IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

JASON EHLERDING, )

)

Plaintiff, )

)

vs. ) No. 1:15-CV-165

)

AMERICAN MATTRESS AND )

UPHOLSTERY, INC., et al., )

)

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on Defendants’ Rule 12(b)(6)

Motion to Dismiss and Rule 12(f) Motion to Strike, filed by the

Defendants, American Mattress and Upholstery, Inc., Mark

Roedeske,1 and Lajuan Wade, on November 24, 2015. (DE #16.) For

the reasons set forth below, the motion is DENIED. 

BACKGROUND

Plaintiff, Jason Ehlerding (“Plaintiff”), filed his

complaint on June 29, 2015. (DE #1.) He was granted leave to

amend on August 13, 2015; his first amended complaint was

docketed that same day. (DE #7 & DE #8.) The first amended

complaint brings claims against American Mattress and Upholstery,

Inc. (“American Mattress”), Mark Roedeske (“Roedeske”), and

Lajuan Wade (“Wade”) (collectively, “Defendants”) pursuant to

1

 According to Defendants, Plaintiff misspelled Mark Roedeske’s name as

Ruduski. For purposes of this Order, he will be referred to as Roedeske. 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. section

2000(e) et seq (“Title VII”), the American with Disabilities Act

of 1990, 42 U.S.C. section 12111 et seq (“ADA”), 42 U.S.C.

section 1981 (“Section 1981”), and the Family Medical Leave Act

of 1993, 29 U.S.C. section 2601 et seq (“FMLA”). The first

amended complaint incorporates and attaches a copy of Plaintiff’s

Charge of Discrimination, which was filed with the Equal

Employment Opportunity Commission (“EEOC”) on or about August 25,

2014. (DE #8.) Plaintiff also attaches a Notice of Right to Sue

from the EEOC which is dated April 30, 2015. (Id.) Defendants

filed the instant motion to dismiss on November 24, 2015. (DE

#16.) Plaintiff filed his reply on December 7, 2015. (DE #18.) 

Defendants filed their reply on December 14, 2015. (DE #19.) 

Thus, the motion is ripe for adjudication. 

DISCUSSION

Facts

As was adequately set forth by Defendants in their

memorandum in support of the motion to dismiss,2

 Plaintiff

alleges, through his attached Charge of Discrimination, that he

is a biracial male who was employed as a sales manager at

2

 In his response brief, Plaintiff states that Defendants have “sufficiently

summarize[d] the relevant factual allegations” of the first amended complaint;

thus, the Court has borrowed liberally from Defendants’ memorandum for the

background section of this Order. (See DEs #8, #17, pp. 2-3, and #18, pp. 3-

4.)

2
American Mattress, located at 4614 Coldwater Road in Fort Wayne,

Indiana from January 21, 2013, until his wrongful termination on

April 4, 2014. According to Plaintiff, on March 10, 2014, he

underwent hernia surgery in relation to an injury he allegedly

sustained at work. Prior to the surgery, he notified the

regional manager about his need for time off of work. Plaintiff

alleges that he was entitled to use FMLA to address this serious

health condition.

After his surgery, Plaintiff was placed on work restrictions

and was directed not to lift heavy objects. American Mattress

initially indicated it would comply with the work restrictions by

having an assistant help Plaintiff when necessary. However,

Plaintiff alleges that he was only given assistance twice during

the remainder of his employment with American Mattress. 

Otherwise, he was required to go against this lifting

restriction. In addition, upon his return from medical leave,

Plaintiff was allegedly given an increased work load and

scheduled to work six days a week, at least one of those days for

which he was not paid. Later, he returned to his normal work

schedule.

On April 4, 2014, Plaintiff encountered a customer who was

upset by a delivery driver who had failed to assemble a bed that

had been ordered. Plaintiff contacted his regional manager,

Roedeske, about the situation. Roedeske told Plaintiff that the

3
customer was lying and argued with Plaintiff, allegedly using

profanity. Following the phone conversation, Plaintiff spoke

again with Roedeske and was told he was fired.

Plaintiff contends that he was discriminated against,

retaliated against, and wrongfully terminated on the basis of

race and disability as well as for his use of medical leave. He

claims to have suffered from emotional distress and mental

anguish as a result of Defendants’ wrongdoing. Plaintiff seeks

compensatory damages, punitive damages, liquidated damages, and

attorney fees and costs. 

Rule 12(b)(6) Motion to Dismiss

In evaluating a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), a court must accept all facts alleged

in the complaint as true and draw all reasonable inferences in

the light most favorable to the plaintiff. Johnson v. Rivera,

272 F.3d 519, 520 (7th Cir. 2001). A complaint is not required

to contain detailed factual allegations; however, the plaintiff

must allege facts that state a claim to relief that is plausible

on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is

not enough that there might be some conceivable set of facts that

entitle the plaintiff to relief. Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 553-56 (2007). The plaintiff’s obligation

“requires more than labels and conclusions. . . .” Id. at 555. 

4
The Supreme Court has provided that “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678.

When reviewing a motion to dismiss, a court generally

considers only the factual allegations of the complaint and any

reasonable inferences that can be drawn from those allegations;

however, a court may also examine information from documents “if

they are referred to in the plaintiff’s complaint and are central

to his claim.” Adams v. City of Indianapolis, 742 F.3d 720, 729

(7th Cir. 2014); see Williamson v. Curran, 714 F.3d 432, 443 (7th

Cir. 2013) (noting the Seventh Circuit has taken “a relatively

expansive view of the documents that a district court properly

may consider in disposing of a motion to dismiss.”). Here,

Plaintiff’s Complaint attaches, refers directly to, and

incorporates the Charge of Discrimination which may be considered

by this Court in ruling on the motion to dismiss without

converting it into a motion for summary judgment. See Vasquez v.

Caterpillar Logistics, Inc., No. 1:15-CV-398-TLS, 2016 WL

1573179, at *1 (N.D. Ind. Apr. 19, 2016) (citing Miller v.

Herman, 600 F.3d 726, 733 (7th Cir. 2010) (documents attached to

complaint are considered part of the complaint)).

5
ADA Claim

The ADA “provide[s] a clear and comprehensive national

mandate for the elimination of discrimination against individuals

with disabilities.” 42 U.S.C. § 12101(b)(1). To state a claim

pursuant to the ADA, a plaintiff must allege that “(1) he is

‘disabled’; (2) he is qualified to perform the essential function

of the job either with or without reasonable accommodation; and

(3) he suffered an adverse employment action because of his

disability.” Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1172

(7th Cir. 2013) (citing E.E.O.C. v. Lee’s Log Cabin, Inc., 546

F.3d 438, 442 (7th Cir. 2008)). Therefore, as an “initial

matter” under this rubric, a plaintiff must establish that he is

disabled as defined under those statutes and relevant

regulations. See, e.g., Steffen v. Donahoe, 680 F.3d 738, 743

(7th Cir. 2012). Enacted in 1990, the ADA originally defined

disability as “(A) a physical or mental impairment that

substantially limits one or more major life activities of such

individual; (B) a record of such an impairment; or (C) being

regarded as having such an impairment.” 42 U.S.C. § 12102(2)

(current version at 42 U.S.C. § 12102(1)). Because the 1990

statute failed to define the terms ‘substantially limits’ and

‘regarded as,’ the precise meaning of each phrase was left to

judicial interpretation. See, e.g., Toyota Motor Mfg., Ky., Inc.

v. Williams, 534 U.S. 184, 198 (2002) (holding that a disability

6
‘substantially limits’ a major life activity where it “prevents

or severely restricts the individual from doing activities that

are of central importance to most people’s daily lives” and has

an impact that is “permanent or long term”); Sutton v. United Air

Lines, Inc., 527 U.S. 471, 489 (1999) (holding that in order to

be ‘regarded as’ having a disability, an employer must “believe

either that one has a substantially limiting impairment that one

does not have or that one has a substantially limiting impairment

when, in fact, the impairment is not so limiting.”). 

Effective January 1, 2009, the ADA was amended to “carry out

the ADA’s objectives” by “reinstating a broad scope of

protection.” See ADA Amendments Act of 2008 (“ADAAA”), Pub. L.

No. 110–325, 122 Stat. 3553 (2008). The ADAAA itself is

described as “[a]n Act to restore the intent and protections of

the Americans with Disabilities Act of 1990,” and in its findings

Congress specifically noted that the original intent of the ADA

was to provide “broad coverage” and a “clear and comprehensive

national mandate for the elimination of discrimination against

individuals with disabilities.” Id. Specifically, Congress

found that the United States Supreme Court had improperly

narrowed the protection intended to be afforded under the ADA,

and the ADAAA rejected the holdings of Sutton and Toyota Motor

Mfg. Importantly, the ADAAA left the ADA’s three-category

7
definition of “disability” intact1 but clarified how the

categories are to be interpreted. For example, the ADAAA now

provides a specific definition for the term “Major Life

Activities” whereas prior to the amendments, courts could only

look to previous case law and regulations interpreting the ADA

for guidance. The definition of major life activities includes

but is not limited to “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). Congress also added “[r]ules of construction

regarding the definition of disability” which provide: 

(A) The definition of disability in this

chapter shall be construed in favor of broad

coverage of individuals under this chapter,

to the maximum extent permitted by the terms

of this chapter.

(B) The term ‘substantially limits’ shall be

interpreted consistently with the findings

and purposes of the ADA Amendments Act of

2008.

(C) An impairment that substantially limits

one major life activity need not limit other

major life activities in order to be

considered a disability.

(D) An impairment that is episodic or in

remission is a disability if it would

substantially limit a major life activity

when active.

1

 As stated above, “disability” with respect to an individual is defined as

(A) “a physical or mental impairment that substantially limits one or more

major life activities of such individual”; (B) “a record of such an

impairment”; or (C) “being regarded as having such an impairment.” 42 U.S.C.

§ 12102(1).

8
(E)(i) The determination of whether an

impairment substantially limits a major life

activity shall be made without regard to the

ameliorative effects of mitigating measures .

. . . 

42 U.S.C. § 12102(4). In essence, the ADAAA reestablished the

original intent and expansive scope of the ADA.

Here, Defendants argue that Plaintiff’s ADA claim should be

dismissed because he has not properly alleged a disability that

would be covered by the ADA. To support their argument,

Defendants rely heavily on a case from this district, Brodzik v.

Contractors Steel, Inc., 48 F. Supp. 3d 1183 (N.D. Ind. 2014). 

In Brodzik, the court found that the plaintiff, who alleged that

he was constructively fired after he returned to work following a

hernia surgery, had not sufficiently pled that he had a physical

or mental impairment that substantially limited him in one or

more major life activities. Id. at 1185, 1189. This was so,

according to the court, because “many short term impairments,

such as [the plaintiff’s] recovery period for his hernia surgery,

still do not qualify as a disability under the revised standard

of the ADAAA.” Id. at 1189 (citing Butler v. BTC Foods Inc., No.

12-492, 2012 WL 5315034, at *2 (E.D. Pa. Oct. 19, 2012). The

court noted that “[i]mpairments that last only for a short period

of time are typically not covered, although they may be covered

if sufficiently severe.” Id. (quoting Wanamaker v. Westport Bd.

of Educ., 899 F. Supp. 2d 193, 211 (D. Conn. 2012). The court

9
acknowledged that while “episodic impairments are disabling if

they substantially limit a major life activity when active,”

nothing in the plaintiff’s complaint suggested that the “hernia

and the resulting surgery was anything more than a one-time

occurrence.” Id. (internal quotation marks and citation

omitted). 

In response, Plaintiff asserts that he has pled a physical

disability “under but one definition” of the ADA in that, as a

result of his hernia surgery, he was “placed on work restrictions

by his physician” and was “not to be lifting heavy objects.” (DE

#8, p. 6 & DE #18, p. 5.) Plaintiff argues that the allegations

show that those restrictions substantially limited the major life

activities of “lifting, manual tasks, and working.” (DE #18, p.

5.) According to Plaintiff, the cases cited by Defendants as

noted above are distinguishable from the case at hand.

Giving Plaintiff the benefit of all reasonable inferences to

which he is entitled at this stage, the Court finds that the

first amended complaint adequately alleges a disability pursuant

to the ADA. Specifically, Plaintiff alleges that, due to his

hernia and resultant surgery, he was placed on work related

restrictions that included lifting. Both working and lifting

qualify as major life activities. 42 U.S.C. § 12102(2)(A). So

long as an individual is limited “as compared to most people in

the general population,” nothing in the ADA as it currently

10
stands mandates that the alleged impairment prevent or

significantly restrict those major life activities in order to be

deemed substantially limiting. 29 C.F.R. § 1630.2(j)(1)(ii). 

Plaintiff’s allegation that he was limited in his lifting

capabilities meets this broad definition that is “not meant to be

a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i). The Seventh

Circuit has made it clear that a person with an impairment that

substantially limits a major life activity can be disabled even

when the impairment is “transitory and minor.” Gogos, 737 F.3d

at 1172. Similarly, impairments that are “episodic or in

remission” are disabilities if they would be substantially

limiting when active. Id. at 1172-73. 

While Defendants argue that Brodzik precludes Plaintiff from

proceeding on his ADA claim, the Court finds that Brodzik is

distinguishable from the present case. The plaintiff in Brodzik

had hernia surgery and returned to work after a six-week recovery

leave. Brodzik, 48 F.Supp.3d at 1185. In reaching its holding

that the plaintiff’s hernia was not a covered disability, the

court specifically noted that the plaintiff had “not allege[d]

that he had any physical or mental restrictions as a result of

the surgery.” Id.; see also Butler, 2012 WL 5315034, at *3

(finding that the plaintiff’s hernia was not a substantially

limiting impairment because he had not alleged that the hernia

was anything more than a one-time occurrence). Here, by

11
contrast, Plaintiff clearly alleges that his lifting capabilities

were restricted following his return to work. In their reply

brief, Defendants assert that Plaintiff’s alleged restrictions

“if any, were temporary restrictions.” (DE #19, p. 2.) However,

Plaintiff’s complaint does not assign a time frame to those

restrictions, and, as Plaintiff points out, he was terminated at

the very time the restrictions were allegedly substantially

limiting his major life activities of working and lifting. It

could well be that the evidence will show Plaintiff’s impairment

was a short term, one-time occurrence; but, at this stage, the

Court must give Plaintiff the benefit of all reasonable

inferences to which he is entitled. See Bob-Maunuel v. Chipotle

Mexican Grill, Inc., 10 F. Supp. 3d 854, 881 (N.D. Ill. 2014)

(“Based on this Court’s reading of the ADAAA and viewing the

evidence in the light most favorable to Plaintiff, the Court

finds that Plaintiff’s hernia constituted a disability that

substantially limited the major life activity of lifting.”); see

also Heatherly v. Portillo’s Hot Dogs, Inc., 958 F.Supp.2d 913,

920-21 (N.D. Ill. 2013) (plaintiff, who by doctor’s orders had to

refrain from heavy lifting while pregnant, had “presented

sufficient evidence to create a triable issue of fact as to

12
whether her high risk pregnancy rendered her disabled under the

ADAAA”).2

 Defendants’ motion to dismiss Plaintiff’s ADA claim 

Rule 12(f) Motion to Strike

Federal Rule of Civil Procedure Rule 12(f) provides that a

district court “may strike from a pleading an insufficient

defense or any redundant, immaterial, impertinent, or scandalous

matter.” Fed.R.Civ.P. 12(f). A court has significant discretion

in ruling on a motion to strike, and the matters at issue may be

addressed on its own or pursuant to a motion filed by a party. 

Delta Consulting Group, Inc. v. R. Randle Const., Inc., 554 F.3d

1133, 1141 (7th Cir. 2009) (citing Talbot v. Robert Matthews

Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992)). However, Rule

12(f) is neither an authorized nor a proper way to procure the

dismissal of part of the complaint. Pierson v. Dean, Witter,

Reynolds, Inc., 551 F. Supp. 497, 504 (C.D. Ill. 1982); see also

Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th

Cir. 2010) (“We hold that Rule 12(f) of the Federal Rules of

Civil Procedure does not authorize a district court to dismiss a

claim for damages on the basis it is precluded as a matter of

2

 In their reply brief, Defendants argue for the first time that Plaintiff’s

first amended complaint “contains no allegations suggesting his alleged short

term impairment had any causal relation to his termination, which apparently

occurred after an issue arose with customer service.” (DE #19, p. 2.) Such

argument will not be considered by the Court because it is undeveloped,

inadequate, and was filed too late. APS Sports Collectibles, Inc. v. Sports

Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002) (citing James v. Sheahan, 137

F.3d 1003, 1008 (7th Cir. 1998) (“Arguments raised for the first time in a

reply brief are waived.”)). 

13
law.”) As motions to strike are looked upon with disfavor, “a

court ordinarily will not strike a matter unless the court can

confidently conclude that the portion of the pleading to which

the motion is addressed is redundant or is both irrelevant to the

subject matter of the litigation and prejudicial to the objecting

party.” Fed. Nat’l Mortgage Ass’n v. Cobb, 738 F. Supp. 1220,

1224 (N.D. Ind. 1990). In moving to strike matters as

irrelevant, a defendant must clearly show that the matter is

outside the issues in the case and is prejudicial. Cumis Ins.

Soc’y Inc. v. Peters, 983 F. Supp. 787, 798 (N.D. Ill. 1997). 

Here, Defendants ask this Court to strike portions of

Plaintiff’s first amended complaint pursuant to Rule 12(f)

because it violates Federal Rule of Procedure 8 by “lumping all

Defendants together” which leads to a pleading in which “clarity

is somewhat lacking.” (DE #17, p. 6-7.) Specifically,

Defendants request that: (1) “to the extant (sic) that

[Plaintiff] seeks redress from individuals [Roedeske] and Wade

under Title VII or the ADA, his claim should be dismissed and/or

stricken;” (2) Plaintiff’s Section 1981 claims against Roedeske

and Wade be dismissed because Plaintiff “has pleaded no specific

facts against Roedeske and Wade to show intentional racial

dissemination (sic) committed by the two individuals;” and (3)

any claims for punitive damages and emotional distress under the

FMLA be stricken. (Id. at 7-9.) Plaintiff responds by conceding

14
that he is not alleging ADA and/or Title VII claims against

Roedeske and Wade individually, by arguing that he has

sufficiently pled Section 1981 claims against both Roedeske and

Wade, and by stating that, while he agrees that punitive damages

are not available under the FMLA, they are available under other

statutes referenced in the first amended complaint. Plaintiff

takes the position that a Rule 12(f) motion to strike is

inappropriate in these circumstances. 

The Court declines to strike the matters outlined above. In

making its argument that Rule 12(f) should be employed because

Plaintiff’s first amended complaint allegedly lacks clarity,

Defendants cite to Federal Rule of Civil Procedure 8 and cases

such as Crumpacker v. Civiletti, 90 F.R.D. 326, 329 (N.D. Ind.

1981) and Vicom, Inc. v. Harbridge Merch. Serv., Inc., 20 F.3d

771, 775 (7th Cir. 1994). The Court finds that reliance

misplaced. In Crumpacker, the plaintiff sued sixty-four

different defendants on twelve separate legal claims in a

complaint spanning fifty-three legal sized pages. Crumpacker, 90

F.R.D. at 328-29. The court dismissed the plaintiff’s complaint

because it failed to comport with Federal Rule of Civil Procedure

8’s “simple, concise, and direct” mandate, among other

deficiencies. Id. at 329-37; Fed.R.Civ.P. 8(d). Similarly in

Vicom, the Seventh Circuit stated that it was dismayed by the

plaintiff’s “119-page, 385-paragraph less-than-coherent amended

15
complaint” and noted that it constituted an “egregious violation

of Rule 8(a).” Vicom, 20 F.3d at 775-76. In the instant case,

however, Plaintiff’s first amended complaint is straightforward

and to the point. He sues his employer and two individual

management representatives for discrimination and retaliation on

the basis of race and/or disability in violation of Title VII,

Section 1981, the ADA, and the FMLA. Viewing those statutes

along with the facts alleged in the first amended complaint and

attached Charge of Discrimination, it is not difficult to discern

which theories of recovery apply to the specific defendants,

despite Plaintiff’s “lumping” of them together, once relevant

case law is considered. See Vicom, 20 F.3d at 775 (the “primary

purpose” of Rule 8 is “rooted in fair notice”). For example, as

is conceded by Plaintiff in his response brief, it is clear that

the Title VII and ADA claims are not applicable to Roedeske and

Wade individually. See, e.g., Williams v. Banning, 72 F.3d 552,

553-55 (7th Cir. 1995) (neither the ADA nor Title VII impose

individual liability on an employer’s agents because a

“supervisor does not, in his individual capacity, fall within

[the] definition of employer”). On the other hand, individual

liability may attach to Section 1981 claims in certain

circumstances. See, e.g., Smith v. Bray, 681 F.3d 888, 896 (7th

Cir. 2012) (“One key difference between § 1981 and Title VII is

that the latter authorizes suit only against the employer as an

16
entity rather than against individual people who are agents of

the employer. Under § 1981, individuals may be liable.”),

overruled on other grounds by Ortiz v. Werner Enterprises, Inc.,

No. 15-2574, 2016 WL 4411434 (7th Cir. Aug. 19, 2016). As to

damages, it is clear (and Plaintiff concedes as much) that

punitive damages, nominal damages, and damages for emotional

distress are not available under the FMLA. See, e.g., Sons v.

Henry Cnty., No. 105CV00516DFHTAB, 2007 WL 968726, at *2 (S.D.

Ind. Mar. 13, 2007) (describing the specific set of remedies

provided by the FMLA as including wages, salary, benefits, lost

compensation, monetary losses suffered, and equitable relief but

noting that “[o]ther kinds of damages, including punitive

damages, nominal damages, or damages for emotional distress, are

not recoverable.”) 

More importantly, however, Rule 12(f) is not the proper

vehicle to attack the sufficiency of Plaintiff’s claims, which is

essentially what Defendants are attempting to do. See Driveaway

and Truckaway Serv., Inc. v. Aaron Driveaway & Truckaway Co.,

Inc., 781 F. Supp. 548, 549-50 (N.D. Ill. 1991) (“Plaintiffs’

prayer for punitive damages is neither a defense, redundant,

immaterial, impertinent, nor scandalous. Accordingly, Rule 12(f)

is inapplicable.”); Peterson v. Baloun, 715 F. Supp. 212, 213-14

(N.D. Ill. 1989) (noting that the defendants’ motion “exceed[ed]

the proper scope of a motion to strike” because it sought to

17
attack the merits of the claims and the sufficiency of the

complaint); see also Whittlestone, Inc., 618 F.3d at 974 (“Were

we to read Rule 12(f) in a manner that allowed litigants to use

it as a means to dismiss some or all of a pleading . . ., we

would be creating redundancies within the Federal Rules of Civil

Procedure, because a Rule 12(b)(6) motion (or a motion for

summary judgment at a later stage in the proceedings) already

serves such a purpose.”). Because Defendants have specifically

chosen to proceed pursuant to Rule 12(f) for this portion of

their motion, the Court will not substitute a Rule 12(b)(6)

analysis in its place sua sponte, and the motion to strike is

denied in its entirety. That said, the Court notes that none of

this is meant to imply that Plaintiff will ultimately prevail on

the merits or that his first amended complaint presents

recoverable claims on every possible theory presented. 

 

CONCLUSION

For the aforementioned reasons, Defendants’ Rule 12(b)(6)

Motion to Dismiss and Rule 12(f) Motion to Strike (DE #16) is

DENIED. 

DATED: September 22, 2016 /s/ RUDY LOZANO, Judge

United States District Court

18