Nache v. BNSF Railway Company

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

JAMES NACHE, )

)

Plaintiff, )

)

v. ) Case No. 4:23-cv-04063-SLD-JEH

)

BNSF RAILWAY COMPANY, )

)

Defendant. )

ORDER

Plaintiff James Nache sued Defendant BNSF Railway Company (“BNSF”) for allegedly

violating the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12213, and the

Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601–2654. See generally First Am.

Compl. (“FAC”), ECF No. 13. Before the Court are BNSF’s 12(b)(6) Motion to Dismiss Counts

I, II, III & IV of Plaintiff’s First Amended Complaint, ECF No. 14, and BNSF’s Motion for

Leave to File Its Reply in Support of Its 12(b)(6) Motion to Dismiss Counts I, II, III & IV of

Plaintiff’s First Amended Complaint, ECF No. 18. For the following reasons, BNSF’s motion to

dismiss is DENIED, and BNSF’s motion for leave to file a reply is GRANTED.

BACKGROUND1

Nache was hired by BNSF on or around September 19, 2011, as a track maintenance

laborer at BNSF’s Galesburg, Illinois location. His duties included tasks like inspecting,

repairing, and maintaining the railroad-track infrastructure. BNSF was aware that he had

ulcerative colitis (“UC”) when he was hired, and Nache had not received any disciplinary

1 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 nonmovant]’s favor.” Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). Unless

otherwise noted, the alleged factual background is drawn from Nache’s FAC. The Court also considers the exhibits

which are attached to the complaint. See Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013).

reviews or writeups prior to the events in question. On or around January 1, 2022, he contracted

“a severe and life threatening condition due to his disability, UC.” FAC ¶ 24. He informed

BNSF of this condition around this same time and was placed “on intermittent FMLA leave

beginning on or around January 7, 2022 through January 24, 2022.” Id. ¶ 26. He had a medical

procedure scheduled for around the beginning of February 2022 to determine if he could return

to work and provided documentation for the procedure—along with a request to continue his

FMLA leave—to BNSF’s Employer’s Leave Administrator Kaitlyn Williams. At some point,

Nache contracted COVID-19, delaying his procedure until about February 24, 2022. Nache kept

in touch with Williams during his FMLA leave.

Sometime in or about March 2022, Nache received medical-test results and informed

BNSF that he was cleared to return to work without restrictions. He received no response from

BNSF until about April 1, 2022, when Williams called and emailed him requesting that he resign

from BNSF. Nache wanted to keep working for BNSF, but BNSF ignored him, and he never

heard from BNSF again. Nache complained to the Equal Employment Opportunity Commission.

Charge of Discrimination, First Am. Compl. Ex. A, ECF No. 13 at 13–15. He received his right-

to-sue notice on April 3, 2023. Dismissal and Notice of Rights, First Am. Compl. Ex. B, ECF

No. 13 at 16–20. He then filed his first complaint in this Court. Compl. 1, ECF No. 1

The Court gave Nache leave to file the FAC. July 11, 2023 Text Order (Hawley, J.). The

FAC contains five counts. Nache alleges that BNSF violated the ADA by: (I) discriminating

against him based on disability; (II) failing to accommodate his disability; and (III) retaliating

against him for requesting an accommodation. He alleges that BNSF violated the FMLA by:

(IV) denying him the exercise of his FMLA rights; and (V) retaliating against him for exercising

his FMLA rights.

BNSF filed a motion to dismiss all but Count V. Mot. Dismiss 1; Mem. Supp. Mot.

Dismiss 1–2, ECF No. 15. Nache opposes the motion to dismiss in its entirety but alternatively

asks for leave to amend if the Court finds that the FAC is deficient. Resp. Mot. Dismiss 1–2,

ECF No. 17. BNSF filed a motion seeking leave to file a reply to Nache’s response. Mot. Leave

File Reply 1–2; see also Reply Mot. Dismiss, Mot. Leave File Reply Ex. A, ECF No. 18–1.

Nache did not oppose the filing of the reply.

DISCUSSION

I. Reply

The Court generally requires leave of court to file replies, see Civil LR 7.1(B)(3), and

such leave may be granted if the non-movant introduces “new and unexpected issues in his

response” or if it would further “the interest of completeness.” Magnuson v. Exelon Corp., 658

F. Supp. 3d 652, 658 (C.D. Ill. 2023) (quotation marks omitted). BNSF’s reply addresses three

points: (1) whether Nache sufficiently pleads but-for causation between his UC and termination;

(2) whether the FAC alleges that BNSF denied his accommodation; and (3) whether the FAC

alleges that BNSF denied his rights under the FMLA. See Mot. Leave File Reply ¶ 9; Reply

Mot. Dismiss 1–5.

The Court finds that Nache’s response raised new issues with respect to whether he

sufficiently alleges “suspicious timing” as the causal link required by the ADA, see Resp. Mot.

Dismiss 8–10, and whether he alleges that BNSF granted his requested accommodation of

additional FMLA leave for his procedure in February, see, e.g., id. at 11–12. The Court finds the

reply addressing these issues is helpful to its disposition of the motion to dismiss, and leave is

granted. See Magnuson, 658 F. Supp. 3d at 658.

II. Motion to Dismiss

A. Legal Standard

A 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). At the motion to dismiss stage, the key

inquiry is whether the complaint is “sufficient to provide the defendant with ‘fair notice’ of the

plaintiff’s claim and its basis.” Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934

(7th Cir. 2012) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). While “detailed factual

allegations are unnecessary, the complaint must have ‘enough facts to state a claim to relief that

is plausible on its face.’” Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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).

“[M]ere ‘labels and conclusions or a formulaic recitation of the elements of a cause of action’”

are not sufficient to satisfy the plausibility standard. Bell v. City of Chicago, 835 F.3d 736, 738

(7th Cir. 2016) (quoting Iqbal, 556 U.S. at 678). A court must take “[t]he complaint’s well-

pleaded factual allegations, though not its legal conclusions, . . . [as] true,” Phillips v. Prudential

Ins. Co. of Am., 714 F.3d 1017, 1019 (7th Cir. 2013), and “draw all inferences in the light most

favorable to the nonmoving party,” Vesely v. Armslist LLC, 762 F.3d 661, 664 (7th Cir. 2014).

B. Analysis

The Court takes up BNSF’s arguments for dismissing Counts I, II, III, and IV in turn.

BNSF argues that Count I—disability discrimination—should be dismissed because Nache fails

to sufficiently plead that: (1) he was disabled, (2) he was a qualified individual, and (3) his

disability was a but-for cause of his termination. Mem. Supp. Mot. Dismiss 3–8. It argues

Count II—failure to accommodate—fails because the FAC alleges that BNSF gave Nache his

requested accommodation. Id. at 9–10. It argues Count III—ADA retaliation—should be

dismissed because it is an impermissible repackaging of his failure-to-accommodate claim and

because he fails to allege a causal link between his termination and any protected activity. Id. at

10–12. Finally, it argues that Count IV—FMLA interference and denial—should be dismissed

because Nache alleges that he was able to take twelve weeks of FMLA leave, such that BNSF

did not interfere with his rights under the FMLA. Id. at 12–13.

1. Count I: ADA Disability Discrimination

“To establish an ADA discrimination claim, [a plaintiff] must show that he: (1) was

disabled within the meaning of the ADA; (2) was qualified to perform the essential functions of

the relevant job either with or without reasonable accommodation; and (3) suffered an adverse

employment decision because of his disability.” Sandefur v. Dart, 979 F.3d 1145, 1151 (7th Cir.

2020). The Court addresses each prong in turn.

a. Disabled

The ADA was significantly amended “in 2008 to ensure that the ADA’s ‘definition of

disability . . . be construed in favor of broad coverage.’” Richardson v. Chi. Transit Auth., 926

F.3d 881, 888 (7th Cir. 2019) (alteration in original) (quoting 42 U.S.C. § 12102(4)(A)); see also

ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). “[W]hether or not

a medical condition rises to the level of a disability is to be [decided] on an individualized case-

by-case basis.” Kampmier v. Emeritus Corp., 472 F.3d 930, 938 (7th Cir. 2007). “[T]he term

‘disability’ means that an individual has: (1) a physical or mental impairment that substantially

limits one or more ‘major life activities’; (2) a record of such impairment; or (3) being regarded

as having such an impairment.” Carothers v. Cnty. of Cook, 808 F.3d 1140, 1147 (7th Cir. 2015)

(quoting 42 U.S.C. § 12102(1)). “[W]hether an impairment substantially limits a major life

activity is ‘not meant to be a demanding standard,’ and ‘shall be construed broadly in favor of

expansive coverage.’” Frazier-Hill v. Chi. Transit Auth., 75 F.4th 797, 803 (7th Cir. 2023)

(quoting 29 C.F.R. § 1630.2(j)(1)(i)).

The ADA defines “major life activities” with an illustrative and non-exhaustive list,

namely: “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)(A) (emphasis added). Major life activities

“also includes the operation of a major bodily function,” such as “functions of the immune

system” and “digestive, bowel, [and] bladder . . . functions.” Id. § 12102(2)(B). The ADA

instructs that “[a]n impairment that is episodic or in remission is a disability if it would

substantially limit a major life activity when active.” Id. § 12102(4)(D); see Gogos v. AMS

Mech. Sys., Inc., 737 F.3d 1170, 1173 (7th Cir. 2013) (explaining that the relevant inquiry under

the amended ADA is whether the alleged impairments “despite their short duration . . .

substantially impaired a major life activity when they occurred”).

Nache alleges that he “is disabled as a result of [UC], an incurable inflammatory bowel

disease.” FAC ¶ 18. He says his UC causes him symptoms like “severe abdominal pain,

dehydration, fatigue, severe and rapid weight loss, diarrhea, blood in his stool, and scarring

within the bile ducts,” which affects major life activities like “his ability to care for himself,

sleep, [and eat],” as well as the functioning of major bodily functions like his digestive system

and immune system. Id. ¶¶ 19–20. This is sufficient—BNSF’s citations to the contrary either

support Nache, see Mem. Supp. Mot. Dismiss 5 (citing Mack v. Chi. Transit Auth. (Mack IV),

No. 17 C 6908, 2020 WL 3414952, at *3 (N.D. Ill. June 22, 2020) (finding that the plaintiff’s

reply-brief statement clarifying how her impairments substantially limited her major life

activities was sufficient to conclude that her complaint plausibly alleged that she was disabled)),2

or are outdated considering the authorities cited above, see id. (citing Cassimy v. Bd. of Educ. of

Rockford Pub. Schs., Dist. No. 205, 461 F.3d 932, 937 (7th Cir. 2006) (finding that “isolated

bouts” of depression did not constitute a disability under a prior iteration of the ADA)). Nache

plausibly alleges that he is disabled.

b. Qualified Individual

The ADA defines qualified individual as “an individual who, with or without reasonable

accommodation, can perform the essential functions of the employment position that such

individual holds or desires.” 42 U.S.C. § 12111(8). Courts look to whether the plaintiff

sufficiently alleges that he “(1) satisfies the requisite skill, experience, education, and other job-

related requirements of his employment position, and (2) can perform the essential functions of

the position held or desired, with or without reasonable accommodation.” Budde v. Kane Cnty.

Forest Pres., 597 F.3d 860, 862 (7th Cir. 2010) (citing 29 C.F.R. § 1630.2(m)); see also

Brumfield v. City of Chicago, 735 F.3d 619, 632–33 (7th Cir. 2013) (clarifying the scope of the

ADA’s discrimination provisions as compared to its accommodation provisions). Ability to

perform “essential functions of [the] job[] is examined as of the time of the adverse employment

decision at issue.” Basden v. Pro. Transp., Inc., 714 F.3d 1034, 1037 (7th Cir. 2013).

Nache alleges that he is a qualified individual “because he is able to perform the essential

functions of his job with or without accommodation,” as evidenced by “his extensive work

background in the track maintenance field and his experience at [BNSF].” FAC ¶ 21; see also

2 BNSF purports to quote from Mack v. Chicago Transit Authority (Mack V), No. 17-cv-06908, 2020 WL 6545039

(N.D. Ill. Nov. 6, 2020), but the quoted language is from Mack IV. Compare Mack IV, 2020 WL 3414952, at *3,

with Mem. Supp. Mot. Dismiss 5.

id. ¶ 14 (alleging that he was hired by BNSF on or around September 19, 2011); id. ¶ 16 (listing

his alleged duties). BNSF says these allegations are conclusory and insufficient. Mem. Supp.

Mot. Dismiss 5–7. Nache highlights that he was cleared by his doctors in March 2022 to return

to work and points to the inference that he “was a qualified individual because he held the

position for a significant period of time and was capable of performing the essential functions of

the job, and indeed had done so for over a decade.” Resp. Mot. Dismiss 7 (citing FAC ¶ 33).

Allegations that the plaintiff had prior experience in the at-issue position and that he held

that position with the defendant-employer are sufficient to adequately plead qualification to

perform the essential functions of the job. See Gogos, 737 F.3d at 1173; Chi. Reg’l Council of

Carpenters v. Thorne Assocs., Inc., 893 F. Supp. 2d 952, 962 (N.D. Ill. 2012). Nache’s

allegation that he received medical authorization to return to work without restrictions, FAC

¶ 33, further supports the plausibility of his status as a qualified individual at the time of his

termination, see Winkfield v. Chi. Transit Auth., 435 F. Supp. 3d 904, 909–10 (N.D. Ill. 2020).

Contrary to BNSF’s assertions, these allegations are not legal conclusions but “factual

statement[s] concerning his physical capabilities at the time. And at the pleading stage, th[ese]

fact[s] must be accepted as true.” Elzeftawy v. Pernix Grp., Inc., 477 F. Supp. 3d 734, 763 (N.D.

Ill. 2020). Nache plausibly alleges that he is a qualified individual.

c. Causation

Finally, the ADA requires plausible allegations of a but-for causal connection between

the adverse employment action and the plaintiff’s disability. See Brooks v. Avancez, 39 F.4th

424, 440 & n.11 (7th Cir. 2022) (noting that the Seventh Circuit continues to require but-for

causation despite the amended ADA’s usage of “on the basis of” rather than “because of”). “At

the pleading stage, a complaint need only identify ‘the type of discrimination’ that the plaintiff

believes occurred, ‘by whom, . . . and when.’” Beal v. Chi. Transit Auth., No. 23 CV 1387, 2023

WL 6461413, at *4 (N.D. Ill. Oct. 4, 2023) (alteration in original) (quoting Huri v. Off. of the

Chief Judge of the Cir. Ct. of Cook Cnty., 804 F.3d 826, 833 (7th Cir. 2015)); see also Clark v. L.

Off. of Terrence Kennedy, Jr., 709 F. App’x 826, 828 (7th Cir. 2017) (“The pleading requirement

for employment-discrimination claims is minimal. A plaintiff need only identify the type of

discrimination, when it occurred, and by whom.”). BNSF does not meaningfully contest that its

failure to return Nache to work could constitute an adverse employment action. See Mem. Supp.

Mot. Dismiss 3 (“Nache arguably pleads an adverse employment action (BNSF failed to return

him to work) . . . .”); see also Tyler v. Ispat Inland Inc., 245 F.3d 969, 972 (7th Cir. 2001)

(“[T]he action must cause an adverse change in the terms and conditions of employment that is

more disruptive than a mere inconvenience or alteration of job responsibilities.”).

Instead, BNSF argues that Nache fails to plausibly allege this causal link between his

adverse employment actions and his UC, and that district courts routinely dismiss disability-

discrimination claims which “allege only that the employer failed to return the plaintiff to work,

without other factual content to connect the adverse employment action to the plaintiff’s

purported disability.” Mem. Supp. Mot. Dismiss 7–8. BNSF makes three points in support: (1)

because Nache alleges that he made BNSF aware of his UC when he was hired, the timing of his

dismissal is not suspiciously related to his disability, Reply Mot. Dismiss 3; (2) Nache’s

allegations boil down solely to suspicious timing, id. at 3 & n.1; and (3) Nache’s assertion that

BNSF “terminated [his] employment based on his disability” is a mere legal conclusion which

must be disregarded, id. at 3 (quoting FAC ¶ 47).3

3 BNSF purports to quote FAC ¶ 15, but the quoted language comes from FAC ¶ 47. Compare Reply Mot. Dismiss

3, with FAC ¶ 47.

BNSF’s causation arguments are premature at the motion to dismiss stage. The FAC

alleges that “the timing of [the] forced resignation came at the end of his disability-related

medical leave,” FAC ¶ 38, that BNSF wanted him “to resign so it could avoid accommodating

[him],” id. ¶ 39, and that BNSF terminated his “employment based on his disability,” id. ¶ 47.

Nache identifies the what, who, and when—in other words, he identifies all that is required at

this stage. See Beal, 2023 WL 6461413, at *4. These allegations are not mere legal conclusions

and are sufficient to plausibly allege causation. See Freeman v. Metro. Water Reclamation Dist.

of Greater Chi., 927 F.3d 961, 965 (7th Cir. 2019) (per curiam) (vacating dismissal of complaint

for failure to state a claim because the plaintiff’s allegations that, inter alia, the employer fired

him “‘due to’ his alcoholism and his request to accommodate his condition” were sufficient to

“state claims for disability discrimination and retaliation”); Nash v. Advoc. Aurora Health, Inc.,

No. 23 C 1474, 2023 WL 8718120, at *3 (N.D. Ill. Dec. 18, 2023); Etheridge v. Hudson Grp.

Retail, LLC, No. 20-cv-7204, 2022 WL 375556, at *6 (N.D. Ill. Feb. 8, 2022); Kelley v. Chi.

Transit Auth., No. 20-CV-02881, 2021 WL 698482, at *4 (N.D. Ill. Feb. 23, 2021).

BNSF’s cited cases are unavailing. Unlike the plaintiff in Penny v. Lincoln’s Challenge

Academy, No. 17-cv-2232, 2018 WL 11463009, at *4 (C.D. Ill. Aug. 20, 2018), Nache does not

allege that he was terminated because of his advocacy on behalf of other people with disabilities.

Nor is this a case where Nache failed to “allege any facts to support the inference that he was

terminated not because of his extended leaves of absence but because of his (unidentified)

disability.” See Lee v. Chi. Transit Auth., No. 12-cv-09180, 2016 WL 6680483, at *5 (N.D. Ill.

Nov. 14, 2016), aff’d, 696 F. App’x 752 (7th Cir. 2017); Smajlovic v. Ann & Robert H. Lurie

Child.’s Hosp. of Chi., No. 15-cv-01243, 2016 WL 3595734, at *4 (N.D. Ill. July 5, 2016); cf.

Abdul-Aziz v. Show Dep’t, Inc., No. 09-cv-7609, 2010 WL 3516157, at *3 (N.D. Ill. Aug. 25,

2010) (“[The p]laintiff does not allege that he was refused an open position because of his

alleged arm injury. Thus, his allegations are insufficient with regard[s] to [causation].”). Nache

alleges those necessary facts—he needed time off due to his disability, took that time off, was

refused a return-to-work date, and was asked to resign “based on” his disability. FAC ¶¶ 28–29,

33–36, 47. Nache adequately pleads the necessary causal link, and the Court rejects BNSF’s

arguments for dismissing Count I.

2. Count II: ADA Failure to Accommodate

Claims under the ADA for failure to accommodate require the plaintiff to plausibly allege

that “(1) [the] plaintiff was a qualified individual with a disability; (2) [the] defendant was aware

of his disability; and (3) [the] defendant failed to accommodate his disability reasonably.”

Scheidler v. Indiana, 914 F.3d 535, 541 (7th Cir. 2019); see also Brumfield, 735 F.3d at 632

(“[A]n employer’s accommodation duty is triggered only in situations where an individual who

is qualified on paper requires an accommodation in order to be able to perform the essential

functions of the job.”). The Court’s discussion above shows that Nache has plausibly alleged

that he was disabled, qualified,4 and that BNSF was aware of his disability. See supra Section

II.B.1.

The parties’ dispute focuses on the third element—whether BNSF denied Nache a

reasonable accommodation. The parties do not discuss whether Nache’s request for FMLA leave

is even rightly considered a request for an accommodation under the ADA. See Severson v.

Heartland Woodcraft, Inc., 872 F.3d 476, 482 (7th Cir. 2017) (rejecting the argument that

“employees are entitled to extended time off as a reasonable accommodation” as an “untenable

interpretation of the term ‘reasonable accommodation’” which would “transform[ the ADA] into

4 BNSF argues that Nache is not disabled nor a qualified individual for purposes of his failure-to-accommodate

claim as well but relies solely upon arguments which the Court rejected above. See Mem. Supp. Mot. Dismiss 9.

a medical-leave statute”). Yet the Seventh Circuit has recognized that “[i]ntermittent time off or

a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate

circumstances,” be a reasonable accommodation under the ADA, id. at 481, and that “[t]ime off

may be an apt accommodation for intermittent conditions,” like UC, id. (alteration in original)

(quoting Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003)). The parties do not

contest whether Nache’s requested continuation of FMLA leave was for a reasonably short

period, so the Court assumes that it was.

Instead, BNSF argues that Nache cannot sustain his claim because Naches alleges that

BNSF “provided [him] with the very accommodation he sought,” which was FMLA leave to

deal with his disability-induced condition. Mem. Supp. Mot. Dismiss 9–10; see also Reply Mot.

Dismiss 2 (“Nache’s factual allegations confirm BNSF did not deny Nache any disability

accommodation . . . .”). Nache says that BNSF “confuses” the FAC’s allegations and that he

instead alleges that “while [BNSF] initially accommodated [Nache]’s disability, [it] discontinued

his accommodation and opted to terminate his employment rather than provide him with

additional medical leave.” Resp. Mot. Dismiss 12. The interpretive issue is what he means by

“additional medical leave”: does he means that his accommodation of FMLA leave was

“discontinued” by BNSF when it ignored or denied his February request for FMLA leave,5 or

does he mean that he asked in April for FMLA leave beyond April 1, 2022?

5 The FAC does not specify when Nache asked for additional FMLA leave to accommodate his scheduled medical

procedure, nor when he contracted COVID-19 and thus knew that the procedure would need to be rescheduled, nor

when Nache told Williams of this rescheduling. See FAC ¶¶ 28–29, 31–32. The Court infers that the request for

more FMLA leave to accommodate the procedure was made in or around February 2022, because that procedure

was ultimately conducted on or around February 24, 2022. Id. ¶ 31. The Court refers to this request as the February

request to distinguish it from his initial request for FMLA leave in January 2022. See id. ¶¶ 24–26 (alleging that

Nache told BNSF of his “severe and life threatening condition” on or around January 1, 2022, and was placed on

intermittent FMLA leave from “on or around January 7, 2022 through January 24, 2022”).

The Court is obliged to “draw all inferences in the light most favorable” to Nache. See

Vesely, 762 F.3d at 664. Nache’s loose language when referring to medical leave,6 as well as his

fuzzy timeline, complicates this task. One could read Nache’s allegations as stating that his

February request for continued FMLA leave was granted and that he subsequently requested

more FMLA leave in April, after already exhausting his full allotment of twelve weeks of FMLA

leave. See Trahanas v. Nw. Univ., 64 F.4th 842, 855 (7th Cir. 2023) (“The FMLA requires

certain employers to provide their employees with up to 12 weeks of unpaid leave each year for

qualifying health conditions.”). This reading could be supported by Nache’s discussion of his

termination—he alleges that Williams asked him to resign “on or around April 1, 2022,” and that

he was terminated “while he was on leave.” FAC ¶¶ 36, 41. The Seventh Circuit uses “an

unequivocal notice of termination test to determine the date that an employee has been

terminated.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1061 (7th Cir. 2014) (quotation

marks omitted). “First, there must be a final, ultimate, nontentative decision to terminate the

employee. . . . Second, the employer must give the employee ‘unequivocal’ notice of its final

termination decision.” Id. (alteration in original) (quotation marks omitted). If BNSF denied his

February request and his FMLA leave ended on January 24, 2022, then he could not have been

terminated while on FMLA leave, as he alleges that he was not asked to resign until on or around

April 1, 2022. See FAC ¶ 36.

However, the Court concludes that Nache’s references to being terminated while on leave

refer to an unwanted absence, not FMLA leave. E.g., id. ¶ 41. This harmonizes his allegations

6 The FAC uses different terms for medical leave, and it is unclear whether Nache intended those different terms to

have different meanings. See FAC ¶ 26 (“intermittent FMLA leave”); id. ¶ 27 (“FMLA leave as a result of a

disability-related medical episode”); id. ¶ 29 (“FMLA leave”); id. ¶ 30 (“continued medical leave as a result of

disability-related medical concerns”); id. ¶ 32 (“disability-related FMLA leave”); id. ¶ 38 (“disability-related

medical leave”).

that his February request for more FMLA leave was denied but that he was also terminated while

on “forced” leave on or around April 1, 2022. See Resp. Mot. Dismiss 14 (citing FAC ¶¶ 36–38)

(stating that BNSF “attempted to force [Nache] to resign, with the timing of this push for

resignation coming at the conclusion of [his] (now forced) medical leave” (emphasis added)).

The Court does not agree with BNSF’s assertion that Nache alleges that his February

request for more FMLA leave was granted. He alleges that he was placed “on intermittent

FMLA leave beginning on or around January 7, 2022 through January 24, 2022.” FAC ¶ 26. In

or around February, he requested an accommodation of continuing his FMLA leave due to his

upcoming medical procedure. Id. ¶¶ 28–29, 57. His EEOC charge states that BNSF ignored the

February request. See Charge of Discrimination (alleging that Nache requested “a reasonable

accommodation of continuing [his] FMLA leave until [his] procedure was completed,” but

BNSF “ignored [his] requests for reasonable accommodations”). Further, he alleges that BNSF

“failed to engage in the interactive process to determine the appropriate accommodations after

[Nache] requested [a] continued reasonable accommodation in the form of additional medical

leave in order to have a disability-related surgery.” FAC ¶ 57. Reading the FAC to say that

Nache complains of the denial of leave on or around April 1, 2022—a point at which Nache was

seeking to return to work—is unsupportable when viewing the complaint as a whole, which

places this request in the context of his February procedure. See id. ¶¶ 28–32. Nache alleges

that BNSF “interfered with [his] rights under the FMLA when they denied [him] utilization of

his FMLA rights,” and that when he “requested additional FMLA leave per his rights, [BNSF]

unlawfully denied [his] request and opted to terminate his employment instead.” Id. ¶¶ 75–76.

All these allegations tell a consistent story—Nache asked for more FMLA leave in February as

an accommodation for his disability, but BNSF ignored or denied that request, and that was a

denial of a reasonable accommodation. The conclusion that BNSF granted his February request

for more FMLA leave cannot be squared with Nache’s other allegations.

These conclusions are also consistent with Nache’s allegation that he “kept [BNSF]

informed and was in contact with Ms. Williams throughout the duration of his disability-related

FMLA leave.” Id. ¶ 32. Contrary to BNSF’s assertions otherwise, this allegation does not mean

that Nache must have been on FMLA leave when he told BNSF that he was cleared to work in or

around March 2022. Reply Mot. Dismiss 2. In addition to staying in touch with BNSF during

January 7, 2022, to January 24, 2022—his period of intermittent FMLA leave—he informed

BNSF of test-results which he learned of in March 2022, outside that period of FMLA leave but

within his period of forced absence. FAC ¶¶ 32–34. Allegations that one stayed in touch during

one period do not require that no other communications occurred outside that period. Count II

plausibly alleges that Nache was denied a reasonable accommodation.7

3. Count III: ADA Retaliation

A retaliation claim under the ADA has three elements: “(1) [the plaintiff] engaged in

protected activity, (2) [the] employer took an adverse action against [the plaintiff], and (3) there

was a ‘but for’ causal connection between the two.” Parker v. Brooks Life Sci., Inc., 39 F.4th

931, 936 (7th Cir. 2022) (quotation marks omitted). The requirement of statutorily protected

activity requires that the plaintiff “have asserted his rights under the ADA by either seeking an

accommodation or raising a claim of discrimination due to his disability.” Preddie v.

Bartholomew Consol. Sch. Corp., 799 F.3d 806, 814–15 (7th Cir. 2015). “[A]n employer’s

7 The ADA requires employers to engage in an interactive process to identify reasonable accommodations. See

Spurling, 739 F.3d at 1061. BNSF argues that Count II’s invocation of the interactive process is “nonsensical”

because Nache did not require any other accommodations after April 1, 2022. Mem. Supp. Mot. Dismiss 10. Nache

alleges that the interactive process broke down in February, not April, so this argument cannot be the basis for

dismissing Count II. Similar reasoning applies to BNSF’s arguments regarding the failure of the interactive process

in the context of Count III, the ADA-retaliation claim. See id.

action is adverse if the action would have dissuaded a reasonable worker from engaging in

protected activity,” assessed objectively “based on how a reasonable employee might react in the

plaintiff’s circumstances.” Trahanas, 64 F.4th at 856 (quotation marks omitted). Termination

counts as an adverse action. Id. Refusing to allow an employee to return to work counts as an

adverse action as well. Elzeftawy, 477 F. Supp. 3d at 766.

Nache alleges that he was engaged in statutorily protected activity when he requested an

accommodation for his disability and that BNSF failed to engage in the interactive process and

instead terminated him. FAC ¶¶ 64, 66. BNSF advances two primary arguments to dismiss

Count III: (1) the retaliation claim is an impermissibly repackaged version of Count II, the

failure-to-accommodate claim; and (2) Nache insufficiently alleges but-for causation between his

protected activity and adverse employment actions. Mem. Supp. Mot. Dismiss 10–12. Nache

responds that BNSF does not dispute that he engaged in protected activity, and argues that BNSF

subjected him “to more than just termination,” as BNSF “attempted to forcibly prolong [his]

leave when he stated he was ready to return,” and “after noticing [his] persistence to return to

work, attempted to force him to resign, with the timing of this push for resignation coming at the

conclusion of [his] (now forced) medical leave.” Resp. Mot. Dismiss 13–14.

Nache engaged in protected activity when he requested an accommodation for his

disability. See Preddie, 799 F.3d at 814–15. BNSF also subjected Nache to adverse

employment actions when it terminated him, see Trahanas, 64 F.4th at 856, and when it refused

to give him a return-to-work date, see Elzeftawy, 477 F. Supp. 3d at 766 (“[T]here is no question

that refusing to allow a disabled employee to return to work . . . is the type of conduct that would

dissuade a reasonable worker from requesting accommodations in the future, or from engaging in

other protected activity under the ADA.”). While the FAC does not explicitly refer to the delay

in return to work as an adverse employment action, Nache’s clarification in his response to that

effect is not inconsistent with the FAC’s allegations. See Resp. Mot. Dismiss 14; Mack IV, 2020

WL 3414952, at *3. BNSF’s citations for its repackaging argument are distinguishable as those

cases decided that the denial of one’s accommodation request could not also constitute an

adverse employment action for purposes of a retaliation claim. See Mem. Supp. Mot. Dismis

10–11 (citing Crawford v. Dekalb Cmty. Unit Sch. Dist. No. 428, No. 3:22-cv-50256, 2023 WL

2429233, at *4 (N.D. Ill. Mar. 9, 2023); Santos-Means v. Sheriff’s Off. of Cook Cnty., No. 12 CV

8804, 2016 WL 6092600, at *8 (N.D. Ill. Oct. 19, 2016); Moore-Fotso v. Bd. of Educ. of the City

of Chi., 211 F. Supp. 3d 1012, 1037–38 (N.D. Ill. 2016)). Here, Nache is not relying on the

denial of his requested accommodation as the necessary adverse employment action, so the Court

rejects BNSF’s argument that Count III must be dismissed as an impermissibly repackaged

failure-to-accommodate claim.

The only other issue is causation, and the pleading stage does not require much to

plausibly allege causation for a retaliation claim. “Courts therefore often deny motions to

dismiss where the plaintiff alleges protected activity that is followed by an adverse employment

action.” Harris v. Martinez, No. 22-cv-00373, 2023 WL 3504930, at *7 (N.D. Ill. May 17,

2023); see also Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1029 (7th Cir. 2013) (“To

plead a retaliation claim under Title VII, a plaintiff must allege that she engaged in statutorily

protected activity and was subjected to adverse employment action as a result of that activity

. . . .”).8 Nache requested an accommodation around February 2022, was denied a return to work

in March 2022—despite being medically cleared to return—and was terminated on or around

8 “The retaliation provisions of the . . . principal federal employment discrimination statutes,” including those for

disability, race, sex, age, and rehabilitation “are materially identical.” Twisdale v. Snow, 325 F.3d 950, 952 (7th Cir.

2003). Therefore, Title VII decisions are instructive for Nache’s ADA-retaliation claim.

April 1, 2022. FAC ¶¶ 29, 33–36. That is enough to plausibly allege a retaliation claim under

the ADA. See Luevano, 722 F.3d at 1029; Martinez, 2023 WL 3504930, at *7.

BNSF’s primary citation for its insufficient causation argument is also distinguishable.

See Monroe v. Jewel Food Stores, Inc., No. 18-cv-1499, 2021 WL 534662, at *5–6 (N.D. Ill.

Feb. 12, 2021). There, the plaintiff filed an EEOC charge on August 9, 2017, complaining that

an agent of his employer told him “that he was not allowed to return to work unless he was 100%

restriction free, meaning free of all medical restrictions.” Id. at *1 & n.2 (quotation marks

omitted). After a lengthy and apparently fruitless back-and-forth concerning the employer’s

release form for authorizing the employer to speak with the employee’s physician, the employer

told the employee that he could return to work, but his work assignment was further delayed for

unspecified reasons. Id. at *2. The court found that employee’s “conclusory allegation that [the

employer] did not allow [the employee] to return to work for 8 weeks because he complained

about the 100% statement,” was insufficient to allege a causal link between the adverse

employment action—a delay in return-to-work—and statutorily protected activity. Id. at *6.

Here, the delay in Nache’s return to work is not plausibly attributable to his unwillingness to use

standardized procedures or any other action or inaction on his part. Further, he never received a

return-to-work date and was ultimately terminated, unlike the employee in Monroe. See id. at

*2. Monroe is distinguishable and the Court rejects BNSF’s arguments for dismissing Count III.

4. Count IV: FMLA Interference with and Denial of Rights

A plaintiff must plausibly allege five elements to sustain an 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.” Soulemane v.

Tyson Fresh Meats, Inc., No. 4:21-cv-04066-SLD-JEH, 2022 WL 263560, at *2 (C.D. Ill. Jan.

27, 2022) (quoting Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006) (stating this standard

in context of summary judgment))). BNSF focuses solely on the fifth element, again arguing

that Nache alleges that BNSF did not deny his February request for additional FMLA leave.

Mem. Supp. Mot. Dismiss 12–13. The Court again rejects BNSF’s argument that Nache alleges

that BNSF granted his February request for additional FMLA leave, and therefore rejects

BNSF’s effort to dismiss Count IV.

CONCLUSION

For the foregoing reasons, BNSF Railway Company’s 12(b)(6) Motion to Dismiss

Counts I, II, III & IV of Plaintiff’s First Amended Complaint, ECF No. 14, is DENIED. BNSF’s

Motion for Leave to File Its Reply in Support of Its 12(b)(6) Motion to Dismiss Counts I, II, III

& IV of Plaintiff’s First Amended Complaint, ECF No. 18, is GRANTED. The Clerk is directed

to docket BNSF’s Reply, ECF No. 18-1.

Entered this 5th day of March, 2024.

s/ Sara Darrow

SARA DARROW

CHIEF UNITED STATES DISTRICT JUDGE