Elzeftawy v. Pernix Grp., Inc.

477 F.Supp.3d 734

Atef A. ELZEFTAWY, Plaintiff,

v.PERNIX GROUP, INC. a Delaware Corporation, and Does 1-100, inclusive, Defendants.

No. 18-cv-06971

United States District Court, N.D. Illinois, Eastern Division.

Signed August 8, 2020

John Charles McCarty, McCarty Legal, Seal Beach, CA, Neil Pedersen, Kimberly Haewon Whang, Pedersen Law, Apc, Irvine, CA, Albert F. Ferolie, Law Offices of Albert F. Ferolie, P.C., Chicago, IL, for Plaintiff.

Ian A. Massar, Pro Hac Vice, Keith Lee Flicker, Pro Hac Vice, Flicker Garelick & Associates, LLP, New York, NY, Paul J. Richards, Kavanagh Grumley & Gorbold LLC, Joliet, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Edmond E. Chang, United States District Judge

In November 2016, Atef Elzeftawy sustained serious injuries to his left leg and foot while working at a construction site for his employer, Pernix Group, Inc., a construction company headquartered in Lombard, Illinois. See R. 1, Compl. at 4, 13.^{1 2} Nearly two years later, Elzeftawy brought this lawsuit against Pernix, alleging a cornucopia of federal and state claims. More specifically, he alleges violations of the following federal statutes: the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. (Count 1); Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (Count 2); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count 3); and the False Claims Act, 31 U.S.C. § 3730(h) (Count 5), as well as 42 U.S.C. § 1981 (Count 4). Elzeftawy also alleges violations of multiple California statutes: the Family Rights Act (CFRA), Cal. Gov't Code § 12945.1 et seq. (Count 6); the Fair Employment and Housing Act (FEHA), Cal. Gov't Code § 12940 et seq. (Counts 7-11); the California Labor Code, Cal. Lab. Code §§ 6310 and 6400 (Count 12) and § 1102.5 (Count 14); the False Claims Act, Cal. Gov.’t Code § 12653(a) (Count 13); and the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (Count 19). In addition, Elzeftawy brings California common-law claims for fraud (Counts 16-18), and for wrongful adverse employment action in violation of California public policy (Count 15).

If there is any way of making sure that a case gets off to a slow start, it is to plead a prolix 102-page, 173-paragraph complaint, as Elzeftawy did. Not at all surprisingly, Pernix has filed a motion to dismiss Counts 16-18 for lack of particularity under Federal Rule of Civil Procedure 9(b), as well as all 19 counts for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).³ R. 23-1, Mot. Dismiss. For the reasons discussed below, Pernix's motion is granted in part and denied in part.⁴

I. Background

For purposes of this motion, the Court accepts as true the factual allegations in the Complaint, Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), as well as those in Elzeftawy's response brief (to the extent they are consistent with the Complaint), see Heng v. Heavner, Beyers & Mihlar, LLC , 849 F.3d 348, 354 (7th Cir. 2017). See also Thompson v. Ill. Dep't of Prof. Reg. , 300 F.3d 750, 753 (7th Cir. 2002) (on a Rule 12(b)(6) motion, the pleadings "consist generally of the complaint, any exhibits attached thereto, and supporting briefs.") (citing Fed. R. Civ. P. 10(c) ).

Elzeftawy, an Egyptian-American and Muslim resident of California, started working for Pernix in 2012. See, e.g. , Compl. at 9, 12. At the time of the alleged injury, Elzeftawy was working on a construction project in South Korea as Senior Director of Engineering and Special Projects. See R. 26-1, Pl.’s Resp. Br., Exh. 2, 1/30/18 EEOC Charge at 9;⁵ id. at Exh. 3, 4/10/18 EEOC Charge at 18; Compl. at 9-10. Elzeftawy had recently been promoted to this position after years of "award winning service"—including an award from the U.S. Government for Best Design and Efficiency—and after bringing in over $100 million dollars in business for Pernix from federal government contracts. Compl. at 9-10.

In the summer and fall of 2016, just a few months before he was injured, Elzeftawy and other employees complained about safety issues at the company to Nidal Zayed (Pernix Group's CEO and President) and to Ed McSweeney (President of Pernix General, as well as Elzeftawy's supervisor).

See Compl. at 12; see also id. at 14, 62. The safety hazards included lack of adequate warning signs in dangerous construction zones. Id. at 12. But these complaints apparently went unheard, because in November 2016, Elzeftawy accidentally stepped onto open, raised steel floor tiles full of electrical conduits, sustaining a broken fibula, chipped ankle joint, and shattered heel bone. Id. at 13. As a result, he was totally disabled from November 2016 to January 2017 and needed multiple surgeries, which he underwent in his home state of California (presumably returning there at some point shortly after the injury). See id. That December, Candace Watson—Pernix's Human Resources Director—informed Elzeftawy that he was entitled to 12 weeks of FMLA leave, after which he would get either his previous job back or a similar one. Id. at 12-13.

In early January 2017, Elzeftawy's health-care providers cleared him to return to work (though just for desk duty and no travel). See Compl. at 14. He immediately told Zayed and McSweeney that he wanted to come back to work. Id. Shortly after, Elzeftawy's doctors cleared him for travel, so he then informed Pernix in January and February 2017 (as well as continuously afterward) that he was willing to move anywhere in the world for a position. Id. at 23. In fact, according to Elzeftawy, he was qualified for several open positions, including desk jobs like Senior Civil Estimator and Planning and Scheduling Analyst, as well as field jobs like Project Manager and Site Civil Engineer. Id. at 30. Pernix knew about his qualifications, including his decades of experience in various engineering-related positions (such as logistics, purchasing, project control, and others), as well as the nature and extent of his job duties as Senior Director of Engineering and Special Projects, from the FMLA forms he filled out and submitted in December 2016. Id. at 14. Despite this, Pernix never gave him his old job back nor offered him any other position. Id. at 20.

Instead, Elzeftawy claims that McSweeney told him there were no positions available for him in January 2017, which was allegedly a lie. Compl. at 22. Then, when Elzeftawy emailed Zayed to follow-up, Zayed responded that although they had considered a "place for [Elzeftawy] on Maputo[,]" the "feeling" was that they did not have a spot for Elzeftawy there "at present." Id. Apparently, while McSweeney gave Elzeftawy the cold shoulder and "stone-walled" him, Zayed (and HR Director Watson) promised him that they were trying to find him a position. Id. at 24. But according to Elzeftawy, they were just pretending, because they never offered him anything, not even when he sent them various resumes or asked them about open positions that he had found on his own. Id. at 24-25. Although there was a glimmer of hope in May 2017, when Pernix proposed a Consulting Agreement with the promise that they would continue to look for a more permanent position, Zayed ultimately nixed the idea. Id. at 26. And in September 2017, when Elzeftawy expressed interest in an open position that Zayed's brother (who was the Director of Corporate and Marketing Services) had told him about, no one ever responded to the inquiry. Id. In fact, Pernix requested an exit interview with Elzeftawy the following month—something that is ordinarily done when an employee leaves a company. Id. Although it is unclear whether Elzeftawy went through with the exit interview, he does allege that, to this day, no one has ever informed him whether he was actually discharged. Id. So his employment status has essentially been in a state of limbo since his injury in November 2016.

According to Elzeftawy, Pernix's conduct, including its failure to provide him with a position (or to even make a good faith effort to try and find him a position), constituted discrimination on the basis of his disability, race, color, national origin, ancestry, and religion. Compl. at 4. For one, Elzeftawy alleges that McSweeney would get angry at employees who got hurt on the job or who were otherwise disabled, especially because that would require Pernix to comply with federal and state laws like the FMLA and the California Family Rights Act. Id. at 22. Also, Elzeftawy learned in summer 2016 that Zayed and McSweeney had decided to lower the number of Muslim employees at Pernix, believing that it would make the company more competitive when bidding for U.S. government contracts. Id. at 10. Elzeftawy allegedly opposed this decision (although it is not clear how he did so or to whom). Id. What's more, Elzeftawy also alleges that McSweeney made racist and derogatory comments about Muslims and Middle-Easterners, including by equating them with terrorists. Id. at 10, 20. And given that McSweeney allegedly went on racist "rants" about Middle-Easterners, this apparently happened more than once. Id. at 31. Elzeftawy complained about these statements too, including in June or July 2016, when he "openly and forcefully chid[ed]" McSweeney for being offensive and racist. Id. at 21. Although it is not clear at this point what Zayed and McSweeney said (if anything) in response to these complaints, Elzeftawy alleges that Caucasian and non-Muslim employees who became disabled received better treatment, including reasonable work accommodations for their disabilities. Id. at 23. In fact, despite Elzeftawy's repeated requests to return to work, Pernix allegedly filled various positions with non-disabled, non-Muslim, non-Egyptian-American employees who were less qualified than Elzeftawy (and who had not complained about any harassment or discrimination). Id. at 28.

II. Legal Standard

Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only...