Schoelen v. Genesis Janitorial Services, Inc.

Filing 13

OPINION BY SUE E. MYERSCOUGH, U.S. District Judge: The Motion to Dismiss (d/e 7 ) filed by Defendant is GRANTED in part and DENIED in part. Plaintiff's Motion for Leave to Amend (d/e 9 ) is GRANTED in part and DENIED in part. Plaintiff' s Motion for Leave to Amend is denied in that Plaintiff's request to file the proposed amended complaint (d/e 9 -1) is DENIED. However, Plaintiff is granted leave to file an amended complaint consistent with this opinion and the deadline state d below. IT IS THEREFORE ORDERED THAT: (1) Counts II, III, VII, VIII, and IX are hereby DISMISSED without prejudice. (2) Counts IV and V are dismissed with leave to refile. (3) Plaintiff is granted leave to file an amended complaint by April 21, 2021. Defendant has until May 12, 2021, to file a response to Plaintiff's amended complaint. SEE WRITTEN OPINION. Entered on 3/31/2021. (MJC)

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E-FILED

Wednesday, 31 March, 2021 10:21:38 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
NICKIE SCHOELEN,
Plaintiff,
v.
GENESIS JANITORIAL
SERVICES, INC.,
Defendant.

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No. 20-cv-3112

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the Motion to Dismiss (d/e
7) filed by Defendant Genesis Janitorial Services, Inc. and the
Motion for Leave to Amend (d/e 9) filed by Plaintiff Nickie Schoelen.
For the reasons stated below, the Motion to Dismiss is GRANTED in
part and DENIED in part. The Motion for Leave to Amend is
GRANTED in part and DENIED in part.
I. INTRODUCTION
On May 1, 2020, Plaintiff Nickie Schoelen filed this action
against Defendant Genesis Janitorial Services, Inc. alleging
discrimination and retaliation against Plaintiff based on Plaintiff’s

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sex, pregnancy, and disability leading to her unlawful termination.
See Complaint, d/e 1, p. 1. On June 30, 2020, Defendant filed a
Motion to Dismiss Counts II through IX of Plaintiff’s Complaint (d/e
7) arguing that Plaintiff has failed to state claims upon which relief
can be granted. More specifically, Defendant contends that
Plaintiff’s Title VII sex discrimination claim – Count II – is
duplicative of Plaintiff’s pregnancy discrimination claim – Count I.
If the claims are separate, Defendant argues that Plaintiff failed to
exhaust her administrative remedies for her Title VII – Count II –
and Illinois Human Rights Act (“IHRA”) – Count VIII – sex
discrimination claims. Also, Defendant argues that Plaintiff’s Title
VII retaliation claim – Count III – should be dismissed because
Plaintiff failed to allege facts that Plaintiff engaged in a protected
activity. Plaintiff’s ADA claims, brought in Counts IV and V, should
also be dismissed according to Defendant because Plaintiff fails to
allege a recognized disability under the ADA. For the same reason,
Defendant seeks dismissal of Plaintiff’s IHRA disability claims
brought in Counts VII and VIII. Lastly, Defendant argues that
Plaintiff’s ADA – Count VI – and IHRA – Count IX – retaliation

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claims should be dismissed because Plaintiff cannot prove she was
terminated in retaliation for requesting an accommodation.
On July 14, 2021, Plaintiff filed a response in opposition to
Defendant’s Motion to Dismiss or in the alternative a Motion for
Leave to Amend. See d/e 9. Plaintiff agrees to dismiss Counts III,
VII, and IX. However, Plaintiff contends that she has sufficiently
pled sex-based discrimination claims found in Counts II and VIII.
She also argues that her ADA claims found in Counts IV, V, and VI
are well pled. In the alternative, Plaintiff seeks leave to amend her
complaint. Plaintiff provided a proposed amended complaint, which
did not include a separate claim for sex-based discrimination, Title
VII retaliation claim, IHRA disability-based discrimination claim,
and her IHRA retaliation claim. See d/e 9-1.
II. JURISDICTION
This Court has federal question jurisdiction over Counts I
through VI because those Counts allege claims arising under Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et
seq. and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12101, et seq. See 28 U.S.C. § 1331. The Court has supplemental
jurisdiction over Counts VII through IX, which allege state law
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claims arising from the same general set of facts. See 28 U.S.C. §
1367(a). Venue is proper because a substantial part of the events
or omissions giving rise to the claim occurred within the Central
District. 28 U.S.C. § 1391(b)(2).
III. BACKGROUND
The following facts come from the Complaint and the EEOC
Charge of Discrimination and are accepted as true at the motion to
dismiss stage. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th
Cir. 2008).
Plaintiff is a female and worked for Defendant Genesis
Janitorial Services, Inc. in Quincy, Illinois, for four months as a
janitor prior to her termination. See Complaint, d/e 1, p. 3. While
employed, Plaintiff performed her job requirements satisfactorily.
Id. On October 31, 2016, Plaintiff notified her supervisor, Earl
Whitney, that Plaintiff was pregnant and that she had received a
doctor’s note indicating Plaintiff was not allowed to use a scrubber,
which is a motorized floor scrubbing machine, due to her
pregnancy. Id. Plaintiff requested a reasonable accommodation.
Mr. Whitney told Plaintiff that “everything will be fine.” Id.

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Plaintiff also provided the note to the human resources director,
Kelly Jones. Id.
On November 1, 2016, Mr. Whitney told Plaintiff that Plaintiff
would begin training a new male employee, Walter Thompson, on
November 2, 2016. Id. On November 4, 2016, Plaintiff was
terminated from her employment. Id. at 4. Plaintiff was told she
was being replaced by Mr. Thompson as Plaintiff became a “liability
for a miscarriage.” Id.
On December 9, 2016, Plaintiff filed a claim with the Equal
Employment Opportunity Commission (“EEOC”) and the Illinois
Department of Human Relations (“IDHR”) to satisfy “the
requirements of 42 U.S.C. § 2000e-5(b) and (e) based on sex,
pregnancy, disability[,] and retaliation against Defendant.” See id.
at 2. Plaintiff’s EEOC Charge of Discrimination (d/e 7-1) “was filed
within three hundred days after the alleged unlawful employment
practices occurred.” Id. The Charge listed Nickie Schoelen and
Genesis Janitorial Services. See d/e 7-1, p. 2. Plaintiff checked the
boxes for sex, retaliation, disability, and “other,” after which is
typed “Pregnancy.” Id. Plaintiff wrote the following for the
Statement of Harm:
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GJS subjected me to disparate and discriminatory
treatment on the basis of my temporary disability, my
pregnancy. I informed GJS of my pregnancy and
subsequently requested reasonable accommodations.
Rather than grant my request for accommodation, GJS
terminated my employment. At the time of my
termination, I was able to perform all essential functions
of my job; therefore, accommodating me would not have
caused an undue hardship or burden on the business.
Id. For the Statement of Discrimination, Plaintiff stated, “I believe I
have been discrimination against because of my pregnancy, in
violation of the Americans with Disabilities Act, Title VII of the Civil
Rights Act of 1964, and Pregnancy Discrimination Act (PDA).” Id.
On October 9, 2019, the EEOC issued to Plaintiff a
Determination providing that “the evidence obtained in the
investigation establishes reasonable cause to believe that
Respondent discriminated against the Charging Party and a class of
employees based on their disabilities . . .” and issued a Notice of
Right to Sue, Conciliation Failure. See d/e 1, p. 3. On May 1,
2020, Plaintiff filed this action, which was within ninety days of the
issuance of the EEOC’s Notice. Id.
In this action, Plaintiff brought nine counts against Defendant:
 Count I – Sex, Including Pregnancy Based
Discrimination in Violation of Title VII as amended by
the Pregnancy Discrimination Act of 1978;
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 Count II – Sex Based Discrimination in Violation of Title
VII;
 Count III – Retaliation in Violation of Title VII;
 Count IV – Failure to Accommodate in Violation of the
ADA;
 Count V – Disability Based Discrimination in Violation of
the ADA;
 Count VI – Retaliation in Violation of the ADA;
 Count VII – Disability Based Discrimination in Violation
of the IHRA;
 Count VIII – Sex Based Discrimination in Violation of the
IHRA;
 Count IX – Retaliation in Violation of the IHRA.
See Complaint, d/e 1.
IV. LEGAL STANDARD
Pursuant to Rule 12(b)(6), a party may file a motion to dismiss
for “failure to state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6). A motion under Rule 12(b)(6) challenges the
sufficiency of the complaint. Christensen v. Cty. Of Boone, Ill., 483
F.3d 454, 458 (7th Cir. 2007). To survive dismissal, the complaint
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Tamayo,
526 F.3d at 1081 (“A plaintiff's complaint need only provide a ‘short
and plain statement of the claim showing that the pleader is
entitled to relief,’ sufficient to provide the defendant with ‘fair notice’
of the claim and its basis.”)(quoting Fed. R. Civ. P. 8(a)(2)). “Factual
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allegations are accepted as true at the pleading stage, but
allegations in the form of legal conclusions are insufficient to
survive a Rule 12(b)(6) motion.” Adams v. City of Indianapolis, 742
F.3d 720, 728 (7th Cir. 2014) (internal quotation omitted). A
plausible claim is one that alleges factual content from which the
Court can reasonably infer that the defendant is liable for the
misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Merely reciting the elements of a cause of action or supporting
claims with conclusory statements is insufficient to state a cause of
action. Id.

The court must draw all inferences in favor of the non-

moving party. In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir.
2009).
V. ANALYSIS
Defendant filed the instant motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), making various arguments
why the Complaint should be dismissed. After Plaintiff responded
to the motion to dismiss, the remaining issues are whether
Plaintiff’s Complaint states claims for failure to accommodate and
disability-based discrimination in violation of the ADA and a claim
for retaliation in violation of the ADA.
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A. Plaintiff Fails to State a Claim for a Recognized
Disability Under the ADA.
Defendant argues that Plaintiff has failed to allege a claim for a
recognized disability under the Americans with Disability Act
(“ADA”), and, therefore, Plaintiff’s Complaint fails to state a claim
upon which relief can be granted.
The ADA provides that a covered employer “shall [not]
discriminate against a qualified individual on the basis of disability
in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.” 42 U.S.C. §
12112(a). A covered employer “may be liable for disability
discrimination if it fails to ‘mak[e] reasonable accommodations to
the known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee,’ unless
the employer can show that ‘the accommodation would impose an
undue hardship on the operation of the [employer's] business.’”
Conners v. Wilkie, 984 F.3d 1255, 1260 (7th Cir. 2021) (quoting 42
U.S.C. § 12112(b)(5)(A)).

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To succeed on a claim for failure to accommodate an
employee’s disability, a plaintiff must prove: “(1) the employee was a
qualified individual with a disability; (2) the employer was aware of
the disability; and (3) the employer failed to reasonably
accommodate the disability.” Scheidler v. Indiana, 914 F.3d 535,
541 (7th Cir. 2019), reh'g and suggestion for reh'g en banc denied
(Mar. 1, 2019). As for a claim of disparate treatment due to
disability, a plaintiff must prove: “(1) plaintiff was disabled; (2)
plaintiff was qualified to perform essential functions with or without
reasonable accommodation; and (3) disability was the ‘but for’
cause of adverse employment action.” Id.
A threshold issue is whether Plaintiff is “disabled” under the
ADA. “[T]he inquiry is an individualized one, and must be
determined on a case-by-case basis.” Roth v. Lutheran Gen. Hosp.,
57 F.3d 1446, 1454 (7th Cir. 1995). A person is considered
“disabled” if she has “(A) a physical or mental impairment that
substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment (as described in paragraph
(3)). 42 U.S.C. § 12102(1). The phrase “major life activities” is
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defined to include “caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2).
The issue in this case is whether Plaintiff’s pregnancy
constituted a disability. Absent pregnancy-related complications or
unusual circumstances, pregnancy typically is not considered a
disability under the ADA. See Scheidt v. Floor Covering Associates,
Inc., 16-CV-5999, 2018 WL 4679582, at *6 (N.D. Ill. Sept. 28, 2018)
(collecting cases). After the U.S. Supreme Court decision in Young
v. United Parcel Service, Inc., 575 U.S. 206 (2015), the EEOC
provided guidance on this issue:
Changes to the definition of the term "disability" resulting
from enactment of the ADA Amendments Act of 2008
(ADAAA) make it much easier for pregnant workers with
pregnancy-related impairments to demonstrate that they
have disabilities for which they may be entitled to a
reasonable accommodation under the ADA. Reasonable
accommodations available to pregnant workers with
impairments that constitute disabilities might include
allowing a pregnant worker to take more frequent breaks,
to keep a water bottle at a work station, or to use a stool;
altering how job functions are performed; or providing a
temporary assignment to a light duty position.
...
Although pregnancy itself is not an impairment within
the meaning of the ADA, and thus is never on its own a
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disability, some pregnant workers may have impairments
related to their pregnancies that qualify as disabilities
under the ADA, as amended. An impairment's cause is
not relevant in determining whether the impairment is a
disability. Moreover, under the amended ADA, it is likely
that a number of pregnancy-related impairments that
impose work-related restrictions will be substantially
limiting, even though they are only temporary.
EEOC No. 915.003, EEOC Enforcement Guidance on Pregnancy
Discrimination and Related Issues (2015),
https://www.eeoc.gov/laws/guidance/enforcement-guidancepregnancy-discrimination-and-related-issues (last accessed March
30, 2021).
Courts have interpreted the EEOC Guidance as requiring a
plaintiff to plead more than the fact that they are pregnant. See
Love v. First Transit, Inc., 16-CV-2208, 2017 WL 1022191, at *5
(N.D. Ill. Mar. 16, 2017) (“Thus, where a medical condition arises
out of a pregnancy and causes an impairment separate from the
symptoms associated with a healthy pregnancy, or significantly
intensifies the symptoms associated with a healthy pregnancy, such
medical condition may fall within the ADA's definition of a
disability.”); Compare Scheidt v. Floor Covering Associates, Inc., 16CV-5999, 2018 WL 4679582, at *7 (N.D. Ill. Sept. 28, 2018)

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(“Plaintiff has not presented sufficient evidence for a reasonable jury
to conclude that her allergy substantially limited her ability to
procreate and carry a pregnancy to term, nor has Plaintiff presented
sufficient evidence for a reasonable jury to conclude that her allergy
substantially limited any other major life activity.”); with Heatherly
v. Portillo's Hot Dogs, Inc., 958 F. Supp. 2d 913, 921 (N.D. Ill. 2013)
(finding that the plaintiff presented sufficient evidence to overcome
summary judgment “as to whether her high risk pregnancy
rendered her disabled under the ADAAA.”).
Here, Plaintiff alleges that she was considered disabled under
the ADA “as her pregnancy was such that she required a note from
her doctor prohibiting her from using the scrubber while at work.”
See Response, d/e 9, p. 6. As stated in her Complaint, Plaintiff
notified her supervisor, Earl Whitney, that Plaintiff had received a
doctor’s note indicating Plaintiff could not use the scrubber, which
was a motorized floor scrubbing machine, due to her pregnancy.
See Complaint, d/e 3, ¶ 20. However, Plaintiff has not pled any
factual allegations as to what led to the need for the work
restriction over than her pregnancy. If a medical condition or
health concern related to pregnancy required the work restriction,
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Plaintiff’s claim may survive. However, as pled, Plaintiff merely
alleges that the pregnancy alone constituted the disability pursuant
to the ADA. Therefore, Plaintiff has failed to allege a reasonable
inference of a recognized disability under the ADA, which effects
Counts IV and V of Plaintiff’s Complaint.
However, Plaintiff seeks leave to amend her complaint, and
she attached a proposed amended complaint along with her
request. See d/e 9, 9-1. Plaintiff did not have the benefit of this
Opinion prior to filing the proposed complaint. If Plaintiff has the
facts necessary to state a claim consistent with this Opinion, the
Court grants Plaintiff leave to file another amended complaint. As
such, Counts IV and V of Plaintiff’s Complaint are dismissed with
leave to refile.
B. Plaintiff Fails to State a Claim for Retaliation under the
ADA.
Defendant also seeks dismissal of Plaintiff’s disability
retaliation claim found in Count VI. To succeed on a disability
retaliation claim, a plaintiff must prove that “(1) she engaged in a
statutorily protected activity; (2) she suffered an adverse
employment action; and (3) there is a causal connection between

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the two.” Guzman v. Brown County, 884 F.3d 633, 642 (7th Cir.
2018).
Defendant argues that Plaintiff has failed to allege a claim for
retaliation under the ADA because Plaintiff alleges that she was
terminated due to “liability for a miscarriage,” not as a result of her
request for an accommodation. Plaintiff contends that she
requested an accommodation under the ADA, but Defendant failed
to engage in the interactive process. Instead, Defendant fired her.
Plaintiff pled in her Complaint that she notified her supervisor of
her pregnancy, provided the doctor’s note to her supervisor and the
human resources director, and requested a reasonable
accommodation. However, she was terminated and told “she was
being replaced by Mr. Thompson as she has become a ‘liability for a
miscarriage.’” See Complaint, d/e 1, ¶ 24.
Based on the allegations in the Complaint, Plaintiff requested
a reasonable accommodation and Defendant failed to engage in the
interactive process by terminating Plaintiff. Defendant specifically
stated the reason for Plaintiff’s termination was due to Plaintiff’s
pregnancy and possibility of causing a miscarriage. While Plaintiff’s
ADA claim fails to state a claim, “[e]mployers are forbidden from
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retaliating against employees who raise ADA claims regardless of
whether the initial claims of discrimination are meritless.” Koty v.
DuPage County, Illinois, 900 F.3d 515, 519 (7th Cir. 2018) (quoting
Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595,
601 (7th Cir. 2011)).
Therefore, Plaintiff’s claim of retaliation in violation of the ADA
found in Count VI sufficiently states a claim for which relief may be
granted. Defendant’s motion to dismiss on that issue is denied.
C. The Remaining Claims Are Dismissed.
Defendant argues that Plaintiff’s Title VII sex discrimination
claim found in Count II is duplicative of Plaintiff’s pregnancy
discrimination claim found in Count I. If the claims are separate,
Defendant argues that Plaintiff failed to exhaust her administrative
remedies for her Title VII and Illinois Human Rights Act (“IHRA”) sex
discrimination claims. Plaintiff argues that she did exhaust her sex
discrimination claims, but she agrees to combine Counts I and II.
While Plaintiff asks the Court to deny Defendant’s motion to
dismiss Counts II and VIII, Plaintiff did not address why her IHRA
sex discrimination claim should not be dismissed. In fact, Plaintiff
filed a proposed amended complaint, and, in the proposed amended
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complaint, Plaintiff abandoned her separate claims for sex
discrimination found in Count II and Count VIII. Therefore, the
Court finds that Plaintiff is abandoning her claims found in Count II
and VIII. The Court hereby dismisses without prejudice Counts II
and VIII of Plaintiff’s Complaint as Plaintiff agrees to such
dismissal.
Plaintiff agrees to dismiss her Title VII retaliation claim found
in Count III, IHRA disability-based discrimination claim found in
Count VII, and IHRA retaliation claim found in Count IX. The Court
finds that Plaintiff is abandoning those claims. Therefore, the Court
dismisses without prejudice Counts III, VII, and IX.
VI. CONCLUSION
For the reasons stated, the Motion to Dismiss (d/e 7) filed by
Defendant is GRANTED in part and DENIED in part. Plaintiff’s
Motion for Leave to Amend (d/e 9) is GRANTED in part and
DENIED in part. Plaintiff’s Motion for Leave to Amend is denied in
that Plaintiff’s request to file the proposed amended complaint (d/e
9-1) is DENIED. However, Plaintiff is granted leave to file an
amended complaint consistent with this opinion and the deadline
stated below.
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IT IS THEREFORE ORDERED THAT:
(1) Counts II, III, VII, VIII, and IX are hereby DISMISSED
without prejudice.
(2) Counts IV and V are dismissed with leave to refile.
(3) Plaintiff is granted leave to file an amended complaint by
April 21, 2021. Defendant has until May 12, 2021, to file a
response to Plaintiff’s amended complaint.
ENTERED: March 31, 2021
FOR THE COURT:
s/ Sue E. Myerscough___
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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