In Count II, plaintiffalleges that defendant retaliated against him for filing the EEOC Charge
by “restrict[ing] [his} professional activity, growth and development.” (Am. Compl. © 36.)

Apparently, the restriction of professional activity to which plaintiff refers is UPS’ failure to transfer

him to the small sorts department and its subsequent termination of his employment. (Id. 42
Because the retaliation claim is based on the same conduct as the failure to accommodate claim, it

also survives defendant's timeliness challenge.

The State Claim

In Count HII, plaintiff asserts an intentional infliction of emotional distress (“ITED”) claim
against defendant. Defendant contends that this claim is preempted by both the Illinois Human
Rights Act (“IHRA”) and the Illinois Workers’ Compensation Act (“IWCA"). Because we agree
that the IHRA preempts this claim, we will restrict our discussion to that statute.

The IHRA divests courts of jurisdiction over “the subject ofan alleged civil rights violation
other than as sct forth in [the} Act.” 775 In. Comp. Stat. S/8-111(C). Both disability

discrimination and retaliation for complaining about it are included in the statute’s definition of

“civil rights violation.” 775 ILL. Comp. Svar. 5/2-102(A), 5/6-101(A);
5/1-102(A) (stating that it is Ilinois public policy “[t]o secure for all individuals within Illinois the

freedom from discrimination against any individual because of his or her race, color, religion, sex,

national origin, ancestry, age, marital status, physical or mental handicap . . . in connection with
employment... .”). According to the Illinois Supreme Court, the HIRA deprives courts of

jurisdiction not only over claims that constitute civil rights violations, but also over any other claim.

that is “inextricably linked to a civil rights violation such that there is no independent basis for the


practice occurred.”); (Def.’s Mem. Supp. Mot. Dismiss Am. Compl., Ex. A, I C Charge)!
Gndicating that plaintiff filed his charge with the Hlinois Department of Human Rights)), Plaintiff
filed his EEOC charge on March 9, 2000. (Def.’s Mem. Supp. Mot. Dismiss Am. Compl., Ex. A.
EEOC Charge.) Thus, the conduct of which he complains must have occurred on or after May 14,
1999 or his ADA claims are barred.

We will start with the failure to accommodate claim. In his amended complaint, plaintiff
alleges that he requested an accommodation on March 16, 1999 and that UPS subsequently denied
that request. (Am. Compl. {f 20-21.) He does not, however, allege when that request was denicd,
the pivotal date for a failure to accommodate claim.

Though it is not alleged in the amended complaint, defendant argues that the date the
accommodation request was denied can be inferred from it. In defendant's view, the allegation that
plaintiff made the request in March 1999 supports the inference that it was also denied that month,
The Court disagrees. According to plaintiffs EEOC charge, the denial occurred, at the earliest,
sometime during July 1999, (See Def.’s Mem. Supp. Mot. Dismiss Am. Compl., Ex. A, EEOC
Charge (“In July 1999, I was released by my doctor to return to perform duties within my medical
restrictions. The employer refused to allow me to return. [requested a transfer to the Small Sorts
Department. ... My request was denied.”).) Because the entire month of July 1999 falls within the
300-day filing period, defendant’s motion to dismiss the failure to accommodate claim as untinely

is denied.

We can consider the EEOC Charge, which defendant submitted in support of its motion,
because it is “referred to in the plaintiff's [amended] complaint and [is] central to [his] claim.”
Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7" Cir. 1993)

-3-


action apart from the Act itself”. Maksimovic v. Tsogalis, 687 N.F.2d 21, 23 (IIL 1997). The entire

basis for plaintiff's IED claim is the discrimination and retaliation he allegedly endured. Absent
the discriminatory conduct, plaintiff would have no HED ciaim against defendant. Because
plaintiffs IED claim is inextricably linked to his discrimination and retaliation claims, it is
preempted by the IHRA. UPS’ motion to dismiss the IID claim for lack of subject matter

jurisdiction is, therefore, granted.

Conclusion
For the reasons set forth above, defendant’s Rule 12(b)(6) motion to dismiss the ADA claims
plaintiff asserts against it in Counts | and If of his amended complaint is denicd. Defendant's Rule
12(b)(1) motion to dismiss the ITED claim plaintiff asserts against it in Count If] of the amended
complaint is granted and that claim is dismissed without prejudice for lack of subject matter
jurisdiction,

ENTER:

UNITED STATES DISTRICT JUDGE

DATED: HMtdugs JO 2002


Minuie Order Form (06/97),

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other
than Assigned Judge

Paul E. Plunkett

CASE NUMBER

01 C 6598 DATE 8/30/2002

CASE DAVID DUGGER vs. UNITED PARCEL SERVICE
TITLE
[In the following box (a) indicate the paryy filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]

DOCKET ENTRY:

TBK

qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) o Answer brief to motion duc . Reply to answer brief duc.
(4) 0 Ruling/Hearing on. set for at
6) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) i) Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) a Trial[sct for/re-set for] on at
(8) Qo (Bench/Jury trial] [Hearing] held/continued to at
(9) a} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
DFRCP4(m) O Local Rule 41.1 CIFRCP41(a)(1) © FRCP41(a)(2).
co) i [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Defendant Rule
12(b)(6) motion to dismiss the ADA claims plaintiff asserts against it in Counts I and II of his amended
complaint is denied. Defendant’s Rule 12(b)(1) motion to dismiss the ITED claim plaintiff asserts against
it in Count II of the amended complaint is granted and that claim is dismissed without prejudice for lack
of subject matter jurisdiction. Status hearing and ruling date of 9/3/02 is stricken. Status hearing reset
to 9/17/02 at 9:30a.m.
aly [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
4 A Number
No notices required. umber otmaioes —*
Notices mailed by judge's staff. 1. 02
Notified counsel by telephone. S EP 0 ee 20 _
oY | Docketing to mail notices
Mail AO 450 form, Nadiscine Genfty itis
Copy to judge/magistrate judge.

date mnaled notice

courtroom
deputy's
initials

Date/time received in
central Clerk’s Office

omiling depaty initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SEP 6 3 2002

DAVID DUGGER, )
)
Plaintiff, )
)
v ) No. 01 C 6598

) Paul E. Plunkett, Senior Judge
UNITED PARCEL SERVICE )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

David Dugger has sued United Parcel Service (*UPS”) for its alleged violations of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seg., and for intentional infliction
of cmotional distress. Defendant has filed a motion pursuant to Federal Rule of Civil Procedure
(“Rule”) 12(b)(6) to dismiss the federal claims and a motion pursuant to Rules 12(b)(1) and 12(b)(6)
to dismiss the state claim. For the reasons set forth below, the motion to dismiss the federal claims

is denied and the motion to dismiss the state claim for lack of subject matter jurisdiction is granted.

In April 1998, while plaintiff was employed by UPS as a driver, he was diagnosed with a
disabling back condition. (Am. Compl. 4 9-11, 16-17.) On March 16, 1999, plaintiffrequested that
UPS accommodate his disability by having a helper unload the heavy boxes from his truck and
limiting his work hours or by reassigning him to the “small sorts” department, where heavy lifting

and long hours were not required. (Id. § 20.) At some unidentified point, UPS denied plainut?s



request and terminated his employment. (Id. 4 21-22.) Plainuff contends that UPS* conduct

violated his rights under the ADA and intentionally inflicted emotional distress on him

The Federal Claims
The Legal Standard
On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in plaints favor. Midwest
Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1992). No claim will be dismissed unless “it
is clear that no relief could be granted under any set of facts that could be proved consistent with the

allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)

Discussion
UPS contends that plaintiffs ADA failure to accommodate (Count 1) and retaliation (Count
II) claims must be dismissed because he did not file timely EEOC charges on them. The ADA
requires plaintiff to file a charge of discrimination within 300 days of an alleged unlawful
employment practice. Sce 42 U.S.C. § 12117(a) (stating that the procedures applicable to Title VIL
claims are applicable to ADA employment claims); 42 U.S.C. § 2000c-5(e)(1) (*[1]n a case of an
unlawful employment practice with respect to which the person aggricved has initially instituted

proceedings with a State or local agency... , such charge shall be filed [with the EEOC} by or on

behalf of the person aggrieved within three hundred days afler the alleged unlawful employment