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Boring v. World Gym - Bishop

May 14, 2007

SHIRLEY BORING, PLAINTIFF,
v.
WORLD GYM - BISHOP, INC., AL PHILLIPS, INDIVIDUALLY, AND BARBARA PHILLIPS, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Defendants World Gym -- Bishop, Inc., et al. ("World Gym") seek dismissal under Fed.R.Civ.P. 12(b)(6) of all three counts of Plaintiff Shirley Boring's second amended complaint alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq., retaliatory wrongful discharge, and intentional infliction of emotional distress. For the reasons stated below, World Gym's motion is denied.

I. FACTS

Boring was diagnosed with an inoperable brain tumor and advanced gastric reflux disease some time before 2004. Because of her conditions, Boring claims that on occasion she had difficulty eating and breathing. As a result, she sometimes choked on her food, and required the use of an oxygen tank at the workplace. During Boring's four-year employment with World Gym, World Gym was aware of her condition.

At one point during Boring's employment, she reported some accounting discrepancies to Defendant Al Phillips ("Mr. Phillips"), the co-owner of World Gym along with Defendant Barbara Phillips ("Ms. Phillips"), and alleged that Ms. Phillips was stealing from World Gym.

After this notification, Boring claims that Ms. Phillips made antagonistic comments to her on different occasions, utilizing derogatory and threatening language and obscenities such as, "watch your back, bitch" and "aren't you dead yet from that brain tumor, bitch."

Boring claims Mr. Phillips also made hostile comments to her during her employment with World Gym. For several months, he made statements to the effect that he held "sick people" in very low regard and insinuated that, "If [Boring] were a horse, they would shoot [her]." Boring claims that both Mr. and Ms. Phillips' comments caused her to fear for her life, health, and welfare. World Gym discharged Boring on August 14, 2004.

II. DISCUSSION

A. Standard

World Gym moves to dismiss Boring's claims pursuant to Fed.R.Civ.P 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a claim, not the merits of the case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). I should grant World Gym's motion only if Boring cannot prove any set of facts in support of her claim that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing World Gym's motion, I must construe all allegations in the claims in the light most favorable to Boring and accept all well-pleaded facts and allegations as true. See Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993).

Employment discrimination complaints do not need to contain specific facts establishing a prima facie case of discrimination. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002). To withstand a motion to dismiss for failure to state a claim, the complaint only needs to outline the statutory or constitutional violation the plaintiff relies upon, and connect that violation to the named defendants. Brownlee v. Conine, 957 F.2d 353, 354 (7th Cir. 1992). This fulfills the requirement that the "allegations suffice to put the defendants on notice of the plaintiffs' grievance." Christensen v. County of Boone, No. 04-4162, 2007 WL 841097, at *7 (7th Cir. Mar. 21, 2007). This notice pleading standard under Rule 8(a) also applies to pendant state law claims. Id. at *2.

B. The ADA

Boring's complaint contains short and plain statements of her ADA violation allegations, which gives World Gym proper notice of her grievance. However, World Gym argues that Boring has not alleged a disability under the ADA. The ADA prohibits discrimination "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). "Disability" with respect to an individual is defined in three ways: (A) "physical or mental impairment that substantially limits one or more of the major life activities of such individual;" (B) "a record of such an impairment;" or (C) "being regarded as having such an impairment." 42 U.S.C. § 12102(2). Boring claims she meets all three definitions.

The EEOC defines three elements associated with having a "disability," which provide guidance for interpreting the ADA's usage of the term. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 475 (1999). Those three elements are: 1) "physical or mental impairment," 2) "major life activities," and 3) "substantially limits." 29 C.F.R. § 1630.2(g)-(j). "Physical impairment" includes "[a]ny physiological disorder, or condition . . . affecting one or more of the following body systems: neurological, musculoskeletal . . . respiratory . . . digestive." 29 C.F.R.§ 1630.2(h)(1). "Major life activity" means "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). "Substantially limits" means "[s]ignificantly restricted as to the manner ...


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