United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. Aspen United States District Judge.
before us is Defendant Elgin Riverboat Resort d/b/a Grand
Victoria Casino's, (“GVC”) motion to dismiss
Counts II and IV of Plaintiff Sandra Smith's complaint
for failure to state a claim. (Dkt. No. 5.) For the reasons
stated below, we grant GVC's motion to dismiss, without
motion to dismiss stage, we accept all well-pleaded factual
allegations as true, and draw all inferences in the
plaintiff's favor. Cole v. Milwaukee Area Tech. Coll.
Dist., 634 F.3d 901, 903 (7th Cir. 2011). Sandra Smith
was diagnosed with cervical cancer in November 2009. (Compl.
¶ 11.) At the time of her diagnosis, she had worked as a
cocktail server at GVC for almost two decades. (Id.
¶ 8.) Smith continued to work at GVC during her cancer
treatments until her termination on May 31, 2013.
(Id. ¶ 55.)
began to receive cancer treatments in November 2009, at which
time she underwent an intensive three-month treatment regimen
before returning to work on March 9, 2010. (Id.
¶ 11.) Upon her return to work, Smith still needed one
or two days off every three months to attend to treatment and
recovery. (Id. ¶ 12.) Despite her continuing
need for time off for cancer treatments, Smith alleges GVC
“cut off Sandra's Family and Medical Leave (FMLA)
time immediately.” (Id. ¶ 13.) As a
result, Smith states she began to use paid vacation and
unpaid sick days “to avoid conflict and keep the job
she needed.” (Id. ¶ 14.) In early 2011,
GVC paid Smith for the vacation days she used in 2010, but
characterized them as “leave of absence days, ”
which Smith alleges had the negative effect of pushing back
her healthcare benefits start date until October 2011.
(Id. ¶ 17.) In January 2011, Smith underwent a
second round of intensive chemotherapy. (Id. ¶
18.) From February until June 2011, she received chemotherapy
three times per week and worked at night after her
2011, Smith learned her cancer had returned, spread, and
posed a serious threat to her life, which required her to
undergo additional treatment. (Id. ¶ 20.)
Smith's doctors told her that this type of diagnosis
meant she had, at most, three to five years to live, and one
year or less to live if her cancer did not respond to
treatment. (Id. ¶ 19.) Smith informed her
supervisors of the severity of her diagnosis, but alleges GVC
again “cut off her FMLA leave time, claiming that her
required treatment each quarter “was for ‘just a
couple scans' and thus was not actual treatment under the
FMLA.” (Id. ¶¶ 20, 21.) From June
2011 through July 2012, Smith used paid vacation days and
unpaid personal days for her cancer treatment without stating
the purpose, because she was afraid to ask GVC about FMLA
leave and wanted to avoid the delay of her benefits start
date. (Id. ¶¶ 28-35.) GVC continued to
characterize her time off as leave of absence days and to
push back the start date of her benefits in 2012.
2012, Smith's doctors found a spot on her lungs that
required surgical removal in late August 2012. (Id.
¶ 30.) By the time Smith returned to work on October 9,
2012, she feared “even asking about FMLA coverage for
her continuing treatments” out of concern that GVC
would again categorize her time off as leave of absence days
and further delay her benefits start date in 2013.
(Id. ¶ 31.) Each time she requested time off or
was cited for an attendance issue, Smith reminded GVC's
human resources department about her illness and that it
required her to take time off for treatment and recovery.
(Id. ¶ 34.) Even so, as Smith underwent cancer
treatment, her supervisors at GVC asked her how much longer
her treatment would last and noted “the increasing
burden on GVC's employee health insurance policy and
other benefits.” (Id. ¶¶ 23, 35.) By
the end of April 2013, GVC had pushed back her benefits start
date to December of that year, after again characterizing her
time off for cancer treatment as leave of absence days.
(Id. ¶¶ 40-42.)
the course of her cancer treatment from 2009 to 2013, Smith
continued to receive positive reviews until May 2013, the
month of her termination. (Id. ¶¶ 8,
36-39.) On May 17, 2013, Smith was reprimanded for
“failing to have an attitude conducive to a productive
work environment, ” a charge Smith believed was
fabricated because of her costly medical treatments.
(Id. ¶ 43.) The reprimand arose from an
incident in which Smith failed to serve a supervisor quickly
on a night when the casino floor was understaffed and Smith
was busy waiting on customers. (Id. ¶¶
44-45.) On that same day, Smith had requested two leave of
absence days for her continuing cancer treatment.
(Id. at ¶ 46.)
over a week later, on May 26, 2013, Smith noticed a new,
younger server had not cleaned up customers' used glasses
and napkins from her station, as required by GVC, and Smith
handed the server a “friendly note (with a
‘smiley face')” to remind her to clear these
items. (Id. ¶¶ 48-49.) When Smith arrived
at work on May 30, 2013, her supervisor David Allred told her
she was suspended pending an investigation of the May 26,
2013 incident and told Smith to “sign a form with false
statements as to the ‘incident, '” which she
refused to do. (Id. ¶¶ 50-54.) GVC fired
Smith the next day, May 31, 2013. (Id. ¶ 55.)
After pressing GVC for a reason for her termination, Smith
was told that she was not getting along with other servers,
“bossed them around, ” and had “no right to
give that note” to the younger server she had tried to
help. (Id.) Sharon McGill in GVC's human
resources department ended the May 31 conversation by telling
Smith, “as of tomorrow, you have no insurance coverage
or benefits.” (Id. ¶ 56.)
received a right to sue letter from the EEOC on April 18,
2016. (Compl. ¶ 5.) Smith sued GVC on July 13, 2016,
asserting claims for wrongful termination pursuant to the
Americans with Disabilities Act of 1990, 42 U.S.C.
§§ 12101-12213 (2012) and Age Discrimination in
Employment Act of 1967, 29 U.S.C. §§ 621-34 (2012);
violations of the Family and Medical Leave Act of 1993
(“FMLA”), 29 U.S.C. §§ 2601-2654
(2012); and retaliatory discharge under Illinois law. On
September 19, 2016, GVC moved to dismiss Smith's FMLA
claim (Count II) and her state-law retaliatory discharge
claim (Count IV). (Dkt. No. 5.)
12(b)(6) motion to dismiss is meant to “test the
sufficiency of the complaint, not to decide the merits of the
case.” Gibson v. City of Chi., 910 F.2d 510,
1520 (7th Cir. 1990). In evaluating a motion to dismiss, we
must accept all well-pleaded allegations in the complaint as
true and draw all reasonable inferences in the
plaintiff's favor. Thompson v. Ill. Dep't of
Prof'l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A court should grant a Rule 12(b)(6) motion to dismiss
only if a complaint lacks enough facts “to state a
claim [for] relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949-50 (2009) (internal quotation marks omitted)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 1974 (2007)); accord. Killingsworth
v. HSBC Bank Nev., N.A., 507 F.3d 614, 618-19 (7th Cir.
2007). The plausibility standard “is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft, 556 U.S. at 678, 129
S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 127
S.Ct. at 1964-65).
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, 129 S.Ct. at
1949. Although a facially plausible complaint need not
contain “detailed factual allegations, ” it must
allege facts sufficient “to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555, 127 S.Ct. at 1964-65. These requirements ensure