Opinion
IP 00-0305-C-T/G.
November 27, 2000.
ENTRY ON MOTION TO DISMISS
This cause comes before the court on Defendant First National Bank and Trust's Motion To Dismiss and Renewed Motion To Dismiss. Defendant moves, pursuant to Rule 12(b)(6), for dismissal of Plaintiff's Amended Complaint for failure to state a claim. Plaintiff Connie J. Jolliffe's Amended Complaint. Having considered the motion, the court makes the following ruling.
Though this entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the entry or the subsequent citation of it in other proceedings.
I. Background
The Amended Complaint alleges that Ms. Jolliffe was employed by First National Bank and Trust ("Bank"). (Am. Compl. ¶ 3.) While an employee, she suffered work-related stress and depression, passed out twice at work in approximately March or April of 1998 and sought medical attention. (Id. ¶¶ 8, 9.) She had surgery to receive a pacemaker shortly thereafter. (Id. ¶ 10.) On June 1, 1998, she returned to work with two restrictions: she could not raise her left arm above her head or lift more than five pounds. (Am. Comp. ¶ 11.) Because of her restrictions, she needed assistance in moving heavy coin bags. (Id. ¶ 12.)
Bank transferred her to the main branch and placed her in a "demoting and demeaning position of working in the basement reviewing teller errors." (Am. Comp. ¶ 13.) Virgil Kessler, the supervisor who transferred her, remarked that the transfer was so she wouldn't sue Bank if she was hurt. (Id. ¶ 14.)
On June 22, Ms. Jolliffe returned to her previous job location and job, and Mr. Kessler informed her that she was being transferred to a float teller position, which position would require her to travel between branches assisting where necessary and is considered a demotion from a permanent position and location. (Id. ¶ 15, 16.) She refused to accept this position because it "did not fit previous restrictions which were on file." (Id. ¶ 17.) When she had inquired about a part-time position earlier in the month, Mr. Kessler told her that she could obtain a new position only by posting for a position as it became available. She had not posted for the float teller position. (Id. ¶ 18, 19.) Rather than keeping her at her position with assistance lifting coin bags, Bank told her she was being transferred to the main branch. (Id. ¶ 20.) Mr. Kessler explained she was being transferred "so he could keep an eye on her." (Id. ¶ 21.)
Ms. Jolliffe suffered an anxiety attack the day she was to report to work at the main branch and was prescribed seven days off work with counseling by her doctor. (Am. Compl. ¶¶ 22-23.) Bank announced at Ms. Jolliffe's former branch that she was on sick leave and that a notice was being sent to everyone that it has the right to transfer anyone at anytime to any Bank location. (Am. Compl. ¶ 24.) Bank also announced that it had an incident with a teller that was being handled. (Id. ¶ 25.)
The Amended Complaint contains two counts. Count One alleges that Ms. Jolliffe is a qualified individual with a disability, that she "possesses a record of her impairments," and that Bank regarded her as disabled. (Id. ¶¶ 27-29.) Count One claims Bank discriminated against her on the basis of her disability and by refusing to accommodate her disability; created a hostile work environment by discriminating against her; and constructively discharged her. (Id. ¶¶ 30-31.) Count Two alleges that Ms. Jolliffe requested reasonable accommodation for her disability and opposed Banks' refusal to engage in the interactive process. (Id. ¶ 34.) Count Two claims the Bank retaliated against her by refusing to accommodate her and by creating and fostering a hostile work environment, resulting in her constructive discharge. (Id. ¶¶ 35-36.)
On January 5, 1999, Ms. Jolliffe filed a Charge of Discrimination with the Indiana Civil Rights Commission and the Equal Employment Opportunity Commission ("EEOC"). In the section for the cause of discrimination, she checked the box for "disability." She did not check the "retaliation" box. In the particulars section of the charge, she wrote the following:
I was formerly a bank teller with a disability for First National Bank of Kokomo. Because of my disability, I was under certain work restrictions. First National Bank refused to provide a reasonable accommodation as required under the Americans with Disabilities Act so that I could perform the essential functions of my job as a bank teller; rather, they asked me to be a "floater", and when I refused, they transferred me to a position under Virgil Kessler so that he could keep an eye on me.
I was subjected to different terms and conditions of employment and harassed to the point where my work environment was no longer tolerable. As such, I was constructively discharged when I was forced to quit on August 14, 1998.
I believe that I have been discriminated against in violation of the Americans with Disabilities Act of 1990.
(Am. Compl., Ex. A at 1.)
Ms. Jolliffe filed her original complaint on January 20, 2000 in state court, alleging Bank discriminated against and retaliated against her in violation of the Americans with Disabilities Act ("ADA"). Bank removed the action to this court on February 18, 2000. In its Answer and Affirmative Defenses, Bank asserted that Ms. Jolliffe failed to state a claim of disability discrimination and retaliation under the ADA. (Answer at 5, First Affirmative Defense and Second Affirmative Defense.)
On June 23, 2000, Bank filed its Motion To Dismiss and supporting brief, seeking to dismiss Ms. Jolliffe's Complaint for failure to state a claim upon which relief can be granted. After seeking and receiving two extensions of time within which to respond to the motion to dismiss, on August 23, Ms. Jolliffe sought leave to file an Amended Complaint. Leave was granted, and the Amended Complaint was deemed filed August 23, 2000.
II. Discussion
A motion to dismiss for failure to state a claim made pursuant to Federal Rule of Civil Procedure 12(b)(6) should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), that will "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993) (quotation omitted). When considering a motion to dismiss, the complaint's allegations are accepted as true and viewed in the light most favorable to the plaintiff. See Hentosh v. Herman M. Finch Univ. of Health Sciences/The Chicago Med. Sch., 167 F.3d 1170, 1173 (7th Cir. 1999).
The Americans With Disabilities Act ("ADA") makes it unlawful for a covered employer to "discriminate against a qualified individual with a disability because of the disability of such individual. . . ." 42 U.S.C. § 12112(a). It is also unlawful under the ADA for an employer to retaliate against an employee. 42 U.S.C. § 12203. "Disability" under the ADA means "with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the 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.
Bank contends that Ms. Jolliffe has not sufficiently alleged that she has a disability under the ADA because she does not allege that any of her impairments substantially limits one or more of her major life activities. It also contends she has not alleged that she opposed any act or practice made unlawful under the ADA that could serve as a predicate for a retaliation claim under the ADA. Ms. Jolliffe claims that she is disabled under the ADA because she has an actual disability, has a record of a disability, and is regarded as having a disability by Bank.
1. Discrimination Claim
In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court considered whether the plaintiffs stated a claim under the ADA. The plaintiffs claimed that they were disabled under the "regarded as" prong of the ADA's definition of disability. The Court said that an individual can fall within this prong in two ways: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. See Sutton, 527 U.S. at 489. The plaintiffs claimed their employer mistakenly believed that their physical impairments-they were severely myopic-limited them in the major life activity of working. They alleged that the employer's vision requirement substantially limited their ability to engage in the major life activity of working by precluding them from obtaining the job of global airline pilot. Id. at 490. The Sutton Court held that to state a claim that an employer regarded an employee's impairment as substantially limiting the major life activity of working, a plaintiff must allege "at a minimum" that she is "unable to work in a broad class of jobs." Id. An allegation that an employer regards an impairment as precluding the plaintiff from a single job, one type of job or a specialized job does not state a claim. Id. at 492-93. Because the plaintiffs alleged merely that they were precluded from the job of global airline pilot and not a broad class of jobs, the Court held they failed to state a claim. Id. at 491.
Sutton was decided under the "regarded as" prong of the ADA's definition of disability. The Court's reasoning, however, applies just as strongly to the "actual disability" and "record of" prongs of the definition. Cf. Medlock v. City of St. Charles, 89 F. Supp.2d 1079, 1082 (E.D. Mo. 2000) (holding plaintiff stated claim under ADA for actual disability where she alleged that her diabetes mellitus substantially limits the major life activities of sitting and seeing); Scott v. Estes, 60 F. Supp.2d 1260, 1268 (M.D. Ala. 1999) (holding plaintiff stated claim under ADA under "actual disability" prong where she alleged she had multiple sclerosis which limited her ability to walk, a major life activity).
Given the Amended Complaint's allegations and focus on Ms. Jolliffe's employment, the court understands her to allege that working is the major life activity adversely impacted by her impairments. The Amended Complaint, however, does not allege that Ms. Jolliffe was unable to work in a broad class of jobs. Thus, applying the reasoning of Sutton, the Amended Complaint fails to state a claim that Ms. Jolliffe has an actual disability substantially limiting the major life activity of working. The absence of an allegation that Ms. Jolliffe was unable to work in a broad class of jobs compels the conclusion that the Amended Complaint also fails to state a claim that Ms. Jolliffe has a record of such a disability or was regarded as having such a disability by Bank. Furthermore, the Amended Complaint does not allege that Ms. Jolliffe was substantially limited in any other major life activity. It therefore fails to state a discrimination claim under the ADA upon which relief can be granted and should be dismissed.
2. Retaliation Claim
Bank also contends that the Amended Complaint fails to state a claim for retaliation under the ADA. To prove a prima facie case of a retaliation a plaintiff must demonstrate: (1) that she engaged in statutorily protected activity; (2) adverse action by the employer; and (3) a causal link between the two. See Silk v. City of Chicago, 194 F.3d 788, 800-01 (7th Cir. 1999); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1459 (7th Cir. 1995). A strict interpretation of the ADA does not lead to the conclusion that a request for a reasonable accommodation is a protected activity. The Seventh Circuit and district courts in this circuit, however, have treated a request for an accommodation as statutorily protected activity. See Silk, 194 F.3d at 800-01 ("to satisfy the third prong of the prima facie test, the Sergeant must demonstrate a causal link between the protected expression, namely the accommodation sought for his disability, and the adverse action."); Garza v. Abbott Labs., 940 F. Supp. 1227, 1240 (N.D. Ill. 1996); Howard v. Navistar Intern. Transp. Corp., 904 F. Supp. 922, 931 (E.D. Wis. 1995), aff'd, 107 F.3d 13 (7th Cir. 1997). This court will do the same. Because the Amended Complaint alleges, inter alia, that Ms. Jolliffe requested reasonable accommodation due to her disability, the court rejects Bank's argument that the Amended Complaint does not allege that Ms. Jolliffe engaged in any statutorily protected activity.
Bank next contends that Ms. Jolliffe's retaliation claim is beyond the scope of her EEOC Charge. "A plaintiff may pursue a claim not explicitly included in an EEOC complaint only if her allegations fall within the scope of the charges contained in the EEOC complaint." Cheek v. Peabody Coal Co., 97 F.3d 200, 202 (7th Cir. 1996) (citing Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th Cir. 1995)); see Conley v. Village of Bedford Park, 215 F.3d 703, 710 (7th Cir. 2000). Two purposes are served by this rule: the EEOC is given an opportunity to settle the dispute between the employee and employer, and the employer is given notice of the charges against it. See Harper, 45 F.3d at 148. To decide whether a complaint's allegations fall within the scope of an EEOC charge, courts consider whether the allegations of the complaint are "'like or reasonably related to'" those in the charge, Cheek, 97 F.3d at 202 (quoting Harper, 45 F.3d at 148), and whether the claims in the complaint reasonably could be expected to grow out of an EEOC investigation of the charge. See Cheek v. W. So. Life Ins. Co., 31 F.3d 497, 500-01 (7th Cir. 1994). Claims are "like or reasonably related" if "there is a factual relationship between them. This means that the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals." Cheek, 31 F.3d at 501.
It cannot be said that Ms. Jolliffe's EEOC charge alleges retaliation. The charge neither mentions retaliation, nor alleges that Ms. Jolliffe engaged in any protected activity which could serve as a predicate for a retaliation claim. Nor does it allege that Ms. Jolliffe suffered any adverse action because she engaged in protected activity. By bringing a retaliation claim in her complaint, Ms. Jolliffe interjects a new and different theory into her claims against Bank. Furthermore, given the vagueness of the charge, it cannot be said that the charge and complaint describe the same conduct or implicate the same individuals. The charge did not give Bank fair notice that Ms. Jolliffe was asserting a retaliation claim against it, and the EEOC would have no way of guessing from the charge that it should attempt to resolve a retaliation claim. Thus, to allow Ms. Jolliffe to bring a retaliation claim would frustrate the purposes of the requirement that a plaintiff file an EEOC charge in the first place. The court concludes that Ms. Jolliffe's retaliation claim does not come within the ambit of the allegations of her EEOC charge; therefore, she may not pursue a retaliation claim.
Defendant also argues that Ms. Jolliffe could not have reasonably believed she was disabled. The court understands this argument to be as follows: If Ms. Jolliffe is not disabled under the ADA, and she does not sufficiently allege that she is, her request of reasonable accommodation is not a protected activity because such requests are protected under the ADA only if made for disabled individuals. The Seventh Circuit has held that to be entitled to protection under the ADA's retaliation provision, an employee must have a reasonable belief that her actions are protected expression. See Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1097-98 (7th Cir. 1998) (holding employee could not have reasonably believed that he was opposing unlawful discrimination by refusing to reassign worker with missing teeth from counter position where worker was not precluded from any other job), cert. denied, 525 U.S. 869 (1998). Thus, to state a claim for retaliation under the ADA, the Amended Complaint must contain allegations which would support a reasonable inference that Ms. Jolliffe reasonably believed she was disabled under the ADA. As stated, the Amended Complaint fails to allege that Ms. Jolliffe was precluded from a broad class of jobs or that she was substantially limited in any other major life activity. Therefore, it could not support a reasonable inference that she reasonably believed she was disabled and, thus, does not sufficiently allege that her request for accommodation was protected activity.
Furthermore, to the extent Ms. Jolliffe's retaliation claim is premised upon the Bank's refusal to accommodate her disability, (Am. Compl. ¶ 35), her claim is more appropriately brought under a discrimination theory. See 42 U.S.C. § 12112(b)(5)(A) ("As used in subsection (a) of this section, the term 'discriminate' includes . . . not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability. . . ."). For these reasons, Bank's motion to dismiss should be granted with respect to the retaliation claim.
III. Conclusion
For the reasons stated, the Amended Complaint fails to state a claim under the ADA for discrimination or retaliation. Therefore, Bank's Motion To Dismiss and Renewed Motion To Dismiss are GRANTED.
It should be noted that the Amended Complaint was filed two months after Bank filed its motion to dismiss and, thus, with the benefit of Bank's contentions that the original complaint failed to state a claim. Though Plaintiff had two months within which to address Bank's well-taken criticisms of the original complaint and draft a complaint that sufficiently stated a claim under the ADA, she did not do so. Given her inability to do so, the court concludes that it is likely that any future amendment would be futile. Therefore, Plaintiff will not be afforded leave to file yet another amendment to her complaint.
A judgment will be entered dismissing the Amended Complaint for failure to state a claim.
ALL OF WHICH IS ORDERED.