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Warmack v. Quality Packaging Services, Inc.

United States District Court, S.D. Illinois

October 26, 2016



          David R. Herndon, Judge

         Introduction and Background

         Pending before the Court is defendants' motion to dismiss (Doc. 11). Defendants move to dismiss the complaint for failure to exhaust administrative remedies regarding the claims under the American with Disabilities Act, as amended, 42 U.S.C. § 12101 et seq, (“ADA”); for failure to state a claim and alternatively to dismiss the claims against defendants Creek, Zinicola and Powell as they are not liable under the ADA. Plaintiff opposes the motion. Based on the following, the Court GRANTS in part and DENIES in part the motion to dismiss.

         On May 27, 2016, Patricia A. Warmack filed a complaint pursuant to the ADA for disparate impact, failure to accommodate and retaliation against her former employer Quality Packaging Services, Inc., Heather Creek, Chris Zinicola, and Tammera Powell. The complaint alleges that Warmack worked for Quality Packaging from December 2009 to November 2014 as a production supervisor. She contends that around April 2014 she was forced to switch from hourly pay to salary and that from June 2014 to October 2014, Warmack worked between 75-80 hours per week. In October 2014, Warmack was placed on sick leave by her doctor due to rapid weight loss, fatigue and severe anxiety. Prior to the sick leave, Warmack claims that defendants refused to allow her to leave work to have blood work testing performed and refused to accommodate her. Upon returning from sick leave in November 2014, Warmack asserts that she learned from another employee, Ladebra Simpson, that defendants offered Simpson Warmack's job. Warmack informed defendant Creek that she believed that she was not being treated fairly since returning from sick leave and it was because she took sick leave. Warmack alleges that on November 11, 2014 she was terminated from her employment and that her termination was pretextual, discriminatory and retaliatory as she was discharged seven days after returning from a 33-day medical leave.

         Motion to Dismiss Standard

         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 Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “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.” Iqbal, 556 U.S. at 678.


         First, the Court addresses defendants' arguments as to the claims against Creek, Zinicola and Powell. Defendants argue that the individual defendants should be dismissed from this action because there is no individual liability under the ADA. See U.S. E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1281-82(7th Cir. 1995)(“individuals who do not otherwise meet the statutory definition of “employer” cannot be liable under the ADA.”); See Silk v. City of Chi., 194 F.3d 788, 797 (7th Cir.1999) (“[T]he ADA provides only for employer, not individual, liability. Our case law is clear that a supervisor cannot be held liable in his individual capacity under the ADA.”) Warmack does not address this argument in her motion to dismiss. Thus, the Court finds that dismissal is proper as to these three individual defendants. The Court DISMISSES with prejudice defendants Creek, Zinicola and Powell.

         Next, the Court address whether Warmack exhausted her administrative remedies as to her ADA claims. Defendants maintain that Warmack's EEOC Charge only seeks relief under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA) and not the ADA, thus, according to defendants Warmack failed to exhaust her administrative remedies as to the allegations contained in her complaint. Warmack responds that her September 3, 2015 written charge of employment discrimination and retaliation letter to the EEOC closely resembles the incidents and actions that are included in her ADA complaint.

         A federal employment discrimination plaintiff generally is limited to pursuing the claims he made before the EEOC. Teal v. Potter, 559 F.3d 687, 691 (7th Cir. 2009), citing Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). “The purpose of this requirement is two-fold: to promote resolution of the dispute by settlement or conciliation and to ensure that the sued employers receive adequate notice of the charges against them.” Teal, 559 F.3d at 691. However, in addition to those claims which were included in a discrimination charge with the EEOC, plaintiffs may also litigate claims which are “like or reasonably related to the allegations of the [administrative] charge and growing out of such allegations.” Teal, 559 F.3d at 691-92, quoting Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976). In order for claims to be deemed related, “the EEOC charge and the complaint must, at a minimum, describe the same conduct and implicate the same individuals.Cheek, 31 F.3d at 501 (emphasis in original); see also Moore v. Vital Prods., Inc., 641 F.3d 253, 257 (7th Cir. 2011). This standard is a liberal one and “is satisfied if there is a reasonable relationship between the allegations in the charge and those in the complaint, and the claim in the complaint could reasonably be expected to be discovered in the course of the EEOC's investigation.” Teal, 559 F.3d at 692.

         Further, plaintiffs who filed their EEOC charges pro se are entitled to have those charges liberally construed. Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976)(en banc), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.22d 598 (1976).

         On September 3, 2015, Warmack, pro se, wrote a letter entitled “CHARGE OF EMPLOYMENT DISCRIMINATION AND RETALIATION” to the EEOC office in St. Louis, Missouri (Doc. 11-1, p. 2). The letter/charge reads:

Description of Events: I was terminated on November 11, 2014. I believe I was terminated due to my age (58 Years old) and health condition. Additionally, I believe the termination was partial retaliation for my complaining of the required long work hours causing my health condition. From approximately June 2014 - October 2014, I was forced to work 75-80 hours per week to keep my employment. On October 1, 2014, I went on medical leave under the advice of my physician because of extreme weight loss, fatigue, stress and anxiety. I returned to work on November 3, 2014 and was met with indifference and treated very poorly. When I asked to be updated on changes that had occurred within the plant regarding policy and procedure, I was ignored. On November 7, 2014, I complained to the HR department that I was not being treated fairly and informed of the recent policy and procedure changes since returning from my medical leave. At that time, I informed HR that I felt as though I was being treated harshly because I took 33 days of medical leave and because I complained about the long working hours. To the best of my knowledge, I was the oldest person at the plant in my particular job position. I was terminated 4 days following my meeting with HR, on November 11, 2014.

         Thereafter, on September 10, 2015, Dana M. Engelhardt, enforcement manager and EEOC representative with the EEOC Office in St. Louis, Missouri, issued a Notice of Charge of Discrimination on behalf of Warmack to the Manager/Human Resources at Quality Packaging Services, EEOC Charge No. 560-2015-1930 (Doc 11-1, p. 1). This Notice states that “a charge of discrimination has been filed against your organization under The Age Discrimination in Employment (ADEA).” (Doc. 11-1, p.1). Also, the Notice is signed by Ms. Englehardt, the “Enclosure(s)” box is checked and states “Copy of Charge;” and the section under “Circumstances of Alleged Discrimination” the “Age” box is checked and states “See enclosed copy of charge of discrimination.” (Doc. 11, p. 1). What is clear to the Court is that ...

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