Percoco v. Lowes Home Centers, LLC.
Filing
31
ORDER granting 15 Motion to Dismiss. See attached order. Signed by Judge Vanessa L. Bryant on 08/25/2015. (Thomas, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
VIVIAN PERCOCO,
Plaintiff,
v.
LOWE‟S HOME CENTERS, LLC,
Defendant.
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CIVIL ACTION NO.
3:14-cv-01122-VLB
August 25, 2015
ORDER GRANTING DEFENDANT‟S MOTION TO DISMISS
Lowe‟s Home Centers, LLC (“LHC”)1 moves to dismiss Vivian Percoco‟s
disability discrimination claim brought pursuant to the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., as amended by the
Americans with Disabilities Amendments Act of 2008 (“ADAAA”). LHC argues, in
relevant part, that Percoco does not sufficiently allege that she was regarded as
disabled. For the following reasons, LHC‟s motion is GRANTED.
Background
Percoco brought an ADA claim against LHC, her former employer, alleging
that LHC fired her because it regarded her as disabled.2 Dkt. No. 1 (Compl.) at
¶¶ 92–93. Her complaint contains the following relevant allegations. From 2006
until 2013, Percoco worked as a human resources manager at LHC‟s store in
Danbury, Connecticut; she performed her job satisfactorily and never received a
negative performance review. Id. at ¶¶ 15, 19–20, 23, 25. In late March 2013, she
suffered “traumatic injuries to her head, face, lips, tongue, teeth, neck[,] and
1
Plaintiff misspelled Defendant‟s name in her complaint. This order uses
the proper spelling. The caption is amended accordingly.
2
Percoco brought several other claims, but those claims are not addressed
here because LHC has not moved to dismiss them.
chest” as a result of a car accident and took an approximately week-long medical
leave of absence.
Id. at ¶¶ 26, 29, 33.
LHC was aware of her accident and
consequent injuries. Id. at ¶¶ 27–28.
When Percoco returned to work on April 8, 2013, she learned that, during
her absence, another employee had lodged a complaint with human resources.
Id. at ¶¶ 34–35. Percoco addressed the employee‟s complaint and developed a
proposed course of action.
Id. at ¶¶ 36–37.
approved of Percoco‟s response.
Id.
Percoco‟s immediate supervisor
LHC nonetheless fired Percoco
approximately two weeks later, indicating that she was fired because of her
failure to respond to the employee‟s complaint while Percoco was on medical
leave. Id. at ¶¶ 39–40. Two other employees, who were not out on medical leave,
had similarly failed to immediately respond to employee complaints, but they
were not terminated as a result. Id. at ¶¶ 43–45, 49, 55, 57.
LHC moves to dismiss Percoco‟s claim, arguing that she does not
sufficiently allege that she was regarded as disabled or that LHC‟s terminated her
“based on” any such perceived disability. 3 Dkt. No. 16 (Mem.) at 3.
LHC‟s
memorandum elaborates only on its first argument: it contends that Percoco‟s
injuries were “transitory and minor” because she returned to work within one
week and because her complaint does not allege that LHC perceived any
3
LHC argues that the ADA claim should be dismissed because it was
labeled as a “violation of the ADAAA,” which does not provide a cause of action.
Dkt. Nos. 16 (Mem.) at 3 n.11; 24 (Reply) at 6. This argument is frivolous.
“[C]ourts will not dismiss for failure to state a claim merely because the
complaint . . . mischaracterizes legal theories.” 2 J. Moore, Moore‟s Federal
Practice § 12.34[1][b] (3d ed. 2013) (citing, inter alia, Norwalk CORE v. Norwalk
Redev. Agency, 395 F.2d 920, 926 (2d Cir. 1968)).
2
significant impairment lasting longer than her leave period. Id. at 3–4. Percoco
opposes on the ground that her injuries were not minor, as evidenced by her
allegation that her injuries were “traumatic” and that she took medical leave. Dkt.
No. 19 (Opp‟n) at 5–6.
Percoco relies on Pagan v. Morrisania Neighborhood
Family Health Ctr., 2014 WL 464787 (S.D.N.Y. Jan 22, 2014), and Davis v. N.Y.C.
Dep’t of Educ., 2012 WL 139255 (E.D.N.Y. Jan. 18, 2012). Id. at 5–6. LHC‟s reply
distinguishes Pagan and Davis and argues that Percoco‟s complaint contains
conclusions rather than facts supporting an inference of causation. Dkt. No. 24
(Reply).
Discussion
When reviewing a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, a
court “accept[s] all factual allegations as true and draw[s] all reasonable
inferences in favor of the plaintiff.” Litwin v. Blackstone Grp., L.P., 634 F.3d 706,
715 (2d Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
In ruling a motion to dismiss, a court may
consider an affirmative defense “if the defense appears on the face of the
complaint.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998).
3
To state a facially valid discrimination claim under the ADA, a plaintiff must
allege facts permitting the reasonable inference that: “(1) the defendant is
covered by the ADA; (2) plaintiff suffers from or is regarded as suffering from a
disability within the meaning of the ADA; (3) plaintiff was qualified to perform the
essential functions of the job, with or without reasonable accommodation; and
(4) plaintiff suffered an adverse employment action because of [her] disability or
perceived disability.” Caskey v. Cnty. of Ontario, 560 F. App‟x 57, 58 (2d Cir.
2014) (quotation marks omitted).
LHC argues that the complaint fails allege facts sufficient to satisfy
elements two and four. With respect to element four, LHC is incorrect. Percoco
alleges that two other employees, who were not out on medical leave, had
similarly failed to respond to employee complaints, but they were not terminated.
Dkt. No. 1 (Compl.) at ¶¶ 43–45, 49, 55, 57. These factual allegations are sufficient
to support an inference of discrimination. See Shlafer v. Wackenhut Corp., 837
F.Supp.2d 20, 25 (D. Conn. 2011) (“Discriminatory motivation may be established
by allegations of preferential treatment given to similarly situated individuals.”
(citing Patane v. Clark, 508 F.3d 106, 112–13 (2d Cir. 2007)).
With respect to element two, the term “disability” means: “(A) a physical or
mental impairment that substantially limits one or more major life activities of
such individual; (B) a record of such an impairment; or (C) being regarded as
having such an impairment.” 42 U.S.C. § 12102(1). An individual is regarded as
disabled if she has “an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.”
4
42 U.S.C. § 12102(3)(A). However, an employer may argue that an employee does
not satisfy the regarded-as-disabled requirement if the employee‟s disability is
both objectively transient and minor. 42 U.S.C. § 12102(3)(B); see also Singleton
v. United Parcel Service, Inc., 2014 WL 943129 at *3 (D. Conn. Mar. 11, 2014) (“To
establish this defense, a covered entity must demonstrate that the impairment is
both „transitory‟ and „minor.‟” (quoting 29 C.F.R. § 1630.15(f)).
A transient
impairment is one “with an actual or expected duration of 6 months or less.” 42
U.S.C. § 12102(3)(B).
Here, Percoco‟s complaint alleges facts indicating that her injuries were
both objectively transitory and minor.
Percoco alleges only that her injuries
persisted during her week-long absence from work and does not allege any facts
indicating that her injuries persisted, or were expected to persist, thereafter. 42
U.S.C. § 12102(3)(B). Further, her complaint alleges only three facts on which the
Court can decipher whether her injuries were minor: how she sustained her
injuries (a car accident), where sustained them (head, face, lips, tongue, teeth,
neck, and chest), and how long they persisted (one week).4 The first two facts
provide no indication one way or the other. A car crash can result in minor or
major injury. Compare Emmons v. City University of New York, 715 F.Supp.2d
394 (E.D.N.Y. 2010) (employee neither disabled nor regarded as such based on
allegations that she was injured in a car crash), with Davis, 2012 WL 139255
(employee could be regarded as disabled based, in part, on her allegations that
4
Percoco‟s use of the word “traumatic” does not advance her cause
because an adjective is not a fact. See Twombly, 550 U.S. at 555 (“[A] plaintiff's
obligation to provide the grounds of [her] entitlement to relief requires more than
labels and conclusions.” (internal quotation marks and alterations omitted)).
5
she sustained painful injuries during a car crash).
Where the injury occurred is
similarly unhelpful. See Lee v. Sony BMG Music Entm’t, Inc., 557 F.Supp.2d 418,
425 (S.D.N.Y. 2008) (dismissing ADA claims where plaintiff “merely state[d] that
she (1) suffered unspecified „back, neck, and psychological injuries‟ . . . (2) and
was “forced to go on leave”). However, when these two facts are coupled with
the fact that Percoco‟s injuries lasted a week, it becomes clear, from the face of
the complaint, that Percoco‟s injuries were objectively minor.5 See Budhun v.
Reading Hosp. & Med. Ctr., 765 F.3d 245, 259–60 (3d Cir. 2014) (ruling that
employee alleged minor injury “because [her complaint] describes the loss of the
use of her pinky finger as „temporary‟”).
Percoco‟s reliance on Pagan and Davis is unpersuasive. Those cases are
easily distinguishable.
Both the Pagan and Davis plaintiffs sustained injuries
lasting several months. Pagan, 2014 WL 464787 at *1 (four-month leave); Davis,
2012 WL 139255 at *1 (three-month disability). Moreover, the Pagan and Davis
plaintiffs provided more information than the cause and duration of their injuries.
In Pagan, the plaintiff alleged that “[h]e suffere[d] from a number of medical
conditions, including heart disease, high blood pressure, and diabetes” as well
as prostate cancer. 2014 WL 464787 at *1. In Davis, the pro se plaintiff appended
her medical report and evaluation to her sur-reply, which the district court
5
The Court does not rely on Dugay v. Complete Skycap Servs., Inc., 2011
WL 3159171 (D. Ariz. July 26, 2011), on which LHC relies, because that ruling was
based on a misreading of the ADA, as amended by the ADAAA. Compare Dugay,
2011 WL 3159171 at *4 (“[T]he statute provides an absolute bar to disability status
for „regarded as‟ impairments of six months or less, regardless of employer
perceptions.”), with 29 C.F.R. § 1630.15(f) (“To establish this defense, a covered
entity must demonstrate that the impairment is both „transitory‟ and „minor.‟”).
6
considered in evaluating whether the Davis plaintiff‟s ADA claim should be
dismissed. 2012 WL 139255 at *6.
Conclusion
For the reasons set forth above, LHC‟s motion to dismiss is GRANTED, and
Percoco‟s ADA claim is DISMISSED.
IT IS SO ORDERED.
/s/
_
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: August 25, 2015.
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