United States District Court, C.D. Illinois, Rock Island Division
DARROW UNITED STATES DISTRICT JUDGE
Tad Elder filed a five-count complaint against defendants
Elliott Aviation, Inc., Steve Meersman, and Gary Larrison,
for alleged employment-related misconduct. Compl., ECF No.
The defendants have moved under Rule 12(b)(6) to dismiss
Counts IV and V, which allege intentional infliction of
emotional distress (IIED) and negligent infliction of
emotional distress (NEID), based on preemption by various
federal and state statutes, as well as for failure to state a
claim. Defs.' Mot. Dismiss ¶¶ 2-3, ECF No. 7.
They have also moved to strike several paragraphs from the
pleading. Id. ¶ 3. For the reasons stated
below, the motion to dismiss Count IV as to Elliot Aviation
and the entirety of Count V is GRANTED. The motion to dismiss
the remainder of Count IV and the motion to strike are
worked at Elliott Aviation from October 2003 through July
2013. Compl. ¶ 3. Meersman and Larrison also worked for
Elliott Aviation throughout that time, and both were
Elder's supervisors. Id. ¶¶ 4-5.
his stepson's diagnosis with severe autism in 2008, Elder
applied for and was granted permission to take intermittent
leave pursuant to the Family Medical Leave Act
(“FMLA”) to care for his stepson. Id.
¶¶ 8-12. He took FMLA leave on a number of
occasions, and Meersman and Larrison began to “harass[
]” him about missing work. Id. ¶¶
12, 13. At the time of the harassment, Larrison was
Elder's “team leader” and Meersman his
“supervisor.” Id. ¶ 14. Elder
complained about the harassment to the manager of the paint
shop (the division of Elliott Aviation where Elder was
working), but it continued. Id. ¶ 15. By 2010,
Elder had developed depression. Compl ¶ 16. Following a
request in January 2013, Elliott Aviation approved Elder to
take intermittent FMLA leave to deal with that condition.
Id. ¶¶ 19, 20.
9, 2013, Elder lodged a complaint with Becky Meyer, also an
employee of Elliott Aviation, that Larrison and Meersman were
harassing him about missing work due to his FMLA leave.
Id. ¶ 20. Meyer investigated and determined
that Larrison and Meersman had in fact been harassing Elder.
Id. ¶ 21.
end of July 2013, Elder's physician prescribed a new
medication to help treat his depression. Compl. ¶ 22. He
took the new medication in the evening of July 28, 2013, and
an “adverse reaction” caused him to oversleep the
next morning and apparently to miss work. Id. ¶
23. Elder called Elliott Aviation midafternoon on July 29,
2013, to explain the cause of his absence, but it was
nevertheless designated as a “no-call/no-show, ”
and Elder was fired the following day. Id. ¶
complaint alleges five counts: FMLA interference; FMLA
discrimination; disability discrimination under the Americans
with Disabilities Act; intentional infliction of emotional
distress; and negligent infliction of emotional distress. The
defendants have moved to dismiss portions of the complaint,
and also to strike some of its allegations. See Fed.
R. Civ. P. 12(b)(6), (f). The motion to dismiss is aimed at
Counts IV and V of the complaint. Count IV alleges
intentional infliction of emotional distress against all
three defendants. Compl. ¶¶ 53-58. Count V alleges
negligent infliction of emotional distress against all three
defendants. Compl. ¶¶ 59-64. The defendants contend
that both tort claims are preempted or otherwise barred by no
fewer than three statutes: the FMLA; the Illinois
Workers' Compensation Act (“IWCA”); and the
Illinois Human Rights Act (“IHRA”). See
Defs.' Mem. 3, ECF No. 8. And even if the IIED claim is
not preempted, the defendants argue, the complaint fails to
state a claim on which relief can be granted. Id.
The motion to strike is contingent on the Court granting the
motion to dismiss; the defendants maintain that the
allegations related to the IIED or NIED claims, specifically
paragraphs 8 through 15 of the complaint, are not related to
the FMLA or ADA claims and are therefore immaterial.
response leads with some concessions. First, he admits the
IWCA bars the IIED claim against Elliott Aviation. Pl.'s
Mem. Resp. 2, ECF No. 12. Second, he agrees to dismiss Count
V (the NIED claim) in its entirety. Id. Elder
proceeds to argue that the IIED claims against his co-workers
Larrison and Meersman are not preempted and are sufficiently
Rule of Civil Procedure 12(b)(6) permits a defendant to file
a motion to dismiss for “failure to state a claim upon
which relief can be granted.” That means among other
things that it is “the pleader's responsibility to
state a claim to relief that is plausible on its face.”
Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th
Cir. 2010). “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.” Firestone Fin. Corp.
v. Meyer, 796 F.3d 822, 826 (7th Cir. 2015) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). At
this stage of the case, a court must “accept the
well-pleaded facts in the complaint as true, but legal
conclusions and conclusory allegations merely reciting the
elements of the claim are not entitled to this presumption of
truth.” McCauley v. City of Chicago, 671 F.3d
611, 616 (7th Cir. 2011).
Family Medical Leave Act
defendants contend that because the FMLA's remedial
provision only allows recovery of “any wages, salary,
employment benefits, or other compensation denied or lost to
[an] employee by reason of the [FMLA] violation, ” 29
U.S.C. § 2617(a)(1)(A)(i)(I), the statute
“preempts” a state law tort claim for emotional
distress. Defs.' Mem. 4. Their argument assumes that
Elder's IIED claim is based only on conduct made
actionable by the FMLA. Id. (“Plaintiff is