Graham v. St. John's United Methodist Church et al

Filing 46

ORDER granting in part, denying in part and denying as moot in part St. John's motion to dismiss and, in the alternative, to strike (Doc. 21): The Court grants St. John's motion to dismiss Count 3, denies as moot St. John's motion to s trike punitive damages under Count 4 and denies St. John's motion in all other respects. The Court grants Graham's request for withdrawal of his request for compensatory damages under Count 4. Signed by Judge Michael J. Reagan on 10/25/12. (caa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RICHARD A. GRAHAM,
Plaintiff,
v.
ST. JOHN’S UNITED METHODIST
CHURCH, THE ILLINOIS GREAT
RIVERS
CONFERENCE
OF
THE
UNITED METHODIST CHURCH and
REVEREND SHERYL PALMER, in her
individual capacity,
Defendants.

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) Case No. 12-cv-0297-MJR
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MEMORANDUM AND ORDER
REAGAN, District Judge:
In April 2012, Richard Graham filed an 8-count complaint against
St. John’s United Methodist Church (“St. John’s”), The Illinois Great Rivers
Conference of the United Methodist Church (“IGRC”) and Reverend Sheryl
Palmer (“Palmer”).

Graham alleges violations of the Americans with

Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq.; the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. § 203(d); the Illinois Wage and Collection
Act ("IWPCA"), 820 ILCS 115/et seq.; as well as common law actions for
intentional infliction of emotional distress and negligent supervision.
St. John’s moves to dismiss Counts 1 through 4 of Graham’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 21).

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The motion is fully briefed and ready for disposition. The Court begins its
analysis with a recitation of the factual background.
I.

Factual Allegations
The complaint alleges the following facts. In 1996, Graham was

the victim of a serious beating in which he suffered multiple concussions,
multiple fractures including parts of his face, and severe contusions over a
substantial portion of his body.

Graham’s head injuries resulted in a

permanent disability of his cognitive processes leaving him with difficulty
articulating

his

thoughts

and

comprehending,

especially

in

stressful

situations. In August 2008, Graham was hired as a part-time custodian at
St. John’s and was told that he would work 25 hours a week. A short time
after Graham began his employment, the other part-time custodian left, and
Graham assumed all custodial duties at the church. He performed his duties
in a satisfactory manner. Palmer told Graham that regardless of the extra
work load and the number of hours worked, he would only be paid for 25
hours a week.
As a result of his head injuries, Graham is a very acquiescent
individual, especially with authority figures like Palmer.

Palmer took

advantage of Graham’s disability and required him to work seven days a
week, averaging 35

to

40

hours, while

approximately 25 hours on his timesheet.

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only allowing him to

put

Palmer called Graham “stupid”

and “retard” and allowed other members to call him these names as well.
She yelled at Graham in front of others in order to embarrass him.
About June 6, 2011, Julia and Darol Holsman, who were
members of St. John’s and advocates for Graham’s employment, asked the
IGRC to investigate Palmer’s mistreatment of Graham. The Holsmans also
assisted Graham in filing a complaint with the Illinois Department of Labor
(“IDOL”).
Graham

repeatedly

asked

Palmer

and

St.

John’s

for

accommodation for his mental challenges, but they refused to accommodate
him.

In July 2011, the Holsmans told Palmer and St. John’s that Graham

was ill and scheduled for surgery. On August 15, 2011, Palmer unilaterally
scheduled Graham to return to work.

In a letter dated August 17, 2011,

Palmer told Graham that if he did not notify St. John's of his health status by
August 23, 2011, St. John's would "assume [he] resigned his position." On
August 23, 2011, Graham was discharged.
II.

Legal Standard
A 12(b)(6) motion challenges the sufficiency of the complaint to

state a claim upon which relief can be granted.

Hallinan v. Fraternal

Order of Police of Chicago Lodge No. 7, 570 F.3d 811 (7th Cir. 2009).
Dismissal is warranted under Rule 12(b)(6) if the complaint fails to set forth
“enough facts to state a claim to relief that is plausible on its face.”

3

Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); EEOC v.
Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007).
In making this assessment, the District Court accepts as true all
well-pled factual allegations and draws all reasonable inferences in the
plaintiff’s favor. Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009);
Tricontinental Industries, Inc., Ltd. v. PriceWaterhouseCoopers, LLP,
475 F.3d 824, 833 (7th Cir.), cert. denied, 128 S. Ct. 357 (2007);
Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006).
In Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir.
2008), the Seventh Circuit emphasized that even though Bell Atlantic
“retooled federal pleading standards” and “retired the oft-quoted Conley
formulation,” notice pleading is still all that is required.
“A plaintiff still must provide only enough detail to give the
defendant fair notice of what the claim is and the grounds upon which it
rests and, through his allegations, show that it is plausible, rather than
merely speculative, that he is entitled to relief.” Id.

Accord Pugh v.

Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008)(“surviving a Rule
12(b)(6) motion requires more than labels and conclusions”; the
allegations “must be enough to raise a right to relief above the
speculative level”).
III.

Discussion
A.

Motion to strike compensatory and punitive damages – Count 4

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As an initial matter, St. John’s moves to strike Graham’s claim
for compensatory and punitive damages in Count 4, which is based on
retaliation under the ADA.

Graham admits his error, conceding that

compensatory and punitive damages are not currently available under an
ADA retaliation claim.

So, Graham voluntarily withdraws his claim for

compensatory damages (Count 4, ¶ B). Graham correctly observes that he
made no claim for punitive damages in Count 4, so St. John’s motion to
strike

a demand

for

punitive

damages as to

this Count is moot.

Consequently, the Court will withdraw Graham’s claim for compensatory
damages and deny as moot St. John’s motion to strike the prayer for
punitive damages in Count 4.
B.

Counts 1 and 2 – Violation of the ADA and Failure to Reasonably
Accommodate in Violation of the ADA
St. John’s contends that Graham has not sufficiently pleaded

that he has a disability that substantially limits one or more major life
activities, as is required to state a claim under the ADA.

Specifically, St.

John’s maintains that Graham fails to allege a mental impairment that
substantially limits a major life activity, a record of such an impairment or
that he was regarded as having such an impairment.
Graham was hired as a custodian for St. John’s in August 2008
and was discharged in August 2011.

Consequently, he began his

employment prior to the effective date of the ADA Amendments Act of 2008

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(“ADAAA”), January 1, 2009, but continued in his employment after the Act
became effective. 1
St. John’s contends that much of the alleged discriminatory
conduct that formed the basis of Graham’s complaints with the EEOC and
this Court occurred prior to the effective date of the amendments.

St.

John’s maintains that Graham fails to adequately plead which of the alleged
acts occurred within 300 days of his filing the charge of discrimination with
the EEOC and that any claims outside the statutory time period are barred.
Graham responds that he has adequately alleged that Palmer took
advantage of his mental disability by forcing him to work seven days a week
for two-and-a-half years.
It is premature for the Court to decide whether any of the acts
alleged by Graham are time-barred, whether most of the acts occurred after
the amendments became effective or whether all acts of which Graham
complains are actionable under a continuing violations theory. This can only
be determined on a fuller record after further discovery has occurred. The
Court notes, however, that presently in evidence is the IDOL Inspection
Report (Doc. 2-3).

The Report indicates that between August 2008 and

August 2011, 22 violations of the One Day Rest in Seven Act occurred. This
appears to contradict St. John’s assertion that most of the alleged

The Seventh Circuit has concluded that the ADA Amendments are not retroactive. See
Winsley v. Cook County, 563 F.3d 598, 600 n. 1 (7th Cir. 2009); Kiesewetter v.
Caterpillar Inc., 295 Fed. Appx. 850, 851 (7th Cir. 2008).
1

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discriminatory

conduct

occurred

prior

to

the

effective

date

of

the

amendments.
In order to allege disability discrimination, Graham must claim
that (1) he is disabled within the meaning of the ADA; (2) he is qualified to
perform the essential functions of the job, either with or without a
reasonable

accommodation;

and

(3)

he

suffered

from

an

adverse

employment action because of his disability. Hoppe v. Lewis University,
692 F.3d 833, 839 (7th Cir. 2012), citing Nese v. Julian Nordic Const.
Co., 405 F.3d 638, 641 (7th Cir. 2005). St. John’s asserts that Graham’s
claims fail at the first prong of the test - that he is not an individual with a
disability within the meaning of the ADA.
The ADA definition of “disability” does not differ from that of the
ADAAA: “(a) a physical or mental impairment that substantially limits one or
more of the major life activities of [an] individual; (b) a record of such an
impairment; or (c) being regarded as having such an impairment.” E.E.O.C.
v. AutoZone, Inc., 630 F.3d 635, 639 (7th Cir. 2010), quoting 42
U.S.C. § 12102(1). Major life activities include concentrating, thinking and
communicating. 42 U.S.C. § 12102(2)(A).
The ADAAA provides more generous coverage than the ADA by
providing that the definition of disability “shall be construed in favor of broad
coverage of individuals … to the maximum extent permitted by the terms of
[the Act.]” 42 U.S.C. § 12102(4)(A). The associated regulations instruct

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courts to be liberal in determining whether a plaintiff is substantially limited:
“[t]he term ‘substantially limits' shall be construed broadly in favor of
expansive coverage, to the maximum extent permitted by the terms of the
ADA. ‘Substantially limits' is not meant to be a demanding standard.” 29
C.F.R. § 1630.2(j)(1)(i).
Graham alleges that he has permanent brain damage which
causes him difficulty articulating his thoughts, slowness to comprehend and
difficulty challenging anyone he views as a figure of authority. As such, he
has alleged sufficient facts to meet the definition of an individual with a
disability.

His claims are detailed enough to meet the requirements of

Twombly and, consequently, sufficient to survive St. John’s motion to
dismiss.
Furthermore,

accepting

as

true

all

well-pleaded

factual

allegations and drawing all reasonable inferences in Graham’s favor, he has
sufficiently pleaded that he was regarded as an individual with a disability.
Being “regarded as” having a disability “means that the individual has been
subjected to an action prohibited by the ADA as amended because of an
actual or perceived impairment….” 29 CFR § 1630.2(g)(ii). The Seventh
Circuit has clarified that in order to proceed under this prong of the ADA, a
plaintiff must allege “that the employer believed that the employee ‘(1) had
an impairment (2) that substantially limited (3) one or more major life

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activities.’”

Squibb v. Memorial Medical Center, 497 F.3d 775, 786

(7th Cir. 2007) (citation omitted).
Graham claims that Palmer called him a “retard” on multiple
occasions as well as allowing other staff members to call him by that epithet.
Graham also claims that Palmer took advantage of his mental impairment by
requiring him to work seven days a week and to do both custodial work and
personal chores for her.

Moreover, Graham claims that Palmer asked the

Holsmans to act as advocates for him with respect to his employment at St.
John’s after she learned of his impairment. These allegations are sufficient
to survive St. John’s motion to dismiss on the issue of whether Palmer
regarded Graham as an individual with a disability.
Next, the Court must consider whether Graham could perform
the

essential

accommodation.

functions

of

the

custodial

position

with

reasonable

An individual with a disability falls within the definition of

a “qualified individual with a disability” if he can perform the essential
functions of the desired position with reasonable accommodation. 42 U.S.C.
§ 12111(8). Under the ADA, an employer must provide a qualified
individual with a reasonable accommodation. Jackson v. City of Chicago,
414 F.3d 806, 812 (7th Cir. 2005), citing Rehling v. City of Chicago,
207 F.3d 1009, 1014 (7th Cir.2000); 42 U.S.C. § 12111(9)(B) (listing
examples

of

reasonable

accommodations).

“[A]

reasonable

accommodation is connected to what the employer knows about the specific

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limitations affecting an employee who is a qualified individual with a
disability.” Id. at 813, citing 42 U.S.C. § 12112(b)(5)(A) (defining the
term

“discriminate”

to

include

“not

making

reasonable

accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability” (emphasis added);
Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th
Cir. 1996) (“By the statutory language, ‘reasonable accommodation’
is limited by the employer's knowledge of the disability.”). So, the
federal regulations contemplate the employer’s undertaking an informal,
interactive process with the individual in need of accommodation to
determine the appropriate reasonable accommodation. Id. In Rehling v.
City of Chicago, 207 F.3d 1009 (7th Cir. 2000), the Seventh Circuit held
that, based on its understanding of the interactive process requirement, “a
plaintiff must allege that the employer's failure to engage in an interactive
process resulted in a failure to identify an appropriate accommodation for
the qualified individual.” 207 F.3d at 1016.
Graham alleges that St. John’s initially offered to accommodate
him by allowing the Holsmans to act on his behalf in employment matters.
According to Graham, the failure to accommodate involved St. John’s
decision to no longer allow the Holsmans to fill this role.

Graham alleges

that he "repeatedly asked Palmer and St. John's to communicate with or
through

the

Holsmans

as

his

attorneys-in-fact/advocates

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…

as

an

accommodation for his mental challenges," but they "repeatedly refused to
do so."

So, Graham’s claim is that St. John’s eliminated an accepted

accommodation without engaging in any interactive process. Stated another
way, Graham alleges that he and St. John’s had an agreed-upon reasonable
accommodation, but St. John’s unilaterally withdrew the accommodation and
then failed to engage in an interactive process, resulting in a failure to
identify an appropriate accommodation for him. Under these circumstances,
the fault in the failure to make the accommodation available would be St.
John’s.

Mays v. Principi, 301 F.3d 866, 870 (7th Cir. 2002), citing

Emerson v. Northern States Power Co., 256 F.3d 506, 515 (7th Cir.
2001); Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001). As
a result, although it is Graham’s burden to show that a particular
accommodation is reasonable, that burden was met by the fact that St.
John’s chose the accommodation requested at the time Graham was hired.
C.

Hostile Work Environment - Count 3
St. John’s contends that a hostile work environment claim may

not cognizable under the ADA and that, in any case, Graham has not
pleaded facts sufficient to support such a claim.

In a nutshell, St. John’s

asserts that (1) Graham has not sufficiently alleged that his workplace was
so permeated with discrimination and intimidation as to alter the conditions
of his employment; (2) the remarks alleged by Graham are insensitive and
childish, but insensitive and childish remarks are not actionable; and (3)

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Graham has not sufficiently alleged that statements by Palmer and other
staff members impacted his janitorial duties or interfered with his ability to
perform those duties.
The Court has carefully reviewed Graham’s response to St.
John’s motion to dismiss and finds that Graham has failed to respond to St.
John’s motion as to the hostile work environment claim, Count 3. Pursuant
to Local Rule 7.1(c) Graham’s failure to respond may, in the Court’s
discretion, be considered an admission of the merits of the motion.
Accordingly, the Court will grant St. John’s motion and dismiss Count 3 of
Graham’s complaint.
D.

Retaliation – Count 4
St. John’s contends that the Court should dismiss the retaliation

count because Graham fails to plead that he was discharged because of an
activity that was protected by the ADA or, in the alternative, that he fails to
satisfy the Twombly pleading standard.
An employer may not discriminate against an employee who has
opposed any practice made unlawful under the ADA because the employee
made a charge or participated in an investigation under the Act. 42 U.S.C.
§ 12203(a). It is unlawful “to coerce, intimidate, threaten, or interfere with
any individual in the exercise … of, any right granted or protected by [the
Act].”

42 U.S.C. § 12203(b).

“The ADA prohibits employers from

retaliating against employees who assert their right under the act to be free

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from discrimination.” Povey v. City of Jeffersonville, Ind., 2012 WL
4676742, at *4 (7th Cir. 2012), citing 42 U.S.C. § 12203(a).
“Employers are forbidden from retaliating against employees who raise ADA
claims regardless of whether the initial claims of discrimination are
meritless.” Id., quoting Dickerson v. Bd. of Educ., 657 F.3d 595, 602
(7th Cir. 2011).

Even if the employee was not disabled, it would still

violate the ADA if the employer retaliated against him for attempting to raise
a good-faith claim under the ADA. Cassimy v. Bd. of Educ. of Rockford
Pub. Schools, Dist. No. 205, 461 F.3d 932, 938 (7th Cir. 2006).
To state a claim for retaliation under the ADA, “a plaintiff must
allege: 1) a statutorily protected activity; 2) an adverse employment action;
and 3) a causal link between the protected activity and the employer's
action.” Mounts v. United Parcel Service of America, Inc., 2009 WL
2778004, at *4 (N.D.Ill. 2009), citing McClendon v. Ind. Sugars, Inc.,
108 F.3d 789, 796 (7th Cir. 1997).
According to Graham, he was discharged after engaging in a
statutorily

protected

activity.

He

alleges

that

he

first

attempted

unsuccessfully to resolve his concerns with St. John’s, questioning the hours
he was working and for which he was not compensated.

He then

complained to the EEOC and the IDOL that Defendants discriminated against
him because of his mental impairment. Graham claims that his termination

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was in retaliation for engaging in these activities which are protected under
the ADA.
As Graham points out, at this stage, it is not what he can prove
but only what he has pleaded. These allegations support a viable claim of
retaliation under the ADA.
IV.

Conclusion
For the foregoing reasons, the Court GRANTS in part, DENIES

in part and DENIES as moot in part St. John’s motion to dismiss and, in
the alternative, to strike (Doc. 21). The Court GRANTS St. John’s motion to
dismiss Count 3, DENIES as moot St. John’s motion to strike punitive
damages under Count 4 and DENIES St. John’s motion in all other respects.
Lastly, the Court GRANTS Graham’s request for withdrawal of compensatory
damages under Count 4.
IT IS SO ORDERED.
DATED this 25th day of October, 2012

s/Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge

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