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Green v. Teddie Kossof's Salon & Day SPA

United States District Court, N.D. Illinois, Eastern Division

February 7, 2014



JOAN B. GOTTSCHALL, District Judge.

Plaintiff Jennifer Green filed a pro se complaint against her former employer, Teddi Kossof's Salon & Day Spa ("Kossof"), alleging discrimination and a failure to accommodate her disability, in violation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq., and discrimination and harassment based on her sex, in violation of Title VII, 42 U.S.C. § 2000e et seq. Kossof moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively, for a more definite statement pursuant to Rule 12(e). For reasons explained below, the motion is granted in part and denied in part. Green may proceed on her sex and disability discrimination and failure-to-accommodate claims, but her harassment claim is dismissed without prejudice for failure to exhaust administrative remedies.


The court accepts all well-pleaded allegations in Green's complaint as true for purposes of the motion to dismiss. See Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007). Green filed a form complaint of employment discrimination on September 18, 2013. Her motion to proceed in forma pauperis was granted, and her motion for attorney representation was denied without prejudice. (Oct. 1, 2013 Order, ECF No. 7.) Green checked boxes for "disability" and "sex" on the form complaint and attached a summary of her allegations.

Green claims that after she was hired by Kossof as a massage therapist in June 2012, she was not accommodated for her back disability, lumbar radiculopathy. She was given more massage therapy sessions than other therapists, was assigned to work a ten-hour shift on Wednesdays, and was not provided with staff support when she had episodes of back pain. She was also required either to work in a small room that compromised her body mechanics, which threatened to make her back "flare-ups" more likely, or to climb three flights of stairs to use a different room. Green claims that she made many requests to use a room that was more accessible for her, given her medical condition, but that her requests were denied.

On January 29, 2013, Green was diagnosed with a large ovarian cyst. She claims that after her diagnosis, Kossof shortened her shifts and altered her schedule, although she did not ask for that accommodation. On February 18, 2013, Green called salon owner Alan Kossof to notify him that she could not attend a massage session due to back pain and to abdominal pain caused by the cyst. She was given an ultimatum that she had to come to work. As she was leaving her shift that day, she was told by another employee that a receptionist at Kossof had been given a similar ultimatum when requesting permission to seek medical assistance for a ruptured ovarian cyst. Green contends that Kossof's treatment of her with respect to her medical condition constituted discrimination and harassment on the basis of her sex.

The next day, February 19, 2013, Green called to tell Kossof that she could not come to work because of pain and the intoxicating pain medication she was taking. The following day she was contacted by phone by Alan Kossof and terminated. Green claims that she was never informed prior to her termination that her medical condition was affecting her job.

Green further alleges that she was discouraged by Alan Kossof from using Kossof's employee health insurance because, she was told, her medical conditions would cause the other employee's rates to go up. She was encouraged to find private insurance instead.

Green filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on February 25, 2013. Her charge claims that she was discriminated against based on her sex and disability, and states, "Respondent was aware of my disabilities. During my employment, I requested an accommodation that was not provided. I was subsequently discharged. I believe I was discriminated against because of my disabilities, and in retaliation in violation of the [ADA]. I also believe that I was discriminated against because of my sex, female, in violation of Title VII..." She received a right to sue letter on June 19, 2013, and filed a suit in this court on September 18, 2013.


To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies this pleading standard when its factual allegations "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555-56; see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) ("[P]laintiff must give enough details about the subject-matter of the case to present a story that holds together."). For purposes of the motion to dismiss, the court takes all facts alleged by the claimant as true and draws all reasonable inferences from those facts in the claimant's favor, although conclusory allegations that merely recite the elements of a claim are not entitled to this presumption of truth. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). Courts also construe pro se pleadings liberally. See McGee v. Bartow, 593 F.3d 556, 565-66 (7th Cir. 2010).

Under Rule 12(e), a party may move for a more definite statement when a complaint is "so vague or ambiguous that the party cannot reasonably prepare a response." Fed.R.Civ.P. 12(e). The rule "is designed to strike at unintelligibility rather than want of detail." Gardunio v. Town of Cicero, 674 F.Supp.2d 976, 992 (N.D. Ill. 2009). "Motions under Rule 12(e) are disfavored generally, and courts should grant [them] only if the complaint is so unintelligible that the defendant cannot draft [a] responsive pleading." Rivera v. Lake Cnty., No. 12 C 8665, ___ F.Supp.2d ___, 2013 WL 5408840, at * 11 (N.D. Ill. Sept. 26, 2013).


Kossof argues that Green's complaint should be dismissed under Rule 12(b)(6) for two reasons. First, Green did not allege that she suffers from a disability covered by the ADA. Second, Green's complaint contained allegations that were not included in her EEOC charge, meaning that she has failed to exhaust administrative remedies as to those claims. ...

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