United States District Court, S.D. Illinois
PATRICIA A. WARMACK, Plaintiff,
QUALITY PACKING SERVICES, INC., HEATHER CREEK, CHRIS ZIACOLA, TAMARA POWELL, Defendants.
MEMORANDUM AND ORDER
R. Herndon, Judge
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.
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.
to Dismiss Standard
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.
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.
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.
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.
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
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
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.
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 ...