Schoelen v. Genesis Janitorial Services, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

NICKIE SCHOELEN, )

)

Plaintiff, )

)

v. ) No. 20-cv-3112

)

GENESIS JANITORIAL )

SERVICES, INC., )

)

Defendant. )

OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

This cause is before the Court on the Motion to Dismiss (d/e

7) filed by Defendant Genesis Janitorial Services, Inc. and the

Motion for Leave to Amend (d/e 9) filed by Plaintiff Nickie Schoelen.

For the reasons stated below, the Motion to Dismiss is GRANTED in

part and DENIED in part. The Motion for Leave to Amend is

GRANTED in part and DENIED in part.

I. INTRODUCTION

On May 1, 2020, Plaintiff Nickie Schoelen filed this action

against Defendant Genesis Janitorial Services, Inc. alleging

discrimination and retaliation against Plaintiff based on Plaintiff’s

sex, pregnancy, and disability leading to her unlawful termination.

See Complaint, d/e 1, p. 1. On June 30, 2020, Defendant filed a

Motion to Dismiss Counts II through IX of Plaintiff’s Complaint (d/e

7) arguing that Plaintiff has failed to state claims upon which relief

can be granted. More specifically, Defendant contends that

Plaintiff’s Title VII sex discrimination claim – Count II – is

duplicative of Plaintiff’s pregnancy discrimination claim – Count I.

If the claims are separate, Defendant argues that Plaintiff failed to

exhaust her administrative remedies for her Title VII – Count II –

and Illinois Human Rights Act (“IHRA”) – Count VIII – sex

discrimination claims. Also, Defendant argues that Plaintiff’s Title

VII retaliation claim – Count III – should be dismissed because

Plaintiff failed to allege facts that Plaintiff engaged in a protected

activity. Plaintiff’s ADA claims, brought in Counts IV and V, should

also be dismissed according to Defendant because Plaintiff fails to

allege a recognized disability under the ADA. For the same reason,

Defendant seeks dismissal of Plaintiff’s IHRA disability claims

brought in Counts VII and VIII. Lastly, Defendant argues that

Plaintiff’s ADA – Count VI – and IHRA – Count IX – retaliation

claims should be dismissed because Plaintiff cannot prove she was

terminated in retaliation for requesting an accommodation.

On July 14, 2021, Plaintiff filed a response in opposition to

Defendant’s Motion to Dismiss or in the alternative a Motion for

Leave to Amend. See d/e 9. Plaintiff agrees to dismiss Counts III,

VII, and IX. However, Plaintiff contends that she has sufficiently

pled sex-based discrimination claims found in Counts II and VIII.

She also argues that her ADA claims found in Counts IV, V, and VI

are well pled. In the alternative, Plaintiff seeks leave to amend her

complaint. Plaintiff provided a proposed amended complaint, which

did not include a separate claim for sex-based discrimination, Title

VII retaliation claim, IHRA disability-based discrimination claim,

and her IHRA retaliation claim. See d/e 9-1.

II. JURISDICTION

This Court has federal question jurisdiction over Counts I

through VI because those Counts allege claims arising under Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et

seq. and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §

12101, et seq. See 28 U.S.C. § 1331. The Court has supplemental

jurisdiction over Counts VII through IX, which allege state law

claims arising from the same general set of facts. See 28 U.S.C. §

1367(a). Venue is proper because a substantial part of the events

or omissions giving rise to the claim occurred within the Central

District. 28 U.S.C. § 1391(b)(2).

III. BACKGROUND

The following facts come from the Complaint and the EEOC

Charge of Discrimination and are accepted as true at the motion to

dismiss stage. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th

Cir. 2008).

Plaintiff is a female and worked for Defendant Genesis

Janitorial Services, Inc. in Quincy, Illinois, for four months as a

janitor prior to her termination. See Complaint, d/e 1, p. 3. While

employed, Plaintiff performed her job requirements satisfactorily.

Id. On October 31, 2016, Plaintiff notified her supervisor, Earl

Whitney, that Plaintiff was pregnant and that she had received a

doctor’s note indicating Plaintiff was not allowed to use a scrubber,

which is a motorized floor scrubbing machine, due to her

pregnancy. Id. Plaintiff requested a reasonable accommodation.

Mr. Whitney told Plaintiff that “everything will be fine.” Id.

Plaintiff also provided the note to the human resources director,

Kelly Jones. Id.

On November 1, 2016, Mr. Whitney told Plaintiff that Plaintiff

would begin training a new male employee, Walter Thompson, on

November 2, 2016. Id. On November 4, 2016, Plaintiff was

terminated from her employment. Id. at 4. Plaintiff was told she

was being replaced by Mr. Thompson as Plaintiff became a “liability

for a miscarriage.” Id.

On December 9, 2016, Plaintiff filed a claim with the Equal

Employment Opportunity Commission (“EEOC”) and the Illinois

Department of Human Relations (“IDHR”) to satisfy “the

requirements of 42 U.S.C. § 2000e-5(b) and (e) based on sex,

pregnancy, disability[,] and retaliation against Defendant.” See id.

at 2. Plaintiff’s EEOC Charge of Discrimination (d/e 7-1) “was filed

within three hundred days after the alleged unlawful employment

practices occurred.” Id. The Charge listed Nickie Schoelen and

Genesis Janitorial Services. See d/e 7-1, p. 2. Plaintiff checked the

boxes for sex, retaliation, disability, and “other,” after which is

typed “Pregnancy.” Id. Plaintiff wrote the following for the

Statement of Harm:

GJS subjected me to disparate and discriminatory

treatment on the basis of my temporary disability, my

pregnancy. I informed GJS of my pregnancy and

subsequently requested reasonable accommodations.

Rather than grant my request for accommodation, GJS

terminated my employment. At the time of my

termination, I was able to perform all essential functions

of my job; therefore, accommodating me would not have

caused an undue hardship or burden on the business.

Id. For the Statement of Discrimination, Plaintiff stated, “I believe I

have been discrimination against because of my pregnancy, in

violation of the Americans with Disabilities Act, Title VII of the Civil

Rights Act of 1964, and Pregnancy Discrimination Act (PDA).” Id.

On October 9, 2019, the EEOC issued to Plaintiff a

Determination providing that “the evidence obtained in the

investigation establishes reasonable cause to believe that

Respondent discriminated against the Charging Party and a class of

employees based on their disabilities . . .” and issued a Notice of

Right to Sue, Conciliation Failure. See d/e 1, p. 3. On May 1,

2020, Plaintiff filed this action, which was within ninety days of the

issuance of the EEOC’s Notice. Id.

In this action, Plaintiff brought nine counts against Defendant:

 Count I – Sex, Including Pregnancy Based

Discrimination in Violation of Title VII as amended by

the Pregnancy Discrimination Act of 1978;

 Count II – Sex Based Discrimination in Violation of Title

VII;

 Count III – Retaliation in Violation of Title VII;

 Count IV – Failure to Accommodate in Violation of the

ADA;

 Count V – Disability Based Discrimination in Violation of

the ADA;

 Count VI – Retaliation in Violation of the ADA;

 Count VII – Disability Based Discrimination in Violation

of the IHRA;

 Count VIII – Sex Based Discrimination in Violation of the

IHRA;

 Count IX – Retaliation in Violation of the IHRA.

See Complaint, d/e 1.

IV. LEGAL STANDARD

Pursuant to Rule 12(b)(6), a party may file a motion to dismiss

for “failure to state a claim upon which relief can be granted.” Fed.

R. Civ. P. 12(b)(6). A motion under Rule 12(b)(6) challenges the

sufficiency of the complaint. Christensen v. Cty. Of Boone, Ill., 483

F.3d 454, 458 (7th Cir. 2007). To survive dismissal, the complaint

must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Tamayo,

526 F.3d at 1081 (“A plaintiff's complaint need only provide a ‘short

and plain statement of the claim showing that the pleader is

entitled to relief,’ sufficient to provide the defendant with ‘fair notice’

of the claim and its basis.”)(quoting Fed. R. Civ. P. 8(a)(2)). “Factual

allegations are accepted as true at the pleading stage, but

allegations in the form of legal conclusions are insufficient to

survive a Rule 12(b)(6) motion.” Adams v. City of Indianapolis, 742

F.3d 720, 728 (7th Cir. 2014) (internal quotation omitted). A

plausible claim is one that alleges factual content from which the

Court can reasonably infer that the defendant is liable for the

misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Merely reciting the elements of a cause of action or supporting

claims with conclusory statements is insufficient to state a cause of

action. Id. The court must draw all inferences in favor of the non-

moving party. In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir.

2009).

V. ANALYSIS

Defendant filed the instant motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6), making various arguments

why the Complaint should be dismissed. After Plaintiff responded

to the motion to dismiss, the remaining issues are whether

Plaintiff’s Complaint states claims for failure to accommodate and

disability-based discrimination in violation of the ADA and a claim

for retaliation in violation of the ADA.

A. Plaintiff Fails to State a Claim for a Recognized

Disability Under the ADA.

Defendant argues that Plaintiff has failed to allege a claim for a

recognized disability under the Americans with Disability Act

(“ADA”), and, therefore, Plaintiff’s Complaint fails to state a claim

upon which relief can be granted.

The ADA provides that a covered employer “shall [not]

discriminate against a qualified individual on the basis of disability

in regard to job application procedures, the hiring, advancement, or

discharge of employees, employee compensation, job training, and

other terms, conditions, and privileges of employment.” 42 U.S.C. §

12112(a). A covered employer “may be liable for disability

discrimination if it fails to ‘mak[e] reasonable accommodations to

the known physical or mental limitations of an otherwise qualified

individual with a disability who is an applicant or employee,’ unless

the employer can show that ‘the accommodation would impose an

undue hardship on the operation of the [employer's] business.’”

Conners v. Wilkie, 984 F.3d 1255, 1260 (7th Cir. 2021) (quoting 42

U.S.C. § 12112(b)(5)(A)).

To succeed on a claim for failure to accommodate an

employee’s disability, a plaintiff must prove: “(1) the employee was a

qualified individual with a disability; (2) the employer was aware of

the disability; and (3) the employer failed to reasonably

accommodate the disability.” Scheidler v. Indiana, 914 F.3d 535,

541 (7th Cir. 2019), reh'g and suggestion for reh'g en banc denied

(Mar. 1, 2019). As for a claim of disparate treatment due to

disability, a plaintiff must prove: “(1) plaintiff was disabled; (2)

plaintiff was qualified to perform essential functions with or without

reasonable accommodation; and (3) disability was the ‘but for’

cause of adverse employment action.” Id.

A threshold issue is whether Plaintiff is “disabled” under the

ADA. “[T]he inquiry is an individualized one, and must be

determined on a case-by-case basis.” Roth v. Lutheran Gen. Hosp.,

57 F.3d 1446, 1454 (7th Cir. 1995). A person is considered

“disabled” if she has “(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 (as described in paragraph

(3)). 42 U.S.C. § 12102(1). The phrase “major life activities” is

defined to include “caring for oneself, performing manual tasks,

seeing, hearing, eating, sleeping, walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating, thinking,

communicating, and working.” 42 U.S.C. § 12102(2).

The issue in this case is whether Plaintiff’s pregnancy

constituted a disability. Absent pregnancy-related complications or

unusual circumstances, pregnancy typically is not considered a

disability under the ADA. See Scheidt v. Floor Covering Associates,

Inc., 16-CV-5999, 2018 WL 4679582, at *6 (N.D. Ill. Sept. 28, 2018)

(collecting cases). After the U.S. Supreme Court decision in Young

v. United Parcel Service, Inc., 575 U.S. 206 (2015), the EEOC

provided guidance on this issue:

Changes to the definition of the term "disability" resulting

from enactment of the ADA Amendments Act of 2008

(ADAAA) make it much easier for pregnant workers with

pregnancy-related impairments to demonstrate that they

have disabilities for which they may be entitled to a

reasonable accommodation under the ADA. Reasonable

accommodations available to pregnant workers with

impairments that constitute disabilities might include

allowing a pregnant worker to take more frequent breaks,

to keep a water bottle at a work station, or to use a stool;

altering how job functions are performed; or providing a

temporary assignment to a light duty position.

. . .

Although pregnancy itself is not an impairment within

the meaning of the ADA, and thus is never on its own a

disability, some pregnant workers may have impairments

related to their pregnancies that qualify as disabilities

under the ADA, as amended. An impairment's cause is

not relevant in determining whether the impairment is a

disability. Moreover, under the amended ADA, it is likely

that a number of pregnancy-related impairments that

impose work-related restrictions will be substantially

limiting, even though they are only temporary.

EEOC No. 915.003, EEOC Enforcement Guidance on Pregnancy

Discrimination and Related Issues (2015),

https://www.eeoc.gov/laws/guidance/enforcement-guidance-

pregnancy-discrimination-and-related-issues (last accessed March

30, 2021).

Courts have interpreted the EEOC Guidance as requiring a

plaintiff to plead more than the fact that they are pregnant. See

Love v. First Transit, Inc., 16-CV-2208, 2017 WL 1022191, at *5

(N.D. Ill. Mar. 16, 2017) (“Thus, where a medical condition arises

out of a pregnancy and causes an impairment separate from the

symptoms associated with a healthy pregnancy, or significantly

intensifies the symptoms associated with a healthy pregnancy, such

medical condition may fall within the ADA's definition of a

disability.”); Compare Scheidt v. Floor Covering Associates, Inc., 16-

CV-5999, 2018 WL 4679582, at *7 (N.D. Ill. Sept. 28, 2018)

(“Plaintiff has not presented sufficient evidence for a reasonable jury

to conclude that her allergy substantially limited her ability to

procreate and carry a pregnancy to term, nor has Plaintiff presented

sufficient evidence for a reasonable jury to conclude that her allergy

substantially limited any other major life activity.”); with Heatherly

v. Portillo's Hot Dogs, Inc., 958 F. Supp. 2d 913, 921 (N.D. Ill. 2013)

(finding that the plaintiff presented sufficient evidence to overcome

summary judgment “as to whether her high risk pregnancy

rendered her disabled under the ADAAA.”).

Here, Plaintiff alleges that she was considered disabled under

the ADA “as her pregnancy was such that she required a note from

her doctor prohibiting her from using the scrubber while at work.”

See Response, d/e 9, p. 6. As stated in her Complaint, Plaintiff

notified her supervisor, Earl Whitney, that Plaintiff had received a

doctor’s note indicating Plaintiff could not use the scrubber, which

was a motorized floor scrubbing machine, due to her pregnancy.

See Complaint, d/e 3, ¶ 20. However, Plaintiff has not pled any

factual allegations as to what led to the need for the work

restriction over than her pregnancy. If a medical condition or

health concern related to pregnancy required the work restriction,

Plaintiff’s claim may survive. However, as pled, Plaintiff merely

alleges that the pregnancy alone constituted the disability pursuant

to the ADA. Therefore, Plaintiff has failed to allege a reasonable

inference of a recognized disability under the ADA, which effects

Counts IV and V of Plaintiff’s Complaint.

However, Plaintiff seeks leave to amend her complaint, and

she attached a proposed amended complaint along with her

request. See d/e 9, 9-1. Plaintiff did not have the benefit of this

Opinion prior to filing the proposed complaint. If Plaintiff has the

facts necessary to state a claim consistent with this Opinion, the

Court grants Plaintiff leave to file another amended complaint. As

such, Counts IV and V of Plaintiff’s Complaint are dismissed with

leave to refile.

B. Plaintiff Fails to State a Claim for Retaliation under the

ADA.

Defendant also seeks dismissal of Plaintiff’s disability

retaliation claim found in Count VI. To succeed on a disability

retaliation claim, a plaintiff must prove that “(1) she engaged in a

statutorily protected activity; (2) she suffered an adverse

employment action; and (3) there is a causal connection between

the two.” Guzman v. Brown County, 884 F.3d 633, 642 (7th Cir.

2018).

Defendant argues that Plaintiff has failed to allege a claim for

retaliation under the ADA because Plaintiff alleges that she was

terminated due to “liability for a miscarriage,” not as a result of her

request for an accommodation. Plaintiff contends that she

requested an accommodation under the ADA, but Defendant failed

to engage in the interactive process. Instead, Defendant fired her.

Plaintiff pled in her Complaint that she notified her supervisor of

her pregnancy, provided the doctor’s note to her supervisor and the

human resources director, and requested a reasonable

accommodation. However, she was terminated and told “she was

being replaced by Mr. Thompson as she has become a ‘liability for a

miscarriage.’” See Complaint, d/e 1, ¶ 24.

Based on the allegations in the Complaint, Plaintiff requested

a reasonable accommodation and Defendant failed to engage in the

interactive process by terminating Plaintiff. Defendant specifically

stated the reason for Plaintiff’s termination was due to Plaintiff’s

pregnancy and possibility of causing a miscarriage. While Plaintiff’s

ADA claim fails to state a claim, “[e]mployers are forbidden from

retaliating against employees who raise ADA claims regardless of

whether the initial claims of discrimination are meritless.” Koty v.

DuPage County, Illinois, 900 F.3d 515, 519 (7th Cir. 2018) (quoting

Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595,

601 (7th Cir. 2011)).

Therefore, Plaintiff’s claim of retaliation in violation of the ADA

found in Count VI sufficiently states a claim for which relief may be

granted. Defendant’s motion to dismiss on that issue is denied.

C. The Remaining Claims Are Dismissed.

Defendant argues that Plaintiff’s Title VII sex discrimination

claim found in Count II is duplicative of Plaintiff’s pregnancy

discrimination claim found in Count I. If the claims are separate,

Defendant argues that Plaintiff failed to exhaust her administrative

remedies for her Title VII and Illinois Human Rights Act (“IHRA”) sex

discrimination claims. Plaintiff argues that she did exhaust her sex

discrimination claims, but she agrees to combine Counts I and II.

While Plaintiff asks the Court to deny Defendant’s motion to

dismiss Counts II and VIII, Plaintiff did not address why her IHRA

sex discrimination claim should not be dismissed. In fact, Plaintiff

filed a proposed amended complaint, and, in the proposed amended

complaint, Plaintiff abandoned her separate claims for sex

discrimination found in Count II and Count VIII. Therefore, the

Court finds that Plaintiff is abandoning her claims found in Count II

and VIII. The Court hereby dismisses without prejudice Counts II

and VIII of Plaintiff’s Complaint as Plaintiff agrees to such

dismissal.

Plaintiff agrees to dismiss her Title VII retaliation claim found

in Count III, IHRA disability-based discrimination claim found in

Count VII, and IHRA retaliation claim found in Count IX. The Court

finds that Plaintiff is abandoning those claims. Therefore, the Court

dismisses without prejudice Counts III, VII, and IX.

VI. CONCLUSION

For the reasons stated, the Motion to Dismiss (d/e 7) filed by

Defendant is GRANTED in part and DENIED in part. Plaintiff’s

Motion for Leave to Amend (d/e 9) is GRANTED in part and

DENIED in part. Plaintiff’s Motion for Leave to Amend is denied in

that Plaintiff’s request to file the proposed amended complaint (d/e

9-1) is DENIED. However, Plaintiff is granted leave to file an

amended complaint consistent with this opinion and the deadline

stated below.

IT IS THEREFORE ORDERED THAT:

(1) Counts II, III, VII, VIII, and IX are hereby DISMISSED

without prejudice.

(2) Counts IV and V are dismissed with leave to refile.

(3) Plaintiff is granted leave to file an amended complaint by

April 21, 2021. Defendant has until May 12, 2021, to file a

response to Plaintiff’s amended complaint.

ENTERED: March 31, 2021

FOR THE COURT:

s/ Sue E. Myerscough___

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE