Soulemane v. Tyson Foods, INC.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

MOUSSA SOULEMANE, )

)

Plaintiff, )

)

v. ) Case No. 4:21-cv-04066-SLD-JEH

)

TYSON FRESH MEATS, INC.,1 )

)

Defendant. )

ORDER

Before the Court is Defendant Tyson Fresh Meats, Inc.’s motion to dismiss, ECF No. 7.

For the following reasons, the motion is DENIED.

BACKGROUND2

Plaintiff Moussa Soulemane was employed at all relevant times by Defendant in

Hillsdale, Illinois. Since 2017, Plaintiff has suffered from a lung condition that affects his

breathing. Under normal conditions, he can work without restrictions.

Due to the COVID-19 pandemic, Defendant implemented a mask requirement. On or

about April 6, 2020, Plaintiff visited his physician, Dr. Thomas Ade, who advised Plaintiff that

because of his condition it was in his best interest not to wear a mask at work.3 Ade prepared a

note for Defendant dated April 6, 2020, anticipating Plaintiff would return to work two weeks

1 Although Plaintiff names “Tyson Foods, Inc.” as Defendant, Defendant indicates its actual name is Tyson Fresh

Meats, Inc. See Mot. Dismiss 1, ECF No. 7; Mem. Supp. Mot. Dismiss 1, ECF No. 8. The Clerk is directed to

update the docket accordingly.

2 At the motion to dismiss stage, the court “accept[s] as true all well-pleaded facts in the complaint, and draw[s] all

reasonable inferences in [the plaintiff’s] favor,” Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016), so this

factual background is drawn from the Complaint, ECF No. 1.

3 Because Plaintiff states in subsequent allegations that he “again visited Dr. Ade” and applied for leave “[a]fter the

April 4, 2020, doctor appointment,” Compl. 2, it is reasonable to infer that Ade made his initial advisement to

Plaintiff during an in-person visit in early April 2020.

from that date. On April 20, 2020, Plaintiff again visited Ade regarding his condition. Ade

prepared a second note indicating Plaintiff would be unable to work for four additional weeks.

After the first appointment with Ade, Plaintiff applied with Defendant for leave pursuant

to the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601–2654. Defendant

contracts with an entity called Unum to process FMLA requests from its employees. In a letter

dated May 6, 2020, Unum retroactively approved Plaintiff’s first leave request, authorizing leave

from April 6, 2020 through May 29, 2020. Later, Plaintiff applied to extend his leave. Unum

issued a second retroactive approval on June 29, 2020, authorizing leave from May 30, 2020

through June 28, 2020.

On June 24, 2020, Plaintiff received a notice from Karina Arcos, a human resources

employee of Defendant’s, indicating that he needed to return to work. Plaintiff called Arcos to

remind her he had submitted an FMLA leave extension request. Plaintiff also emailed Arcos

copies of his FMLA documents, which Arcos confirmed she received.

Defendant uses a point system for disciplinary action; each unauthorized absence is three

points. Plaintiff received points for five absences from June 23, 2020 through June 27, 2020,

resulting in a point total exceeding Defendant’s termination threshold. On June 29, 2020,

Plaintiff was terminated.

Plaintiff filed this action on April 13, 2020, bringing one count of FMLA interference and

one count of FMLA retaliation against Defendant. Compl. 4–6, ECF No. 1. Defendant now

moves to dismiss both counts pursuant to Federal Rule of Civil Procedure 12(b)(6). Mot.

Dismiss 1.

DISCUSSION

I. Legal Standard

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

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A party may move to dismiss a complaint if

it fails to state a claim upon which relief can be granted. Id. 12(b)(6). To analyze the sufficiency

of a complaint, courts “must construe it in the light most favorable to the plaintiff, accept well-

pleaded facts as true, and draw all inferences in the plaintiff’s favor.” Carlson v. CSX Transp.,

Inc., 758 F.3d 819, 826 (7th Cir. 2014). A court must “determine whether [the complaint’s well-

pleaded factual allegations] plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556

U.S. 662, 679 (2009). These allegations must “raise a right to relief above the speculative level.”

Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (quotation marks omitted); see also

Carlson, 758 F.3d at 826–27 (“A claim must be plausible rather than merely conceivable or

speculative, . . . meaning that the plaintiff must include enough details about the subject-matter

of the case to present a story that holds together.” (citations and quotation marks omitted)).

II. Analysis

A plaintiff must prove five elements to prevail on a FMLA interference claim: “(1) he

was eligible for the FMLA’s protections, (2) his employer was covered by the FMLA, (3) he was

entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to take leave,

and (5) his employer denied him FMLA benefits to which he was entitled.” Burnett v. LFW Inc.,

472 F.3d 471, 477 (7th Cir. 2006).4 And an underlying entitlement to FMLA leave is necessary

4 Defendant presents these elements as pleading requirements for an interference claim. See Mem. Supp. Mot.

Dismiss 3 (“To plead an actionable claim of FMLA interference, . . . .” (emphasis added)). But both of Defendant’s

cited cases involve summary-judgment appeals, with neither supporting Defendant’s assertion. See Brown v. Auto.

Components Holdings, LLC, 622 F.3d 685, 689 (7th Cir. 2010) (“To prevail on an FMLA-interference claim, . . . .”

(emphasis added)); Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2009) (also using the word “prevail”). As one

court in this circuit recently observed, conflating the motion-to-dismiss and summary-judgment standards in FMLA

to succeed on a FMLA retaliation claim. See Pagel v. TIN Inc., 695 F.3d 622, 631 (7th Cir.

2012) (“To succeed [on a retaliation claim], [a plaintiff] must of course be entitled to FMLA

benefits . . . .”). Accordingly, Defendant contends Plaintiff’s interference and retaliation claims

must be dismissed because Plaintiff has failed to plead a requisite element of both: that he suffers

from a “serious health condition” such that he is entitled to FMLA leave. See Mem. Supp. Mot.

Dismiss 1, 3–6, ECF No. 8.

“An employee is entitled to FMLA leave if (1) he is afflicted with a ‘serious health

condition’ and (2) that condition renders him unable to perform the functions of his job.”

Burnett, 472 F.3d at 477–78 (quoting 29 U.S.C. § 2612(a)(1)(D)). A “serious health condition”

involves either inpatient care in a hospital, hospice, or residential medical care facility or

“continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). The FMLA’s

implementing regulations describe multiple factual scenarios constituting a serious health

condition involving continuing treatment by a health care provider, including specific definitions

for pregnancy and prenatal care; chronic conditions; permanent and long-term conditions; and

conditions requiring multiple treatments. See 29 C.F.R. § 825.115(a)–(f). Most relevant here,

continuing treatment by a health care provider can include “conditions that require examinations

and evaluations over a period of time.” Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2009)

(citing 29 C.F.R. § 825.115).

Defendant argues Plaintiff’s Complaint falls short because Plaintiff does not “allege any

facts demonstrating that his physician was treating him for [his] breathing ailment.” Mem. Supp.

Mot. Dismiss 4. Defendant contends that “[c]onclusory allegations . . . in which the plaintiff

cases is not uncommon. See Winchester v. Ryder Integrated Logistics, Inc., Case No. 19-CV-01356-NJR, 2020 WL

4784757, *2–4 (S.D. Ill. Aug. 18, 2020). Accordingly, when briefing motions to dismiss, parties are urged to cite

summary-judgment decisions sparingly, if at all, and not without analysis of those cases’ relevance and application.

fails to assert he was actually being treated for his condition . . . are insufficient to state a viable

claim of FMLA interference.” Id. But the cases Defendant cites in support of that contention

involve factual allegations that are far sparser than Plaintiff’s or are otherwise inapposite. In

Jackson v. Dakkota Integrated Systems, LLC, the plaintiff alleged that she “called off work to see

her physician regarding treatment for a serious health condition” but made no allegations about

that condition. Case No. 1:14-cv-06384, 2015 WL 1138565, at *2 (N.D. Ill. Mar. 10, 2015)

(quotation marks omitted). Similarly, the plaintiff in Smith v. Aptar Group, Inc. included no

allegations regarding any health condition. No. 12 C 8630, 2013 WL 655523, at *4 (N.D. Ill.

Feb. 21, 2013) (“The complaint simply states that Aptar failed to give Smith her proper FMLA

credits and by doing so intentionally denied Smith her benefits provided under the FMLA.”).

The court in Dormeyer v. Comerica Bank - Illinois considered the unique situation of prenatal

care and concluded the plaintiff’s complaint was deficient because it was unclear whether the

plaintiff actually received prenatal care; the plaintiff’s complaint only alleged she had been

pregnant and contained a footnote asserting prenatal care was a serious health condition. No. 96

C 4805, 1997 WL 403697, at *3 (N.D. Ill. July 15, 1997). And Guzman v. Brown County

concerns a summary-judgment decision. 884 F.3d 633, 636 (7th Cir. 2018); see Carlson, 758

F.3d at 827 (admonishing the district court for “rel[ying] on summary judgment decisions that

addressed not the content of complaints but the evidence needed to take a claim to a jury,” which

“signaled accurately that the court had applied too demanding a standard”); see also Marsden v.

Kishwaukee Cmty. Coll., Case No. 3:19-cv-50334, 2021 WL 5356761, at *6 n.6 (N.D. Ill. Nov.

17, 2021) (“In memoranda supporting or opposing a motion to dismiss, cases that were decided

on summary judgment (or on appeal of summary judgment) are only moderately helpful because

of the differing standards.”).

Here, Plaintiff’s factual allegations are more substantial: He indicates the type of

condition he has (lung); a symptom of that condition (affecting his breathing); and a relatively

recent year of diagnosis (2017). Compl. 2, 5. Further, he alleges he visited his physician

regarding his condition twice in April 2020. Id. at 2. While discovery may vindicate

Defendant’s assertion that Plaintiff’s physician “did little more than issue two ‘get out of work’

notes at Plaintiff’s request,” Mem. Supp. Mot. Dismiss 4, an inference that Plaintiff obtained

examinations, evaluations, or other types of treatment at those visits is just as readily drawn.

When deciding on a motion to dismiss, the Court must credit the inference favorable to Plaintiff.

See Carlson, 758 F.3d at 826.

Also persuasive to the Court is Plaintiff’s argument that because he has alleged both his

FMLA requests were approved, he has alleged facts showing that Defendant has admitted he

suffers from a serious health condition. See Resp. Mot. Dismiss 3–4, ECF No. 10. The Court

wishes Plaintiff would have offered more substantial support for this argument, particularly

where Defendant has identified a somewhat useful case, see Mem. Supp. Mot. Dismiss 5, though

with distinguishable facts. In Bucks v. Mr. Bults, Inc., the plaintiff alleged his work injury—he

had fallen from a trailer—was a serious health condition; the employer moved to dismiss his

FMLA retaliation claim, arguing the condition was insufficiently pleaded. 218 F. Supp. 3d 776,

777–80 (S.D. Ill. 2016). In response, the plaintiff argued that “an employer who grants FMLA

leave is equitably estopped from later asserting lack of eligibility for said leave when defending a

claim of retaliation.” Id. at 780. The court found merit in the argument but also found the

plaintiff never actually alleged his employer approved the leave. See id. at 781. Here, Plaintiff

has made the requisite allegations. Compl. 2; see also May 6, 2020 FMLA Letter, Compl. Ex. A,

ECF No. 1-1 (approving Plaintiff’s first FMLA request); July 29, 2020 FMLA Letter, Compl.

Ex. B., ECF No. 1-2 (approving Plaintiff’s second FMLA request).

The Court finds that Plaintiff’s allegations that he was twice approved for FMLA leave

sufficiently plead his entitlement to leave under the FMLA: If nothing else, the allegation that

Plaintiff’s requests were successful prompts the reasonable inference he qualified for benefits.

See Fath v. Heritage Valley Med. Grp., Civil Action No. 2:12-cv-00989, 2013 WL 433040, at

*2–3 (W.D. Pa. Feb. 1, 2013) (inferring, from the fact that the defendant had twice certified the

plaintiff’s mother’s serious health condition in approving the plaintiff’s FMLA leave, that the

mother indeed had a serious health condition); cf. Jones v. Maywood Melrose Park Broadview

Sch. Dist. 89, Case No. 16-cv-09652, 2017 WL 2936709, at *3 (N.D. Ill. July 10, 2017) (“[The]

[p]laintiff alleges that he was entitled to, applied for, and was approved for FMLA leave. That

allegation suffices to plead that [the] [p]laintiff is an eligible employee.”). And because

Plaintiff’s FMLA leave was twice approved, it is similarly difficult for Defendant “to effectively

argue that it is not on notice as to the nature of the claims against it.” See Fath, 2013 WL

433040, at *3.

CONCLUSION

Accordingly, Defendant Tyson Fresh Meats, Inc.’s motion to dismiss, ECF No. 7, is

denied. Defendant’s answer is due February 10, 2022. See Fed. R. Civ. P. 12(a)(4)(A).

Entered this 27th day of January, 2022.

s/ Sara Darrow

SARA DARROW

CHIEF UNITED STATES DISTRICT JUDGE