The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff James Butler filed pro se a third amended complaint against his former employer, Defendant East Lake Management Group, Inc., under federal and state law. Before the Court is Defendant's motion to dismiss for failure to state a claim.*fn1 For the reasons stated below, the motion  is granted in part and denied in part.
Plaintiff worked as a janitor at Princeton Apartments, a Chicago Housing Authority property that was managed by Defendant, for more than six years. He was laid off on October 12, 2009. On November 2, 2010, Plaintiff filed his original complaint against Defendant. [7.] After being granted leave to amend, Plaintiff filed a third amended complaint on November 1, 2011, which asserts five counts for relief. [48.]
In Count I (gender discrimination), Plaintiff alleges that his female supervisors failed to advance him because he is male. In Count II (Americans with Disabilities Act (ADA)), Plaintiff alleges that, on September 9, 2009,*fn2 he injured his right knee at work, which "made it very painful to walk bend s[qu]at run or stand without putting [his] body weight on [his] left side." On October 8, Plaintiff's doctor told Plaintiff that he needed surgery and gave him a note instructing him not to work. Plaintiff passed the note along to his supervisor the next day. On October 12, Plaintiff was "terminated under the prete[xt] of layoffs."
In Count III (retaliatory discharge), Plaintiff repeats his allegation about giving the doctor's note to his supervisor. In addition, Plaintiff alleges that, on October 12, his supervisor came to his apartment and told Plaintiff to "fuck [his] worker's compensation" before handing Plaintiff a layoff notice. He alleges that the discharge was "under the pretext of layoff to deny [him] a chance to file a [worker's compensation] claim" and that he was the only person laid off.
In Count IV (Fair Labor Standards Act (FLSA)), Plaintiff alleges that he "frequently" "work[ed] over time hours in excess of forty hours in a work week," but Defendant "did not compensate [him] for all the overtime worked on call." In Count V (Family Medical Leave Act (FMLA)), Plaintiff alleges that he was eligible for FMLA leave and that Defendant was obliged to provide him with FMLA leave. He repeats his allegation about giving his supervisor the doctor's note and receiving a layoff notice. Plaintiff concludes that Defendant "interfered with my protected rights under FMLA with the pretext of layoffs to prevent me from taking family medical leave."
Plaintiff attached to his complaint a letter dated October 2, 2009, from Defendant's claims administrator, acknowledging receipt of Plaintiff's worker's compensation claim for an injury on September 9, 2009. Also attached are two notices of proposed layoffs, dated November 27, 2006, and October 12, 2009. Plaintiff read and acknowledged the notices on November 30, 2006, and October 12, 2009, respectively. Finally, Plaintiff attached his IDHR and EEOC complaint, which alleged discrimination against Defendant based on physical disability, and Plaintiff's right-to-sue letter.
Defendant moved to dismiss the third amended complaint pursuant to Rule 12(b)(6) but also attached an affidavit of its Project Executive, Juana Pollard, detailing the events leading to Plaintiff's layoff. [49-2.]
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 first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," such that the defendant is given " 'fair notice of what the * * * claim is and the grounds upon which it rests.' " Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the " 'speculative level.' " E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 127 S. Ct. at 1965, 1973 n.14). "[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." Twombly, 127 S. Ct. at 1969.
The Court accepts as true all well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn from them. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005). Moreover, in reviewing a pro se complaint, the Court employs standards less stringent than if the complaint had been drafted by counsel. Curtis v. Bembenek, 48 F.3d 281, 283 (7th Cir. 1995).
As a threshold issue, the Court must decide whether to convert Defendant's motion to dismiss to a motion for summary judgment. Federal ...