Summerland v. Exelon Generation Co.
| Decision Date | 30 December 2020 |
| Docket Number | 19 C 1333 |
| Citation | 510 F.Supp.3d 619 |
| Parties | Betty J. SUMMERLAND, Plaintiff, v. EXELON GENERATION COMPANY, Barbara Pohlman, and Triangle Occupational Medicine, P.A., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Edward Arthur Voci, Attorney at Law, River Forest, IL, for Plaintiff.
Jose Jorge Behar, Exelon Business Services Company, Chicago, IL, for Defendant Exelon Generation Co.
Kenneth A. Jenero, Steven L. Gillman, Jennifer Joy Froehlich, Holland & Knight LLP, Chicago, IL, for Defendants Barbara Pohlman, Triangle Occupational Medicine, P.A.
Betty Summerland sued her employer, Exelon Generation Company, and two of its contractors—Triangle Occupational Medicine and Betty Pohlman, Triangle's principal officer and owner—alleging violations of the First and Fifth Amendments, the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. , Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. , and 42 U.S.C. § 1985(3). Docs. 1, 19. On Defendants’ Civil Rule 12(b)(6) motions, the court dismissed without prejudice the amended complaint's Title VII retaliation, ADA reasonable accommodation, First and Fifth Amendment, and § 1985(3) claims, but granted Summerland leave to replead. Docs. 75-76 (reported at 455 F. Supp. 3d 646 (N.D. Ill. 2020) ).
Summerland filed a second amended complaint, which retains three of the four claims that survived dismissal (ADA retaliation and FMLA interference and retaliation against Exelon) ; omits the fourth surviving claim (ADA interference against Exelon); does not attempt to replead the dismissed claims; adds Pohlman and Triangle as defendants for the FMLA and ADA claims; adds state law intentional infliction of emotional distress ("IIED") and civil conspiracy claims against all Defendants; and adds a declaratory judgment claim against Exelon. Doc. 81. Defendants move to dismiss the new claims under Rule 12(b)(6). Docs. 84, 86. The motions are granted in part and denied in part.
In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC , 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in Summerland's brief opposing dismissal, so long as those additional facts "are consistent with the pleadings." Phillips v. Prudential Ins. Co. of Am. , 714 F.3d 1017, 1020 (7th Cir. 2013) (internal quotation marks omitted). The facts are set forth as favorably to Summerland as those materials allow. See Pierce v. Zoetis, Inc. , 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United States , 881 F.3d 529, 531 (7th Cir. 2018).
Exelon operates the LaSalle Generating Station and the Braidwood Generating Station, which are nuclear power production facilities. Doc. 81 at ¶¶ 4, 7. Summerland began work at the LaSalle facility in August 2011 and was reassigned to the Braidwood facility in 2013. Id. at ¶ 7. She is currently employed at Braidwood as an Office Service Specialist. Ibid. In that role, she processes correspondence, sorts data, and assembles work orders for distribution to the maintenance department. Id. at ¶ 8.
Through her company Triangle, Pohlman serves as Exelon's Medical Review Officer ("MRO") pursuant to 10 C.F.R. § 26.183. Doc. 81 at ¶¶ 5-6, 26. Federal law requires the operator of a nuclear reactor to maintain a "fitness-for-duty" ("FFD") program to ensure that employees are not "mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties." 10 C.F.R. §§ 26.3(a), 26.23(b). The MRO is responsible for reviewing drug testing results as well as advising and assisting the FFD program generally. Id. § 26.183(c).
In her role as MRO, Pohlman may advise, instruct, or demand that Exelon "pull an Exelon employee badge." Doc. 81 at ¶ 23. "Pulling a badge" is a colloquial reference to a regulation, 10 C.F.R. § 73.56, that requires a nuclear power operator to maintain an "access authorization program" regulating unescorted access to a nuclear facility. Doc. 81 at ¶ 26. The FFD and access authorization programs are components of the "insider mitigation" program, which monitors the trustworthiness and reliability of facility employees. 10 C.F.R. § 73.55(b)(9). For a nuclear facility employee, having her "badge pulled" is tantamount to termination because it denies entry to the workplace. Doc. 81 at ¶ 26.
Summerland suffers from several mental health conditions, including adjustment, anxiety, and depression disorders. Id. at ¶ 13. Those conditions sometimes prevent her from working, driving, or otherwise leaving her home, and they occasionally manifest in panic attacks that render her dysfunctional. Ibid. Exelon placed Summerland on medical leave in June 2017, whereupon she began treatment with a professionally licensed health care provider. Id. at ¶¶ 14, 16-17. Summerland does not allege that she invoked her FMLA rights for that period of medical leave.
Summerland returned to work in August 2017. Id. at ¶ 16. She responsibly manages her treatment and, as a result, has maintained a discipline-free work record. Id. at ¶ 15. Her work performance evaluations are positive, marred only by non-substantive criticism from supervisors who are hostile to her exercising her FMLA and ADA rights. Ibid.
For five years, Summerland's shift was from 6:00 a.m. to 2:30 p.m., which allowed her to attend the last time slot (4:00 p.m.) offered by her therapist. Id. at ¶¶ 18-19. On November 16, 2017, Exelon changed her shift to 7:00 a.m. to 3:30 p.m., which made it impossible for her to attend therapy with her therapist. Id. at ¶ 19. Summerland tried to negotiate with Exelon for a start time that would allow her to attend therapy as a reasonable accommodation, but Exelon refused. Id. at ¶ 20. Exelon's refusal triggered in Summerland a panic attack. Ibid.
Also on November 16, 2017, Summerland submitted a request for FMLA medical leave. Id. at ¶ 21. Exelon approved the request four days later. Id. at ¶ 22. On November 30, Summerland "called-in" an FMLA leave request. Id. at ¶ 23. When she did so, the Braidwood facility's site nurse told her that her "badge was being pulled" and that she would be referred to Exelon's Employee Assistance Program. Ibid.
On December 19 and 20, 2017, while Summerland was on FMLA leave, Pohlman and the Braidwood site nurse informed her that she had been placed on "a last chance agreement." Id. at ¶ 24. Specifically, Pohlman and the site nurse told Summerland that if she again requested FMLA or sick leave due to mental health issues, Exelon, Pohlman, and Triangle would permanently revoke her facility access. Ibid. Pohlman remarked that Summerland was untrustworthy and unreliable, and warned that she "did not work at Walmart." Ibid. Exelon, Pohlman, and Triangle did not comply with Summerland's several requests for a copy of the supposed last chance agreement. Id. at ¶ 28. No law or regulation provides for such an agreement; rather, Pohlman invented it to punish Summerland for having requested an ADA accommodation and FMLA leave. Ibid. Since the last chance agreement threat, Summerland has attempted to obtain therapy without requesting FMLA leave, which has aggravated her mental health conditions. Id. at ¶ 27.
Summerland could not work at the Braidwood facility from November 30, 2017, when her badge was pulled, until January 2, 2018, when her badge was returned after her therapist determined she was "fit for duty." Id. at ¶ 23. On May 15, 2018, some four months after she returned to work, Exelon threatened Summerland with revocation of her work site access because she failed to attend a scheduled therapy session. Id. at ¶ 26. Summerland had rescheduled the session due to a conflicting medical appointment for her leg. Ibid. In an email exchange that day, Pohlman told the Braidwood site nurse that the missed therapy session was "completely UNACCEPTABLE" and did not display "Trustworthy and Reliable behavior." Doc. 81-2 at 1. Pohlman continued: Ibid.
On November 5, 2018, Summerland filed a charge against Exelon with the Equal Employment Opportunity Commission ("EEOC"), claiming that she was "discriminated against because of [her] disability, and in retaliation for engaging in protected activity, in violation of the [ADA]." Doc. 81-3 at 2. The EEOC issued a right-to-sue letter three weeks later, id. at 1, after which Summerland timely filed this suit, Doc. 1.
The FMLA prohibits "any employer" from interfering with an employee's exercise of FMLA rights or retaliating against an employee for opposing practices that the FMLA forbids. See 29 U.S.C. § 2615(a)(1), (2). The court has ruled that Summerland may proceed with FMLA interference and retaliation claims against Exelon. 455 F. Supp. 3d at 658-60. The operative complaint adds Pohlman and Triangle as defendants for those claims. Doc. 81 at ¶¶ 144-221, 261-329. Pohlman and Triangle seek dismissal, arguing that neither was Summerland's "employer" within the meaning of the FMLA. Doc. 85 at 4-5.
The FMLA defines "employer" to include "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such...
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