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Equal Employment Opportunity Commission v. United Parcel Service

July 3, 2012

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF, TRUDI MOMSEN,
PLAINTIFF-INTERVENOR,
v.
UNITED PARCEL SERVICE, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is a motion [59] by Plaintiff Equal Employment Opportunity Commission (EEOC) for leave to file a second amended complaint [59-1]. Also before the Court is a motion [64] by Defendant United Parcel Service (UPS) for leave to file a sur-reply in opposition to the EEOC's motion. For the reasons stated below, Plaintiff's motion [59] is denied. Defendant's motion [64] is denied as moot.

I. Background

As discussed in detail in the Court's two previous opinions in this case [42, 57], the EEOC filed an original complaint on behalf of former UPS employee Trudi Momsen and other unidentified class members, alleging that UPS violated Section 102(b)(5) of the Americans with Disabilities Act of 1990 (ADA) by permitting Momsen and the other class members only a twelve-month leave of absence and failing to provide them with reasonable accommodation for their disabilities. The Court dismissed the original complaint with leave to refile because the EEOC did not sufficiently plead that Momsen and the other class members were qualified to perform the essential functions of their jobs with or without reasonable accommodation.

The EEOC thereafter filed a first amended complaint, asserting claims on behalf of Momsen and Mavis Luvert, as well as other unidentified class members. UPS again sought to dismiss the complaint, but only with respect to the claims asserted on behalf of the unidentified class members. The Court granted UPS's motion, concluding that the EEOC has not pleaded with adequate specificity facts establishing the plausibility of a claim that each class member is a qualified individual under the ADA who could have performed his or her job with or without a reasonable accommodation. Without additional detail, the EEOC's allegations do not "raise a right to relief above the speculative level." Concentra Health Servs., Inc., 496 F.3d at 777. [57 at 10.] The Court then gave the EEOC one final opportunity to apply for leave to file a second amended complaint, if it could cure the pleading defects identified above.

The EEOC has filed such a motion [59] and attaches a proposed second amended complaint. Curiously, however, the EEOC freely admits that the second amended complaint "does not contain additional factual material with regard to any unidentified class member." [59 at 2.] Rather, the second amended complaint simply "adds the additional claim that [UPS's] inflexible twelve-month leave policy violates Section 102(b)(6) of the [ADA]." [59 at 2.] UPS opposes the EEOC's motion, maintaining that the EEOC failed to cure the defects in the original claim and that granting leave to add the additional claim would be futile.*fn1

II. Legal Standard on a Motion to Amend

Leave to amend a complaint should be freely given "when justice so requires." Fed. R. Civ. P. 15(a). But it is well settled that a district court may deny a motion for leave to amend when the amended pleading would be futile. Bethany Phamacal Co. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001). An amended complaint is futile if it could not withstand a motion to dismiss.*fn2 See Smart v. Local 702 Int'l Bhd. of Elec. Workers, 562 F.3d 798, 811 (7th Cir. 2009).

III. Analysis

A.Section 102(b)(5) Claim

As discussed in detail in the Court's two previous opinions in this case [42, 57], under the ADA, it is unlawful for an employer to fail to make reasonable accommodations to qualified individuals with disabilities. 42 U.S.C. §§ 12112(a), 12112(b)(5)(A). When the EEOC files a claim under the ADA, "it is not enough for a complaint to avoid foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief by providing allegations that raise a right to relief above the speculative level." EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 777 (7th Cir. 2007) (citations and quotation marks omitted).

In dismissing the EEOC's first amended complaint, the Court counseled that "the EEOC both can and should do better in presenting its class allegations so that they set forth in more detail the factual basis for their ADA claims" regarding the putative class members. [57 at 9.] But as the EEOC concedes, it did not do better. The second amended complaint "does not contain additional factual material with regard to any unidentified class member." [59 at 2.] Nevertheless, the EEOC spends considerable time in its reply brief arguing that its allegations are sufficient to survive a motion to dismiss. These arguments were discussed at length and rejected in the Court's previous opinion [57 at 6-10]. Because the EEOC did not even attempt to cure the defects cited by the Court, the second amended complaint would not survive a motion to dismiss regarding the Section 102(b)(5) claim.*fn3

B.Section 102(b)(6) Claim

The only question remaining is whether the EEOC's motion for leave to amend should be granted regarding its new Section 102(b)(6) claim. The EEOC argues that UPS's leave policy constitutes a qualification standard under Section 102(b)(6) because the policy allows UPS to administratively terminate an employee at the end of a twelve-month leave period regardless of whether the employee is a qualified individual with a disability who could return to work with or without a reasonable accommodation. UPS counters, however, that properly alleging a Section 102(b)(6) claim still requires the EEOC to adequately plead that each class member is a qualified individual with a disability. Because the Court found that the EEOC failed to ...


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