's complaint alleges the following relevant facts. Beginning in August 2004, he was employed as a housekeeper by defendant Community Health Systems, Inc. (misnamed in the complaint as Community Health Services, Inc.), doing business as Heartland Regional Medical Center ("Heartland"). As a part of his job cleaning biohazardous materials, McLorn was required to wear protective gear, including synthetic latex gloves. During his employment at Heartland, he developed an allergy to synthetic latex that caused his skin to itch, become irritated and break out into a rash. The allergy also aggravated his pre-existing hypertension.
In November 2004, McLorn's reaction to latex became so severe that he visited Heartland's emergency room twice during his work shifts. His doctor then diagnosed him with latex allergy and recommended that he not wear latex gloves for two weeks.
Initially, Heartland abided by this recommendation and assigned him to jobs that did not require synthetic latex protective gear, but before the two weeks had passed, it again required McLorn to don synthetic latex gloves. McLorn requested that Heartland provide him with alternative gloves, but Heartland refused his request. McLorn wore the synthetic latex gloves provided to him, and his skin problems worsened, eventually causing blisters to develop on his hands, arms, ears and other places where the synthetic latex gloves came into contact with his skin. The blisters were very painful, inhibiting his upper body movement and impairing his ability to perform manual tasks and to sleep. Exposure to synthetic latex gloves also aggravated his hypertension, causing him to become dizzy and lightheaded and impairing his ability to concentrate.
On January 12, 2005, Heartland terminated McLorn because he was unable to wear synthetic latex gloves.
McLorn filed a timely charge with the Equal Employment Opportunity Commission and filed this timely lawsuit on October 18, 2005. Count I alleges a claim against Heartland under Title I of the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., based on Heartland's (1) failure to accommodate his disability by providing alternative gloves, (2) decision to terminate him because of his disability and (3) otherwise discriminating against him based on his record of disability or its perception that he was disabled. Count II alleges a claim against Heartland under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, based on the same conduct as alleged with respect to Count I. Count III alleges a state law claim against defendant Carol Stricklin ("Stricklin"), McLorn's direct supervisor, in her individual and official capacities, for negligent infliction of emotional distress for failing to provide him alternative gloves.
The defendants ask the Court to dismiss Counts I and II on the grounds that, as a matter of law, allergy to synthetic latex is not a disability and that McLorn cannot show that he has a record of disability or that Heartland regarded him as having a disability. They ask the Court to dismiss the official capacity claims against Stricklin in Count III as duplicative of Counts I and II and the individual capacity claims against Stricklin in Count III on the grounds that they are preempted by the Illinois Human Rights Act, 775 ILCS 5/101 et seq., and the Illinois Workers' Compensation Act, 820 ILCS 305/1 et seq., that McLorn has failed to allege a duty Stricklin owed to him, and that Stricklin cannot be individually liable for claims which are essentially ADA and Rehabilitation Act claims.
In response, McLorn concedes that he has not sufficiently pled Count III and asks the Court to allow him to withdraw that claim. The Court construes this request as a motion to voluntarily dismiss Count III under Federal Rule of Civil Procedure 41(a)(2), will grant that motion and will dismiss Count III without prejudice. The Court now turns to Counts I and II.
The ADA provides, in pertinent part, that an employer shall not "discriminate against a qualified individual with a disability." 42 U.S.C. § 12112(a). It also requires employers to provide reasonable accommodations for the physical and mental limitations of qualified disabled employees to enable them to perform the essential functions of their jobs. 42 U.S.C. § 12112(b)(5)(A). The Rehabilitation Act incorporates these same prohibitions.*fn1 See 29 U.S.C. § 794(d).
To prove a discrimination claim or a failure to accommodate claim under either statute, a plaintiff must show, among other things, that he was a disabled person as defined by the ADA. Jackson v. City of Chicago, 414 F.3d 806, 810 n. 2 (7th Cir. 2005) (citing Silk v. City of Chicago, 194 F.3d 788, 798 n. 6 (7th Cir. 1999)) (discrimination); Winfrey v. City of Chicago, 259 F.3d ...