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Michael O'connell v. Continental Electrical Construction Company and John Kuta

October 17, 2011


The opinion of the court was delivered by: Judge Feinerman


Plaintiff Michael O'Connell brought this lawsuit against his former employer, Continental Electrical Construction Company, and his former supervisor, John Kuta, alleging discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/1-101 et seq., and asserting common law claims for retaliatory discharge and intentional infliction of emotional distress. When Defendants moved to dismiss the initial complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), O'Connell filed an amended complaint. Defendants then moved to dismiss the amended complaint under Rule 12(b)(6), and this time O'Connell has stood on his pleading. Defendants' motion is granted with respect to the ADA discrimination claim, the retaliatory discharge claim, and the IHRA claim, and it is denied with respect to the ADA retaliation claim and the emotional distress claim.


The well-pleaded facts alleged in the amended complaint are assumed true on a Rule 12(b)(6) motion. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). Also pertinent at the Rule 12(b)(6) stage are exhibits attached to the amended complaint, see Fed. R. Civ. P. 10(c); Witzke v. Femal, 376 F.3d 744, 749 (7th Cir. 2004), and exhibits attached to the parties' briefs that are "referred to" in the complaint and "central to [O'Connell's] claim," Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994). See Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir. 2009). To the extent an exhibit contradicts the complaint's allegations, the exhibit takes precedence. See Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007). The following facts are set forth as favorably to O'Connell as permitted by the amended complaint and the relevant exhibits.

In 2003, O'Connell began to suffer from severe anxiety and depression and was prescribed anti-anxiety medication. Doc. 25 at ¶¶ 13, 55, 70, 90, 100. In June 2007, O'Connell informed Continental that he suffered from cancer and had undergone surgery to remove a testicle and a malignant tumor from his neck, with the neck surgery leaving a visible scar on his throat. Id. at ¶¶ 16-20, 51-54, 91-94. Kuta, who was one of O'Connell's supervisors, began to ridicule O'Connell in front of others by calling him "uni-ball" and "cut throat" and asking if he had "an Italian neck tie" or if he was giving customers a "cut throat" price. Id. at ¶¶ 22-25, 57-59, 96-99. Kuta's comments aggravated O'Connell's anxiety and depression, causing him to keep anti-anxiety medication in his desk drawer, which Kuta would remove. Id. at ¶¶ 26-27, 70-71, 74-75, 100-101. The harassment, which Kuta knew aggravated O'Connell's anxiety and depression, made it difficult for O'Connell to function at work and at home. Id. at ¶¶ 30-33, 69, 78, 102. O'Connell complained about the harassment to David Wirtz, Continental's owner, and to Joe Bartucci, another supervisor. Id. at ¶¶ 34, 37, 60, 63, 104, 106. Neither Wirtz nor Bartucci reprimanded Kuta or took any action to prevent further harassment. Id. at ¶¶ 35, 38, 61, 64, 105, 107.

In April 2009, O'Connell scored 4.7 out of 6.0 on an employment evaluation and was not informed of any performance issues. Id. at ¶¶ 41, 67, 112. Shortly thereafter, in late April or early May, O'Connell again complained to Continental's management about Kuta's continued harassment. Id. at ¶¶ 45, 67, 112. O'Connell was fired on May 14, 2009 for what Continental claimed were "performance deficiencies." Id. at ¶¶ 46, 68, 113. O'Connell "believes he was terminated as a result of his continued request to be treated fairly, given the impact of the harassment on his anxiety, depression, and mental health." Id. at ¶¶ 47, 114-115, 118.

After being terminated, O'Connell filed an administrative charge of discrimination with the Equal Opportunity Employment Commission ("EEOC"). Id. at ¶¶ 48, 155; Doc. 34-1 (noting that O'Connell's charge was filed with the EEOC). The charge stated:

I began my employment with [Continental] on June 6, 1996. My current position is Assistant Service Manager. Since June of 2007, [Continental] has been aware of my disability. During my employment with [Continental], I have been subjected to harassing comments about my disability. I complained to [Continental] about the harassing comments to no avail.

I believe I have been discriminated against because of my disability and retaliated against for engaging in protected activity, in violation of the Americans with Disabilities Act of 1990, as amended.

Doc. 30-2. On November 10, 2009, the Illinois Department of Human Rights ("IDHR") wrote O'Connell a letter acknowledging that he had filed his charge with the EEOC; informing him that he could proceed with the charge at the IDHR; cautioning him that if he wished to proceed at the IDHR, he had to notify the IDHR within thirty-five days of receiving the letter; further cautioning him that his failure to so notify the IDHR would result in the IDHR closing his file; and assuring him that his decision whether to proceed before the IDHR would not affect the EEOC's processing of his charge. Doc. 34-1. The complaint does not allege that O'Connell notified the IDHR that he wished to proceed before the IDHR, and O'Connell's brief implicitly concedes that no such notification was given. Doc. 34 at 11-13. Eventually, O'Connell received a right to sue letter from the EEOC. Doc. 25 at ¶¶ 48, 160. This lawsuit was filed less than ninety days later, on April 5, 2011. Ibid.


I. ADA Claims

The ADA prohibits discrimination against "a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To state an ADA discrimination claim, O'Connell must allege that he has a "disability." See Turner v. The Saloon, Ltd., 595 F.3d 679, 688-89 (7th Cir. 2010); Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999). The ADA defines "disability" as "a physical or mental impairment that substantially limits one or more major life activities," "a record of such impairment," or "being regarded as having such an impairment." 42 U.S.C. § 12102(1). The amended complaint attempts to ground O'Connell's ADA discrimination claim on two disabilities, the first being cancer, and the second being anxiety and depression. Defendants argue, correctly, that neither disability can support that claim.

With respect to cancer, Defendants contend that because the amended complaint does not plausibly allege that O'Connell's cancer limited any major life activities, it does not state an ADA discrimination claim based on cancer. O'Connell's brief does not respond to this contention. As the Seventh Circuit has warned, when a plaintiff is "presented with a motion to dismiss, [he] must proffer some legal basis to support his cause of action. The federal courts will not invent legal arguments for litigants." Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir. 1995) (internal citations omitted); see also Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) ("Longstanding under our case law is the rule that a person waives an argument by failing to make it before the district court. We apply that rule where a party fails to develop arguments related to a discrete issue . .") (citations omitted); Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 926 (7th Cir. 2007). O'Connell therefore has forfeited any argument that his cancer qualifies as a "disability" sufficient to support his ADA discrimination claim.

With respect to anxiety and depression, Defendants contend that O'Connell failed to exhaust an ADA claim based on that disability because his administrative charge did not reference it. A plaintiff generally cannot bring in federal court an ADA claim that the plaintiff did not raise in an administrative charge. See Miller v. Am. Airlines, Inc., 525 F.3d 520, 525 (7th Cir. 2008); Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001); Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985). This exhaustion rule "serves the dual purpose of affording the EEOC and the employer an opportunity to settle the dispute through conference, conciliation, and persuasion, and of giving the employee some warning of the conduct about which the employee is aggrieved. . For allowing the complaint to encompass allegations outside the ambit of the predicate EEOC ...

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