# Cupi v. Carle BroMenn Medical Center

> District Court, C.D. Illinois · January 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10136623

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** January 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

MARIA E. CUPI, )
)
Plaintiff, )
)
v. ) Case No. 1:21-cv-01286
)
CARLE BROMENN MEDICAL )
CENTER, )
)
Defendant. )

ORDER & OPINION
This matter is before the Court on Defendant’s Motion to Dismiss for Failure
to State a Claim. (Doc. 8). Plaintiff has Responded (doc. 11), so this matter is ripe for
review. For the following reasons, the Motion is granted.
BACKGROUND1
Plaintiff Maria E. Cupi filed the instant lawsuit against her former employer,
Defendant Carle Bromenn Medical Center, following Defendant’s decision to
terminate her employment. (Doc. 1). Plaintiff alleges her termination constitutes a
violation of Title VII of the Civil Rights Act of 1964 (Count I), the Americans with
Disabilities Act of 1990 (ADA) (Count II), and Illinois public policy (Count III) and
claims Defendant failed to pay wages due in violation of the Illinois Wage Payment
and Collection Act (Count IV) and the United States Fair Labor Standards Act

1 The facts in this section are derived from the docket and Complaint and, consistent
with the applicable legal standard, are accepted as true while considering the instant
Motion. See United States ex rel. Berkowitz v. Automation Aids, Inc., 896 F.3d 834,
839 (7th Cir. 2018).
(FLSA) (Count V). (Doc. 1). In the instant Motion, Defendant seeks dismissal of
Counts II and III under Federal Rule of Civil Procedure 12(b)(6). (Doc. 8 at 1).
The facts relevant to Counts II and III are as follows. Plaintiff was hired by

Defendant in July 2019. (Doc. 1 at 3). On October 2, 2020, Plaintiff called in sick with
a fever and reported she had been exposed to COVID-19. (Doc. 1 at 3). Defendant
agreed Plaintiff could not work her scheduled shift that day and advised that her
absence was covered by Defendant’s COVID-19 policy. (Doc. 1 at 3–4, 13). The next
day, Plaintiff tested negative for COVID-19. (Doc. 1 at 4). On October 5, Defendant
informed Plaintiff she could return to work. (Doc. 1 at 4). She was scheduled to work

the following day (October 6), and Plaintiff’s supervisor asked her to arrive early to
help move patients; when she arrived, she was called into her supervisor’s office,
where she was terminated for violating Defendant’s attendance policy. (Doc. 1 at 4,
14). The termination letter cited the October 2 absence as one of several alleged
violations. (Doc. 1 at 4, 14).
LEGAL STANDARD
To survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), the

complaint must contain a “short and plain statement of the [plaintiff’s] claim”
sufficient to plausibly demonstrate entitlement to relief. Fed. R. Civ. P. 8(a)(2); Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555–57 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A plaintiff is not required to anticipate defenses or plead
extensive facts or legal theories; rather, the complaint need only contain enough facts
“to present a story that holds together.” Twombly, 550 U.S. at 570; Swanson v.
Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). The Seventh Circuit has

consistently noted the essential function of Rule 8(a)(2) is to put the defendant on
notice. Divane v. Nw. Univ., 953 F.3d 980, 987 (7th Cir. 2020) (“A complaint must
‘give the defendant fair notice of what . . . the claim is and the grounds upon which it
rests.’ ” (quoting Twombly, 550 U.S. at 555)).
On review of a Rule 12(b)(6) motion, courts construe the complaint in the light
most favorable to the plaintiff. See United States ex rel. Berkowitz v. Automation Aids,

Inc., 896 F.3d 834, 839 (7th Cir. 2018) (citing Kubiak v. City of Chicago, 810 F.3d 476,
480–81 (7th Cir. 2016)). This means “accept[ing] all of the well-pleaded facts as true
and ‘draw[ing] all reasonable inferences [from those facts] in favor of the plaintiff.’ ”
Id. (quoting Kubiak, 810 F.3d at 480–81). The court “may reject sheer speculation,
bald assertions, and unsupported conclusory statements.” Taha v. Int’l Bhd. of
Teamsters, Loc. 781, 947 F.3d 464, 469 (7th Cir. 2020). “ ‘Naked assertions devoid of
factual enhancement’ [are] insufficient.” Dabbs v. Peoria Cnty. Ill., No. 1:16-cv-01463,

2017 WL 3574999, at *2 (C.D. Ill. Jan. 12, 2017) (quoting Iqbal, 556 U.S. at 678),
aff’d, 690 F. App’x 416 (7th Cir. 2017)).
DISCUSSION
The Court will consider Defendant’s requests to dismiss Counts II and III,
respectively.
I. Count II Fails to State a Claim under the ADA
Plaintiff’s claim for relief under the ADA is both indiscernible and incredible.
She alleges she “had a fever, which is a symptom of COVID-19, on the day [Defendant]

documented as her third attendance violation occurrence. This condition was a
physical impairment and considered a disability under the ADA that substantially
limited her strength and stamina.” (Doc. 1 at 8). She further alleges “[e]mployers,
under the ADA, are required to make reasonable accommodations for employees
based on their actual or perceived disability” and then appears to suggest her
termination was both discriminatory and a failure to accommodate a disability. (Doc.
1 at 8). The Complaint does not specify whether Plaintiff claims her fever itself was

a disability or whether she claims Defendant discriminated against her because it
perceived her as having a disability in the form of a fever or COVID-19. Her Response
does little to clear the confusion. It refers to her disability as her “fever and illness”
(doc. 11 at 4), states she believed she had COVID-19 (doc. 11 at 5), and goes on to
argue—at length—COVID-19 can constitute a disability per recent guidance from the
Equal Employment Opportunity Commission (EEOC) (doc. 11 at 5–6). It also

summarizes her claim as arising from being “fired due to her disability or perceived
disability . . . without any accommodation.” (Doc. 11 at 5).
The ADA was enacted “to provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.
§ 12101(b)(1). “Discrimination can take the form of treating a disabled employee
differently from other workers or failing to make reasonable accommodations to the
known limitations of the employee.” Youngman v. Peoria Cty., 947 F.3d 1037, 1042
(7th Cir. 2020); 42 U.S.C. § 12112(b). Plaintiff seems to allege both forms of
discrimination.
A. Disparate Treatment

To prevail on a disparate treatment claim, “a plaintiff must show (1) he is
disabled; (2) he is otherwise qualified to perform the essential functions of the job
with or without reasonable accommodation; and (3) the adverse job action was caused
by his disability.” Shell v. Burlington N. Santa Fe Ry. Co., 941 F.3d 331, 335 (7th Cir.
2019) (internal quotation marks omitted). Disability is defined as: “(A) a physical or
mental impairment that substantially limits one or more major life activities of [an]
individual; (B) a record of such an impairment; or (C) being regarded as having such

an impairment.” 42 U.S.C. § 12102(1); see also 29 C.F.R. § 1630.2.2 As stated, Plaintiff
appears to base her claim on one or all of the following theories: her fever was an
actual disability or Defendant perceived her as being disabled because of her fever or
possible COVID-19 infection.
1. Fever as an Actual Disability
According to the Complaint, Plaintiff’s fever began on October 2 and she was
recovered on or before October 5 (doc. 1 at 4); neither the Complaint nor Response

allege any long-term effects or limitations stemming from the fever. Assuming,

2 “EEOC regulations interpreting the ADA are entitled to deference . . . , unless they
are ‘arbitrary, capricious, or manifestly contrary to the statute.’ ” Richardson v.
Chicago Transit Auth., 926 F.3d 881, 887 (7th Cir. 2019) (quoting Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 844 (1984)).
arguendo, Plaintiff’s fever constitutes a physical impairment, 29 C.F.R. §
1630.2(h)(1),3 the Complaint falls far short of stating a cognizable claim for relief.
Though the 2008 amendments to the ADA broadened its scope, it did not so

expand the Act to cover minor, acute illnesses like the common cold, flu, or garden-
variety fevers. See Powers v. USF Holland, Inc., 667 F.3d 815, 824 (7th Cir. 2011);
Kieffer v. CPR Restoration & Cleaning Serv., LLC, 200 F. Supp. 3d 520, 537 (E.D. Pa.
2016) (“The common cold is precisely the kind of ‘transitory and minor’ impairment
that is not considered a disability under the ADA.”). In the Seventh Circuit’s words:
This is a subtle but important point and we wish to be as emphatic about
it as we can. The Act is not a general protection of medically afflicted
persons. It protects people who are discriminated against by their
employer . . . either because they are in fact disabled or because their
employer mistakenly believes them to be disabled. If the employer
discriminates against them on account of their being (or being believed
by him to be) ill, even permanently ill, but not disabled, there is no
violation.
Christian v. St. Anthony Med. Ctr., Inc., 117 F.3d 1051, 1052–53 (7th Cir. 1997). This
point is based on the understanding that trivial illnesses do not sufficiently limit
major life activities to be considered debilitating, even when they require a brief
absence from work. Indeed, the very EEOC guidance Plaintiff relies on states as
much. See What You Should Know About COVID-19 and the ADA, the Rehabilitation
Act, and Other EEO Laws, U.S. Equal Employment Opportunity Commission,
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-

3 “A fever is not an illness by itself,” Fever, Johns Hopkins Medicine,
https://www.hopkinsmedicine.org/health/conditions-and-diseases/fever (last visited
Jan. 7, 2022). The undersigned has not located any authority holding a fever
unrelated to any diagnosis constitutes a physical impairment meeting the EEOC
definition.
rehabilitation-act-and-other-eeo-laws (Dec. 14, 2021) (“Someone infected with the
virus causing COVID-19 . . . whose COVID-19 results in mild symptoms similar to
the common cold or flu that resolve in a matter of weeks—with no other

consequences—will not be substantially limited in a major life activity for purposes
of the ADA. . . . This is so even though this person is subject to [the Centers for Disease
Control (CDC)] guidance for isolation during the period of infectiousness.”). Accepting
Plaintiff’s position would mean any illness requiring an employee to stay home from
work—no matter how minor or fleeting—would immediately trigger ADA protections.
That is certainly not the state of the law.4

2. Perception of Disability
The theory that Defendant perceived Plaintiff as being disabled due to either
her fever or COVID-19 fares no better. To be regarded as disabled means “the
individual has been subjected to an action prohibited by the ADA as amended because
of an actual or perceived impairment that is not both ‘transitory and minor.’ ” 29
C.F.R. § 1630.2(g)(iii).5

4 It is worth noting the “transitory and minor” defense to the “regarded as” prong of
the definition of disability was enacted with the 2008 amendments to the ADA
specifically to combat potential abuse of the provision by those seeking to be
considered disabled under the Act for trivial illnesses such as the cold or flu. 29 C.F.R.
Appendix to Part 1630. This further demonstrates such trivial illnesses are simply
not covered by the ADA.
5 “It may be a defense to a charge of discrimination by an individual claiming coverage
under the ‘regarded as’ prong of the definition of disability that the impairment is (in
the case of an actual impairment) or would be (in the case of a perceived impairment)
‘transitory and minor.’ ” 29 C.F.R. § 1630.15(f). The instant motion is filed under Rule
12(b)(6); the Court does not consider the “transitory and minor” defense because
Complaints need not anticipate defenses, infra at 2–3.
The Complaint contains no allegations demonstrating Defendant believed
Plaintiff’s fever was a disability or that, once it subsided and she was cleared to return
to work, it would interfere with her ability to perform her job duties. Again, the

necessity for a brief leave of absence to recover from a mild illness does not, by itself,
constitute a substantial limitation of major life activities, so Defendant’s agreement
that Plaintiff should stay home if feverish does not itself demonstrate it believed her
fever substantially limited her ability to work. Plaintiff has thus failed to adequately
allege Defendant regarded her as disabled due to her fever.
As to COVID-19, Plaintiff spends a considerable portion of her Response

arguing COVID-19 can constitute a disability under the ADA, citing recent guidance
from the EEOC. The Court does not discount this possibility. But Plaintiff did not
have COVID-19. And the Complaint does not suggest Defendant believed Plaintiff
had COVID-19. While Plaintiff reported a fever and exposure to COVID-19 and
Defendant advised her to stay home per its COVID-19 policy, it does not
automatically follow that Defendant regarded Plaintiff as being infected with the
virus; Defendant’s actions were simply in line with the CDC’s guidance to quarantine

until COVID-19 is ruled out, see Quarantine & Isolation, Ctrs. For Disease Control,
https://www.cdc.gov/coronavirus/2019-ncov/your-health/quarantine-isolation.html
(Jan. 4, 2022). At any rate, the adverse employment action—Plaintiff’s termination—
occurred after Defendant was seemingly aware Plaintiff’s COVID-19 test was
negative. (See doc. 1 at 4 (alleging Plaintiff tested negative for COVID-19 on October
3, was advised by Defendant that she was cleared to return to work on October 5, and
was terminated on October 6)). Nothing about these facts suggest Defendant
terminated Plaintiff because it believed her to be infected with COVID-19.
In sum, Plaintiff has failed to adequately allege she was disabled at any time

relevant to the Complaint.
B. Failure to Accommodate
To prevail on a failure-to-accommodate claim, a Plaintiff must show: “(1) he
was a qualified individual with a disability, (2) his employer was aware of his
disability, and (3) the employer failed to reasonably accommodate his disability.”
Youngman, 947 F.3d at 1042. As discussed, Plaintiff has failed to adequately allege
she has (or had) a disability; she thus cannot sustain a claim for failure to

accommodate.
Relatedly, the Seventh Circuit has expressed doubt as to whether a failure-to-
accommodate claim can be predicated by a disability established through the
perception prong, noting there is a circuit split on the question. See Cigan v.
Chippewa Falls Sch. Dist., 388 F.3d 331, 335–36 (7th Cir. 2004). Since, several
district courts in this Circuit have held such claims cannot be predicated on the

perception prong as a matter of law and have dismissed such claims at both the
dismissal and summary judgment stages. See Wilkes v. City of Fort Wayne, No. 1:10-
CV-169, 2011 WL 3806253, at *10 n.20 (N.D. Ind. Aug. 26, 2011) (collecting cases).
The reasoning of these decisions is persuasive, but like the Seventh Circuit, the
undersigned will withhold rendering a decision on this question until it is a decisive
issue.
C. Summation
Plaintiff’s claim is a gross mischaracterization of the purpose and protections
of the ADA. She registered a mild fever and was cleared to return to work—seemingly

fully recovered—in three days. That is very obviously not a disability as contemplated
by the ADA. While Plaintiff may, in the end, have a meritorious claim against
Defendant stemming from her termination of employment, the Court will not
countenance this blatant use of the “spaghetti approach” to litigation. No reasonable
person employing common sense could sincerely believe such a fever constituted an
ADA-protected disability, and claiming as much borders a violation of Federal Rule
of Civil Procedure 11(b)(2).

II. Count III Fails to State a Claim for Violation of Illinois Public Policy
Plaintiff’s claim for violation of Illinois public policy, coined “retaliatory
discharge” in Illinois legal parlance, is premised on the notion that Defendant’s
decision to effectively penalize Plaintiff for being absent from work due to a fever
contravenes Illinois public policy as it relates to combatting the ongoing COVID-19
pandemic.
As a general matter, Illinois is an employment at-will state. “Courts have

acknowledged, however, that an employer’s ability to discharge an employee without
cause in an oppressive manner could undermine a significant public policy.” Roberts
v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 2019 IL 123594, ¶ 22, 135 N.E.3d 891.
As such, Illinois courts recognize the tort of retaliatory discharge. Id. “To state a claim
for retaliatory discharge, an employee must plead that (1) the employer discharged
the employee, (2) the discharge was in retaliation for the employee’s activities, and
(3) the discharge violates a clearly mandated public policy.” Id. ¶ 23.
Defendant challenges the sufficiency of Plaintiff’s pleading as it relates to the

second and third elements. Defendant first argues Plaintiff was not terminated in
retaliation for her activities. The Court disagrees at this stage. The Complaint and
its attachments plausibly allege Plaintiff was terminated, at least in part, because
she was absent from work on October 2, 2020, due to a fever, which is a symptom of
COVID-19. Therefore, the theory is that Defendant retaliated against Plaintiff for
being absent from work.

Plaintiff further alleges current public policy encourages employees to stay
home while ill and prohibits employers from penalizing employees “for taking time
off work while ill.” (Doc. 1 at 9). Plaintiff’s theory is similar to the plaintiff’s in Wheeler
v. Caterpillar Tractor Co., 108 Ill. 2d 502, 509, 485 N.E.2d 372, 377 (1985), wherein
the plaintiff employee “was discharged in retaliation for his refusal to work in the
handling of cobalt 60 while the operations were being conducted in violation of
regulations promulgated by the Nuclear Regulatory Commission and published in

the Federal Register.” In both cases, the employee was terminated for refusing to
work in a way that allegedly contravened public policy: in Wheeler, the employee
refused to work in violation of applicable federal regulations and here, Plaintiff
refused to work while ill during a global pandemic. The Illinois Supreme Court held
this theory constituted a cognizable claim for retaliatory discharge. Id. at 510–11.6
Plaintiff’s claim falters, however, on its source of “clearly mandated public

policy.” The Illinois Supreme Court has described “clearly mandated public policy” as
follows:
There is no precise definition of the term. In general, it can be said that
public policy concerns what is right and just and what affects the
citizens of the State collectively. It is to be found in the State’s
constitution and statutes and, when they are silent, in its judicial
decisions. Although there is no precise line of demarcation dividing
matters that are the subject of public policies from matters purely
personal, a survey of cases in other States involving retaliatory
discharges shows that a matter must strike at the heart of a citizen’s
social rights, duties, and responsibilities before the tort will be allowed.
Palmateer v. Int’l Harvester Co., 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878–79 (1981)
(citation omitted); see also Roberts, 2019 IL 123594, ¶ 24 (“To succeed in a retaliatory
discharge claim, the public policy alleged by a plaintiff must be found in the state or

6 The undersigned notes Defendant’s argument that retaliatory discharge claims are
recognized in only two settings. (Doc. 8 at 9). It is true the Illinois Supreme Court
has, on more than one occasion, stated:
[A] review of Illinois case law reveals that retaliatory discharge actions
have been allowed in two settings: where an employee is discharged for
filing, or in anticipation of filing, a claim under the Workers’
Compensation Act . . . ; or where an employee is discharged in retaliation
for the reporting of illegal or improper conduct, otherwise known as
“whistleblowing.”
Michael v. Precision All. Grp., LLC, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183. In Wheeler,
the Illinois Supreme Court likened the plaintiff’s theory (refusing to work in
conditions that violated federal regulations) to the line of cases involving
whistleblowing. Perhaps, then, it grouped this theory into the whistleblowing
“setting” or overlooked it altogether in making the above statement. At any rate, the
undersigned finds Plaintiff’s theory here is sufficiently similar to that approved by
the Illinois Supreme Court in Wheeler. See also Palmateer v. Int’l Harvester Co., 85
Ill. 2d 124, 130, 421 N.E.2d 876, 879 (1981) (“[A]ctions for retaliatory discharge have
been allowed where the employee was fired for refusing to violate a statute.”).
federal constitutions and statutes and, when they are silent, in Illinois or federal case
law.”). While this explanation is somewhat vague, it is clear from Illinois precedent
that public policy in this context must be derived from an applicable mandate.

Here, Plaintiff cites guidance from the Illinois Department of Public Health as
her source of public policy. (Doc. 1 at 9, 18–24). This guidance does not carry any
coercive power necessary to be considered a mandate; it is not a constitutional
provision, statute, regulation, or even an executive order. Indeed, the portion of the
guidance relied upon by Plaintiff explicitly states it is not mandatory but rather is a
compilation of voluntary measures “that employers are encouraged to consider to

promote a healthy work environment and limit the spread of COVID-19.” (Doc. 1 at
20). Optional measures are not “clearly mandated.” Because Plaintiff has not invoked
any “clearly mandated public policy,” her claim for retaliatory discharge cannot
proceed.
III. Leave to Amend
“Although Federal Rule of Civil Procedure 15(a)(2) directs courts to ‘freely give
leave [to amend] when justice so requires,’ courts may deny a proposed amended

pleading if the amendment would be futile.” Always Towing & Recovery, Inc. v. City
of Milwaukee, 2 F.4th 695, 707 (7th Cir. 2021) (quoting Int’l Union of Operating
Engineers, Loc. 139, AFL-CIO v. Daley, 983 F.3d 287, 296 (7th Cir. 2020)). As Count
II fails to advance any cognizable theory of disability discrimination under the ADA,
the Court finds any attempt to cure the pleading would be futile. Count II is thus
dismissed with prejudice. However, the Court recognizes the possibility that Plaintiff
may be able to identify a clearly mandated public policy to cure the deficiencies
identified with respect to Count III. Count III is thus dismissed without prejudice,
and Plaintiff may move for leave to file an amended complaint if she is able to identify
a clearly mandated public policy that precluded her termination.

CONCLUSION
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss for Failure
to State a Claim (doc. 8) is GRANTED; Count II is DISMISSED WITH PREJUDICE
and Count III is DISMISSED WITHOUT PREJUDICE. Plaintiff may, consistent with
this Order, move for leave to file an amended complaint within fourteen (14) days.
Defendant shall Answer the Complaint within fourteen (14) days of the date of this

Order.

SO ORDERED.

Entered this 14th day of January 2022.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10136623. Public record. Not legal advice.