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Benny Eberhardt, Sr v. Dorothy Brown

November 20, 2012

BENNY EBERHARDT, SR., PLAINTIFF,
v.
DOROTHY BROWN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendants' motion to dismiss. For the reasons stated below, the motion is granted in part and denied in part.

BACKGROUND

Plaintiff Benny Eberhardt (Eberhardt) contends in his pro se amended complaint that he began working for Defendant Dorothy Brown, Clerk of the Circuit Court of Cook County (Clerk's Office) in 1989. Eberhardt further alleges that in November 2010 he was a Deputy Court Clerk. According to Eberhardt, Defendants disciplined him, suspended him, denied his request for a transfer, denied his request for leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and terminated his employment when he was "on [the] verge of retirement."

(A. Comp. 4). Eberhardt contends that his employment "was terminated based on [his] attendance, which was due to [his] disability from on the job injuries." (A. Compl. 5). Eberhardt also contends that Defendants treated Eberhardt less favorably than white and/or non-disabled employees. Eberhardt further clams that Defendants discriminated against him because of his color in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.,and 42 U.S.C. § 1981 (Section 1981),discriminated against him because of his alleged disability in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and discriminated against him because of his race in violation of Title VII, 42 U.S.C. § 1983 (Section 1983), and Section 1981.

In addition, Defendants allegedly retaliated against Eberhardt for complaining about the unlawful discrimination. Eberhardt also contends that Defendants have failed to reasonably accommodate his alleged disability. Eberhardt further contends that he was subject to retaliatory discharge because he brought a workers' compensation claim and filed claims relating to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. Eberhardt names in the amended complaint as a Defendant his former employer, the Clerk's Office.

Eberhardt also names as Defendants Robin Perkins (Perkins), Hollis Healy (Healy), Warren Howlett (Howlett), and Harold Goodson (Goodson) (collectively referred to as "Individual Defendants"), whom Eberhardt contends were his "former managers and supervisors." (A. Compl. 1). Defendants now move to dismiss all claims.

LEGAL STANDARD

In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court."

E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that "[t]o survive a motion to dismiss, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," and that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged")(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations omitted).

DISCUSSION

Since Eberhardt is proceeding pro se, the court has liberally construed the allegations in the amended complaint. See McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000)(stating that "pro se complaints are to be liberally construed and not held to the stringent standards expected of pleadings drafted by lawyers").

I. Title VII and ADA Claims

Defendants argue that the Title VII and ADA claims ...


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