Herberger

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

URBANA DIVISION

DAVID HERBERGER, )

)

Plaintiff, )

)

v. ) Case No. 25-CV-2045

)

VILLAGE OF BOURBONNAIS, )

)

Defendant. )

ORDER

Plaintiff, David Herberger, filed a Complaint (#2) on December 5, 2024, in which

he raised claims that Defendant, the Village of Bourbonnais, Illinois, terminated his

employment in violation of the Americans with Disabilities Act (42 U.S.C. § 12101 et

seq.) (“ADA”) and the Family and Medical Leave Act (29 U.S.C. § 2601 et seq.)

(“FMLA”). He also brings an Illinois common law claim for retaliatory discharge.

Presently before the court is Defendant’s Motion to Dismiss (#18), filed on March 13,

2025. Plaintiff filed a Response (#23) on April 25, 2025, and Defendant filed a Reply

(#26) on May 8, 2025. For the reasons set forth below, Defendant’s Motion to Dismiss

(#18) is GRANTED in part and DENIED in part.

BACKGROUND

The following background facts are taken from the allegations in Plaintiff’s

Complaint. In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, the

court must accept as true all material allegations of the complaint, drawing all

reasonable inferences therefrom in the plaintiff’s favor. Virnich v. Vorwald, 664 F.3d 206,

212 (7th Cir. 2011).

Plaintiff began working for Defendant on February 12, 2018, when he was hired

as the Assistant Director of Public Works. His duties in that role “were mostly

administrative and supervisory.” Plaintiff is an amputee and has diabetes. Those

conditions notwithstanding, Plaintiff consistently performed the essential functions of

his job with or without reasonable accommodation.

In June 2023, Plaintiff required medical leave “for complications necessitating

knee surgeries and therapy.” Defendant approved Plaintiff’s leave under the FMLA, to

run from June 28 through December 7, 2023. Between June 28 and October 24, 2023,

Plaintiff underwent surgery and rehabilitation. He was discharged from the Mayo

Clinic on October 24, 2023.

On October 31, 2023, Plaintiff and his wife, Cheryl, visited Defendant’s

administration building, in part to update certain village officials on Plaintiff’s recovery

and his plans to continue his rehabilitation in Florida. During that visit, Cheryl spoke

with Defendant’s Human Resources Director Sue Pranskus about extending Plaintiff’s

FMLA leave. On November 3, Plaintiff formally requested an extension of his FMLA

leave in an email to Pranskus. Therein, he cited an upcoming knee surgery scheduled

for December 19, 2023, which would require six to eight weeks of rehabilitation.

Pranskus responded to Plaintiff’s email on November 9, 2023, stating that she

was too busy to address the request. One week later, Plaintiff received a letter from

Defendant requesting additional information from his surgeon. Plaintiff submitted his

surgeon’s response via email on November 21, 2023. Plaintiff’s surgeon, Dr. Bedard at

the Mayo Clinic, submitted an additional letter in response to Defendant’s original

inquiry. Plaintiff followed up with Pranskus via email on December 4; she stated in

response that she hoped to provide an answer soon.

Plaintiff received another letter from Defendant on December 7, 2023. The letter

again requested information from Plaintiff’s surgeon, with many of the inquiries

overlapping with those already made in Defendant’s November letter. Dr. Bedard

would respond to that letter on December 12, 2023.

Meanwhile, also on December 7, Plaintiff underwent total knee replacement

surgery.1 He was discharged the next day.

On December 18, 2023, Defendant’s Village Board passed an ordinance regarding

paid leave benefits for Village employees. Plaintiff alleges upon information and belief

that the ordinance was “more friendly to the Village and less friendly to Village

1 The Complaint does not clarify whether the December 7 surgery was the same

surgery that was originally scheduled for December 19, or explain why or when the

surgery was rescheduled.

employees—likely in Response to Plaintiff’s medical leave.” Plaintiff refers to this

ordinance elsewhere in his Complaint as Defendant’s “new FMLA policy.”

The next day, Plaintiff received a phone call from Mayor Paul Schore, inviting

him to meet in the mayor’s office the following afternoon so that they could discuss his

requested extension. Plaintiff agreed to the meeting.

On December 20, 2023, Plaintiff attended a meeting with the Village Attorney

and Pranskus; Schore was not present. The Village Attorney read a separation of

employment letter and informed Plaintiff that he “would be terminated because he

could not return to work until January 28, 2024, according to his doctor’s letter.”

Plaintiff requested “light-duty work.” He alleges that “opportunities for light-duty

work existed” and that he “could have performed his duties as of December 20, 2023.”

Plaintiff’s request for light duty was denied.

ANALYSIS

In order to survive a motion to dismiss under Rule 12(b)(6), “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

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.” Id. In ruling upon a motion to

dismiss, the court must draw all reasonable inferences in favor of the plaintiff but need

not accept as true any legal assertions, threadbare recitals of the elements of a cause of

action, or conclusory statements. See Iqbal, 556 U.S. at 678.

Plaintiff’s Claims

In Count I of the Complaint, Plaintiff asserts that Defendant violated the ADA

when it failed to accommodate his disability by declining his request for light duty and

otherwise failing to engage in any interactive process. He also asserts that Defendant

“terminated Plaintiff based on his disability,” thus setting forth a straightforward claim

of disparate treatment under the ADA.

In Count II of the Complaint, Plaintiff contends that Defendant interfered with

his rights under the FMLA when it failed to restore him to his previous position upon

the expiration of his leave and when it delayed and failed to approve a reasonable

request for an extension of his leave. He also alleges that Defendant terminated him in

retaliation for exercising his rights under the FMLA.

Finally, in Count III of the Complaint, Plaintiff asserts that his discharge in

retaliation for exercising his rights under the FMLA amounts to an actionable

retaliatory discharge under Illinois common law.

The ADA

Title I of the ADA provides that no qualifying employer may “discriminate

against a qualified individual on the basis of disability in regard to job application

procedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). Discrimination against a qualified individual on the

basis of disability is defined to include a failure to make “reasonable accommodations

to the known physical or mental limitations of an otherwise qualified individual with a

disability[.]” 42 U.S.C. § 12112(b)(5)(A).

It is often said that “[u]nder the ADA, two distinct categories of disability

discrimination claims exist: failure to accommodate and disparate treatment.” Foster v.

Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999); Gross v. Peoples Gas Light &

Coke Co., 634 F. Supp. 3d 464, 489 (N.D. Ill. 2022) (stating the same). To prevail on a

disparate treatment claim, a plaintiff must establish that: (1) he was a qualified person

with a disability; (2) he was otherwise qualified to perform the essential functions of his

job with or without reasonable accommodation; (3) he suffered an adverse employment

action, including the denial of a reasonable accommodation; and (4) the adverse action

was caused by his disability. Brooks v. Avancez, 39 F.4th 424, 433 (7th Cir. 2022)).

“An adverse employment action is not needed to prevail on a failure to

accommodate theory.” Bruno v. Wells-Armstrong, 93 F.4th 1049, 1054 (7th Cir. 2024).

Thus, to establish a claim for failure to accommodate, a plaintiff must simply show that:

(1) he is a qualified individual with a disability; (2) the employer was aware of his

disability; and (3) the employer failed to reasonably accommodate the disability.2

Schoper v. Bd. of Trs. of W. Illinois Univ., 119 F.4th 527, 532 (7th Cir. 2024).

2 “Relevant to—and sometimes determinative of—the third element is the

employer and employee’s respective cooperation in an interactive process to determine

a reasonable accommodation.” Williams v. Bd. of Educ. of City of Chicago, 982 F.3d 495,

503 (7th Cir. 2020) (cleaned up); see 29 C.F.R. § 1630.2(o)(3) (“To determine the

appropriate reasonable accommodation it may be necessary for the covered entity to

initiate an informal, interactive process with the individual with a disability in need of

the accommodation.”). In this case, Plaintiff has alleged that there was no interactive

process, because Defendant simply terminated him.

The Parties’ Arguments

Defendant argues that Plaintiff’s ADA claims must be dismissed because the

Complaint fails to identify Plaintiff’s qualifying disability with any level of specificity.

While Defendant does not dispute that Plaintiff’s status as an amputee and a diabetic

would qualify him as disabled, it points out that the Complaint does not suggest those

conditions had anything to do with what happened to Plaintiff. Rather, Defendant

argues, Plaintiff has alleged that he experienced an unspecified “serious health

condition” that that prompted the need for an accommodation and allegedly prompted

Defendant to take adverse action against him.

Plaintiff insists that Defendant’s argument is without merit, emphasizing that he

“expressly alleges that he is both an amputee and diabetic—both of which constitute

disabilities recognized under the ADA.” Plaintiff maintains that his allegations of these

conditions satisfies notice pleading standards.

Sufficiency of Plaintiff’s Allegations

“[A] plaintiff advancing a claim under the ADA must allege that he is disabled

but, with or without reasonable accommodation, can still do the job. Normally he also

must allege what exactly makes him disabled.” Freeman v. Metro. Water Reclamation Dist. of

Greater Chicago, 927 F.3d 961, 965 (7th Cir. 2019) (emphasis added) (citing Tate v. SCR

Medical Transportation, 809 F.3d 343, 345 (7th Cir. 2015)). A plaintiff must also allege that

there is a causal connection between his disability and whatever adverse employment

action he suffered. Gallardo v. Chicago Transit Auth., 2016 WL 7049055, at *2 (N.D. Ill.

Dec. 5, 2016) (citing Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601

(7th Cir. 2011)). And in the failure-to-accommodate context, where no adverse

employment action is required, a plaintiff must nonetheless allege a causal nexus

between his disability and the limitation for which he seeks an accommodation.

Youngman v. Peoria Cnty., 947 F.3d 1037, 1042 (7th Cir. 2020).

Plaintiff has failed to adequately plead one of these elements. Defendant

presumes that Plaintiff’s disability is whatever “complications” led to his multiple

surgeries. The presumption is understandable, given that whatever medical issues

Plaintiff suffered—beginning in June 2023 and culminating with a total knee

replacement surgery in December of that year—form the core allegations of his

Complaint. While the Complaint suggests a causal connection between those issues and

Plaintiff’s termination and request for accommodation, it lacks any sort of detail

describing precisely what rendered Plaintiff disabled.

Technically, Plaintiff does not dispute that conclusion. Rather, he argues that his

only disabilities are his diabetes and his amputation, and that he clearly pleaded them.

He now contends the complications that gave rise to the need for multiple surgeries

were “associated with his disability.”

The problem is that Plaintiff has wholly failed to allege that his diabetes or

amputation played any role in the events leading up to December 20, 2023. According

to his own Complaint, Plaintiff appeared to be getting along just fine in his role as

Assistant Director of Public Works from his February 2018 hiring through June 2023.

Then, in June 2023, Plaintiff “required medical leave for complications necessitating

knee surgeries and therapy.” The Complaint does not state—explicitly or implicitly—

that those “complications” had anything to do with diabetes or his amputation.3

Likewise, while Plaintiff had another knee surgery in December 2023—this time a total

knee replacement—it is simply unknown whether that surgery, like those prior, had

anything to do with Plaintiff’s disabling conditions. Plaintiff makes no actual

allegations to that end, and there is nothing in his truncated description of what

happened between June and December 2023 that would allow an inference to

reasonably be drawn connecting those events to his diabetes or amputation. Nor, for

that matter, is there any sort of self-evident connection between a total knee

replacement surgery and diabetes or amputation.

In short, Plaintiff has simply failed to plead factual content that would plausibly

suggest that (1) his December 20, 2023, termination had anything to do with his diabetes

or amputation; or (2) his accommodation request, made that same day, was related to

his diabetes or amputation. Plaintiff has alleged a disability (or disabilities), and he has

alleged an adverse employment action and a failure to accommodate. But between the

two he has left a six-month long causal gap, and has made no attempt to fill it. It follows

that he has failed to plausibly allege an ADA violation.4

3 Plaintiff writes in his Response: “Plaintiff also details that the FMLA leave was

necessitated by leg complications associated with his disability.” (Emphasis added). Not

so. The Complaint hints at no such association.

4 The court would note that Defendant takes exception to a number of other

issues with Plaintiff’s Complaint as well. For instance, Dr. Bedard’s December 12, 2023,

letter—apparently stating Plaintiff could not return to work until January 28, 2024—and

Plaintiff’s own request for an FMLA leave extension suggests that Plaintiff could not

work after his December surgery. This would conflict with Plaintiff’s present allegation

that he could have worked on December 20, 2023. Relatedly, according to the

Accordingly, Defendant’s Motion to Dismiss (#18) is GRANTED with respect to

Count I of Plaintiff’s Complaint, and the ADA discrimination and failure-to-

accommodate claims contained therein.

The FMLA

The FMLA entitles an eligible employee to 12 weeks of unpaid leave required as

a result of, as relevant here, “a serious health condition that makes the employee unable

to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). It

is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the

attempt to exercise” any rights arising under the FMLA. 29 U.S.C. § 2615(a)(1). It is

likewise “unlawful for an employer ‘to discharge or in any manner discriminate

against’ any employee for opposing any practice the FMLA makes unlawful.” Goelzer v.

Sheboygan Cnty., Wis., 604 F.3d 987, 995 (7th Cir. 2010) (quoting 29 U.S.C. § 2615(a)(2)).

To prevail on an FMLA interference claim an employee must establish that: (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. Taylor-Novotny v. Health All. Med. Plans, Inc., 772 F.3d 478, 498 (7th Cir. 2014).

Complaint, Plaintiff did not even request an accommodation until after he was

terminated. See Emmanouil v. W. Aurora Sch. Dist. 129, 2024 WL 4367791, at *6 (N.D. Ill.

Sept. 30, 2024) (opining that ADA claim would fail if the plaintiff “had requested her

accommodation after or during her termination”). The court need not address these

issues here, because Plaintiff’s Complaint was insufficient with respect to causation. The

court brings them up only so that Plaintiff may be aware of them in the event he should

file an amended complaint.

“To prevail on an FMLA retaliation claim, a plaintiff must show that (1) he engaged in

FMLA-protected activity; (2) his employer took an adverse employment action against

him; and (3) there is a causal connection between the two.” Juday v. FCA US LLC, 57

F.4th 591, 596 (7th Cir. 2023). The difference between a retaliation and an interference

theory is that the former requires proof of discriminatory or retaliatory intent while the

latter requires only proof that the employer denied the employee his or her entitlements

under the FMLA. Goelzer, 604 F.3d at 995.

The Parties’ Arguments

Defendant argues that Plaintiff cannot state a claim for FMLA interference

because he received all of the benefits under FMLA to which he was entitled. In fact,

Plaintiff received much more leave time than that to which he was entitled, as he makes

clear in his Complaint that Defendant approved FMLA leave from June 28 through

December 7, 2023. Defendant maintains that it was under no legal obligation to extend

Plaintiff’s leave.

In its Motion, Defendant makes no reference to Plaintiff’s FMLA retaliation

claim. In its Reply, it asserts that because Plaintiff was unable to perform the essential

functions of his job when his FMLA leave expired on December 7, he has no right to

reinstatement. It argues that an FMLA retaliation claim “must include an allegation that

Plaintiff was able to perform the essential functions of his prior job at the time of

firing.” (Emphasis in original).

Plaintiff insists the Defendant’s claim that its obligations under FMLA ended

after 12 weeks “ignores Plaintiff’s key allegations: that he timely requested an extension,

supported by medical documentation, and was terminated before a final decision was

rendered.” He argues that FMLA interference can occur where an employer obstructs

the exercise of FMLA rights through delay. Finally, Plaintiff contends: “Defendant’s

assertion that it had no further obligations once 12 weeks expired disregards the

doctrine of equitable estoppel[5] and ignores Plaintiff’s plausible claim that his

termination was pretextual and retaliatory.”

Sufficiency of Plaintiff’s Allegations

As stated above, “[t]he FMLA entitles any eligible employee suffering from a

serious health condition that renders him unable to perform the functions of his

position to twelve workweeks of leave during each twelve-month period.” Burnett v.

LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006) (citing 29 U.S.C. § 2612(a)(1)(D)). The FMLA

also provides that any eligible employee who takes leave pursuant to § 2612 is entitled,

upon return from such leave, to be restored to their former position or an equivalent

position. 29 U.S.C. § 2614(a)(1).

“An employer is not required to give an employee more than twelve weeks of

leave; in other words, ‘[a]n employer has no responsibility to restore a person’s job if

that twelve week period is exceeded.’” Jones v. Maywood, Melrose Park, Broadview Sch.

5 Though Plaintiff accuses Defendant of “disregard[ing] equitable estoppel,” he

disregards it to the same extent. Because Plaintiff fails to expound on how that doctrine

bears upon on his case, the court will not address it.

Dist. 89, 2018 WL 4216616, at *10 (N.D. Ill. Sept. 5, 2018) (quoting Palao v. Fel-Pro, Inc.,

117 F. Supp. 2d 764, 769 (N.D. Ill. 2000)); see also Cloutier v. GoJet Airlines, LLC, 311 F.

Supp. 3d 928, 948 (N.D. Ill. 2018) (“[T]he FMLA does not require an employer to

reinstate an employee to his former position if that employee is unable to return to

work after twelve weeks of FMLA leave.”). Even where an employer provides

additional leave, above and beyond that statutorily required 12 weeks, such a courtesy

“has no bearing on the established parameters of taking leave pursuant to the FMLA.”

Breneisen v. Motorola, Inc., 656 F.3d 701, 705 (7th Cir. 2011).

Plaintiff’s FMLA interference claim fails because he has not plausibly alleged that

Defendant “denied him FMLA benefits to which he was entitled.” See Taylor-Novotny,

772 F.3d at 498. Plaintiff was approved for FMLA leave from June 28, 2023, through

December 7, 2023. Plaintiff’s FMLA-mandated 60 working days of leave was well

exhausted within than 162-day span; indeed, it is clear that Defendant provided

Plaintiff with extra leave beyond that which was required. So while Plaintiff was

certainly free to request an extension of that courtesy, he was simply not entitled to any

more leave time under the FMLA, such that Defendant’s denial of that request (or its

delay in denying the request) cannot be considered FMLA interference.

Nor can Plaintiff’s termination be construed as interference with the FMLA-

provided right to reinstatement. “The FMLA does not require an employer to reinstate

an employee to his former position if that employee is unable to return to work after

twelve weeks of FMLA leave.” Cloutier, 311 F. Supp. 3d at 948. In this case, Plaintiff had

total knee replacement surgery the day his FMLA leave expired. Indeed, the very fact

that he requested an extension of his FMLA leave to accommodate that surgery

suggests that he was unable to return to work, given that the inability to perform the

functions of one’s job is a requirement to receive such leave. 29 U.S.C. § 2612(a)(1)(D).

The court notes that, in the FMLA section of his Response, Plaintiff argues:

“Importantly, Plaintiff alleges that [Defendant] delayed and obstructed the

accommodation process, then terminated him shortly after his surgery without

allowing return to light-duty work—even though he was medically cleared to do so.”

These references to the accommodation process, light-duty work, and medical clearance

to work suggest that this is a misplaced ADA argument. To that point, Defendant

argues at some length in its Motion about the inherently contradictory nature of

Plaintiff’s ADA and FMLA claims—the former requiring the ability to do the job (with

or without accommodation), and the latter necessarily requiring the inability to work.

See Cullotta v. United Surgical Partners Int’l, Inc., 2021 WL 3367193, at *3 (N.D. Ill. Aug. 3,

2021) (noting that “an FMLA request must, by definition, contain an admission that the

requestor is incapable of performing essential functions of the position” and discussing

circuit split concerning mutual exclusivity of ADA and FMLA claims). The court need

not address the precise intersection of those claims here, however, as Plaintiff does not

even allege that he was able to return to work on December 7, 2023, when his FMLA

leave expired.

The fact that Defendant’s termination of Plaintiff did not interfere with any rights

held by Plaintiff under the FMLA is not, however, dispositive of Plaintiff’s FMLA

retaliation claim. Defendant’s argument with respect to that claim is minimal, and

relegated to its Reply. That argument seems to be that Defendant could not have acted

in retaliatory fashion because Plaintiff was unable to perform the essential functions of

his job at the time of his termination.

But a retaliation claim does not turn on whether Defendant was within its rights

under the FMLA in terminating Plaintiff; rather, the inquiry is into Defendant’s actual

motivations in doing so. To succeed on a retaliation claim, Plaintiff does not even need

to prove that retaliation was the only reason for his termination; he “may establish an

FMLA retaliation claim by showing that the protected conduct was a substantial or

motivating factor in the employer’s decision.” Goelzer, 604 F.3d at 995 (cleaned up).

Thus, while Defendant would—at least presumably—argue that Plaintiff was

terminated because he had been gone for five months and still could not return to work,

Plaintiff has alleged that he was terminated in retaliation for engaging in protected

conduct, i.e., taking FMLA leave. Moreover, he has alleged that he was “terminated

under pretextual circumstances,” suggesting that while he was ostensibly terminated

because he could not return to work, the real reason for his termination was retaliation

for having taken FMLA. The court notes that “the general rule that it is inappropriate to

make determinations regarding pretext at the pleading stage[.]” Hoglund v. Signature

Mgmt. Grp., Inc., 2009 WL 1269258, at *2 (N.D. Ill. May 4, 2009).

The questions of Defendant’s actual motivation(s) in terminating Plaintiff, or

Plaintiff’s allegations thereof, are simply not addressed by Defendant—either in its

Motion or its Reply.6 “It is the defendant’s burden to establish the complaint’s

insufficiency,” Gunn v. Cont’l Cas. Co., 968 F.3d 802, 806 (7th Cir. 2020), and Defendant

has not met that burden here. Accordingly, Defendant’s Motion to Dismiss will be

granted with respect to Plaintiff’s FMLA interference claim, but must be denied with

respect to Plaintiff’s FMLA retaliation claim.

Illinois Common Law Retaliatory Discharge

Plaintiff alleges that Defendant’s act of terminating him in retaliation for utilizing

FMLA leave runs contrary to Illinois’ clearly mandated public policy of protecting

employees’ FMLA rights, and thus constitutes retaliatory discharge under Illinois

common law.

“Illinois has recognized the limited and narrow tort of retaliatory discharge as an

exception to the general rule of at-will employment.” Sullivan v. Progressive Cas. Ins. Co.,

2004 WL 1687123, at *3 (N.D. Ill. July 27, 2004) (citing Balla v. Gambro, Inc., 584 N.E.2d

104, 107 (Ill. 1991)). “In order to establish a cause of action for retaliatory discharge, the

plaintiff must show that: (1) she was discharged in retaliation for her activities; and (2)

the discharge is a violation of a clearly mandated public policy.” Id. The Illinois

Supreme Court “has consistently sought to restrict the common law tort of retaliatory

discharge.” Fisher v. Lexington Health Care, Inc., 722 N.E.2d 1115, 1121 (Ill. 1999)

6 Defendant’s claim that Plaintiff’s inability to work is dispositive of his FMLA

retaliation claim is unsupported by any legal citation.

(collecting cases). “[F]or retaliatory discharge to reach the level of a violation of public

policy, the matter must strike at the heart of a citizen’s social rights, duties, and

responsibilities.” Turner v. Mem’l Med. Ctr., 911 N.E.2d 369, 377 (Ill. 2009) (cleaned up).

Defendant asserts that a claim for retaliatory discharge may not be based on

FMLA rights. For this proposition it relies on Handel v. Belvedere USA Corp., 2001 WL

1286842, at *2 (N.D. Ill. Oct. 22, 2001), in which the plaintiff alleged that he was

terminated in retaliation for, inter alia, his “efforts to protect his subordinates in the

exercise of their rights under the FMLA.” The Handel court observed that no Illinois

Supreme Court decision had addressed whether FMLA retaliation would support a

state law retaliatory discharge claim, but also found that every court to consider the

question within the Seventh Circuit had found that it would not. Id. (citing Hamros v.

Bethany Homes & Methodist Hosp. of Chicago, 894 F. Supp. 1176, 1178 (N.D. Ill. 1995);

Dormeyer v. Comerica Bank—Ill., 1998 WL 729591, at *5-6 (N.D. Ill. Oct. 14, 1998), aff’d,

223 F.3d 579 (7th Cir. 2000); Callozzo v. Office Depot, Inc., 1998 WL 111628, at *4-5 (N.D.

Ill. Mar. 6, 1998)).

Noting that “[b]ecause the tort of retaliatory discharge is considered to be an

erosion of the at-will doctrine, courts narrowly construe the tort,” the Handel court

ultimately joined with the others in concluding:

[U]nder Illinois law, a plaintiff cannot assert a state law retaliatory discharge

claim based on the rights set forth in the FMLA. The FMLA does not involve

those matters that strike at the heart of a citizen’s social rights, duties, and

responsibilities. Rather, the FMLA was designed to balance the employer’s

legitimate interests with the needs of employees in obtaining leave for certain

medical conditions and family reasons and, therefore, affects only the private

relationship between an employee and employer.

Id. at *4 (internal citations omitted); see also Sullivan, 2004 WL 1687123, at *6 (“It is

improbable that the Illinois Supreme Court would permit a claim for retaliatory

discharge based on rights set forth through the FMLA under the circumstances of this

case. While the Illinois Supreme Court has already expanded the retaliatory discharge

tort to two categories, whistle-blowing and worker’s compensation claims, those torts

protect citizens from criminal activity or serious hazards. The FMLA, on the other hand,

protects private interests by balancing the needs of employers and employees.”).

In Response, Plaintiff fails to cite a single case in which a court, be it federal or

state, has allowed an Illinois retaliatory discharge claim to proceed on an FMLA

retaliation theory. And while 24 years have elapsed since Handel was decided, the

proposition for which it stands is only more firmly ensconced in the law. See, e.g.,

Mahran v. Cnty. of Cook, 2023 WL 8004280, at *7 (N.D. Ill. Nov. 17, 2023) (“FMLA claims

only affect the private relationship between an employee and employer, and thus

cannot form the basis for a retaliatory discharge claim.” (cleaned up)); Rowe v. U.S.

Bancorp, 2012 WL 733859, at *6 (C.D. Ill. Mar. 6, 2012) (“This Court agrees with the

conclusion of other district courts in Illinois that the FMLA does not involve matters

that strike the heart of a citizen’s social rights, duties, and responsibilities.”).

Plaintiff has made no argument as to why this court should depart from settled

law, nor can the court discern any such reason. Accordingly, the court find that

Plaintiff’s FMLA retaliation claim does not implicate a matter of public policy, such that

Defendant’s Motion to Dismiss must be granted with respect to Plaintiff’s Illinois

retaliatory discharge claim.

IT IS THEREFORE ORDERED THAT:

(1) Defendant’s Motion to Dismiss (#18) is GRANTED in part and DENIED in

part as described herein.

(2) This matter is referred back to the Magistrate Judge for further proceedings

consistent with this Order.

ENTERED this _1_4_t_h day of _O_c_t_o_b_e_r___ , 2025.

s/Colin Stirling Bruce

COLIN S. BRUCE

U.S. DISTRICT JUDGE