Behn v. Kiewit Infrastructure Co.
ORDER Signed by the Honorable Amy J. St. Eve on 11/7/2017: The 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). 10 . The Co urt 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. [For further details, see Order.] Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
KIEWIT INFRASTRUCTURE, CO.,
Case No. 17 C 5241
Judge Amy St. Eve
The 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
On July 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
“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); 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 wellpleaded 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 timebarred. 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. 2017).
On July 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 pretextual 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
Defendant 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.
In 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
Next, 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 F.
Supp. 2d 911, 918 (N.D. Ill. 1999) (citing Dahl v. Fed. Land Bank Assn. of W. Illinois, 213 Ill.
App. 3d 867, 872 (3rd Dist. 1991)).
Here, Plaintiff asserts that Defendant terminated his employment on November 12, 2014
and it is undisputed that he filed the present lawsuit over two years later on July 15, 2017.
Although Plaintiff admits that his IIED claim is untimely, he argues that that the limitations
period should be equitably tolled because his ADA claim was pending before the EEOC from
December 19, 2014 until April 20, 2017. Despite Plaintiff’s argument to the contrary, the
Seventh Circuit and courts in this district have consistently concluded that the filing of an EEOC
charge does not toll the statute of limitations for separate and independent state law claims. See
Juarez v. Ameritech Mobile Commc’ns, Inc., 957 F.2d 317, 322 (7th Cir. 1992) (citing Johnson
v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975)); Partipilo
v. Jewel Food Stores, Inc., No. 16 C 4450, 2017 WL 1511461, at *3 (N.D. Ill. Apr. 27, 2017); Ho
v. Abbott Labs., No. 11 C 09257, 2014 WL 4627815, at *8 (N.D. Ill. Sept. 16, 2014); Atkins v.
Coca Cola Enterprises, Inc., No. 07C1038, 2007 WL 4219196, at *6 (N.D. Ill. Nov. 28, 2007);
Harrison v. City of Chicago, No. 05 C 2680, 2005 WL 3542576, at *5 (N.D. Ill. Dec. 22, 2005).
Plaintiff does not explain why the Court should reject this well-settled controlling and persuasive
case law, but instead relies upon Southern District of New York cases decided before the Second
[T]here is no basis for concluding that Congress intended that a civil rights
claimant should be entitled to delay filing any state tort claims during the EEOC’s
consideration of a charge of discrimination. We therefore join the Seventh and
Ninth Circuits in holding as a matter of federal law that filing an EEOC charge
does not toll the time for filing state tort claims, including those that arise out of
the same nucleus of facts alleged in the charge of discrimination filed with the
Castagna v. Luceno, 744 F.3d 254, 258 (2d Cir. 2014). The Court therefore grants with
prejudice Defendant’s motion to dismiss Plaintiff’s IIED claim as untimely.
Dated: November 7, 2017
AMY J. ST. EVE
United States District Court Judge
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