The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN P. MAJORS, SR., )
) Case No. 1:20-cv-03044
Plaintiff, )
) Judge Sharon Johnson Coleman
v. )
)
TOOTSIE ROLL INDUSTRIES, INC., )
ELLEN RUBIN GORDON, and )
JOHN GRODOSKI, )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
Plaintiff John P. Majors, Sr. (“Majors”) brings this action against Tootsie Roll Industries, Inc.
(“TRI”), Ellen Rubin Gordon, and John Grodoski (collectively, “Defendants”) for violations of the
Family and Medical Leave Act of 1993 (“FMLA”) as amended, 29 U.S.C. § 2615, et seq. (Counts I
and II) and violations of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et
seq. (Counts III and IV). Defendants move to dismiss the Amended Complaint in its entirety
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Defendants’
motion to dismiss [10] is granted in part and denied in part.
Background
The following allegations are taken as true for the purpose of ruling on this motion. TRI is a
publicly traded confectionary products company, with approximately 2000 employees nationwide,
headquartered in Chicago, Illinois. Defendant Gordon is the Chairwoman and Chief Executive
Officer of TRI. Defendant Grodoski is the Head of Human Resources for TRI. Majors was the
Vice President of Physical Distribution for TRI. Majors was one of six top executives at TRI, and
he reported directly to Gordon.
During spring 2018, Majors was hospitalized twice for sepsis. He returned to work in early
May, and worked through the summer and early fall. During a group lunch on October 24, 2018,
however, Majors excused himself to rest in his office, explaining he was mentally exhausted and not
feeling well physically. He sought FMLA leave to undergo outpatient treatment, which was
approved on October 25, 2018.
On November 15, 2018, Majors’ doctor submitted paperwork for his short-term disability
claim, which revealed to TRI that Majors was being treated for Bipolar Disorder. According to
Majors, TRI initially continued to include him in important business decisions during his leave, but
TRI ceased all communications with him after November 15. Majors alleged that he was worried
that his job would be imperiled if TRI found out about his mental illness because he had previously
heard Gordon make negative comments that he believed were targeted at employees with mental
illnesses.
Majors received salary raises and annual bonuses every year between 2004 and 2018. He also
received deferred compensation awards (“CAP Awards”), which were typically paid out annually in
March. Since 2004, Majors received his annual bonus during the first week of January until 2019.
On January 8, 2019, Majors sent a text message to TRI’s treasurer, Barry Bowen, inquiring about his
2018 annual bonus, which he had not yet received. The treasurer did not respond. Instead, Majors
received a text from Grodoski to set up an in-person meeting. They met on January 16, 2019, and
Grodoski brought with him long-term disability (“LTD”) benefits paperwork for Majors to fill out.
At this point, Majors was still undergoing outpatient treatment for his Bipolar Disorder. During the
meeting, Majors indicated to Grodoski that he wished to return to work, but Grodoski pushed for
separation. Majors alleged that “[a]fter handing Plaintiff the LTD benefits paperwork, Grodoski
told Majors it was time for him to think about life after Tootsie Roll.” (Amend. Compl. at ¶ 32.)
In the days following, Majors and Grodoski exchanged text messages regarding Majors’
employment at TRI. Majors asked about the LTD paperwork and again inquired into whether he
could return to work if he was released by his psychiatrist. Grodoski again explained that TRI
believed that it would be best for the parties to separate. On January 21, 2019, Majors sent a
severance demand letter to TRI, but noted that he wanted to work for TRI for the next ten years.
That same day, he texted Grodoski this message: “Hi John, just a quick note to tell you I have
finished my program so let me know if you would like me to return or are still heading down the
separation path.” (Id. at 44.) Majors alleged that this period of uncertainty with TRI took a physical
and emotional toll on him. Majors also alleged that his treating physician concluded that releasing
him “to return to work would be extremely detrimental to his health, well-being, and ability to
manage his Bipolar Disorder.” (Id. at 48.)
In February 2019, TRI informed Majors that he was barred from TRI property, despite still
being an employee on leave. In March 2019, Majors was told that he would not receive the 2018
bonus or CAP Award due to his poor performance and costing the company millions of dollars. As
a result, Majors filed a complaint with the Illinois Department of Labor against TRI for failure to
pay earned wages. In April 2019, TRI and Majors reached a resolution. The parties signed a
confidential settlement agreement in which TRI agreed to pay Majors his 2018 bonus and Majors
agreed to release any and all claims related to the CAP payment. TRI deposited the CAP Award
into Majors’ account on June 6, 2019. That same day, TRI informed Majors that he would be placed
on an unpaid leave of absence while on LTD. It is unclear from the Amended Complaint exactly
when Majors was put on LTD. At this time, Majors has not quit his position at TRI and TRI has
not terminated his employment.
Legal Standard
A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the sufficiency
of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S.Ct. 1289, 179 L.Ed.2d
233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded factual
allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551
U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). To survive a motion to dismiss,
the plaintiff must “state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint is facially plausible when
the plaintiff alleges “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, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009).
Discussion
Majors alleges that TRI (1) interfered with his rights under the FMLA, (2) retaliated against
him for invoking his FMLA rights, (3) discriminated against him in violation of the ADA, and (4)
retaliated against him for complaining about discrimination under the ADA. A single issue underlies
the FMLA retaliation, ADA discrimination, and ADA retaliation claims: whether Majors plausibly
alleged a materially adverse employment action. As such, the Court will address those three claims
together after discussing Majors’ FMLA interference claim.
FMLA Interference
Generally, the FMLA entitles qualifying employees to up to twelve weeks of unpaid leave in
a twelve-month period, maintenance of their health and employment-related benefits while on leave,
and reinstatement to their previous position or its equivalent at the end of their leave. Guzman v.
Brown County, 884 F.3d 633, 638 (7th Cir. 2018) (citing 29 U.S.C. § 2612); 29 U.S.C § 2614. It is
unlawful for an employer to interfere with these rights. Guzman, 884 F.3d at 638 (citing 29 U.S.C.
§ 2615). To succeed on an FMLA interference claim, an employee must establish that “(1) she was
eligible for the FMLA’s protections, (2) her employer was covered by the FMLA, (3) she was
entitled to leave under the FMLA, (4) she provided sufficient notice of her intent to take leave, and
(5) her employer denied her FMLA benefits to which she was entitled.” Id. Here, the only element
at issue is TRI’s alleged denial of Majors’ FMLA benefits.
Majors alleges that TRI interfered with his right to reinstatement. Defendants argue that
Majors’ “failure to return to work at the conclusion of the twelve-week period of FMLA leave
precludes his FMLA interference claim as a matter of law.” (Defs.’ Mem. in Support of Mot. to
Dismiss at 5). This Court agrees. If an employee does not exercise his right to reinstatement after
his twelve-week leave expires, he is no longer entitled to that benefit. James v. Hyatt Regency Chicago,
707 F.3d 775, 781 (7th Cir. 2013). An employee will lose this right “if, at the end of his twelve-week
period of leave, he is either unable or unwilling to perform the essential functions of his job.”
Franzen v. Ellis Corp., 543 F.3d 420, 426 (7th Cir. 2008).
As an initial matter, the parties dispute the date on which Majors’ FMLA leave expired.
Majors began his FMLA leave on October 24, 2018. Majors alleges that his FMLA leave ended on
January 25, 2019, while Defendants argue that his FMLA leave ended on January 16, 2019. The
Court takes judicial notice that the date exactly twelve weeks from October 24, 2018, when Majors
began his FMLA leave, was January 16, 2019. General Elec. Corp. v. Lease Resolution Corp., 128 F.3d
1074, 1081 (7th Cir. 1997) (citing Fed. R. Evid. 201(b)). Majors’ twelve weeks of leave therefore
ended on January 16, 2019 instead of January 25, 2019. 1 Consequently, Majors’ January 16, 2019
meeting with Grodoski took place on the last day of his protected leave. During that meeting,
Majors explained that he was determined to return to work but that he was still undergoing
outpatient treatment for his Bipolar Disorder. Though Majors made it clear that he wanted to
return to work, he was unable to at that time because he was still going through the outpatient
program and had not been release by his physician. Moreover, nowhere in the Complaint does
1 The Court notes that Majors failed to address this issue in his response to Defendants’ motion to dismiss.
Majors allege that he was cleared to return to work on January 16, 2019. Thus, after January 16,
2019, Majors had no right to reinstatement.
Majors attempts to salvage his claim by arguing that his treating physician would have
released him to return to work on January 25, 2019, if TRI’s conduct during the January 16, 2019
meeting and subsequent communications between Majors and Grodoski had not exacerbated his
condition. Majors’ argument is unavailing because the alleged “exacerbation theory” is not accepted
in the Seventh Circuit, which has held that “the cause of an injury is irrelevant under the FMLA”
and “exacerbation is not a valid theory of liability under the FMLA.” Breneisen v. Motorola, Inc., 656
F.3d 701, 705 (7th Cir. 2011). For the purpose of this claim, the Court must consider only whether
Majors was able to return to work while his right to reinstatement was still valid, not whether he
would have been able to absent allegedly exacerbating conduct.
Majors further contends, however, that Breneisen does not apply to this case. He argues that
the Seventh Circuit in Breneisen distinguished between exacerbating conduct that occurs after, rather
than during, the FMLA’s protected period. This distinction does exist in Breneisen, but it is separate
from the court’s unequivocal rejection of the exacerbation theory. Id. at 705. Rather, the Seventh
Circuit explained that the exacerbating conduct itself can still form the basis of an FMLA claim if
that conduct occurs while (and not after) the plaintiff is subject to the FMLA’s clearly defined
protections. Id. This is true not because the conduct was exacerbating but because the conduct
itself might be unlawful. Id. The exacerbation theory cannot be used to show that otherwise lawful
conduct under the FMLA should be considered unlawful. Id.
The alleged hostile conduct underlying Majors’ inability to return to work is thus more
appropriate for his FMLA retaliation claim. As to the interference claim, the Court must consider
only whether TRI denied Majors benefits to which he was legally entitled. Guzman, 884 F.3d at 638.
By his own admission, Majors was not yet released by his physician to return to work at the end of
his twelve-week FMLA leave. He was therefore not entitled to a right to reinstatement.
Accordingly, Defendants’ motion to dismiss Count I of the Amended Complaint is granted.
FMLA Retaliation, ADA Discrimination, and ADA Retaliation
Defendants next argue that Majors has failed to sufficiently allege a materially adverse
employment action, which is an essential element to his FMLA retaliation claim in Count II, his
ADA discrimination claim in Count III, and his ADA retaliation claim in Count IV. In particular,
Defendants contend that the alleged adverse employment actions had no impact on the terms and
conditions of Majors’ employment. Defendants, however, fail to distinguish between adverse
employment actions for intentional discrimination claims and adverse actions for retaliation claims.
To explain, “[r]etaliation claims under the FMLA and ADA require three familiar elements:
(1) the employee engaged in statutorily protected activity; (2) the employer took adverse action
against the employee; and (3) the protected activity caused the adverse action.” Freelain v. Village of
Oak Park, 888 F.3d 895, 901 (7th Cir. 2018). “The category of actions prohibited by the statutes’
provisions is broader than the category of adverse employment actions prohibited by the statutes’
anti-discrimination provisions.” Id. Specifically, materially adverse actions in FMLA and ADA
retaliation claims “are not limited to employment-related activities but include any actions that
would dissuade a reasonable employee from exercising his rights.” Breneisen v. Motorola, Inc., 512 F.3d
972, 979 (7th Cir. 2008); see also Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126
S.Ct. 2405, 165 L.Ed.2d 345 (2006).
Defendants argue that their conduct did not rise to the level of a materially adverse action as
their actions did not lead to any “qualitative change” in the terms and conditions of Majors’
employment because he was still considered “employed” even when Defendants put him on an
unpaid leave of absence in June 2019. As discussed, adverse actions in retaliation claims have a
broader definition and need not materially alter the “terms and conditions” of employment like
intentional discrimination claims. Poullard v. McDonald, 829 F.3d 844, 856 (7th Cir. 2016). That said,
Majors has plausibly alleged adverse actions that would dissuade him from engaging in protected
activity, namely, that Defendants told him that his only path was separation from the company and
that they forced him to take LTD benefits.
As to Majors’ intentional discrimination claim under the ADA, plausible allegations of an
adverse employment action are required at this juncture. This standard is different than retaliation
claims because it concerns the terms and conditions of Majors’ employment. Kurtzhals v. County of
Dunn, 969 F.3d 725, 728 (7th Cir. 2020); 42 U.S.C. § 12112. “Materially adverse employment actions
include ‘cases in which the employee’s compensation, fringe benefits, or other financial terms of
employment are diminished.’” Kurtzhals, 969 F.3d at 729 (citation omitted). Construing Majors’
well-pleaded allegations as true and all reasonable inferences in his favor, he has plausibly alleged an
adverse employment action under this standard because instead of allowing him to return to work,
Defendants made Majors go on LTD and then placed him on unpaid leave. Viewing the allegations
and all reasonable inferences in Majors’ favor, these actions diminished the financial terms of
Majors’ employment.
Next, Defendants argue that Majors either waived or released certain claims in his April 2019
resolution with TRI concerning his annual bonus. The Confidential Settlement Agreement stemmed
from Majors filing a complaint with the Illinois Department of Labor concerning TRI denying
Majors’ 2018 bonus or CAP Award. The Confidential Settlement Agreement states in part:
WHEREAS, You have asserted that the Company owes you a performance bonus as
compensation beyond your salary for work You performed for the Company in 2018
(the “Claim”).
WHEREAS, the Company has disputed that it owes you a performance bonus for
2018.
WHEREAS, You and the Company (collectively, the “Parties”) have reached a full
and complete settlement of the Claim with a general release of all Your potential
claims as follows:
…
General Release of Claims. In exchange for the Company’s obligations under this
Agreement, You release any and all claims of any kind that You have or may have
against the Company, its current, former and future owners, parents, subsidiaries, or
affiliates, or any of their current, former or future partners, officers, directors,
employees, fiduciaries, members, attorneys, insurers, or agents (collectively the
“Released Parties”) that are in any way related to or arising out of the Claim,
including but not limited to any claims regarding Your entitlement to a performance
bonus for 2018, calculation of the Settlement Payment or any performance bonus
the Company has ever paid You, and deductions and/or withholdings from the
Settlement Payment or any performance bonus the Company has ever paid You.
Except for claims that the law does not permit You to release, this Agreement is
intended as a full settlement and compromise of each, every and all claims of every
kind and nature, whether known or unknown, arising under common law, statute, or
otherwise, that are in any way related to or arising out of the Claim.
(R. 10, Ex. 1, April 2019 Redacted Confidential Settlement Agreement).
“In Illinois, words in a contract that are clear and unambiguous must be given their plain and
ordinary meaning.” Royce v. Michael R. Needle P.C., 950 F.3d 939, 951 (7th Cir. 2020). Illinois courts
construe contracts as a whole, Sevugan v. Direct Energy Servs., LLC, 931 F.3d 610, 618 (7th Cir. 2019),
and interpret unambiguous contracts as a matter of law. In re Duckworth, 776 F.3d 453, 456 (7th Cir.
2014). Here, the unambiguous language in the parties’ settlement agreement defines the word
“Claim” as concerning the “performance bonus as compensation beyond your salary for work You
performed for the Company in 2018.” The agreement states more than once that Majors is releasing
all claims “related to or arising out of the Claim.” Specifically, the last paragraph states “this
Agreement is intended as a full settlement and compromise of each, every and all claims of every
kind and nature, whether known or unknown, arising under common law, statute, or otherwise, that
are in any way related to or arising out of the Claim.” Accordingly, although Majors has waived any
claims based on his 2018 performance bonus, that is all he has waived.
On a final note, the proper defendant in ADA claims is the employer itself because there is
no individual hability under the ADA. See Harris v. Allen County Board of Commissioners, 890 F.3d 680,
683 (7th Cir. 2018); Stanek v. St. Charles Cty. Unit Sch. Dist. No. 303, 783 F.3d 634, 644 (7th Cir.
2015). ‘The FMLA’s definition of “employer” is broader, however, and encompasses some
individual hability. See 29 U.S.C. § 2611(4)(A) a) (D; Eppinger v. Caterpillar Inc, 682 Fed. Appx. 479,
481 (7th Cir. 2017). ‘The Court therefore dismisses Gordon and Grodoski as Defendants to Majors’
ADA claims.
Conclusion
The Court grants in part and denies in part Defendant’s motion to dismiss [10]. ‘The Court
grants Defendants’ motion as to Majors’ FMLA interference claim with prejudice, but denies the
remainder of Defendants’ motion. The Court also dismisses Ellen Gordon and John Grodoski as
Defendants to Majors’ ADA claims because the proper Defendant is TRI alone.
IT IS SO ORDERED.
Date: 3/23/2021 Entered/ ]
SHARON 4OHNSON COLEMAN
United States District Court Judge
10