that the claims should be dismissed because they were not included in Plaintiffs’ Equal Employment
Opportunity Commission (“EEOC”) charges.

Both Plaintiffs allege that they were fired in retaliation of filing workers’ compensation
claims. They both bring state law claims of retaliation based on this allegation. Plaintiffs’ remedies
under Title VII and the ADA are separate and independent from Plaintiffs’ remedies available under
state law. See Juarez vy. Ameritech Mobile Comm. Inc., 957 F.2d 317, 322 (7th Cir. 1992).
Furthermore, the retaliation claims are not based on the alleged ADA discrimination or any type of
discrimination. Instead, they are based on the separate action of filing a workers’ compensation
claim. Therefore, these state law claims that are unrelated to discrimination need not have been
included in the EEOC charges.

Lastly, Defendant argues that Plaintiffs’ retaliation claims should be dismissed because this
Court lacks supplemental jurisdiction over the claims.

State law claims fall within a district court’s supplemental jurisdiction if they are “so related
to [the federal] claims ... that they form part of the same case or controversy.” 28 U.S.C. § 1367(a);
Groce v. Eli Lilly & Co., 193 F.3d 496, 500 (7" Cir. 1999) (Groce). Generally, the district court will
have supplemental jurisdiction if the state law claims arise out of the same set of facts as his federal
claim. See Groce, 193 F.3d at 500.

In the instant case, Plaintiffs’ ADA claims are based on injuries that resulted from an accident
during their employment and the eventual termination of Plaintiffs because of these injuries.

Plaintiffs’ state law claims are based on the same accidents and injuries. Accordingly, this Court


based inquiry and determination of disability under the ADA are “generally not motion to dismiss
territory”).

Defendant next argues that the ADA claims should be dismissed because Plaintiffs failed to
allege that they requested an accommodation.

As stated above, Plaintiffs alleged that Defendant could have accommodated their disabilities
and that such accommodation would not have caused Defendant any undue hardship. While
Plaintiffs did not specifically plead that they requested an accommodation, it can be inferred that they
did so, and this ambiguity must be construed in favor of the Plaintiffs. See Curtis, 48 F.3d at 283.

Lastly, as to Plaintiffs’ ADA claims, Defendant argues that Plaintiffs’ injuries do not
constitute a disability under the ADA.

The ADA defines a disability as a “physical or mental impairment that substantially limits
one or more major life activities of such individuals.” 42 U.S.C. § 12102(2)(A). The determination
of disability must be made on an individualized, case-by-case basis. Homeyer, 91 F.3d at 962. As
such, the determination of whether a plaintiff suffers from a disability under the ADA is generally
not appropriate in a motion to dismiss. See Homeyer, 91 F.3d at 962.

In the instant case, Plaintiffs have alleged that they have disabilities. The Plaintiffs may be
able to show that these disabilities affect a major life activity. At this stage of litigation, this Court
cannot conclude that Plaintiffs cannot prove facts to support their claims. Accordingly, Plaintiffs’
ADA claims are not dismissed. See Homeyer, 91 F,3d at 962; Carroll y. Chicago Transit Authority,
2002 WL 206064 (N.D. Ill. Feb. 8, 2002) (denying motion to dismiss because plaintiff may be able
to show that carpel tunnel syndrome was a disability under the ADA).

Defendant also seeks to dismiss Plaintiffs’ state law retaliation claims. Defendant first argues


has subject matter jurisdiction over these state law claims. See Groce, 193 F.3d at 500 (finding

supplemental jurisdiction over state law retaliatory discharge claim).
ion
For the reasons stated above, Defendant’s M aa Dismiss is’ denied.
dh set
. DARRAH
States District Judge

Dated: tatth 26 2OO2.


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 8809 DATE 3/26/2002
CASE ANTHONY GALLO, et al vs. ACE COFFEE BAR, INC.
TITLE

of the motion being presented.]

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]

(2) oa Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due__.

(4) im) Ruling/Hearingon set fora

(5) Q Status hearing[held/continued to] [set for/re-set for] on__—ssetfor_ at.

(6) Q Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_— at

(7) Oo Trial[set for/re-set for] on____saat

(8) o [Bench/Jury trial] [Hearing] held/continued to__—__—at.

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(@n) O General Rule21 CI FRCP41(a)(1) 0 FRCP41(a)(2).

(0) ff {Other docket entry] Status hearing held and continued to April 30, 2002 at 9:00 a.m. Enter

Amended Memorandum Opinion And Order. Defendants’ motion to dismiss is denied.

ab [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. number of notices

Notices mailed by judge’s staff. ~ 0?
Notified counsel by telephone. MAR 21,20 is

wv | Docketing to mail notices,

Mail AO 450 form.

Copy to judge/magistrate judge.

ct date mailed notice
courtroom

LG deputy’s
initials

Date/time received in
central Clerk’s Office mailing deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCHETE
ANTHONY GALLO and DAVID YOSHIKANE, )
)
Plaintiffs, )
) No. 01 C 8809

v. )

) Judge John W. Darrah
ACE COFFEE BAR, INC., a Delaware corporation, )
)
Defendant. )

AMENDED MEMORANDUM OPINION AND ORDER

Plaintiffs, Anthony Gallo (“Gallo”) and David Yoshikane (“Y oshikane”), filed a four-count
complaint against Defendant, Ace Coffee Bar (“Ace”), alleging discrimination in violation of the
American with Disabilities Act, 42 U.S.C. 12101 et seq., and retaliatory discharge under state law.

Before the Court is Defendant’s Motion to Dismiss Plaintiffs’ Complaint.

In ruling on a motion to dismiss, the Court must accept the events as specified in the
complaint as true, and all ambiguities are construed in favor of the plaintiff. Curtis v. Bembeneck,
48 F.3d 281, 283 (7th Cir 1995) (Curtis). Federal notice pleading requires that a plaintiff “set out
in [the] complaint a short and plain statement of the claim that will provide the defendant with fair
notice of the claim.” Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir. 1999).

Plaintiffs’ Complaint supports the following summary of the conduct of the parties.

In November 1999, while in Ace’s employ, Gailo fell from one of Ace’s trucks and tore his
rotator cuff. In March 2000, Gallo was diagnosed with carpel tunnel syndrome. Around this same
time, Gallo asserted his rights under the Illinois Workers’ Compensation Act and filed an
Application for Adjustment of Claim against Ace. On August 8, 2000, before Gallo was able to

return to work, Ace terminated Gallo’s employment in retaliation for filing a workers’ compensation

MAR 2 7 2002

an


claim and because of his disabilities.

In April 2000, while in Ace’s employ, Yoshikane stepped down from one of Ace’s trucks and
twisted his knee and tore the meniscus. That same month, Yoshikane asserted his rights under the
INinois Workers’ Compensation Act and filed an Application for Adjustment of Claim against Ace.
On August 8, 2000, before Yoshikane was able to return to work, Ace terminated Yoshikane’s
employment in retaliation for filing a workers’ compensation claim and because of his disability.

Defendant argues that Plaintiffs’ ADA claims fail to state a cause of action.

Under the ADA, a plaintiff must allege that he is a “qualified individual with a disability”,
Duda v. Board of Educ. of Franklin Park Public Sch. Dist. 84, 133 F.3d 1054, 1059 (7th Cir. 1998)
(Duda). A qualified individual is a person that has the requisite skill, experience, education, and
other job related requirements of the position and who can perform the essential functions of the
position with or without accommodation. Duda, 133 F.3d at 1058.

Defendant argues that plaintiffs are not “qualified individuals” because they pled that they
were unable to return to work at the time of their discharge; therefore, they were unable to perform
essential functions of their positions.

Defendant’s argument at this stage of the litigation is meritless. Plaintiffs did plead that they
were terminated while on disability leave. However, they also pled that Defendant could have
accommodated their disabilities and that such accommodation would not have caused Defendant any
undue hardship. It can reasonably be inferred that the Defendant failed to do so. Therefore, the
factual question of whether Plaintiffs were qualified individuals under the ADA is not properly
addressed at this stage of the litigation. See Duda, 133 F.3d at 1059-60 (reversing dismissal of ADA

claim); Homeyer v. Stanley Tulchin Assoc., Inc.,91 F.3d 959, 962-63 (7th Cir. 1996) (Homeyer) (fact