The opinion of the court was delivered by: Herndon, Chief Judge:
At issue here is whether an individual who works for a public agency may be held liable as an "employer" under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. There is a split of authority among federal appellate and district courts over this issue, and the Seventh Circuit has to resolve this dispute. For the reasons that follow, the Court finds that a public agency employee may be liable as an employer under the FMLA and therefore denies defendants Dr. John Koropchak, Dr. Prudence Rice, and Dr. Gary Kinsel's motion to dismiss (Doc. 37) plaintiff Dr. William Stevens' FMLA claim against them.
On February 14, 2011, plaintiff filed a complaint (Doc. 4) against the Board of Trustees of Southern Illinois University ("SIU") alleging two counts: 1) violation of Title I of the Americans with Disabilities Act of 2008 ("ADA"), 42 U.S.C. § 12112 et seq.; and 2) violation of the Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794. On August 22, 2011, plaintiff, after obtaining leave of court, filed an amended complaint (Doc. 27), adding a claim of retaliation under the FMLA against SIU and Dr. John Koropchak, Dr. Prudence Rice, and Dr. Gary Kinsel, in their individual capacities (the "individual defendants").
In the amended complaint, Dr. Stevens alleged, as is relevant to here and the facts of which the Court takes as true, that Dr. Rice was the Director of the Office of Research and Development ("ORDA") at SIU and was Dr. Stevens' immediate supervisor, that Dr. Koropchak was the Vice Chancellor for research and Dean of the Graduate School at SIU and was Dr. Rice's immediate supervisor, and that Dr. Kinsel was the Chair of the Chemistry Department at SIU. Dr. Stevens claimed that each of the individual defendants was an employer as defined by the FMLA. Further, Dr. Stevens claimed that he was the Director of the Nuclear Magnetic Resonance ("NMR") Facility at SIU, that he had been an employee at SIU since June 5, 1989, and that he had a serious spinal condition which resulted in permanent impairments that substantially interfered with multiple major life activities, including, but not limited to, walking, climbing, bending, and engaging in a broad range of activities. Despite these limitations, Dr. Stevens alleged that he could perform all the essential functions of his job with reasonable accommodations.
Dr. Stevens alleged that beginning in 2007 and continuing thereafter SIU had knowledge that he suffered from a disability, and that in 2008 and 2009 he requested and received leave under the FMLA for treatment of his condition. Plaintiff asserts that he repeatedly requested reasonable accommodations from the individual defendants but the individual defendants failed to engage in discussions or otherwise participate in the interactive process to identify and/or address reasonable accommodations for him.
Further, Dr. Stevens claims that in November 2009, Associate Professor Dr. Boyd Goodson performed an evaluation of Dr. Stevens' job performance for the time period from November 15, 2008, to November 15, 2009. Plaintiff asserts that Dr. Goodson rated him as effective or highly effective in many areas but also as marginal in several areas. Dr. Stevens alleges that in every area rated as marginal, Dr. Goodson stated that his rating was based on Dr. Stevens' "extensive health problems," "health conditions," and/or "limitations imposed by health conditions." Plaintiff maintains that he complained to Dr. Rice and Dr. Goodson about the evaluation, and on June 3, 2010, Dr. Rice gave to Dr. Stevens notice that his position was being terminated. Plaintiff claims that the "notice" stated, "This action is being taken because of circumstances noted in the November 15, 2009, review of your performance carried out by Dr. Boyd Goodson . . . ."
In plaintiff's retaliation count under the FMLA, plaintiff alleged that he requested time off work to address his medical conditions in 2009, took FMLA approved leave in the last half of 2009, and that in 2010, it became obvious that plaintiff would require additional FMLA leave because of his medical/health conditions. Dr. Stevens asserts that the individual defendants met on May 4, 2010, and discussed plaintiff's health issues as well as his FMLA needs and application and decided at that meeting to give notice to plaintiff that his continuing employment with SIU would be terminated. Plaintiff claims that on June 2, 2010, plaintiff was told that his continuing employment with SIU was terminated, and that he was given a letter to this effect signed by Dr. Rice on June 3, 2010. Dr. Stevens contends that his termination constituted a willful violation of the FMLA, a retaliatory violation of the FMLA, and that as a direct and proximate result, he suffered loss of salary and benefits from his employment with SIU and loss of respect and stature in the workplace.
The individual defendants filed a motion to dismiss the FMLA retaliation claim against them. That motion has been briefed. For the reasons that follow, that motion is denied.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). To survive a motion to dismiss, a complaint must establish a plausible right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations of the complaint must be sufficient "to raise a right to relief above the speculative level." Id.
In making this assessment, the district court accepts as true all well- pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. See Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); St. John's United Church of Christ v. City of Chi., 502 F.3d 616, 625 (7th Cir. 2007), cert. denied, 553 U.S. 1032 (2008). Even though Twombly (and Ashcroft v. Iqbal, 556 U.S. 662 (2009)) retooled federal pleading standards, notice pleading remains all that is required in a complaint: "A plaintiff still must provide only 'enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief.'" Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008).
The individual defendants contend that although the law is unsettled, the most persuasive authority provides that a plaintiff cannot pursue a FMLA claim against a public agency employee in his or her individual capacity. Alternatively, the individual defendants maintain that any such individual claim may only be pursued as against a supervisor, and therefore, even if the Court permits plaintiff to pursue an FMLA claim against a public agency employee in his or her individual capacity, any such claim should be limited to Dr. Rice, the only supervisor alleged in plaintiff's complaint. Plaintiff responds by arguing that there is no Seventh Circuit law to support the individual defendants' motion to dismiss, and therefore, it must be denied. These issues require the Court to construe the FMLA.
In cases involving statutory construction, the starting point must be the language employed by Congress. United States v. Lock, 466 F.3d 594, 598 (7th Cir. 2006). The Court assumes that the legislative purpose is expressed by the ordinary meaning of the words used. Id. Absent a clearly expressed legislative intent to the contrary, the plain language should be conclusive. Id. "'It is a common rule of statutory construction that when the plain language of a statute is clear, courts need look no farther than those words in interpreting the statute.'" Cler, v. Ill. Educ. Assoc., 423 F.3d 726, 730 (7th Cir. 2005) (quoting Gildon v. Bowen, 384 F.3d 883, 886 (7th Cir. 2004)). "It is true that in a small number of cases where the words of a statute are '"plainly at variance with the policy of the legislation as a whole"' courts may look beyond those words to interpret the statute ...