United States District Court, N.D. Illinois, Eastern Division
ST. EVE UNITED STATES DISTRICT COURT JUDGE
Court grants in part without prejudice and grants in part
with prejudice Defendant's motion to dismiss brought
pursuant to Federal Rule of Civil Procedure 12(b)(6). .
The Court grants Plaintiff leave to file an Amended Complaint
regarding his disability discrimination claim brought
pursuant to the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 by no later than
November 21, 2017. Defendant shall answer or otherwise plead
by December 12, 2017. Status hearing set for January 10, 2018
is stricken and reset to December 14, 2017 at 8:30 a.m.
15, 2017, Plaintiff Lucas Behn filed a two-count Complaint
against his former employer Defendant Kiewit Infrastructure
Co. alleging violations of Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e,
and the ADA, 42 U.S.C. § 12101, along with a state law
intentional infliction of emotional distress
(“IIED”) claim. Before the Court is
Defendant's Rule 12(b)(6) motion to dismiss. For the
following reasons, the Court grants in part without prejudice
Plaintiff's ADA claim and grants Plaintiff leave to file
an Amended Complaint regarding his ADA disability
discrimination claim by no later than November 21, 2017.
See Runnion v. Girl Scouts of Greater Chicago & Nw.
Indiana, 786 F.3d 510, 518 (7th Cir. 2015) (there is a
“presumption in favor of giving plaintiffs at least one
opportunity to amend.”). On the other hand, the Court
grants Defendant's motion with prejudice as to
Plaintiff's Title VII and IIED claims.
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) challenges the viability of a complaint by arguing
that it fails to state a claim upon which relief may be
granted.” Camasta v. Jos. A. Bank Clothiers,
Inc., 761 F.3d 732, 736 (7th Cir. 2014); see also
Hill v. Serv. Emp. Int'l Union, 850 F.3d 861, 863
(7th Cir. 2017). Under Rule 8(a)(2), a complaint must include
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Pursuant to the federal pleading standards, a
plaintiff's “factual allegations must be enough to
raise a right to relief above the speculative level.”
Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). Put differently, a
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at
570). When determining the sufficiency of a complaint under
the plausibility standard, courts must “accept all
well-pleaded facts as true and draw reasonable inferences in
the plaintiffs' favor.” Roberts v. City of
Chicago, 817 F.3d 561, 564 (7th Cir. 2016). Ordinarily,
district courts will not dismiss a complaint based on a
statute of limitations affirmative defense unless the action
is clearly time-barred. See Amin Ijbara Equity Corp. v.
Vill. of Oak Lawn, 860 F.3d 489, 492 (7th Cir. 2017);
Cannon v. Newport, 850 F.3d 303, 306 (7th Cir.
25, 2013, Plaintiff started working for Defendant as an
infrastructure construction laborer. (R. 1, Compl. ¶
11.) Plaintiff alleges that during all times relevant to this
lawsuit, he has suffered with diabetes, which is a recognized
disability under the ADA. (Id. ¶¶ 12, 13.)
Further, Plaintiff asserts that Defendants knew of his
disability, medical diagnosis, and condition of diabetes.
(Id. ¶ 13.) He alleges that during his
employment with Defendant he was subjected to harassment,
intimidation, different terms and conditions of employment,
and denied reasonable accommodations based on hid disability.
(Id. ¶ 15.) Moreover, Plaintiff asserts that he
complained to Defendant regarding these conditions and was
subjected to further harassment, different terms and
conditions of employment, and declined reasonable
accommodations. (Id. ¶ 16.) He states that he
was treated differently at work due to his disability and was
retaliated against for engaging in protected activity under
the ADA. (Id. ¶ 18.) In addition, Plaintiff
states that Defendant terminated Plaintiff's employment
on November 12, 2014 for false and pre-textual reasons in
violation of Title VII and/or the ADA. (Id. ¶
19.) Based on these allegations, Plaintiff maintains that he
has suffered substantial damages for mental anguish,
emotional distress, loss of enjoyment of life, and other
nonpecuniary losses and damages, as well as lost wages,
benefits, and other pecuniary damages. (Id.
¶¶ 20, 21.)
Disability Discrimination Claim
first argues that because Title VII does not cover disability
discrimination, the Court should dismiss Plaintiff's
Title VII claim. In response, Plaintiff unequivocally asserts
that he is bringing his claim under the ADA, and thus
Defendant's motion in this respect is moot. See
Shaikh v. Watson, No. 10 C 1715, 2011 WL 589638, at *2
(N.D. Ill. Feb. 8, 2011) (“Disability is not among the
enumerated bases for a Title VII suit, and therefore a claim
for disability discrimination brought under Title VII cannot
survive”). Nonetheless, Defendant also argues that
Plaintiff has failed to adequately allege his ADA claim under
the federal pleading standards. The Court agrees.
particular, Plaintiff has not alleged sufficient facts
stating a claim that is plausible on its face. See
Iqbal, 556 U.S. at 678 (complaint is plausible on its
face when plaintiff alleges “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”).
Instead, Plaintiff merely states the elements of his ADA
claim without providing any details about his work
conditions, the alleged harassment, or how Defendant treated
him differently. Without more, Plaintiff has not met the
federal pleading requirements. See Iqbal, 556 U.S.
at 679 (“Determining whether a complaint states a
plausible claim for relief” is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”).
The Court grants Plaintiff leave to amend this claim to add
some factual context to his ADA allegations.
Intentional Infliction of Emotional Distress Claim
Defendant argues that Plaintiff's state law intentional
infliction of emotional distress (“IIED”) claim
is time-barred under the two-year limitations period set
forth in 735 ILCS 5/13-202. See Feltmeier v.
Feltmeier,207 Ill.2d 263, 278 Ill.Dec. 228, 798 N.E.2d
75, 85 (Ill. 2003). Under Illinois law, “[e]motional
distress claims accrue on the date that the defendant
committed the act that allegedly caused the plaintiff's
distress.” Turner v. McQuarter, 79 ...