Griffin-Thomas v. La Rabida Children's Hospital

Filing 20

MEMORANDUM Opinion and Order: La Rabida's Partial Motion to Dismiss 10 is granted in part and denied in part. Griffin-Thomas's ADA and IHRA claims (Counts II and III) are dismissed without prejudice and with leave to replead. La Rabida& #039;s motion to dismiss is denied with respect to Griffin-Thomas's claims under the IWA (Count IV) and for retaliatory discharge (Count V). By February 1, 2022, Griffin-Thomas may file an amended complaint to cure the deficiencies described in this opinion. The portion of La Rabida's motion that seeks an extension of time to answer the remaining claims in the Complaint 10 is stricken as moot. Signed by the Honorable Sharon Johnson Coleman on 1/11/2022. Mailed notice. (ym, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KIA GRIFFIN-THOMAS,
Plaintiff,
v.
LA RABIDA CHILDREN’S HOSPITAL,
Defendant.

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Case No. 21-cv-02033
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff Kia Griffin-Thomas brings this action against her former employer La Rabida
Children’s Hospital (“La Rabida”) for violations of the Family and Medical Leave Act of 1993
(“FMLA”) (Count I), the Americans with Disabilities Act of 1990 (“ADA”) (Count II), the Illinois
Human Rights Act (“IHRA”) (Count III), and the Illinois Whistleblower Act (“IWA”) (Count IV).
Griffin-Thomas also asserts a claim for retaliatory discharge, an Illinois tort (Count V). La Rabida
moves to dismiss Counts II-V pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
following reasons, La Rabida’s partial motion to dismiss [10] is granted in part without prejudice and
denied in part.
Background
The following facts are taken as true for the purpose of ruling on this motion. Plaintiff Kia
Griffin-Thomas was employed by La Rabida, a pediatric specialty hospital located in Chicago,
Illinois, from September 16, 2013 to May 12, 2020.
In March of 2020, the Commissioner of Health of the City of Chicago issued a shelter-inplace order in response to the COVID-19 pandemic. The order, which was entitled, “Order of the
Commissioner of Health of the City of Chicago No. 2020-1 1 (“Order No. 2020-1”), provided that
1

The text of the order is available at https://www.chicago.gov/content/dam/city/depts/cdph/HealthProtectionand

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anyone with symptoms of acute respiratory disease, such as fever, cough, shortness of breath,
congestion, sore throat, body aches, and fatigue, should not go into their workplace until symptomfree for at least 72 hours.
In mid-April 2020, Griffin-Thomas notified La Rabida that she was experiencing a fever and
body aches. On April 22, 2020, Griffin-Thomas informed an assistant in the company’s Risk
Management Department that, in addition to her fever and body aches, she was experiencing lower
back, shoulder, and thigh pain, nausea, a sore throat, a cough, and chest tightness. The assistant,
who was also a registered nurse, told Griffin-Thomas to stay away from work until she was
symptom-free for three days. The next day, Griffin-Thomas informed the company’s Risk Manager
and the director of her department that her doctor believed she (and her children) had contracted
COVID-19. Griffin-Thomas applied for FMLA leave that day. She notified La Rabida about her
FMLA application on April 27, 2020.
On May 5, 2020, while Griffin-Thomas waited to hear back about the outcome of her
FMLA request, La Rabida’s Employment Manager, Tim Meline, called and emailed her seeking an
update on her condition. Griffin-Thomas responded twice that day, explaining that her physician
had provided documentation related to her FMLA request, that a decision regarding that request
might be reached soon, and that she still had a sore throat and could not “return to work unwell.”
(Dkt. 1, Compl. ¶¶ 15–16.) Griffin-Thomas added, “If the time I need to fully recuperate from this
horrible virus is unconducive to La Rabida’s expectations or personal timeline I can submit a formal
resignation letter.” (Id. at ¶ 16.) 2 Six days later, on May 11, 2020, La Rabida’s Director of Human
Resources, Frances Lefkow, emailed Griffin-Thomas requesting that she call her. Griffin-Thomas

Response/Order%20re%20Shelter%20in%20Place%20FINAL.pdf.
2 In her Complaint, Griffin-Thomas includes excerpts from the emails she exchanged with La Rabida employees. La
Rabida attached the referenced emails to its motion to dismiss. The Court may consider the contents of the emails
exchanged between Griffin-Thomas and La Rabida employees, because the emails are central to the complaint and referred
to in it. Amin Ijbara Equity Corp. v. Vill. of Oak Lawn, 860 F.3d 489, 493 n.2 (7th Cir. 2017).

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responded that day, explaining that her throat was still raw, her chest was still tight, her asthma had
flared, and she was “physically unable to return to work.” (Id. at ¶ 18.) A few minutes later, GriffinThomas also emailed Meline relaying substantially the same information regarding her symptoms.
Griffin-Thomas also stated that she would “not be physically able to return on 5/12.” (Id. at ¶ 19.)
The next day, Lefkow emailed Griffin-Thomas: “in your email to Tim [Meline], you announced that
you would be happy to submit a letter of resignation and I want to inform you that we accept it.
Your last day of being active on our payroll will be 5/11/2020.” (Id. at ¶ 20.)
Griffin-Thomas filed a charge with the EEOC on July 29, 2020, which was cross-filed with
the Illinois Department of Human Rights. She received a right-to-sue letter on January 30, 2021 and
brought this timely lawsuit on April 15, 2021. Griffin-Thomas claims that La Rabida: (1) violated
the ADA and IHRA by denying her the reasonable accommodation of a short leave of absence and
terminating her employment because of her disability of COVID-19 infection and asthma (Counts
II & III); and (2) violated the IWA and retaliated against her by terminating her employment after
she refused to come into work while sick with symptoms of acute respiratory disease (Counts IV &
V). La Rabida moves to dismiss each of these claims. It does not move to dismiss GriffinThomas’s FMLA claim (Count I).
Legal Standard
A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the sufficiency
of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S. Ct. 1289, 179 L. Ed. 2d
233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded factual
allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551
U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam). To survive a motion to
dismiss, a plaintiff must “state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A complaint is facially
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plausible when the plaintiff alleges “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
Discussion
Defendant La Rabida moves to dismiss Griffin-Thomas’s disability discrimination and
failure-to-accommodate claims under the ADA and IHRA, as well as her claims under the IWA and
for retaliatory discharge. The Court addresses each in turn.
Disability Discrimination and Failure-to-Accommodate
The ADA prohibits an employer from “discriminat[ing] against a qualified individual on the
basis of disability,” and the failure to reasonably accommodate a disability is one type of
discrimination under the act. 42 U.S.C. § 12112(a), (b). To state a disability discrimination claim
under the ADA, a plaintiff must allege that: (1) she was disabled within the meaning of the ADA; (2)
she was qualified to perform the essential functions of her job, with or without reasonable
accommodation; and (3) she suffered an adverse employment action because of her disability.
Sandefur v. Dart, 979 F.3d 1145, 1151 (7th Cir. 2020). To state a failure-to-accommodate claim, a
plaintiff must allege that: (1) she was a qualified individual with a disability; (2) her employer was
aware of her disability; and (3) the employer failed to reasonably accommodate her disability.
Youngman v. Peoria Cnty., 947 F.3d 1037, 1042 (7th Cir. 2020). Courts analyze IHRA claims under the
same framework as the ADA. Winkelman v. Cont’l Nursing & Rehab. Ctr., LLC, No. 20 CV 2480,
2020 WL 5763813, at *4 n.8 (N.D. Ill. Sept. 28, 2020) (Shah, J.) (citing Teruggi v. CIT Grp./Cap. Fin.,
Inc., 709 F.3d 654, 659 (7th Cir. 2013)).
La Rabida claims that Griffin-Thomas has failed to sufficiently allege that she was a qualified
individual, and thus her ADA and IHRA claims fail. A “qualified individual” with a disability is a
person who can (1) satisfy the requisite skill, experience, education, and other job-related
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requirements of the position; and (2) perform the essential functions of the position, with or without
reasonable accommodation. 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m). La Rabida contends that
Griffin-Thomas was not a qualified individual who could perform the essential functions of her job
with or without reasonable accommodation, because she generally pleaded that she was “physically
unable to return to work” without specifying the amount of time she needed to return. (Dkt. 11 at
6.; Dkt. 19 at 2–3.) La Rabida also argues on reply that it was not obligated to provide GriffinThomas “an indefinite leave of absence or wait indefinitely for Plaintiff to recover from her medical
issues.” (Dkt. 19 at 3.)
The Seventh Circuit has recognized that a short medical leave may be a reasonable
accommodation in certain cases. See Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 481 (7th Cir.
2017) (“a brief period of leave to deal with a medical condition could be a reasonable
accommodation in some circumstances”) (citing Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir.
2003)). The reasonableness of an accommodation is a “highly fact-specific inquiry.” McAllister v.
Innovation Ventures, LLC, 983 F.3d 963, 967–68 (7th Cir. 2020) (citation omitted); see also Clark v.
Evergreen Living & Rehab Ctr., LLC, No. 20 C 6596, 2021 WL 2915131, at *5 (N.D. Ill. July 12, 2021)
(Finnegan, J.) (“At the pleadings stage of these proceedings, the Court is not persuaded that the
medical leave form requesting four to six weeks of time off renders Plaintiff not qualified under the
ADA as a matter of law.”).
Drawing all reasonable inferences in Griffin-Thomas’s favor, the Court cannot conclude that
the medical leave Griffin-Thomas allegedly sought prohibits her from proving she was qualified
under the ADA and IHRA. Griffin-Thomas alleges that, beginning in mid-April 2020, she “sought
[a] reasonable accommodation in the form of a short amount of time off work.” (Dkt. 1, Compl. ¶
34.) While neither the Complaint nor the emails attached to La Rabida’s motion specifies when
Griffin-Thomas would have been able to physically return to work, they also do not foreclose the
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possibility that she could have returned within days of her email to Lefkow on May 11, 2020. See,
e.g., Bunch v. Cnty. of Lake, No. 15 C 6603, 2016 WL 1011513, at *4 (N.D. Ill. Mar. 14, 2016) (Ellis, J.)
(although plaintiff “may have a tough road in proving his claim,” the court denied defendants’
motion to dismiss his ADA claim where the plaintiff’s return date was uncertain because the court
could not “preclude him from attempting to prove that, in fact, he could have returned to work
within a definite period, such as after an additional one month’s leave”) (quoting Cross v. Golden
Living Ctr.-Silver Spring, No. 14 C 1563, 2015 WL 3887161, at *2 (E.D. Wis. June 24, 2015)). At that
point, Griffin-Thomas had been on leave for less than three weeks since a La Rabida employee
instructed her to stay home until symptom-free for three days. Without additional facts, the Court
cannot conclude that Griffin-Thomas required “an indefinite leave of absence,” as La Rabida
suggests, or that she was unable to work with or without reasonable accommodation for a “multimonth” period such that Griffin-Thomas could not be a “qualified individual” under the ADA.
Clark, 2021 WL 2915131, at *6; Severson, 872 F.3d at 479 (“A multimonth leave of absence is beyond
the scope of a reasonable accommodation under the ADA.”).
La Rabida also argues that Griffin-Thomas’s “conclusory allegations” that she was
“qualified” and “could do the essential functions of her position, with accommodation” contradict
her concession that she could not return to work. (Dkt. 11 at 6.) “Because disability, unlike race,
can often be a legitimate consideration in employment decisions, a complaint alleging discrimination
under the ADA must plead with adequate specificity that the plaintiff is qualified to perform the
essential functions of the job with or without reasonable accommodation.” Mack v. Chi. Transit
Auth., No. 17 C 6908, 2020 WL 3414952, at *3 (N.D. Ill. June 22, 2020) (Tharp, J.) (citation
omitted). “[I]n the ADA context, simply pleading that one is a qualified individual with a disability is
‘precisely the type of conclusory, formulaic assertion that was disapproved of by Twombly.’” Id.
(citation omitted).
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Griffin-Thomas alleges that “[s]he was ‘qualified’: she could do the essential functions of her
position, with accommodation.” (Dkt. 1, Compl. ¶ 33.) But she offers no facts regarding her ability
to perform the essential functions of her position with (or without) accommodation. Indeed, she
does not even identify her position, let alone its essential functions (nor does either party inform the
Court in the briefing what Griffin-Thomas’s job actually was). The Complaint thus fails to
adequately allege that Griffin-Thomas was qualified to perform the essential functions of her job
with or without a reasonable accommodation.
Retaliation Under the Illinois Whistleblower Act
Section 20 of the IWA states that “[a]n employer may not retaliate against an employee for
refusing to participate in an activity that would result in a violation of a State or federal law, rule, or
regulation.” 740 ILCS 174/20. In her Complaint, Griffin-Thomas alleges that La Rabida violated
the IWA when it fired her for refusing to come into work while she was sick with symptoms of
acute respiratory disease, in violation of Order No. 2020-1.
La Rabida claims that an alleged violation of a municipal ordinance does not constitute a
violation of a “state or federal law, rule, or regulation” as required under the IWA. (Dkt. 11 at 6–7,
citing 740 ILCS 174/20.) Griffin-Thomas argues in her response that Order No. 2020-1 was
effectively a state law, rule, or regulation because the ordinance was issued pursuant to authority
granted in a state regulation. Griffin-Thomas also claims that Order No. 2020-1 both aligned with
the Illinois Department of Public Health’s COVID-19 guidance and operated as an expansion of the
social distancing requirements set out in Governor Pritzker’s Executive Order 2020-32, which
ordered businesses to follow the guidance of local public health departments and ordered Chicago
residents demonstrating COVID-19 symptoms to stay home. (Dkt. 15 at 8–9.) In other words,
Griffin-Thomas claims that by refusing to go into work with COVID-19 symptoms, she refused to
participate in an activity that would have resulted in a violation of a state law.
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The Court need not consider Executive Order 2020-32 or IDPH guidance, however, as the
Court finds that Griffin-Thomas has sufficiently pleaded a retaliation claim under the IWA with
respect to Order No. 2020-1. Two recent decisions in this district are instructive. The first is a case
on which La Rabida relies, Milsap v. City of Chicago, No. 16-cv-4202, 2019 WL 4749971 (N.D. Ill.
Sept. 30, 2019) (Blakey, J.). The second is Brown v. Biomat USA, Inc., No. 20-cv-5437, 2021 WL
3187599 (N.D. Ill. July 28, 2021) (Rowland, J.). While neither is on all fours with the facts in the
instant case, both provide guideposts for the Court’s decision.
In Milsap, the plaintiff, a former employee of the City of Chicago’s Department of Streets
and Sanitation, claimed that the City violated Section 15(b) of the IWA when it fired him in
retaliation for disclosing a violation of section 2-156-005 of the City’s municipal code. The
plaintiff’s IWA claims were “predicated solely” on his disclosure of a violation of that section of the
city’s governmental ethics ordinance, which prohibited city employees from giving individual
preferential treatment and required them to disclose waste, fraud, abuse, and corruption. 2019 WL
4749971, at *5. As La Rabida points out, the plaintiff in Milsap did not offer any authority
suggesting that “the IWA is broad enough to cover a claim based solely upon an alleged ordinance
violation.” Id. at 6. The Milsap court granted summary judgment for the defendant.
In Brown, the court had to determine whether a state executive order fell under the statutory
language of protected activity based on a “state or federal law, rule, or regulation.” 2021 WL
3187599 at *2–3. Though the court noted that the IWA’s definition section does not define the
terms “law,” “rule,” or “regulation,” it reasoned that executive orders are “rules” in the ordinary
sense of the word—“they are edicts that citizens must obey.” Id. at 3 (citing 740 ILCS 174/5). The
court further reasoned that construing the terms narrowly or formalistically would be inconsistent
with the section of the IWA at issue in that case, which provided that employees need only have
“reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or
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regulation.” Id. (citing 740 ILCS 174/15(b)). The court held that executive orders are “rules” within
the meaning of the IWA and denied the defendant’s motion to dismiss.
This case is closer to Brown than Milsap. Although it is a city ordinance at issue in this case,
the language of Order No. 2020-1 and its interplay with an Illinois regulation distinguishes it from
the ethics ordinance at issue in Milsap. Order No. 2020-1, to which Griffin-Thomas linked in its
entirety in the Complaint, states that it includes the authority granted in 77 Illinois Administrative
Code 690.1310(c). That Illinois regulation states in relevant part:
[T]he Department has the general authority to delegate to a certified

local health department, for the purpose of local administration
and enforcement, the duties that the Department is authorized to

enforce. Due to the need for immediate action to respond to a threat
of a dangerously contagious or infectious disease, the Department

delegates its powers to issue orders for isolation, quarantine or
closure ; physical examinations and tests; collection of specimens;

administration of vaccines, medications and treatments; and
observation and monitoring and to issue and enforce orders to
certified local health departments within the State of Illinois.
Id. (emphasis added).
The ordinance at issue in the instant case—including its seeming double duty as the delegee
and enforcement arm of a state regulation—is distinct from the ordinance in Milsap (which was
decided on summary judgment). At the pleadings stage, Griffin-Thomas has plausibly alleged a
claim for retaliation under the IWA.
Retaliatory Discharge
To state a claim for retaliatory discharge, a plaintiff must allege that “(1) the employer
discharged the employee, (2) in retaliation for the employee’s activities, and (3) the discharge violates
a clear mandate of public policy.” Walker v. Ingersoll Cutting Tool Co., 915 F.3d 1154, 1157 (7th Cir.
2019) (quoting Turner v. Mem’l Med. Ctr., 233 Ill. 2d 494, 500, 331 Ill. Dec. 548, 553, 911 N.E.2d 369,
374 (2009)). La Rabida contests the first and third elements.

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First, La Rabida contends that Griffin-Thomas cannot state a claim for retaliatory discharge
because she voluntarily resigned from her position. More specifically, La Rabida claims that GriffinThomas “volunteered that she was willing to submit a formal resignation letter, and La Rabida
accepted that offer.” (Dkt. 11 at 8.) Griffin-Thomas, however, alleges that she was discharged by
La Rabida. Drawing all reasonable inferences in Griffin-Thomas’s favor, the Court declines to
conclude that Griffin-Thomas’s statement to Meline that she could submit a formal resignation letter
if the time she needed to fully recuperate was “unconducive to La Rabida’s expectations or personal
timeline” constituted a resignation. Griffin-Thomas’s pleading sufficiently raises an issue of fact, the
determination of which is premature at the motion to dismiss stage. 3
Second, La Rabida argues that even if it discharged Griffin-Thomas, she has not sufficiently
alleged that such a discharge violated a clearly mandated public policy. Griffin-Thomas pleads that
Order No. 2020-1 forbade her from coming into work with COVID-19 symptoms, and her
subsequent termination for complying with the order violated the public policy of Illinois.
Brown again is instructive here. In Brown, the court discussed the Illinois Supreme Court’s
decision in Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876 (1981). The Palmateer
court noted that “public policy” does not have a precise definition but stated that it “concerns what
is right and just and what affects the citizens of the State collectively.” Id. at 130, 421 N.E.2d at 878.
“[A] matter must strike at the heart of a citizen’s social rights, duties, and responsibilities before the
tort [of retaliatory discharge] will be allowed.” Id. at 130, 421 N.E.2d at 878–79. Additionally, the
Illinois Supreme Court stated that public policy favors citizens ferreting out crime despite the lack of
a specific constitutional or statutory provision requiring it. Id. at 132, 421 N.E.2d at 880.

As explained above, the Court is required to draw all reasonable inferences in plaintiff’s favor, and therefore does not
conclude that Griffin-Thomas’s statement was necessarily a resignation, although such “threats” are not advisable.

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Brown likened such a holding to that of a state’s citizens upholding COVID-19 protocols.
2021 WL 3187599, at *4. The court stated, “Although no specific constitutional or statutory
provision requires citizens to uphold the state’s COVID-19 safety protocols, it is difficult to imagine
rules that strike more directly at the heart of a citizen’s social rights, duties, and responsibilities.” Id.
(quotations omitted). In Brown, the violations concerned a “very specific Executive Order” that
evinced clearly articulated public policy concerns. Id. Here, Order No. 2020-1 is likewise specific,
and it is replete with public policy concerns surrounding COVID-19 as well (e.g., “protect[ing] the
health, safety, and welfare of the City’s residents”). Assuming La Rabida discharged Griffin-Thomas
as alleged, she has plausibly claimed that it violated a clearly mandated public policy.
Conclusion
Based on the foregoing discussion, La Rabida’s Partial Motion to Dismiss [10] is granted in
part and denied in part. Griffin-Thomas’s ADA and IHRA claims (Counts II and III) are dismissed
without prejudice and with leave to replead. La Rabida’s motion to dismiss is denied with respect to
Griffin-Thomas’s claims under the IWA (Count IV) and for retaliatory discharge (Count V). By
February 1, 2022, Griffin-Thomas may file an amended complaint to cure the deficiencies described
in this opinion. The portion of La Rabida’s motion that seeks an extension of time to answer the
remaining claims in the Complaint [10] is stricken as moot.
IT IS SO ORDERED.
Date: 01/11/2022
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge

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