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Penteris v. Citgo Petroleum Corp.

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

May 5, 2015


For Greg Penteris, Plaintiff: Barry Alfred Gomberg, LEAD ATTORNEY, Barry A. Gomberg & Associates, Chicago, IL.

For Citgo Petroleum Corporation, Defendant: Michael J Gray, LEAD ATTORNEY, Jones Day (CH), Chicago, IL; Julie Morrissy Baker, Kathryn Treyz Biggart, Jones Day, Chicago, IL.

For Disa, Inc., also known as Lenox Healthcare, Defendant: Holly Harvel Williamson, William Michael Reed, PRO HAC VICE, Hunton & Williams LLP, Houston, TX; Kirk David Bagrowski, Eichhorn & Eichhorn, Hammond, IN.

For Priority Staffing, LTD., Defendant: Robert Jon Feldt, LEAD ATTORNEY, Kirk David Bagrowski, Eichhorn & Eichhorn, Hammond, IN.


SARA L. ELLIS, United States District Judge.

After he was unable to provide a urine sample for a random drug test, Plaintiff Greg Penteris was terminated from his job as a pipefitter. Claiming that he suffers from " shy bladder syndrome," also known as paruresis, and an enlarged prostate, he filed this lawsuit against Defendants Citgo Petroleum Corporation (" Citgo" ), Disa, Inc. (" Disa" ),[1] and Priority Staffing, Ltd. (" Priority Staffing" ), alleging that they violated Titles I and III of the Americans with Disabilities Act (" ADA" ), 42 U.S.C.§ 12101 et seq., by discriminating against him and failing to provide reasonable accommodations in the administration of the drug test. As a second claim, Penteris pleads a violation of the Illinois Human Rights Act (" IHRA" ), 775 Ill.Comp.Stat. 5/1-101 et seq., although he acknowledges in the complaint that this claim is not ripe. Pending before the Court are Defendants' motions to dismiss [21, 26, 38]. The ADA Title III claim, asserted only against Disa and Priority Staffing, may proceed at this stage because Penteris adequately alleges that those Defendants qualify as " public accommodations" under the statute. The ADA Title I claim, asserted only against Citgo, survives Citgo's motion to dismiss because, drawing all inferences in Penteris' favor, he sufficiently alleges that Citgo, with Turner, was his joint employer and had knowledge of his alleged disability. The IHRA claim is dismissed, however, as it is not ripe for adjudication.


In December 2013, Penteris was working for Turner Industries Group, L.L.C., Turner Industrial Maintenance, L.L.C., Turner Specialty Services, L.L.C. (collectively, " Turner" ),[3] and Citgo on Citgo property. On December 19, 2013, Penteris' employer selected him for a random drug test. Disa and Priority Staffing personnel[4] administered the test and directed Penteris to provide a urine sample in the bathroom area of a trailer on Citgo property. The bathroom area had thin walls so that Penteris could hear what was going on outside the room. He also was interrupted by Disa or Priority Staffing personnel while attempting to urinate and urged to hurry up. At some point, because the personnel monitoring the drug test had to attend a safety class, Penteris was instructed to pace up and down the trailer hallway so he could be watched while the personnel attended class. This kept Penteris from attempting to urinate while the class was in session. As time passed, Penteris became dehydrated, due in part to the temperature in the trailer and the fact that he was dressed for the December cold.

Penteris informed Disa or Priority Staffing personnel that he had difficulty urinating and asked for water. Disa or Priority Staffing personnel documented that they gave him forty ounces of water to drink over the course of two and a half hours on a shy bladder log. Penteris claims, however, that he received less than this amount and that he instead drank half of his own bottle of water in addition to three small cups of water provided by Disa or Priority Staffing personnel. Penteris also asked for a quieter space to urinate. He was allowed to use a larger bathroom for one attempt, but in that case the personnel monitoring him waited right outside the stall. After that attempt, Penteris remarked that " [i]t is just not going to let me do it." Compl. ¶ 49.

After three hours passed, Disa or Priority Staffing personnel terminated the collection procedure in accordance with the instructions on the shy bladder log. Deemed to have failed the test, Disa or Priority Staffing personnel escorted Penteris to John Novak, the head of safety. Novak told Penteris to go to Physicians Immediate Care in Bolingbrook, Illinois, which referred him to Silver Cross Hospital in Joliet. Isabelle Sanchez, who works for Disa, also told Penteris to see a urologist. Ultimately, Penteris met with Dr. Sawhney at Advanced Urology Associates the following day and for further testing on December 24. Dr. Sawhney diagnosed Penteris with an enlarged prostate on December 24, 2013, and conveyed that diagnosis to Turner and Disa. An enlarged prostate can block urine flow and cause difficulty initiating urination.

Penteris also met with Dr. Kelly Hird, a psychologist, who diagnosed him with paruresis in January 2014. Paruresis, also known as shy bladder syndrome, is an anxiety condition characterized by an individual's fear of urinating in public restrooms when others are present. This diagnosis, although new, reflected issues with which Penteris had been dealing for some time through other self-designed coping mechanisms. For example, Penteris would avoid situations where he had to urinate in public and wait until he returned home, use single-stall restrooms removed from foot traffic and human voices, and distract himself by making telephone calls, running water, flushing the toilet, or making other sounds. When he was forced to take a drug test for work in the past, he had often received the order on the night shift and then held his first urine of the day until he arrived at the medical facility for the drug test. Penteris provided the paruresis diagnosis to Defendants and Turner. On his own initiative, Penteris took a drug test based on a hair sample on December 27, 2013, which tested negative. He provided this result to Defendants and Turner as well. Nonetheless, Penteris has not worked since December 19, 2013.


A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " A claim has ...

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