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United States Equal Employment Opportunity Commission v. Graphic Packaging International, Inc.

United States District Court, Seventh Circuit

July 1, 2013




Before the Court is Defendant Graphic Packaging International, Inc.'s ("Graphic") Motion to Dismiss Plaintiff's Second Amended Complaint [ECF No. 31]. For the reasons stated herein, Graphic's Motion is granted.


Plaintiff United States Equal Employment Opportunity Commission (hereinafter, "Plaintiff" or the "EEOC") brings this action under Title I of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq. against Graphic on behalf of Jerry Bradley ("Bradley"). Bradley suffers from sleep apnea, which he claims limits his sleeping and breathing substantially.

Bradley was an electrician at Graphic's Elk Grove facility. The EEOC claims that on May 10, 2009, Bradley gave his manager, Paul Migala ("Migala"), a note from his doctor stating that Bradley had sleep apnea and recommending that he be assigned to a regular shift, preferably during the day. Bradley requested, as an accommodation for his sleep apnea, to transfer from the night shift to an 8-hour day shift. The EEOC alleges that Graphic failed to respond to this request.

In October 2009, while he was still working on the night shift, Bradley again asked managers Paul Migala ("Migala") and Steve Rossignol ("Rossignol") to be assigned to an 8-hour day shift because of his sleep apnea. Rossignol replied that he could not promise Bradley anything. The EEOC claims that neither manager asked for more medical information, explained the reason they could not accommodate Bradley, nor suggested an alternative accommodation.

The EEOC claims that because Graphic twice failed to honor his request to transfer to an 8-hour day shift, Bradley thought it would be useless to ask for the accommodation again. In November 2009, Bradley was assigned a 12-hour night shift. In early 2010, Graphic transferred another electrician from the night shift to a day shift, causing Bradley to believe that Graphic did not intend to transfer him to an 8-hour day shift.

By October 2010, Graphic had transferred Bradley to a day shift. However, it was a 12-hour shift, not the 8-hour shift he requested. In addition, at that time, Maintenance Manager Anthony Hildy ("Hildy") told Bradley to ignore his doctor's July 10, 2010 request that he work no more than 4 days per week. As a result, Bradley claims he again thought it was useless to ask for a transfer to an 8-hour shift.

On March 22, 2011, Bradley filed a Charge of Discrimination with the EEOC, alleging that Graphic discriminated against him in violation of the ADA. His charge asserted that "I have been discriminated against because of my disability (Sleep Apnea with complications) and denied an accommodation. Because I have requested an accommodation, I have been retaliated against." See Def.'s Mot. to Dismiss Sec. Am. Compl., Ex. A. Plaintiff EEOC filed this lawsuit on Bradley's behalf pursuant to Section 107(a) of the ADA, 42 U.S.C. § 12117(a), on August 13, 2012. Plaintiff filed its First Amended Complaint on December 21, 2012. Graphic moved to dismiss, arguing that the Plaintiff's claim was untimely. In response to that Motion, Plaintiff asked for and was granted leave to file a Second Amended Complaint, asserting that Plaintiff could state a timely claim based on the futile gesture doctrine. Graphic again moves to dismiss, arguing that Plaintiff's claim is still time-barred.


To survive a motion to dismiss, a complaint must comply with Rule 8(a) by providing a short plain statement of the claim showing that the pleader is entitled to relief while providing defendant fair notice of what the claim is and the grounds upon which it rests. Chi. Police Sergeants Ass'n v. City of Chicago, No. 08-cv-4214, 2011 U.S. Dist. LEXIS 72424 at *7 (N.D. Ill. July 6, 2011). In ruling on a motion to dismiss under Rule 12(b)(6), courts accept as true all of the plaintiff's well-pleaded factual allegations and any inferences reasonably drawn from them. Id.


Graphic's argument as to why this action should be dismissed is straightforward. It argues that the facts alleged in the Second Amended Complaint demonstrate that Bradley failed to file his charge with the EEOC in a timely manner after twice being denied his requested accommodation. As such, Graphic argues Plaintiff's claim is barred.

Under the ADA, a complainant must file his charge with the EEOC within 300 days of the date the alleged unlawful employment practice occurred. 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5. The failure to "timely file the charge with the EEOC bars any subsequent civil rights suit." Snider v. Belvidere Township, 216 F.3d 616, 618 (7th Cir. 2000). A refusal to accommodate under the ADA is a discrete act. Teague v. Northwestern Mem. Hosp., No. 11-3630, 2012 U.S.App. LEXIS 17818 at *10 (7th Cir. Aug. 23, 2012). Thus, the continuing ...

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