Morse v. Advance Central Services Alabama et al

Filing 43

ORDER granting 41 Motion to Dismiss. Signed by Senior Judge Charles R. Butler, Jr on 7/25/2016. (srd) Copy to Plaintiff.

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

WINSTON E. MORSE, SR.

Plaintiff,

v.

ADVANCE CENTRAL
SERVICES ALABAMA,

Defendants.

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CIVIL ACTION NO.
15-00343-CB-M

ORDER

On April 12, 2016, this Court entered an order finding that Plaintiff had failed

to state a claim upon which relief can be granted. Plaintiff, who is proceeding pro se
was given an opportunity to amend his complaint to state a claim for relief under
the Americans with Disabilities Act (ADA). Plaintiff has filed an amended complaint
(Doc. 38), but that complaint is also deficient. Defendant has filed a motion to
dismiss (Doc. 41), which is due to be granted.1
Procedural Background

Plaintiff Winston Morse, Sr. filed a pro se complaint on July 2, 2015 in which

he attempted to assert an ADA claim against Advance Central Services Alabama and
its human resources manager, Matt Havard. (Doc. 1.) The complaint listed as
defendants “Advance Central Services Alabama (Press Register) and Matt Havard,

1 Plaintiff has not been given an opportunity to respond to the motion to
dismiss because the Court concludes that any response would be futile. Plaintiff has
been given numerous opportunities to correct the deficiencies in his complaint, to
no avail. (Docs. 3, 13, 20, 32 & 35.)

Human Resources Mgr.” Soon thereafter, the Magistrate Judge entered an order
requiring Morse to clarify his claims by responding to four interrogatories regarding
alleged disability and also required that Morse file copy of his EEOC charge of
discrimination. (Doc. 3.) Morse complied with the order. (Docs. 4 & 5.) Next, the
Defendants filed a motion to dismiss for failure to state a claim. (Doc. 10.) Morse
sought, and was granted, several extensions of time while he sought to hire an
attorney and respond to the motion to dismiss. (Docs. 14, 15, 18, 19, & 20.)
Plaintiff did not obtain counsel but did file a pro se response to the motion to
dismiss. The Court then entered the order dismissing Morse’s claim against Havard
and requiring Morse to file an amended complaint to cure the deficiencies in his
claims against Advance Central Services Alabama (ACSA). After another extension
of time was granted at Morse’s request, Morse filed an amended complaint entitled
“Response to Judge Butler Order/Amended Motion.” (Doc. 38.)
The Amended Complaint & Related Documents

In his amended complaint, Morse again alleges that he “suffer[ed] a

debilitating work[-]related injury, on or before December 14, 2013” through no fault
of his own, was terminated on January 7, 2014. (Am. Compl. 1.) After his injury, he
“received permission to seek medical treatment [and] was subsequently diagnosed
with Carpal Tunnel Syndrdome, nerve ending damage” and, in addition, “was also
arthritis in both hands.” (Id.) According to the amended complaint, the carpal
tunnel, nerve ending damage and arthritis diagnoses were made by Dr. Freeman
“[o]n or before May, 2014.” (Id. 2) Morse also refers to shoulder problems that

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began “[o]n or before January 2015.” (Id.) Morse has “severe pain,” his shoulder and
arm are “also very weak with limited range” which prevents [him] from performing
daily chores and/or personal hygiene activities.” (Id.) The amended complaint also
alleges that the EEOC investigated his charge of discrimination and “concluded that
[Morse] was/am disabled and ha[s] met and surpassed the criteria(s) [sic] needed
to be protected by the ADA. Finally, Morse asserts that he was a valuable asset as an
employee and that he would “be just as successful and effective” as he was
previously. (Id.)

In addition to the foregoing factual allegations, the amended complaint

incorporates by reference the EEOC’s right-to-sue letter and other EEOC documents
as well as numerous medical records. Contrary to the allegations in the amended
complaint, the EEOC did not determine that Morse was disabled and/or met the
requirements of the ADA. Instead, the EEOC was “unable to conclude that the
information obtained establishes violations of the statute.” (Am. Comp. Ex. C.)
Moreover, the medical records submitted by Morse in conjunction with his original
and amended complaints establish that he sustained a work-related injury to his
hand on or about December 13, 2013. On December 16, 2013, Morse was examined
by a doctor who diagnosed a hand sprain. Morse was released for “light duty” work
and returned for a follow-up appointment on December 23, 2013. At the follow-up
appointment, the doctor noted “symptoms of carpal tunnel with an acute strain,”
referred Morse to a specialist, and released him for restricted duty with “[l]imited
lifting and grasping with right hand.” (Doc. 4, 14.)

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Legal Analysis

In its motion to dismiss, Defendant Advance Central Services Alabama

(ACSA) argues that Morse has once again failed to satisfy the minimum
requirements necessary to state a claim for relief under the ADA.2 3 As the Court
recognized in its previous order:
“To state a discrimination claim under the ADA, a plaintiff must allege
sufficient facts to plausibly suggest ‘(1) that he suffers from a
disability, (2) that he is a qualified individual, and (3) that a ‘covered
entity’ discriminated against him on account of his disability.” Surtain
v. Hamlin Terrace Foundation, 789 F.3d 1289 (11th Cir. 2015) (quoting
Cramer v. Fla., 117 F.3d 1258, 1264 (11th Cir.1997)).

(Ord. at 6, Doc. 32.) The ADA defines disability as ‘“(A) a physical or mental
impairment that substantially limits one or more of the major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such
an impairment.’” Id. (quoting 42 U.S.C. § 12102(2); see also 29 C.F.R. § 1630.2(g)). A
“major life activity” includes activities such as “caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,

2 The standard for reviewing a Rule 12(b)(6) motion to dismiss was set forth
in the Court’s April 12, 2016 order (Doc. 32) and need not be repeated in detail here.
Suffice it to say, facts pleaded in the complaint are taken as true but conclusions are
not. Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). A court must take the
factual allegations as true and determine whether they plausibly give rise to a claim
for relief. Id. at 710.

3 Because the amended complaint does not state a claim under the ADA, the
Court does not address ASCA’s argument that the claim should be dismissed for
failure to exhaust administrative remedies.

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communicating, interacting with others, and working; and the operation of a major
bodily function.” 29 C.F.R. § 1630.2(i)(1).

There are no facts to suggest that Morse suffered from, had a record of, or

was regarded having a disability within the meaning of the ADA at the time of his
termination.4 The first two categories—actual disability and record of disability—
require evidence that a plaintiff actually suffered from a mental or physical
impairment that substantially limited a major life activity at the time of the adverse
employment action. Howard v. Steris Corp., 550 Fed. Appx. 748, 750 (11th Cir. 2013)
(employer must have actual knowledge of disability at time of adverse employment
action); cf. Hilburn v. Murata Elec. N. Am., Inc., 181 F.3d 1220, 1228-29 (11th Cir.
1999) (record-of-disability plaintiff must have actual disability). According to the
facts asserted in the amended complaint and supporting documents, Morse did not
have a disability at the time of his termination. The Amended Complaint does not
identify any major life activity that was substantially limited at that time by the
impairment that existed at that time (a sprained wrist and symptoms of carpal
tunnel syndrome). He was capable of working, and his ability was restricted only by
limitations on lifting and grasping with his right hand.5

4 At best, Morse has arguably pled facts that would demonstrate he might
currently satisfy the definition of disability under the ADA. However, his current
condition is the result of medical conditions that have worsened or occurred after
ACSA terminated his employment (carpal tunnel surgery, shoulder problems,
arthritis).
5 Morse alleges that he currently has difficulty completing daily chores, which

he attributes to shoulder pain and to treatment for a shoulder problem diagnosed in
2015, long after ACSA terminated his employment.

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Furthermore, the facts do not support a claim that ACSA regarded Morse as

being substantially limited in a major life activity. The only major life activity
affected by Morse’s impairment, at least to ACSA’s knowledge, was working. To
succeed under a theory that ACS regarded him as being substantially limited in his
ability to work, Morse must plead facts from which it could be reasonably inferred
that ACSA perceived him to be unable to perform “a class of jobs or a broad range of
jobs in various classes.” Rossbach v. City of Miami, 371 F.3d 1354, 1359 (11th Cir.
2004). At most, ACSA knew that Morse was limited in his ability to lift and grasp
with his right hand due to his impairment. An employer’s mere knowledge of an
impairment says little about its perception of that impairment on an individual’s
capability to perform jobs in the broader workforce. ACSA’s knowledge of Morse’s
impairment and work restrictions does not create an inference that it perceived
Morse to be unable to perform a class of jobs or broad range of jobs in other classes.
Conclusion

Plaintiff has been unable to state an ADA claim despite having been given

multiple opportunities to do so. Therefore, the motion to dismiss is GRANTED.

DONE and ORDERED this the 25th day of July, 2016.

s/Charles R. Butler, Jr.

Senior United States District Judge

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