The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court is a motion filed by Union Pacific Railroad ("Defendant") to dismiss Plaintiff Stanley Smith's complaint  pursuant to Federal Rule of Civil Procedure 12(b)(6) . For the reasons stated below, Defendant's motion to dismiss  is granted and Plaintiff's complaint is dismissed with prejudice.
In his two-count complaint, Plaintiff alleges that Defendant discriminated against him on the basis of his disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. Sec. 12101, et seq.
After successfully completing all necessary training and qualifications, Plaintiff began working for Union Pacific Railroad as an engineer in or around 1998. ¶¶ 10-11. In or around 1999, Plaintiff underwent treatment for alcoholism, sponsored by Defendant, and returned to work thereafter. ¶¶ 12-13. In 2005, Plaintiff voluntarily entered an out-patient alcoholism treatment program at Rush Behavioral with Defendant's approval, recommendation, and financial support (Defendant paid for Plaintiff's treatment program through its insurance). ¶ 14. Plaintiff was not allowed to work during the duration of the program. ¶ 14. The complaint suggests that Plaintiff and Defendant had an agreement whereby Plaintiff would be allowed to return to work upon successful completion of the treatement program. Plaintiff successfully completed his treatment in 2006. ¶ 15. Plaintiff then sought to return to work but was not allowed to do so. ¶ 16. Plaintiff alleges that he was still qualified for his position as an engineer and could perform his duties with or without reasonable accommodations but was not allowed to return to work solely because of his alcoholism. ¶¶ 17-20. Smith was not fired. Rather, Defendant kept Smith on the payroll, but refused to allow him to work. See ¶ 20 ("From 2006 until July of 2010, Union Pacific refused to allow Smith to return to work citing no other reason than his alcoholism.").
Plaintiff filed a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC") on October 7, 2009 stating that "Since 2005, I have been subjected to different terms and conditions of employment other than my co-workers, and have not been reinstated back to work." (Ex. 1 to Pl. Cmplt.). In his EEOC charge, Plaintiff alleged that the discrimination took place on March 31, 2009. Id. The EEOC issued Plaintiff a notice of right to sue on November 18, 2010. (Ex. 2 to Pl. Cmplt.).*fn2
In his two count complaint, Plaintiff asserts claims under the
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.*fn3
Plaintiff alleges that he has a history of a physical and
mental impairment as part of his alcoholism as defined by the ADA and
that Defendant has violated the ADA by denying Plaintiff an equal
opportunity for employment because of disability. ¶ 25.
Plaintiff alleges that Defendant's refusal to allow him to return to work was a malicious or reckless violation of the ADA ¶ 29.
Plaintiff has attached an affidavit to his Response to Defendant's Motion to Dismiss . In that affidavit, Plaintiff attempts to explain why he waited so long to bring the instant lawsuit. Plaintiff states that he "believed [his] treatment for alcoholism that began in 2006 was necessary and needed before [he] could return to work as an engineer for [Defendant]" which led him to continue his treatment for four years. (Pl.'s Affidavit at ¶ 5). Plaintiff states that "[i]t was not until 2010 that I was advised I had successfully completed my treatment for alcoholism years prior." (Id. at ¶ 7) (emphasis added). Plaintiff further states that "[i]n the fall of 2010, [he] was advised by a physician at Rush Hospital that [his] continued treatment was unnecessary and Union Pacific's refusal to allow [him] to return to work was improper." (Id. at ¶ 8). Plaintiff states that he "did not believe [that he] was harmed by [Defendant's] refusal to allow [him] to return to work until fall of 2010" and, upon "realizing that [he] was injured" by Defendant, immediately filed a claim with the EEOC. (Id. at ¶¶ 10-11).
II. Legal Standard on Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F. 2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint must provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). The factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 569 n.14). In other words, the pleading must allege facts that plausibly suggest the claim asserted. Twombly, 550 U.S. at 570. "A pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim ...