The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant County of Cook's (County) motion to dismiss and Defendant Cook County Sheriff Thomas Dart's (Dart), Defendant Salvador Godinez's (Godinez), Defendant Gilberto Romero, Jr.'s (Romero), and Defendant Rosemarie Nolan's (Nolan) (collectively referred to as "Individual Defendants") motion to dismiss. For the reasons stated below, we grant the County's motion to dismiss and we deny Individual Defendants' motion to dismiss.
Plaintiff Chester Plaxico (Plaxico) alleges that he began working for the Cook County Sheriff's Department (Sheriff's Department) in May of 1986. Plaxico claims that he had an excellent employment history and that he received several promotions while employed by the Sheriff's Department. Plaxico states that in May of 2002, he became a Superintendent.
Plaxico further alleges that in November 2005, he applied for intermittent leave under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., so that he could care for his son, who suffers from a long-term serious medical condition. Plaxico's FMLA request was allegedly approved and effective as of December 21, 2005. Plaxico and his wife, who is also an employee of the Sheriff's Department, allegedly received a combined total of 12 weeks of intermittent leave for 2006. According to Plaxico, he properly reapplied for intermittent leave to care for his son in 2007 and 2008, and his requests were granted each time.
Plaxico alleges that Romero, who was the Assistant Executive Director of the Department of Corrections, and Godinez, who is currently the Executive Director of the Department of Corrections, "subjected [Plaxico] to unwarranted discipline . . . in retaliation for  exercising his rights under the FMLA." (Compl. Par. 21). Plaxico also claims that, with the knowledge, consent, and approval of Romero and Dart, Godinez demoted Plaxico to the position of Chief on January 14, 2008, due to Plaxico taking intermittent FMLA leave. In August 2008, Plaxico allegedly filed a complaint regarding Defendants' alleged FMLA violations with the United States Department of Labor (Labor Department). To minimize his need for intermittent leave, Plaxico allegedly requested a schedule change on many occasions, including on September 15, 2008. On September 25, 2008, allegedly in retaliation for Plaxico's complaint to the Labor Department and his taking intermittent FMLA leave, Godinez allegedly demoted Plaxico to the position of Captain with the knowledge, consent and approval of Romero and Dart.
According to Plaxico, Godinez has allegedly stated at some unspecified time that Plaxico was a "valued employee" and that Plaxico's demotions resulted from Plaxico's "personal 'issues,' which required [Plaxico] to take intermittent leave." (Compl. Par 26). Godinez also allegedly told Plaxico that Plaxico could discuss being promoted again once Plaxico "got his 'family situation' resolved." (Compl. Par. 27). Plaxico alleges that Dart, Godinez, Romero, and Nolan, who is Director of Personnel for the Sheriff's Department, have implemented a policy within the Sheriff's Department of "retaliating and interfering with employees' rights under the FMLA, including by subjecting employees who take FMLA leave to unwarranted scrutiny, placing on 'proof status,' counseling employees not to take FMLA leave, and subjecting them to unwarranted disciplinary actions and demotions." (Compl. Par. 28).
Plaxico alleges that, in spite of being on intermittent FMLA leave, he has worked 45-60 hours per week, and that his requests to substitute compensatory time for FMLA leave have been denied. In addition, Plaxico claims that he reapplied for intermittent FMLA leave in 2009, and that Defendants approved his leave, but specifically limited Plaxico to 5 days of intermittent leave per month, which does not satisfy the medical needs of his son. Plaxico includes in his complaint claims for FMLA interference in violation of 29 U.S.C. § 2615(a)(1) brought against the County, Dart, in his official and individual capacity, Godinez, in his individual capacity, Romero, in his individual capacity, and Nolan, in her individual capacity (Count I) and claims for FMLA retaliation in violation of 29 U.S.C. § 2615(a)(2) and § 2615(b) brought against the County, Dart, in his official and individual capacity, Godinez, in his individual capacity, Romero, in his individual capacity, and Nolan, in her individual capacity (Count II). The County and Individual Defendants have moved to dismiss Plaxico's claims against them.
Federal Rule of Civil Procedure 12(b)(1) (Rule 12(b)(1)) requires a court to dismiss an action when it lacks subject matter jurisdiction. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003). If the concern of the court or party challenging subject matter jurisdiction is that "subject matter jurisdiction is not evident on the face of the complaint, the motion to dismiss pursuant to Rule 12(b)(1) would be analyzed as any other motion to dismiss, by assuming for purposes of the motion that the allegations in the complaint are true." Id.; see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995)(stating that when reviewing a motion to dismiss brought under Rule 12(b)(1), this court "must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff"). However, if the complaint appears on its face to indicate that the court has subject matter jurisdiction, "but the contention is that there is in fact no subject matter jurisdiction, the movant may use affidavits and other material to support the motion." United Phosphorus, Ltd., 322 F.3d at 946 (emphasis in original). For the purpose of determining subject matter jurisdiction, this court "may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Ezekiel, 66 F.3d at 897 (quoting Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir. 1993)). The burden of proof in a Rule 12(b)(1) motion is "on the party asserting jurisdiction." United Phosphorus, Ltd., 322 F.3d at 946.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), a court must "accept as true all of the allegations contained in a complaint" and make reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(stating that the tenet is "inapplicable to legal conclusions"); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court has stated that the "plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 556). A complaint that contains factual allegations that are "merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).
I. County's Motion to Dismiss
The County argues that it is not Plaxico's employer as a matter of law, and that therefore, the claims against the County should be dismissed and the County should remain in the litigation as an indemnitor only. The FMLA prohibits an employer from interfering with an employee's rights under the FMLA or from discriminating against an employee "for opposing any practice made unlawful under [the FMLA]." 29 U.S.C. § 2615. Plaxico apparently concedes that the County is not ...