Name of Assigned Judge Robert M. Dow, Jr. Sitting Judge if Other or Magistrate Judge than Assigned Judge
For the reasons stated below, the Court grants Defendant's motion to dismiss Counts I and II of Plaintiff's Fourth Amended Complaint  and dismisses Counts I and II with prejudice. The case will proceed only as to Counts III and IV. Status hearing remains set for 6/20/13 at 10:00 a.m.
O[ For further details see text below.] Docketing to mail notices. Notices mailed.
Plaintiff James Butler worked as a janitor at Princeton Apartments, a Chicago Housing Authority property that was managed by Defendant East Lake Management Group, Inc., for more than six years. He was laid off on October 12, 2009. On November 2, 2010, Plaintiff filed his original complaint  against Defendant. After Plaintiff filed an amended complaint , the Court recruited counsel [see 25, 29] to assist Plaintiff. Not long after counsel filed a second amended complaint , Plaintiff dismissed his lawyer [see 38, 40] and sought leave to file a third amended complaint, which the Court granted. On November 1, 2011 , Plaintiff filed his third amended complaint , which asserted five counts for relief.
Defendant moved to dismiss Plaintiff's third amended complaint, which the Court granted in part and denied in part [see 59]. The Court dismissed Count I (gender discrimination) with prejudice and Counts II (Americans with Disabilities Act (ADA)) and IV (Fair Labor Standards Act (FLSA)) without prejudice. In its opinion, the Court carefully set forth both the legal standard governing a motion to dismiss and what a plaintiff must plead to sufficiently allege both ADA and FLSA violations. Given Plaintiff's pro se status, the Court gave Plaintiff 21 days in which to file a motion for leave to file an amended complaint if he felt that he could cure any of the deficiencies identified by the Court in dismissing Counts II and IV. Plaintiff filed a fourth amended complaint
, asserting four counts: Count I (ADA), Count II (FLSA), Count III (Family Medical Leave Act (FMLA)), and Count IV (Retaliatory Discharge). Defendant filed an answer and affirmative defenses in response to Counts III and IV and once again has moved to dismiss Counts I and II for failure to state a claim.
The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiff's complaint and draws all reasonable inferences in his favor. Killingsworth, 507 F.3d at 618. To survive a Rule 12(b)(6) motion to dismiss, the claim 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" (Fed. R. Civ. P. 8(a)(2)), 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, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "A pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); cf. Scott v. City of Chi., 195 F.3d 950, 952 (7th Cir. 1999) ("Whether a complaint provides notice, however, is determined by looking at the complaint as a whole.").
In Count I (ADA), Plaintiff alleges that, on September 9, 2009, he injured his right knee at work. On October 8, 2009, Plaintiff "advised his employer that his knee injury would likely require surgery and that he could not work due to his medical condition." According to Plaintiff, on October 12, 2009, he was advised that he was being laid off effective October 31, 2009. Sometime after October 12, 2009, Plaintiff underwent surgery to repair a torn tendon in his right knee. Plaintiff does not allege that he requested leave, provided a definite date for his return, or requested an accommodation.
As set forth in the Court's previous opinion dismissing the ADA claim for failure to state a claim, to establish a violation of the ADA, an employee must show that: 1) he is disabled; 2) he is qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) the employer took adverse action because of his disability or failed to make a reasonable accommodation." Winsley v. Cook County, 563 F.3d 598, 603 (7th Cir. 2009). Here, Plaintiff has not adequately pleaded that he is a qualified individual with a disability or that Defendant failed to make reasonable accommodations. Although the Court gave Plaintiff leave to correct these specific deficiencies, he has failed to do so. Instead, Plaintiff's fourth amended complaint states that he advised his employer that "he could not work due to his medical condition" and that he likely would require surgery. He does not allege that he could perform his job after he injured his knee. Additionally, Plaintiff does not plead that he requested a reasonable accommodation, which would trigger "the employer's obligation to participate in the interactive process of determining one." See Johnson v. Foulds, 111 F.3d 133, at *2-3 (7th Cir. 1997) (citing Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 164 (5th Cir. 1996). In fact, Plaintiff fails to plead any facts under the reasonable accommodation part of the ADA, including but not limited to facts suggesting that he requested leave, provided a definite date for his return, requested an accommodation for his injured knee, and, most importantly, that Defendant rejected a request for accommodation. See Beck v. Univ. of Wisc. Bd. of Regents, ...