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Smith v. MGM Resorts Int'l

United States District Court, N.D. Illinois, Eastern Division

December 5, 2016

SANDRA SMITH, Plaintiff,


          Marvin E. Aspen United States District Judge.

         Presently before us is Defendant Elgin Riverboat Resort d/b/a Grand Victoria Casino's, (“GVC”)[1] 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 prejudice.


         At the 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.)

         Smith 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 treatments. (Id.)

         In June 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. (Id.)

         In July 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.)

         During 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.)

         Just 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.)

         Smith 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.)


         A Rule 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).

         “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, 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 ...

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