The opinion of the court was delivered by: James B. Zagel United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, R. Sue Connolly ("Connolly"), filed a three-count complaint against Defendant First Personal Bank ("FPB"), alleging violations of the Americans with Disabilities Act of 1990, as amended 42 U.S.C. §§ 12101-12117 ("ADA"). In 2007, Connolly interviewed with Bank President Randall Schwartz for the position of Senior Vice President of Commercial Lending at FPB. On March 26, 2007, Connolly received a letter from Schwartz formally offering her the position of Senior Vice President and Senior Lending Officer at FPB. The offer letter stated that Connolly's employment was contingent upon her satisfactory completion of a pre-employment drug test. Prior to the drug test, Connolly informed Schwartz that she had recently received a cervical epidural shot procedure that might result in additional medication showing up on the test. The test indeed showed a positive result for Phenobarbital. Upon learning of the test results, Schwartz called Connolly and rescinded FPB's offer of employment.
At the time of the drug test, Connolly did in fact have Phenobarbital in her system because it was included in medication that was lawfully prescribed to her by her physician. Connolly contacted Schwartz to remind him that she was on a variety of medications for various medical conditions and offered to have her physicians verify the medications they had prescribed, including Phenobarbital. Schwartz refused to allow Connolly to explain the presence of Phenobarbital in her system and told Connolly that FPB's decision to rescind her offer of employment was final. Connolly provided Schwartz with a letter from her doctor explaining the nature of the lawfully prescribed medication she was taking at the time of her drug test, and that letter was returned by FPB unopened.
Connolly filed a complaint with this Court on September 18, 2007, and two amended complaints thereafter. Connolly's second amended complaint alleges three counts under the ADA. FPB has moved to dismiss Count III, which alleges that FPB followed a preemployment drug testing policy and a drug screening process which prohibited the use of all legally prescribed medications, in violation of 42 U.S.C. § 12112(d)(3)(C). For the following reasons, FPB's motion to dismiss Count III is denied.
A. Standard of Review: Motion to Dismiss
A Rule 12(b)(6) motion tests the sufficiency of a complaint, not the merits of a case. Autry v. Northwest Premium Serv., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). FPB's motion to dismiss should be granted only if Connolly 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). I must accept all well-pleaded factual allegation in the complaint as true, drawing all reasonable inferences from those facts in Connolly's favor. Cleveland v. Rotman, 297 F.3d 569, 571 (7th Cir. 2002). That said, Connolly's "obligation to provide the grounds of [her] entitlement for relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level."
Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). Her complaint must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974.
FPB makes two arguments in support of its motion to dismiss. First, FPB argues that the drug test administered to Connolly did not violate 42 U.S.C. § 12112 because the drug test was not a medical exam. Second, FPB contends that Count III fails to state a claim under the ADA because it does not allege that Connolly's job offer was withdrawn based on a disability or a perceived disability.
The ADA generally prohibits discrimination against "a qualified individual with a disability." 42 U.S.C. § 12112(a). With respect to medical examinations and inquiries, § 12112(d) provides separate rules depending on whether the individual is a job applicant, an applicant with an offer who has not yet begun working, or an employee.
Subsection (d)(1) first states that, generally "[t]he prohibition against discrimination as referred to in subsection (a) of this section shall include medical examinations and inquiries." With respect to job applicants who have not received an offer, subsection (d)(2) provides that an employer may only make preemployment inquiries of an applicant's ability "to perform jobrelated functions" but not into whether the applicant is disabled. § 12112(d)(2)(A) and (B). Under subsection (d)(3), which applies to an applicant who has received an offer of employment but who has not yet started work (applicable here), the employer may require a medical examination and make an offer of employment conditional on the results of such examination so long as (1) all employees are subject to such inquiry; (2) information obtained is maintained on separate forms and in separate files and treated as confidential; (3) the results of the examination are "only used in accordance with this subchapter." § 12112(d)(3); see also 29 C.F.R. § 1630.14(b). Regarding the third requirement that the results are "only used in accordance with this subchapter," this means "as long as the employer does not discriminate on the basis of the applicant's disability." O'Neal v. City of New Albany, 293 F.3d 998, 1010 n.2 (7th Cir. 2002).*fn1
In support of its first argument, FPB relies on 42 U.S.C. § 12114(d)(1), which provides: "a test to determine the illegal use of drugs shall not be considered a medical examination." FPB argues that because tests to determine the presence of illegal drugs do not constitute medical examination under the ADA, Count III should be dismissed because it is based on the premise that the drug test administered to Connolly was a medical examination.
Connolly responds that the drug test she was administered was a test for the use of legal drugs in addition to illegal ones and therefore not the type of test exempt from the rules regarding medical examinations. According to Connolly, because the decision to rescind her offer was based on the result of the exam, FPB was required to show that its exclusionary criteria were jobrelated and consistent with business necessity. Connolly claims that FPB made its decision to rescind her offer pursuant to its alleged drug policy that prohibited the use of all legally prescribed medication without regard to whether such medication was related to whether she could perform her job responsibilities. She claims that the preemployment drug test, as administered to her, served as a blanket exclusionary test which left no allowance for the legal use of controlled substances. See Rowles v. Automated Production Systems, Inc., 92 F.Supp.2d 424, 430 (M.D. Pa. 2000) ...