Ehlerding v. American Mattress and Upholstery, Inc. et al
OPINION AND ORDER denying 16 Motion to Dismiss for Failure to State a Claim. Signed by Judge Rudy Lozano on 9/22/16. (ksp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
AMERICAN MATTRESS AND
UPHOLSTERY, INC., et al., )
OPINION AND ORDER
This matter is before the Court on Defendants’ Rule 12(b)(6)
Motion to Dismiss and Rule 12(f) Motion to Strike, filed by the
Roedeske,1 and Lajuan Wade, on November 24, 2015.
the reasons set forth below, the motion is DENIED.
complaint on June 29, 2015.
docketed that same day.
He was granted leave to
(DE #7 & DE #8.)
The first amended
complaint brings claims against American Mattress and Upholstery,
Lajuan Wade (“Wade”) (collectively, “Defendants”) pursuant to
According to Defendants, Plaintiff misspelled Mark Roedeske’s name as
Ruduski. For purposes of this Order, he will be referred to as Roedeske.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. section
2000(e) et seq (“Title VII”), the American with Disabilities Act
section 1981 (“Section 1981”), and the Family Medical Leave Act
of 1993, 29 U.S.C. section 2601 et seq (“FMLA”).
amended complaint incorporates and attaches a copy of Plaintiff’s
Employment Opportunity Commission (“EEOC”) on or about August 25,
Plaintiff also attaches a Notice of Right to Sue
from the EEOC which is dated April 30, 2015.
filed the instant motion to dismiss on November 24, 2015.
Plaintiff filed his reply on December 7, 2015.
Defendants filed their reply on December 14, 2015.
Thus, the motion is ripe for adjudication.
alleges, through his attached Charge of Discrimination, that he
In his response brief, Plaintiff states that Defendants have “sufficiently
summarize[d] the relevant factual allegations” of the first amended complaint;
thus, the Court has borrowed liberally from Defendants’ memorandum for the
background section of this Order. (See DEs #8, #17, pp. 2-3, and #18, pp. 34.)
American Mattress, located at 4614 Coldwater Road in Fort Wayne,
Indiana from January 21, 2013, until his wrongful termination on
April 4, 2014.
According to Plaintiff, on March 10, 2014, he
underwent hernia surgery in relation to an injury he allegedly
regional manager about his need for time off of work.
alleges that he was entitled to use FMLA to address this serious
After his surgery, Plaintiff was placed on work restrictions
and was directed not to lift heavy objects.
initially indicated it would comply with the work restrictions by
having an assistant help Plaintiff when necessary.
Plaintiff alleges that he was only given assistance twice during
In addition, upon his return from medical leave,
scheduled to work six days a week, at least one of those days for
which he was not paid.
Later, he returned to his normal work
On April 4, 2014, Plaintiff encountered a customer who was
upset by a delivery driver who had failed to assemble a bed that
had been ordered.
Plaintiff contacted his regional manager,
Roedeske, about the situation.
Roedeske told Plaintiff that the
customer was lying and argued with Plaintiff, allegedly using
Following the phone conversation, Plaintiff spoke
again with Roedeske and was told he was fired.
retaliated against, and wrongfully terminated on the basis of
race and disability as well as for his use of medical leave.
anguish as a result of Defendants’ wrongdoing.
compensatory damages, punitive damages, liquidated damages, and
attorney fees and costs.
Rule 12(b)(6) Motion to Dismiss
In evaluating a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), a court must accept all facts alleged
in the complaint as true and draw all reasonable inferences in
the light most favorable to the plaintiff.
272 F.3d 519, 520 (7th Cir. 2001).
Johnson v. Rivera,
A complaint is not required
to contain detailed factual allegations; however, the plaintiff
must allege facts that state a claim to relief that is plausible
on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
not enough that there might be some conceivable set of facts that
entitle the plaintiff to relief.
Bell Atlantic Corp. v. Twombly,
“requires more than labels and conclusions. . . .”
Id. at 555.
The Supreme Court has provided that “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Iqbal, 556 U.S. at 678.
considers only the factual allegations of the complaint and any
reasonable inferences that can be drawn from those allegations;
however, a court may also examine information from documents “if
they are referred to in the plaintiff’s complaint and are central
to his claim.”
Adams v. City of Indianapolis, 742 F.3d 720, 729
(7th Cir. 2014); see Williamson v. Curran, 714 F.3d 432, 443 (7th
Cir. 2013) (noting the Seventh Circuit has taken “a relatively
expansive view of the documents that a district court properly
may consider in disposing of a motion to dismiss.”).
incorporates the Charge of Discrimination which may be considered
converting it into a motion for summary judgment.
See Vasquez v.
Herman, 600 F.3d 726, 733 (7th Cir. 2010) (documents attached to
complaint are considered part of the complaint)).
mandate for the elimination of discrimination against individuals
42 U.S.C. § 12101(b)(1).
To state a claim
pursuant to the ADA, a plaintiff must allege that “(1) he is
‘disabled’; (2) he is qualified to perform the essential function
of the job either with or without reasonable accommodation; and
(3) he suffered an adverse employment action because of his
Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1172
(7th Cir. 2013) (citing E.E.O.C. v. Lee’s Log Cabin, Inc., 546
matter” under this rubric, a plaintiff must establish that he is
See, e.g., Steffen v. Donahoe, 680 F.3d 738, 743
(7th Cir. 2012).
Enacted in 1990, the ADA originally defined
substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.”
42 U.S.C. § 12102(2)
(current version at 42 U.S.C. § 12102(1)).
Because the 1990
statute failed to define the terms ‘substantially limits’ and
‘regarded as,’ the precise meaning of each phrase was left to
See, e.g., Toyota Motor Mfg., Ky., Inc.
v. Williams, 534 U.S. 184, 198 (2002) (holding that a disability
‘substantially limits’ a major life activity where it “prevents
or severely restricts the individual from doing activities that
are of central importance to most people’s daily lives” and has
an impact that is “permanent or long term”); Sutton v. United Air
Lines, Inc., 527 U.S. 471, 489 (1999) (holding that in order to
be ‘regarded as’ having a disability, an employer must “believe
either that one has a substantially limiting impairment that one
does not have or that one has a substantially limiting impairment
when, in fact, the impairment is not so limiting.”).
Effective January 1, 2009, the ADA was amended to “carry out
See ADA Amendments Act of 2008 (“ADAAA”), Pub. L.
described as “[a]n Act to restore the intent and protections of
the Americans with Disabilities Act of 1990,” and in its findings
Congress specifically noted that the original intent of the ADA
was to provide “broad coverage” and a “clear and comprehensive
national mandate for the elimination of discrimination against
narrowed the protection intended to be afforded under the ADA,
and the ADAAA rejected the holdings of Sutton and Toyota Motor
categories are to be interpreted.
For example, the ADAAA now
Activities” whereas prior to the amendments, courts could only
look to previous case law and regulations interpreting the ADA
The definition of major life activities includes
but is not limited to “caring for oneself, performing manual
concentrating, thinking, communicating, and working.”
Congress also added “[r]ules of construction
regarding the definition of disability” which provide:
(A) The definition of disability in this
chapter shall be construed in favor of broad
coverage of individuals under this chapter,
to the maximum extent permitted by the terms
of this chapter.
(B) The term ‘substantially limits’ shall be
interpreted consistently with the findings
and purposes of the ADA Amendments Act of
(C) An impairment that substantially limits
one major life activity need not limit other
major life activities in order to be
considered a disability.
(D) An impairment that is episodic or in
remission is a disability if it would
substantially limit a major life activity
As stated above, “disability” with respect to an individual is defined as
(A) “a physical or mental impairment that substantially limits one or more
major life activities of such individual”; (B) “a record of such an
impairment”; or (C) “being regarded as having such an impairment.” 42 U.S.C.
(E)(i) The determination of whether an
impairment substantially limits a major life
activity shall be made without regard to the
ameliorative effects of mitigating measures .
. . .
42 U.S.C. § 12102(4).
In essence, the ADAAA reestablished the
original intent and expansive scope of the ADA.
Here, Defendants argue that Plaintiff’s ADA claim should be
dismissed because he has not properly alleged a disability that
Defendants rely heavily on a case from this district, Brodzik v.
Contractors Steel, Inc., 48 F. Supp. 3d 1183 (N.D. Ind. 2014).
In Brodzik, the court found that the plaintiff, who alleged that
he was constructively fired after he returned to work following a
hernia surgery, had not sufficiently pled that he had a physical
or mental impairment that substantially limited him in one or
more major life activities.
Id. at 1185, 1189.
This was so,
according to the court, because “many short term impairments,
such as [the plaintiff’s] recovery period for his hernia surgery,
still do not qualify as a disability under the revised standard
of the ADAAA.”
Id. at 1189 (citing Butler v. BTC Foods Inc., No.
12-492, 2012 WL 5315034, at *2 (E.D. Pa. Oct. 19, 2012).
court noted that “[i]mpairments that last only for a short period
of time are typically not covered, although they may be covered
if sufficiently severe.”
Id. (quoting Wanamaker v. Westport Bd.
of Educ., 899 F. Supp. 2d 193, 211 (D. Conn. 2012).
acknowledged that while “episodic impairments are disabling if
they substantially limit a major life activity when active,”
nothing in the plaintiff’s complaint suggested that the “hernia
and the resulting surgery was anything more than a one-time
In response, Plaintiff asserts that he has pled a physical
disability “under but one definition” of the ADA in that, as a
result of his hernia surgery, he was “placed on work restrictions
by his physician” and was “not to be lifting heavy objects.”
#8, p. 6 & DE #18, p. 5.)
Plaintiff argues that the allegations
show that those restrictions substantially limited the major life
activities of “lifting, manual tasks, and working.”
(DE #18, p.
According to Plaintiff, the cases cited by Defendants as
noted above are distinguishable from the case at hand.
Giving Plaintiff the benefit of all reasonable inferences to
which he is entitled at this stage, the Court finds that the
first amended complaint adequately alleges a disability pursuant
to the ADA.
Specifically, Plaintiff alleges that, due to his
hernia and resultant surgery, he was placed on work related
restrictions that included lifting.
qualify as major life activities.
Both working and lifting
42 U.S.C. § 12102(2)(A).
long as an individual is limited “as compared to most people in
the general population,” nothing in the ADA as it currently
significantly restrict those major life activities in order to be
deemed substantially limiting.
29 C.F.R. § 1630.2(j)(1)(ii).
capabilities meets this broad definition that is “not meant to be
a demanding standard.”
29 C.F.R. § 1630.2(j)(1)(i).
Circuit has made it clear that a person with an impairment that
substantially limits a major life activity can be disabled even
when the impairment is “transitory and minor.”
limiting when active.
Gogos, 737 F.3d
Id. at 1172-73.
While Defendants argue that Brodzik precludes Plaintiff from
proceeding on his ADA claim, the Court finds that Brodzik is
distinguishable from the present case.
The plaintiff in Brodzik
had hernia surgery and returned to work after a six-week recovery
Brodzik, 48 F.Supp.3d at 1185.
In reaching its holding
that the plaintiff’s hernia was not a covered disability, the
court specifically noted that the plaintiff had “not allege[d]
that he had any physical or mental restrictions as a result of
Id.; see also Butler, 2012 WL 5315034, at *3
(finding that the plaintiff’s hernia was not a substantially
limiting impairment because he had not alleged that the hernia
contrast, Plaintiff clearly alleges that his lifting capabilities
were restricted following his return to work.
In their reply
brief, Defendants assert that Plaintiff’s alleged restrictions
“if any, were temporary restrictions.”
(DE #19, p. 2.)
Plaintiff’s complaint does not assign a time frame to those
restrictions, and, as Plaintiff points out, he was terminated at
limiting his major life activities of working and lifting.
could well be that the evidence will show Plaintiff’s impairment
was a short term, one-time occurrence; but, at this stage, the
inferences to which he is entitled.
See Bob-Maunuel v. Chipotle
Mexican Grill, Inc., 10 F. Supp. 3d 854, 881 (N.D. Ill. 2014)
(“Based on this Court’s reading of the ADAAA and viewing the
evidence in the light most favorable to Plaintiff, the Court
substantially limited the major life activity of lifting.”); see
also Heatherly v. Portillo’s Hot Dogs, Inc., 958 F.Supp.2d 913,
920-21 (N.D. Ill. 2013) (plaintiff, who by doctor’s orders had to
sufficient evidence to create a triable issue of fact as to
whether her high risk pregnancy rendered her disabled under the
Defendants’ motion to dismiss Plaintiff’s ADA claim
Rule 12(f) Motion to Strike
Federal Rule of Civil Procedure Rule 12(f) provides that a
defense or any redundant, immaterial, impertinent, or scandalous
A court has significant discretion
in ruling on a motion to strike, and the matters at issue may be
addressed on its own or pursuant to a motion filed by a party.
Delta Consulting Group, Inc. v. R. Randle Const., Inc., 554 F.3d
1133, 1141 (7th Cir. 2009) (citing Talbot v. Robert Matthews
Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992)).
12(f) is neither an authorized nor a proper way to procure the
dismissal of part of the complaint.
Pierson v. Dean, Witter,
Reynolds, Inc., 551 F. Supp. 497, 504 (C.D. Ill. 1982); see also
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th
Cir. 2010) (“We hold that Rule 12(f) of the Federal Rules of
Civil Procedure does not authorize a district court to dismiss a
claim for damages on the basis it is precluded as a matter of
In their reply brief, Defendants argue for the first time that Plaintiff’s
first amended complaint “contains no allegations suggesting his alleged short
term impairment had any causal relation to his termination, which apparently
occurred after an issue arose with customer service.” (DE #19, p. 2.) Such
argument will not be considered by the Court because it is undeveloped,
inadequate, and was filed too late. APS Sports Collectibles, Inc. v. Sports
Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002) (citing James v. Sheahan, 137
F.3d 1003, 1008 (7th Cir. 1998) (“Arguments raised for the first time in a
reply brief are waived.”)).
As motions to strike are looked upon with disfavor, “a
court ordinarily will not strike a matter unless the court can
confidently conclude that the portion of the pleading to which
the motion is addressed is redundant or is both irrelevant to the
subject matter of the litigation and prejudicial to the objecting
Fed. Nat’l Mortgage Ass’n v. Cobb, 738 F. Supp. 1220,
irrelevant, a defendant must clearly show that the matter is
outside the issues in the case and is prejudicial.
Soc’y Inc. v. Peters, 983 F. Supp. 787, 798 (N.D. Ill. 1997).
because it violates Federal Rule of Procedure 8 by “lumping all
Defendants together” which leads to a pleading in which “clarity
[Plaintiff] seeks redress from individuals [Roedeske] and Wade
under Title VII or the ADA, his claim should be dismissed and/or
stricken;” (2) Plaintiff’s Section 1981 claims against Roedeske
and Wade be dismissed because Plaintiff “has pleaded no specific
dissemination (sic) committed by the two individuals;” and (3)
any claims for punitive damages and emotional distress under the
FMLA be stricken.
(Id. at 7-9.)
Plaintiff responds by conceding
that he is not alleging ADA and/or Title VII claims against
sufficiently pled Section 1981 claims against both Roedeske and
Wade, and by stating that, while he agrees that punitive damages
are not available under the FMLA, they are available under other
statutes referenced in the first amended complaint.
The Court declines to strike the matters outlined above.
inappropriate in these circumstances.
making its argument that Rule 12(f) should be employed because
Defendants cite to Federal Rule of Civil Procedure 8 and cases
such as Crumpacker v. Civiletti, 90 F.R.D. 326, 329 (N.D. Ind.
1981) and Vicom, Inc. v. Harbridge Merch. Serv., Inc., 20 F.3d
complaint spanning fifty-three legal sized pages.
F.R.D. at 328-29.
The court dismissed the plaintiff’s complaint
because it failed to comport with Federal Rule of Civil Procedure
Id. at 329-37; Fed.R.Civ.P. 8(d).
Vicom, the Seventh Circuit stated that it was dismayed by the
plaintiff’s “119-page, 385-paragraph less-than-coherent amended
complaint” and noted that it constituted an “egregious violation
of Rule 8(a).”
Vicom, 20 F.3d at 775-76.
In the instant case,
however, Plaintiff’s first amended complaint is straightforward
and to the point.
He sues his employer and two individual
management representatives for discrimination and retaliation on
the basis of race and/or disability in violation of Title VII,
Section 1981, the ADA, and the FMLA.
Viewing those statutes
along with the facts alleged in the first amended complaint and
attached Charge of Discrimination, it is not difficult to discern
which theories of recovery apply to the specific defendants,
despite Plaintiff’s “lumping” of them together, once relevant
case law is considered.
See Vicom, 20 F.3d at 775 (the “primary
purpose” of Rule 8 is “rooted in fair notice”).
For example, as
is conceded by Plaintiff in his response brief, it is clear that
the Title VII and ADA claims are not applicable to Roedeske and
See, e.g., Williams v. Banning, 72 F.3d 552,
553-55 (7th Cir. 1995) (neither the ADA nor Title VII impose
“supervisor does not, in his individual capacity, fall within
[the] definition of employer”).
On the other hand, individual
See, e.g., Smith v. Bray, 681 F.3d 888, 896 (7th
Cir. 2012) (“One key difference between § 1981 and Title VII is
that the latter authorizes suit only against the employer as an
entity rather than against individual people who are agents of
overruled on other grounds by Ortiz v. Werner Enterprises, Inc.,
No. 15-2574, 2016 WL 4411434 (7th Cir. Aug. 19, 2016).
distress are not available under the FMLA.
See, e.g., Sons v.
Henry Cnty., No. 105CV00516DFHTAB, 2007 WL 968726, at *2 (S.D.
Ind. Mar. 13, 2007) (describing the specific set of remedies
provided by the FMLA as including wages, salary, benefits, lost
compensation, monetary losses suffered, and equitable relief but
damages, nominal damages, or damages for emotional distress, are
More importantly, however, Rule 12(f) is not the proper
vehicle to attack the sufficiency of Plaintiff’s claims, which is
essentially what Defendants are attempting to do.
and Truckaway Serv., Inc. v. Aaron Driveaway & Truckaway Co.,
Inc., 781 F. Supp. 548, 549-50 (N.D. Ill. 1991) (“Plaintiffs’
prayer for punitive damages is neither a defense, redundant,
immaterial, impertinent, nor scandalous. Accordingly, Rule 12(f)
is inapplicable.”); Peterson v. Baloun, 715 F. Supp. 212, 213-14
(N.D. Ill. 1989) (noting that the defendants’ motion “exceed[ed]
the proper scope of a motion to strike” because it sought to
complaint); see also Whittlestone, Inc., 618 F.3d at 974 (“Were
we to read Rule 12(f) in a manner that allowed litigants to use
it as a means to dismiss some or all of a pleading . . ., we
would be creating redundancies within the Federal Rules of Civil
summary judgment at a later stage in the proceedings) already
serves such a purpose.”).
Because Defendants have specifically
chosen to proceed pursuant to Rule 12(f) for this portion of
their motion, the Court will not substitute a Rule 12(b)(6)
analysis in its place sua sponte, and the motion to strike is
denied in its entirety.
That said, the Court notes that none of
this is meant to imply that Plaintiff will ultimately prevail on
recoverable claims on every possible theory presented.
For the aforementioned reasons, Defendants’ Rule 12(b)(6)
Motion to Dismiss and Rule 12(f) Motion to Strike (DE #16) is
DATED: September 22, 2016
/s/ RUDY LOZANO, Judge
United States District Court
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