MASSEY v. Churchview Supportive Living et al

Filing 33

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 10/12/2017. The Court grants the Defendants' Motions to dismiss. Counts V through X of the Plaintiff's Complaint are dismissed without prejudice. [Dkt. Nos. 17 , 23 , 24 . The Court further grants Massey's request, located in her responsive pleadings, for Leave to File an Amended Complaint within 14 days of this order. [Dkt. Nos. 28 , 29 . Any Amended Complaint shall be filed on or before 10/26/17. Failure to file an Amended Complaint by that date may result in the dismissal of the case for want of prosecution. Furthermore, the Court grants Defendant Gardant's motion to dismiss Counts III and IV of Plaintiff's Complaint. Barring the filing of an Amended complaint, the only remaining counts are the Rehabilitation Act and ADA claims (Counts I and II) against Churchview. [Dkt. No. 23 .Mailed notice(lk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

YVETTA MASSEY,
Plaintiff,
v.
CHURCHVIEW SUPPORTIVE LIVING, INC.,
et al.,
Defendants.

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No. 17 C 2253
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiff Yvetta Massey filed suit against Defendants Churchview Supportive Living,
Inc., Gardant Management Solutions, Inc., and Kenyatta Bell alleging violations of the
Rehabilitation Act,1 the Americans with Disabilities Act (“ADA”),2 and state law claims of
Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress.
Defendants each filed a Motion to Dismiss for failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6) regarding

the state tort claims.

Gardant’s motion also seeks dismissal of the

Rehabilitation Act and ADA claims under Fed. R. Civ. P. 12(b)(1) for failure to allege a
necessary element, or Rule 12(b)(6) for failure to state a claim upon which relief may be granted.
The Motions to dismiss are granted for the following reasons.

[Dkt. Nos. 17, 23, 24.]

BACKGROUND
The following facts are set forth in Massey’s Complaint and are accepted as true for the
purpose of reviewing the Motions to dismiss.

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29 U.S.C. § 794.
42 U.S.C. §12101.

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From March 3 to November 11, 2015, Yvetta Massey worked as the Director of Nursing
at Churchview Supportive Living, which provides affordable assisted living facilities to the
elderly in the Chicago area. (Dkt. No. 1, ¶¶ 1-2, 8, 16.) Massey suffers from a rare condition
known as Nesidioblastosis that requires her to eat every two hours. (Id. ¶¶ 10-11.) Massey’s
employers knew of this condition and the need for a workplace accommodation. (Id. ¶ 13.)
During the approximately nine months Massey worked at Churchview she was absent for about
sixty-two work days. (Id., at Exs. A, C.)
As a result of the various absences, Churchview issued warnings – one verbally in July,
and one in writing in August – to Massey regarding her extended periods of time away from
work. (Id. ¶¶ 14-15). Finally, on November 11, 2015, Churchview terminated Massey over the
phone and followed up with a written letter a day later informing her of the same. (Id. ¶ 16.)
In response, on January 8, 2016, Massey filed a charge with the Equal Employment
Opportunity Commission (“E.E.O.C.”) alleging employment discrimination based on her
disability. (Id. Ex. D.) The charge names Churchview Supportive Living as her employer and
indicates that the discrimination was in violation of the Americans with Disabilities Act of 1990.
(Id.) In December 2016, the E.E.O.C. informed Massey that they were unable to conclude there
was any violation of the ADA based on the information she provided. (Id. Ex. E.) The dismissal
also served as Massey’s notice of her “right-to-sue” within 90 days. (Id.)
Massey filed this case on March 23, 2017, alleging ten claims against the Defendants.
Counts I through IV are Rehabilitation Act and ADA claims levied against Defendants
Churchview and Gardant for employment discrimination based on Massey’s disability. (Id. ¶¶
39, 45, 55, 61.) Counts V through X are IIED and NIED claims against Churchview, Gardant,
and Kenyatta Bell.

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LEGAL STANDARD
In lieu of a responsive pleading, 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). The reviewing Court must
accept as true all of the facts set forth in the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 572 (2007). In order to survive a motion to dismiss, the factual allegations set forth in the
complaint, accepted as true, must “state a claim to relief that is plausible on its face,” thereby
allowing “the court to draw the reasonable inference that the defendant is liable.” Park Pet Shop,
Inc. v. City of Chicago, No. 15-3711, 2017 WL 4173707, at *2 (7th Cir. Sept. 21, 2017) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court may also consider exhibits that are
attached in support of the complaint that pertain to facts set forth within the pleading. Thompson
v. Illinois Dept. of Professional Regulation, 300 F.3d 750, 754 (7th Cir. 2002).
DISCUSSION
I. Massey’s IIED and NIED Claims Are Voluntarily Dismissed
Massey’s Complaint alleges IIED and NIED claims against all three Defendants
separately. (Dkt. Nos. 1, ¶¶ 65, 69, 73, 77, 81, 85.) The counts were premised on allegations
that the Defendants “humiliated,” “belittled,” and “bullied,” Massey throughout various times of
her employment and also while trying to get her to voluntarily resign. (Id. ¶ 28.) Massey claims
that these actions were “extreme and outrageous,” and caused her “severe and significant
emotional distress” with physical manifestations of this in the form of “stress, anxiety, migraines,
nausea, and difficulty sleeping[.]” (Id. ¶¶ 64-65, 72-73, 80-81.) All three Defendants seek
dismissal of the IIED claims arguing that Massey’s allegations are conclusory and fall well short
of the demanding standard under Illinois law. (Dkt. 17, 22, 24.)
The Court needn’t address these counts because Massey voluntarily moves to dismiss all
six state tort counts in her responses to Defendants’ motions to dismiss. (Dkt. 27-29.) Massey
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further requests leave to file an Amended Complaint within fourteen days.3 The Court construes
this as a request for Leave to File an Amended Complaint. Accordingly, Counts V, VI, VII,
VIII, IX and X are dismissed without prejudice. Massey’s is permitted fourteen (14) days from
the date of this order to file an Amended Complaint.
II. Massey’s Rehabilitation Act Claims Are Dismissed for Failure to Plead a
Necessary Element
Success on a claim of discrimination under the Rehabilitation Act requires a plaintiff to
demonstrate that: (1) she is disabled as defined by the Act; (2) she is otherwise qualified for the
position sought; (3) she has been excluded from the position solely because of her disability; and
(4) the position exists as a part of a program or activity receiving federal financial assistance.
Burks v. Wisconsin Dept. of Transp., 464 F.3d 744, 755 (7th Cir. 2006). As to the fourth
element, the Act’s language limits the ban on discrimination to the specific program (or
programs) receiving the federal funds. Consol. Rail Corp. v. Darrone, 465 U.S. 624, 636 (1984).
Gardant argues that Massey fails to allege the fourth element because Massey’s position as the
Director of Nursing did not exist as a “part of a program or activity receiving federal financial
assistance.” Massey responds that she should be permitted to file an amended complaint that
will “more clearly state that her position was funded by federal financial assistance,” and thus
satisfies the specific program or activity element for the purposes of the Act. (Dkt. No. 28, at 5.)
Gardant correctly notes that the Rehabilitation Act requires program-specific federal
funding and that there must be some type of connection between the plaintiff’s employment and
the narrowly defined program or activity receiving federal financial assistance. Foss v. City of
Chicago, 817 F.2d 34, 35 (7th Cir. 1987).

Sometimes Congress will clearly identify the

funding within a grant statute when funding certain programs and activities; whereas at other
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The Court struck a previously filed “Complaint” as an improperly filed Amended Complaint and instructed
Massey that any future attempt to file an Amended Complaint requires leave of the Court. (Dkt. No. 20.)

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times, non-earmarked funds may require a more difficult analysis that involves defining the
nature of the grant and looking at how the funds are used. Id. Using either approach, it is safe to
say that Massey does not provide enough in her Complaint to satisfy the fourth element under the
Act. Her allegations simply state that Gardant receives federal funding, and that its operation of
the assisted living facility constitutes a program or activity. (Dkt. No. 1, ¶¶ 50-51.) The
Complaint does not identify the type of federal funding, or the purpose of said funding, nor does
Massey provide any additional detail as to how the facility or her specific employment at the
facility constitutes a program or activity.
As Massey requested Leave to File an Amended Complaint, which the Court grants with
respect to the IIED and NIED counts, she may also amend the Complaint to address the
insufficiency of her Rehabilitation Act counts as well.
III. Massey’s ADA Claim Against Gardant Is Dismissed For Failure to Exhaust
Administrative Remedies
To succeed on her ADA claim Massey must show that: (1) [s]he is disabled under the
ADA; (2) [s]he was meeting [the] employer's legitimate employment expectations; (3) [s]he
suffered an adverse employment action; and that (4) [s]he received less favorable treatment
compared to similarly situated employees without a disability. Dickerson v. Bd. of Trustees of
Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). Like lawsuits filed pursuant to
Title VII of the Civil Rights Act and the ADEA, a plaintiff must first exhaust her administrative
remedies before filing a civil suit under the ADA. Gogos v. AMS Mechanical Systems, Inc., 737
F.3d 1170, 1172 (7th Cir. 2013). Therefore, “before filing the civil suit… [the] claimant must
file a timely E.E.O.C. charge and receive a right-to-sue letter.” Houston EEOC v. Harris
Chernin, Inc., 185 F.3d 837, 838-39 (7th Cir. 1999); see also E.E.O.C. v. Harris Chernin, Inc.,

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10 F.3d 1286, 1289 n.3 (7th Cir. 1993); Freeman v. Travelers Companies, Inc., 63 F.Supp. 3d
867, 871 (N.D. Ill. 2014).
Additionally, a plaintiff who fails to name a particular defendant in an E.E.O.C. charge is
generally prohibited from naming that same defendant in a subsequent civil suit. Eggleston v.
Chicago Journeymen Plumbers’ Local Union No. 130, U.A., 657 F.2d 890, 905 (7th Cir. 1981);4
see also Alam v. Miller Brewing Co., 709 F.3d 662, 666 (7th Cir. 2013). There are limited
exceptions to this rule, such as where the plaintiff can prove that an unnamed defendant “has
been provided with adequate notice of the [E.E.O.C.] charge,” and where “that party has been
given the opportunity to participate in conciliation proceedings aimed at voluntary compliance.”
Eggleston, 657 F.2d at 905. But for this exception, for the E.E.O.C. to apply to a claim, the
charge must, “at minimum, describe the same conduct and implicate the same individuals.”
Reynolds v. Tangherlini, 737 F.3d 1093, 1100 (7th Cir. 2013).
Massey’s Complaint details her administrative process with the E.E.O.C. The Complaint
includes the January 8, 2016, E.E.O.C. charge filed by Massey against Churchview, (Dkt. No. 1,
Ex. E), as well as the December 21, 2016, dismissal and right-to-sue letter from the E.E.O.C.
(Id. Ex. E.) It is clear from these supporting exhibits that Massey’s administrative action filed
before the E.E.O.C. sought a discrimination complaint against Churchview. However Gardant is
not listed anywhere on the charge form, nor is Gardant identified on the right-to-sue letter from
the E.E.O.C. (Id. Ex. D.) Based on the Complaint and the attached exhibits, Massey fails to
show that she has exhausted her administrative remedies by filing an E.E.O.C. charge against
Gardant. As such, the discrimination claim filed pursuant to the ADA against Gardant is

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The Court acknowledges that many of the cases cited consider suits filed pursuant to Title VII of the Civil Rights
Act, but 42 U.S.C. § 12117 explicitly ascribes the same enforcement procedures to suits filed under the ADA and so
the same requirements that a claimant first exhaust administrative remedies apply.

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dismissed without prejudice. The claim may be refiled in the Amended Complaint assuming
Massey can satisfy the required showing of administrative exhaustion necessary against Gardant.
CONCLUSION
For the reasons stated above, the Court grants the Defendants’ Motions to dismiss.
Counts V through X of the Plaintiffs Complaint are dismissed without prejudice. [Dkt. Nos. 17,
23, 24.] The Court further grants Massey’s request, located in her responsive pleadings, for
Leave to File an Amended Complaint within 14 days of this order. [Dkt. Nos. 28, 29.]Any
Amended Complaint shall be filed on or before 10/26/17. Failure to file an Amended Complaint
by that date may result in the dismissal of the case for want of prosecution.
Furthermore, the Court grants Defendant Gardant’s motion to dismiss Counts III and IV
of Plaintiff’s Complaint. Barring the filing of an Amended complaint, the only remaining counts
are the Rehabilitation Act and ADA claims (Counts I and II) against Churchview. [Dkt. No. 23.]

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Hon, Virginia M. Kendall
United States District Judge
Date: October 12, 2017

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