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Elder v. Elliott Aviation, Inc.

United States District Court, C.D. Illinois, Rock Island Division

September 20, 2016

TAD ELDER, Plaintiff,



         Plaintiff 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. 1-1.[1] 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 DENIED.


         Elder 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.

         Following 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.

         On July 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.

         At the 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. ¶ 24-26.

         Elder's 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.

         Elder's 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 pleaded.


         Federal 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).

         a. Preemption

         1. Family Medical Leave Act

         The 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 ...

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