Deka v. Countryside Association for People with Disabilities, Inc.
Filing
28
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 10/14/2015:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KATHRYN DEKA,
Plaintiff,
v.
COUNTRYSIDE ASSOCIATION
FOR PEOPLE WITH DISABILITIES, INC.,
Defendant.
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No. 15-cv-2611
Judge Amy J. St. Eve
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Defendant, Countryside Association for People with Disabilities, Inc. has moved to
dismiss Plaintiff’s First Amended Complaint. The Court denies Defendant’s motion.
STATEMENT
On July 10, 2015, Plaintiff Kathryn Deka (“Deka”) filed a six-count First Amended
Complaint1 alleging six claims of illegal employment action against Defendant Countryside
Association for People with Disabilities, Inc (“Countryside”). Specifically, Deka alleges that
Countryside terminated her employment on March 30, 2012 in violation of the Family and
Medical Leave Act (“FMLA”), 29 U.S.C. §2601, et seq.; the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. §1140; the Americans with Disabilities Act (“ADA”), 42
U.S.C. §12101 et seq.; and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
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Deka filed her initial Complaint on March 27, 2015. (R. 1.) On July 06, 2015, Deka filed a “Motion for Leave to
File Plaintiff’s First Amended Complaint Under Seal” after receiving her Notice of Right to Sue from the United
States Equal Employment Opportunity Commission (EEOC). (R. 14.) On July 09, 2015, the Court granted Deka’s
motion for leave to file her First Amended Complaint (R. 18.) but, on July 10, 2015, denied her motion to file the
amended complaint under seal. (R. 19.) On July 10, 2015, Deka filed the First Amended Complaint. (R. 20.)
§2000e, et seq. (R. 20 at 1, ¶1.) 2 For the following reasons, the Court denies Countryside’s
motion to dismiss.
BACKGROUND
The Court takes the following relevant facts from Deka’s First Amended Complaint (the
“Complaint”). (R. 20.) In evaluating the motion to dismiss, the Court accepts as true the
Complaint’s well-pleaded factual allegations and draws all reasonable inferences in favor of
Deka. Stayart v. Yahoo!, Inc., 623 F.3d 436, 438 (7th Cir. 2010).
Countryside “provides supported employment, job training, home-based assistance and
other programs and services for people with disabilities.” (R. 20 at 1, ¶3.) It operates in
Palatine, Illinois and Waukegan, Illinois. (Id. at 2, ¶3.) During all times relevant to the
Complaint, Wayne Kulick (“Kulick”) was Countryside’s Executive Director, Howard
Reicheneker (“Reicheneker”), its Chief Financial Officer, and Elizabeth Black (“Black”), its
Human Resources Administrator. (Id.) Kathryn Deka “is a female who formerly worked for
Defendant as the On-Site Director for its Palatine location.” (Id. at 2, ¶4.) In this position,
Deka’s duties included, in part, “overseeing the programs at the Palatine location; determining
the needs of Countryside’s clients; supervising, evaluating, and training staff; ensuring
compliance with accreditation standards and administrative regulations; developing budgets for
Countryside’s operations; and collaborating with outside agencies and organizations to address
the needs of Countryside and its clients.” (Id. at 2, ¶6.)
Deka “held [this position] for almost five years, from approximately July 9, 2007 through
March 30, 2012.” (Id. at 2, ¶4.) Countryside provided Deka with long-term disability coverage
2
This Court has jurisdiction to hear the current case under 28 U.S.C. §1331, which “grants district courts ‘original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.’” Evergreen
Square of Cudahy v. Wis. Hous. and Econ. Dev. Auth., 776 F.3d 463, 465 (7th Cir. 2015), quoting Gunn v. Minton,
133 S. Ct. 1059, 1064, 185 L. Ed. 2d 72 (2013). “Most directly, a case arises under federal law when federal law
creates the cause of action asserted.” Id.
2
and a group health insurance plan as employment benefits throughout her tenure. (Id. at 6, ¶¶3839.) Deka was also “recognized . . . for her outstanding job performance.” (Id. at 2, ¶7.)
Specifically, she was commended for developing positive relationships with all of Countryside’s
referral sources, creating new bonds with other community members, significantly improving
relationships with Countryside’s major parent support groups, helping Countryside receive a
three-year “Accreditation with Distinction,” and operating Countryside at a surplus. (Id. at 2-3,
¶¶8-10.)
Over the course of various meetings and conversations, Deka witnessed Countryside’s
remarks regarding employee FMLA leave. On February 10, 2012, Deka observed a “visibly
annoyed” Kulick refer to FMLA leave as a “get out of jail free card.” (Id. at 3, ¶15.)
Reicheneker and Black repeated the same statement, and Black added, “[y]eah, with a doctor’s
note, people can do whatever they want.” (Id. at 3, ¶16.) Moreover, upon discussing an ill
employee’s termination, Kulick “dismissed” discrimination concerns, stating “[n]o one would
ever think an agency like ours would discriminate. . . . Illinois is an employment at will state.
We can do anything we want.” (Id. at 3-4, ¶¶17-18.) The directors repeated statements such as
this, and “[w]ho would suspect us?,” at least five times between 2009 and March 30, 2012. (Id.
at 4, ¶18.)
Eventually, Deka’s multiple sclerosis caused her to seek FMLA medical leave from
Countryside. Multiple sclerosis is “an inflammatory disease affecting the nervous system and
causing a wide range of symptoms that may progress over time.” (Id. at 4, ¶19.) Specifically,
Deka’s multiple sclerosis has caused her to experience extreme fatigue, difficulty concentrating,
memory difficulties, and difficulty articulating thoughts and remembering information. (Id. at 4,
¶¶20, 23.) While working at Countryside, Deka used her employer-provided health insurance to
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pay for doctors’ appointments, other health care provider visits, medications, exams, and other
services required as a result of her multiple sclerosis. (Id. at 7, ¶49.) “By 2012, it was necessary
for Deka to miss whole or half days of work due to fatigue and other symptoms associated with
MS.” (Id. at 4, ¶24.)
On February 17, 2012, Deka emailed Black and requested an FMLA leave application.
(Id. at 4, ¶25.) Before receiving a response from Countryside, Deka attended a Directors’
Meeting on February 23, 2012 and heard Black refer to FMLA leave as getting “a get out of jail
free card.” (Id. at 5, ¶27.) Deka subsequently received an application from Countryside. Her
doctor completed the application and submitted it to Countryside on February 27, 2012. (Id. at 5,
¶29.) Specifically, Deka requested a “job accommodation in the form of intermittent FMLA
leave on an as-needed basis.” (Id. at 5, ¶30.) The application notified Countryside that Deka
was an “MS patient [who] experiences severe fatigue with flares or high stress situations . . . that
is under treatment (Rx) to prevent flares.” (Id. at 5, ¶31.) Specifically, Deka’s doctor “estimated
that the flare-ups would occur one time per six months, and last one to three days per episode.”
(Id. at 5, ¶32.) On March 1, 2012, Countryside notified Deka that it approved her FMLA
application for leave as-needed. (Id. at 5, ¶34.) At that time, Deka notified Countryside that she
completed the application to provide them with “notice of future FMLA-approved absences,”
stating, “I just need it in case I get sick. I’m not asking for time off right now.” (Id. at 5-6, ¶34.)
Countryside continued to make remarks about FMLA leave until Deka’s termination. On
March 7, 2012, for example, Deka heard Black again refer to FMLA leave as “a get out of jail
free card” at a Directors’ Meeting. (Id. at 6, ¶35.) On March 30, 2012, at a managers’ meeting,
Deka witnessed Reicheneker make the same FMLA leave comment while looking at her and
laughing. (Id. at 6, ¶36.)
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Later the same day, on March 30, 2012, Countryside terminated Deka’s employment
before Deka utilized any FMLA intermittent leave. (Id. at 6, ¶37.) Subsequently, Countryside
replaced Deka with a male employee after previously stating a desire to hire more males. (Id. at
8, ¶57.) Earlier in the year, Countryside considered firing the last hired employee to alleviate
financial difficulties but, ultimately, declined to do so. Another employee inquired whether
Countryside made that decision because the employee was a male, and Kulick replied, “yes,
that’s right.” (Id. at 8, ¶¶59-60.)
On a few occasions, Countryside directors discussed the cost-effectiveness of only
covering three to five “expensive illnesses” with the company’s health insurance policy. (Id. at
6, ¶42.) Specifically, Kulick, Reicheneker, and Black would often comment about the costs of
health insurance, “bitterly stat[ing] that, ‘we have several people with expensive illnesses.’” (Id.
at 6, ¶40.) On April 5, 2012, Deka attempted to pick up two multiple sclerosis medications from
her pharmacy. The pharmacy informed her that Countryside had discontinued her health
insurance on February 28, 2012, and Deka was unable to receive the medicine. (Id. at 7, ¶52.)
In her First Amended Complaint, Deka alleges six counts: 1) interference in violation of
the FMLA; 2) retaliation in violation of the FMLA; 3) interference in violation of ERISA; 4)
discrimination in violation of the ADA; 5) retaliation and interference in violation of the ADA;
and 6) discrimination in violation of Title VII. (R. 20.) Countryside moves to dismiss Counts
One and Two, predicated on the FMLA, as time-barred by the relevant statute of limitations. (R.
22 at 2.) Countryside additionally moves to dismiss all six counts for failing to “plausibly plead
facts to support all of the elements” of each claim. (Id. at 1-2.)
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ANALYSIS
I.
Timeliness of FMLA claims
Countryside argues that the relevant statute of limitations time-bars Counts One and Two.
Thus, Countryside argues, the Court should dismiss Counts One and Two with prejudice.
A.
Legal Standard
“The period of limitations is an affirmative defense.” Richards v. Mitcheff, 696 F.3d 635,
637 (7th Cir. 2012), citing Fed. R. Civ. P. 8(c)(1). “[A]lthough a plaintiff need not anticipate or
overcome affirmative defenses such as those based on the statute of limitations, if a plaintiff
alleges facts sufficient to establish a statute of limitations defense, the district court may dismiss
the complaint on that ground.” O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015).
Specifically, “on the subject of the statute of limitations[,] . . . a complaint must plead . . . enough
to show that the claim for relief is plausible.” Mitcheff, 696 F.3d at 637.
Under FMLA Section 2617(c)(1), a complainant must normally bring an action based on
retaliation or interference within a two year statute of limitations period. 29 U.S.C. §2617(c)(1).
Section 2617(c)(2), however, “extends that limitations period to 3 years ‘[i]n the case of such
action brought for a willful violation’ of the statute.” White v. United Credit Union, No. 11 C
4560, 2015 WL 3962009, at *4 (N.D. Ill. June 22, 2015), quoting 29 U.S.C. §2617(c)(2). This
time limit initiates on the “date of the last event constituting the alleged violation for which such
action is brought.” 29 U.S.C. §2617(c)(2). Although the Seventh Circuit “has not ruled on the
meaning of [a] ‘willful violation’ for FMLA purposes . . . most courts addressing the issue have
ruled that the term has the same meaning under the FMLA as under the FLSA [Fair Labor
Standards Act].” White, 2015 WL 3962009, at *4, citing Bass v. Potter, 522 F.3d 1098, 1103
(10th Cir. 2008) (noting the Tenth Circuit’s agreement as to the FLSA with the First, Second,
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Sixth, and Eighth Circuit Courts of Appeals). The Supreme Court has defined “willfulness”
under the FLSA to mean “the employer either knew or showed reckless disregard for the matter
of whether its conduct was prohibited by the statute[.]” McLaughlin v. Richland Shoe Co., 486
U.S. 128, 133, 108 S. Ct. 1677, 100 L. Ed. 2d 115 (1988).
B.
The Complaint’s Willfulness Claim is Plausible
Deka’s termination on March 30, 2012 was the last event constituting the alleged
violation. Thus, Deka’s FMLA claim accrued on March 30, 2012. See 29 U.S.C. §2617(c)(2).
Deka filed the original complaint on March 27, 2015, outside of two years but within three years
from her termination date. Given Deka’s factual allegations described below, the Court finds her
“willfulness” claim plausible and denies Countryside’s motion to dismiss it as untimely.
The Complaint explicitly identifies Countryside’s actions as a “[w]illful [v]iolation of the
FMLA[.]” (R. 20 at 4, ¶25.) Furthermore, the Complaint alleges one and a half pages of facts
from which the Court can reasonably infer such willfulness. On February 17, 2012, Deka
“emailed Black asking for an application for FMLA leave.” (Id.) By February 23, 2012,
Countryside had not responded to Deka’s FMLA application request, and Deka heard Black refer
to the FMLA as “a get out of jail free card” at a Directors’ Meeting. (Id. at 5, ¶¶26-27.) After
receiving the FMLA application on February 27, 2012, Deka’s doctor submitted it to
Countryside. In it, Deka’s doctor informed Countryside about Deka’s illness, specific
symptoms, and foreseeable need for work leave. On March 7, 2012, after Countryside approved
Deka’s FMLA request for intermittent leave, Deka again heard Black refer to FMLA leave as “a
get out of jail free card.” (Id. at 6, ¶35.) She also witnessed Countryside’s directors discuss the
cost-effectiveness of only covering three to five seriously ill employees. Finally, on March 30,
2012, Deka saw Black again refer to the FMLA as “a get out of jail free card” while looking at
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her and laughing during a managers’ meeting reviewing FMLA leave. (Id. at 6, ¶36.) Later that
afternoon, Kulick, Reicheneker, and Black informed Deka that they were terminating her
employment, effective immediately.
Accepting these factual allegations as true and drawing all reasonable inferences in favor
of Deka, the Court finds the Complaint’s willfulness allegation plausible, triggering the three
year FMLA statute of limitations. Stayart, 623 F.3d at 438. Thus, the Complaint falls within the
applicable statute of limitations, and the Court denies Countryside’s motion to dismiss Counts
One and Two based on the statute of limitations.
II.
Rule 12(b)(6)
Countryside next moves to dismiss all six counts in the Complaint for failing to state a
claim on which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Thus, Countryside argues,
the Court should dismiss the Complaint in its entirety. The Court will examine each count in
turn.
A.
Legal Standard
“A 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). 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). The short and plain statement under Rule
8(a)(2) must “give the defendant fair notice of what the claim is and the grounds upon which it
rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)
(citation omitted). Under the federal notice pleading standards, a plaintiff’s “factual allegations
must be enough to raise a right to relief above the speculative level.” Id. Put differently, a
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“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, 173 L. Ed. 2d
868 (2009), quoting Twombly, 550 U.S. at 570. “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.” Id.
Importantly, Plaintiffs need not plead the elements of a prima facie case to survive a
motion to dismiss. See Twombly, 550 U.S. at 569 (“[W]e do not require heightened fact pleading
of specifics, but only enough facts to state a claim to relief that is plausible on its face.”); see
also Childress v. Walker, 787 F.3d 433, 440-41 (7th Cir. 2015) (“[A] plaintiff’s complaint ‘need
only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests. .
. . Specific facts are not necessary[.]’”), quoting Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct.
2197, 167 L. Ed. 2d 1081 (2007). Rather, a complaint simply “must provide enough details
about the subject matter of the case to present a story that holds together.” Mehta v. Beaconridge
Improvement Ass’n, 432 Fed. App’x. 614, 616 (7th Cir. 2011), citing Erickson, 551 U.S. at 93.
The Court asks “whether the story could have happened, not whether it did.” Id. (citations
omitted). Ultimately, “[a] complaint that invokes a recognized legal theory . . . and contains
plausible allegations on the material issues . . . cannot be dismissed under Rule 12.” Mitcheff,
696 F.3d at 638, citing Erickson, 551 U.S. 89.
B.
FMLA Interference
Countryside first moves to dismiss Count One of the Complaint. Deka asserts Count One
as a claim for interference in violation of the FMLA.
The “FMLA entitles an employee to twelve weeks of leave every twelve-month period if
she is afflicted with a ‘serious health condition’ which renders her unable to perform her job.”
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Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2009), quoting 29 U.S.C. §2612(a)(1)(D).
“Under the FMLA, it is ‘unlawful for [an] employer to interfere with, restrain, or deny’ an
employee’s ‘exercise of or . . . attempt to exercise[] any right provided under’ the Act.” Preddie
v. Bartholomew Consol. Sch. Corp., 799 F.3d 806, 816 (7th Cir. 2015), citing 29 U.S.C.
§2615(a)(1). Specifically, “[t]o prevail on an FMLA-interference theory, the plaintiff employee
must prove that: ‘(1) she was eligible for the FMLA’s protections; (2) her employer was covered
by the FMLA; (3) she was entitled to take leave under the FMLA; (4) she provided sufficient
notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she
was entitled.’” Pagel v. TIN, Inc., 695 F.3d 622, 627 (7th Cir. 2012), quoting Makowski v.
SmithAmundsen LLC, 662 F.3d 818, 825 (7th Cir. 2011).
In her Complaint, Deka alleges that while she was employed by Countryside, she
suffered from multiple sclerosis. She also alleges that she gave notice to Countryside of her
intent to take FMLA intermittent leave in February 2012, when she submitted an accommodation
application detailing her serious health condition. Further, Deka asserts that Countryside
acknowledged her physical and mental disabilities and agreed to grant her authorized intermittent
leave. She maintains, however, that Countryside interfered and denied her FMLA benefits by
terminating her employment before she utilized any FMLA leave. Based on these allegations,
Deka has alleged sufficient facts to raise her right to relief above a speculative level and has put
Countryside on fair notice of the claim and the grounds upon which it rests. See Twombly, 550
U.S. at 555. Accordingly, the Court denies Countryside’s motion to dismiss Count One of the
Complaint.
The Court is not persuaded by Countryside’s assertion that Deka’s FMLA interference
claim falls short because she “did not request leave under the FMLA.” (R. 22 at 3.) Specifically,
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Countryside argues that Deka is unable to assert FMLA protection, because she only asked for
future intermittent leave without actually asking for leave on a particular date. This argument
conflicts with the FMLA’s language. “[T]he FMLA . . . clearly contemplates the scenario in
which an employee requests leave beginning on a foreseeable future date[.]” Reynolds v. InterIndus. Conference on Auto Collision Repair, 594 F. Supp. 2d 925, 928 (N.D. Ill. 2009). Indeed
the FMLA specifically states that, subject to notice requirements, “leave . . . may be taken
intermittently or on a reduced leave schedule when medically necessary.” 29 U.S.C.
§2612(b)(1). Under these foreseeable circumstances, the employee “shall provide the employer
with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s
intention to take leave[.]” 29 U.S.C. §2612(e)(2)(B). “It is clear from the text and context of the
notice clause . . . that Congress intended to help and protect employers by insuring adequate
notice of extended absences by employees. It would be illogical to interpret the notice
requirement in a way that requires employees to disclose requests for leave which would, in turn,
expose them to retaliation, or interference, for which they have no remedy.” Reynolds, 594 F.
Supp. 2d at 928. Instead, “[l]ogic requires that the FMLA be read to require that that employee
be permitted to make a charge against the employer for an adverse employment action.” Id.
Further, the FMLA protects employees when they “attempt” to exercise any rights under the Act.
29 U.S.C. §2615(a)(1) (“It shall be unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided under this subchapter.”). It follows
that Deka is not precluded from alleging FMLA interference or retaliation claims after allegedly
requesting future, intermittent leave.
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C.
FMLA Retaliation
Countryside next argues that the Court should dismiss Count Two of the Complaint.
Deka asserts Count Two as a claim for retaliation in violation of the FMLA.
“Employers are also prohibited from retaliating against an employee that exercises or
attempts to exercise FMLA rights.” Pagel, 695 F.3d at 631, citing 29 U.S.C. §2615(a)(2).
“[T]he employer cannot use an employee’s use of FMLA leave as a negative factor in promotion,
termination, and other employment decisions.” Id., citing Breneisen v. Motorola, Inc., 512 F.3d
972, 978 (7th Cir. 2008). To succeed on an FMLA-retaliation claim, a plaintiff must ultimately
show: “(1) [s]he engaged in a protected activity; (2) [her] employer took an adverse employment
action against [her]; and (3) there is a causal connection between the protected activity and the
adverse employment action.” Id., citing Cracco v. Vitran Express, Inc., 559 F.3d 625, 633 (7th
Cir. 2009); see also Malin v. Hospira, Inc., 762 F.3d 552, 562 (7th Cir. 2014). A plaintiff may
show the causal-nexus through either a direct admission from the employer or “circumstantial
evidence of retaliatory intent.” Carter v. Chicago State Univ., 778 F.3d 651, 657 (7th Cir. 2015).
Indeed, “[p]ieces of circumstantial evidence . . . may be combined to support an inference of
discriminatory intent.” Id. This circumstantial evidence can include, in part, “suspicious timing,
ambiguous oral or written statements, or behavior toward, or comments directed at, other
employees in the protected group[.]” Id., citing Hutt v. AbbVie Products LLC, 757 F.3d 687, 691
(7th Cir. 2014).
Here, Deka alleges that she sought and received approval for FMLA intermittent leave
from Countryside in February 2012. Within a month, she alleges, Countryside terminated her
employment before she used any leave. During the time before, during, and after her FMLA
application process, Deka alleges that Countryside’s directors made disparaging remarks
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regarding FMLA leave, expressed financial complaints about various employees’ serious health
conditions, and dismissed fears of being caught discriminating given their line of business. The
timing and statements alleged set forth sufficient facts to show that there is a causal connection
between her protected activity and Countryside’s adverse employment action. See Twombly, 550
U.S. at 556. Thus, Deka has alleged a plausible FMLA retaliation claim, and Countryside’s
motion to dismiss Count Two of the Complaint is denied.
D.
ERISA Interference
Countryside further argues that the Court should dismiss Count Three of the Complaint.
Deka asserts Count Three as a claim for interference in violation of ERISA.
“ERISA §510 makes it ‘unlawful for any person to discharge, fine, suspend, expel,
discipline, or discriminate against a participant [in an employee benefits plan] . . . for the purpose
of interfering with the attainment of any right to which such participant may become entitled
under the plan.’” Teamsters Local Union No. 705 v. Burlington N. Santa Fe, LLC, 741 F.3d 819,
826 (7th Cir. 2014), quoting 29 U.S.C. §1140. “This provision prohibits retaliation for the
exercise of plan benefits and interference with the attainment of those benefits.” Nauman v.
Abbott Labs., 669 F.3d 854, 857 (7th Cir. 2012). Specifically, a plaintiff must eventually show
that she: “(1) belongs to the protected class; (2) was qualified for [her] job position; and (3) was
discharged or denied employment under circumstances that provide some basis for believing that
the prohibited intent to retaliate or to prevent the use of benefits was present.” Isbell v. Allstate
Ins. Co., 418 F.3d 788, 796 (7th Cir. 2005) (citation omitted) (quotation marks omitted). In other
words, “[t]he intent to frustrate the attainment of benefits must have been at least a motivating
factor for the adverse action against the plan participant[.]” Burlington, 741 F.3d at 826.
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Deka alleges that she participated in Countryside’s long-term disability coverage and
group health insurance plans during her five year tenure with the company. She further alleges
that she was qualified for her position, identifying a number of occasions on which Countryside
recognized and commended her for her contributions to the organization. Countryside learned
about Deka’s multiple sclerosis no later than February 27, 2012 when she submitted her FMLA
leave application. On February 28, 2012, Deka alleges Countryside discontinued her health
insurance and, on March 30, 2012, terminated her employment. Specifically, Deka asserts that
Countryside terminated her employment “with the specific intent” of preventing her from using
employment-related health insurance benefits. (R. 20 at 12, ¶96.) Further, Deka identifies a
number of comments Countryside’s directors made to her regarding the costliness of covering
serious illnesses and their disapproval of FMLA leave. Based on these allegations, Deka has
provided an ERISA framework supported by factual allegations that make it plausible
Countryside’s actions were “at least” motivated by an intent to frustrate Deka’s attainment of
benefits. Burlington, 741 F.3d at 826; see also Iqbal, 556 U.S. at 679. As a result, the Court
denies Countryside’s motion to dismiss Count Three of the Complaint.
E.
ADA Discrimination
Next, Countryside argues that the Court should dismiss Count Four of the Complaint.
Deka asserts Count Four as a claim for discrimination in violation of the ADA.
“The ADA requires employers to make reasonable accommodations for a qualified
individual with a disability.” Taylor-Novotny v. Health Alliance Med. Plans, Inc., 772 F.3d 478,
493 (7th Cir. 2014). Moreover, the ADA “prohibits employers from ‘discriminat[ing] against a
qualified individual on the basis of [her] disability in regard to . . . discharge . . . and other terms,
conditions, and privileges of employment.’” Id. at 488-89, quoting 42 U.S.C. §12112. For the
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purposes of this provision, discrimination “includes ‘not making reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individual with a disability’
unless the employer ‘can demonstrate that the accommodation would impose an undue hardship
on the operation of the business.’” Shell v. Smith, 789 F.3d 715, 716 (7th Cir. 2015), quoting 42
U.S.C. §12112(b)(5)(A). To prevail, a plaintiff must ultimately present evidence that: (1) she is
a qualified individual with a disability as defined by the ADA; (2) the defendant employer was
aware of her disability; and (3) the defendant employer failed to reasonably accommodate her
disability. See Kotwica v. Rose Packing Co., Inc., 637 F.3d 744, 747-48 (7th Cir. 2011).
In her Complaint, Deka alleges that while she was employed by Countryside, she
suffered from multiple sclerosis and related physical and mental disabilities. She also alleges
that Countryside was aware of her disabilities, as her FMLA leave application detailed her
serious health condition to Countryside in February 2012. Further, Deka maintains that
Countryside failed to reasonably accommodate the disabling effects of her multiple sclerosis by
terminating her employment before she was able to utilize any FMLA intermittent leave. Based
on these allegations, Deka has alleged sufficient facts to raise a reasonable inference that
Countryside is liable for the misconduct alleged. See Iqbal, 556 U.S. at 678. As a result, the
Court denies Countryside’s motion to dismiss Deka’s ADA claim as alleged in Count Four of the
Complaint.
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F.
ADA3 Interference
Countryside next argues that the Court should dismiss Count Five of the Complaint.
Deka asserts Count Five as a claim for interference in violation of the ADA.
The ADA makes it “unlawful to coerce, intimidate, threaten, or interfere with any
individual . . . on account of his or her having . . . exercised or enjoyed . . . any right granted or
protected by this chapter.” 42 U.S.C. §12203(b). Although the Seventh Circuit has not
delineated a test like in other employment statutes, the ADA’s interference language is identical
to the Fair Housing Act’s (FHA) interference provision. See 42 U.S.C. §3617. At least one
Court of Appeals has applied the FHA’s interference standard to ADA interference claims. See
Brown v. City of Tuscon, 336 F.3d 1181, 1191 (9th Cir. 2003) (“[S]imilarities between statutory
provisions are an indication that Congress intended the provisions to be interpreted the same
way[.]”), citing Northcross v. Bd. of Educ. of Memphis City Schs., 412 U.S. 427, 428, 93 S. Ct.
2201, 37 L. Ed. 2d 48 (1973). Accordingly, based on the FHA’s interference standard, the
plaintiff must eventually present the following to succeed in an ADA interference claim: (1) that
she was engaged in protected activity or exercising her rights under the Act; (2) the defendant
coerced, intimidated, threatened, or interfered with her on account of her having engaged in
protected activity; and (3) that defendant intended to discriminate against her. See Frakes v.
Peoria Sch. Dist. No. 150, No. 12-1329, 2015 WL 5050256, at *5-6 (C.D. Ill. Aug. 26, 2015)
(referring to the FHA interference standard as the “proper framework to address an ADA
interference claim,” because “[t]he ADA interference provision copies verbatim the interference
3
Specifically, Deka alleges “Retaliation and/or Interference in Violation of the ADA.” (R. 20 at 14.) Given the
alleged facts, the Court assesses this count as an “ADA interference” allegation only. Regarding retaliation claims,
“[t]he ADA prohibits employers from retaliating against employees who assert their right under the act to be free
from discrimination.” Povey v. City of Jeffersonville, Ind., 697 F.3d 619, 624 (7th Cir. 2012), citing 42 U.S.C.
§12203(a). Deka’s claim, however, does not assert that Countryside retaliated against her as a result of her
discrimination claim. Rather, Deka alleges that Countryside interfered with her accommodation request protected
by the ADA.
16
prohibition in the Fair Housing Act”); see also Bloch v. Frischholz, 587 F.3d 771, 783 (7th Cir.
2009) (outlining the FHA interference standard).
Here, Deka alleges that she sought an accommodation from Countryside when she
applied for FMLA intermittent leave on February 27, 2012. She also alleges that Countryside
interfered with this accommodation by terminating her employment before she was able to use
any of her intermittent leave. Similar to her FMLA and ERISA interference claims, Deka alleges
a number of other facts such as Countryside’s awareness of her disability, Countryside’s relevant
comments to her before, during, and after her accommodation requests, Countryside’s
termination of her health care and employment, and the short time frame between her
accommodation request and termination. Thus, similar to the other interference claims, Deka’s
ADA interference assertion provides fair notice to Countryside. See Twombly, 550 U.S. at 555.
The Court denies Countryside’s motion to dismiss Count Five of the Complaint.
G.
Title VII Discrimination
Finally, Countryside argues that the Court should dismiss Count Six of the Complaint.
Deka asserts Count Six as a claim for discrimination in violation of Title VII.
“Title VII makes it unlawful for an employer ‘to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such individual’s . . .
sex.’” Bartholomew, 799 F.3d at 815, quoting 42 U.S.C. §2000e-2(a)(1). “A complaint alleging
sex discrimination under Title VII ‘need only aver that the employer instituted a (specified)
adverse employment action against the plaintiff on the basis of her sex.’” Carlson v. CSX
Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014), quoting Tamayo v. Blagojevich, 526 F.3d 1074,
1084 (7th Cir. 2008). Indeed, “[t]he plaintiff is not required to include allegations . . . that would
17
establish a prima facie case of discrimination under the ‘indirect’ method of proof.” Id.
(citations omitted) (quotation marks omitted). As “[e]mployers are familiar with discrimination
claims and know how to investigate them . . . little information is required to put the employer on
notice[.]” Id., citing EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 782 (7th Cir. 2007).
In her Complaint, Deka attributes her termination from her position of five years to sex
discrimination, satisfying the Carlson, Tamayo, and Concentra pleading standard. She also
alleges that Countryside expressed an interest in hiring males, refused to terminate an employee
because he was a male, and replaced her with a male employee subsequent to her termination.
Viewing the allegations in the light most favorable to Deka, she has successfully alleged a
plausible Title VII claim against Countryside. Consequently, the Court denies Countryside’s
motion to dismiss Count Six of the Complaint.
CONCLUSION
For the foregoing reasons, the Court denies Defendant Countryside’s motion to dismiss.
DATED: October 14, 2015
ENTERED
______________________________
AMY J. ST. EVE
U.S. District Court Judge
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