Johnson v. Waterlogic East, LLC

Filing 16

MEMORANDUM OPINION regarding MOTION to Dismiss (D.I. 13 ). Signed by Judge Richard G. Andrews on 8/3/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PAUL JOHNSON,
Plaintiff,

v.

Civ. No. 16-672-RGA

WATERLOGIC EAST, LLC,
Defendant.

Paul Johnson, New Castle, Delaware. Pro Se Plaintiff.
Sarah Michelle Ennis, Esquire, Margolis Edelstein, Wilmington, Delaware. Counsel for
Defendant.

MEMORANDUM OPINION

Augus3. 2017
Wilmington, Delaware

~ ~. {)yi} JM/I
ANDREWS,

u:-s. oi~tr'f~t :fiidge:

Plaintiff Paul Johnson, who appears pro se and has been granted leave to
proceed in forma pauperis, filed this action on August 5, 2016. (D. I. 2). Plaintiff brings
this action under the Americans with Disabilities Act, 42 U.S.C. § 12101. Defendant
moves to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (D.I. 13). Plaintiff
opposes. (D.I. 14). Briefing on the motion is complete.
BACKGROUND

At the time of his discharge, Plaintiff was employed by Defendant as a
dispatcher. The Complaint alleges that employment discrimination by reason of
disability occurred on March 19, 2015, when Plaintiff's employment was terminated. 1
(D.I. 2).
Plaintiff alleges that he has a physical impairment, heart failure, that substantially
limits a major life activity. (Id. at ml 14, 16-19). Following a heart-related medical
hospitalization, Plaintiff was able to return to work by wearing an automated external
defibrillator ("AED"). (Id. at ml 16, 17). Plaintiff wore the AED from June 28, 2014
forward. (Id. at 1f 18) He alleges that the AED allowed him to perform the essential
functions of his job, and Defendant permitted him to wear the AED as a reasonable
accommodation. (Id.).
Plaintiff alleges that in about January 2015, he received a "meets expectations"
for his nine-month performance review as a dispatcher in the Southeast Region of the

1

Attached to the Complaint is a notice of suit rights for EEOC Charge No. 1?C2015-00333 and its corresponding charge of discrimination. (D.I. 2 at 9; D.I. 2-1 at 4).
The charge states that Defendant discriminated against Plaintiff, as he had a known
disability and was able to perform the essential functions of his position either with or
without a reasonable accommodation. (D.I. 2-1 at 4).

company. (Id. at~ 12). Plaintiff was transferred to the Northeast Region on February
2, 2015. (Id.). Plaintiff alleges that the Northeast Region was understaffed, had
consistent problems retaining dispatchers to work in the region, and dispatchers were
transferred from the Northeast Region and reassigned upon their evaluations of "not
meeting expectations." (Id.).
On March 3, 2015, Plaintiff was "coached by Defendant on how to improve his
job performance. (Id. at~ 21 ). On March 9, 2015, Plaintiff requested an extended
leave of absence under the Family Medical Leave Act for necessary heart surgery. (Id.
at~

20). Plaintiff was given thirty days of non-paid FMLA leave, and Defendant offered

Plaintiff the opportunity to work from home during recovery from surgery as a
reasonable accommodation. (Id.). The surgery was postponed, and Plaintiff was
allowed to return to work on March 11, 2015. (Id.

at~

21 ). Plaintiff was terminated on

March 19, 2015 for his "alleged poor performance as the dispatcher for the Northeast
Region." (Id.). Plaintiff alleges his employment was terminated because he requested
a leave of absence under the FMLA and that Defendant's reason for the termination
was a pretext for firing him. (Id.). Plaintiff alleges that other similarly situated, nondisabled, individuals were reassigned out of the Northeast Region, and he was not.

(Id.) Plaintiff seeks compensatory and punitive damages, as well as injunctive relief.
STANDARDS OF LAW
Defendant moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(6).
Plaintiff proceeds prose and, therefore, his pleadings are liberally construed and
his complaint, "however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007).

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Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting the
well-pleaded allegations in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that those allegations "could not raise a
claim of entitlement to relief." Bell At/. Corp. v. Twombly, 550 U.S. 544, 558 (2007).
"Though 'detailed factual allegations' are not required, a complaint must do more than
simply provide 'labels and conclusions' or 'a formulaic recitation of the elements of a
cause of action."' Davis v. Abington Mem'I Hosp., 765 F.3d 236, 241 (3d Cir. 2014)
(quoting Twombly, 550 U.S. at 555). In addition, a plaintiff must plead facts sufficient to
show that a claim has substantive plausibility. See Johnson v. City of Shelby,
_U.S._, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed, however, for
imperfect statements of the legal theory supporting the claim asserted. See id. at 346.
When reviewing the sufficiency of a complaint, a court should follow a three-step
process: (1) consider the elements necessary to state a claim; (2) identify allegations
that are merely conclusions and therefore are not well-pleaded factual allegations; and
(3) accept any well-pleaded factual allegations as true and determine whether they
plausibly state a claim. See Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir.
2016); Williams v. BASF Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 2014). Deciding
whether a claim is plausible will be a "context-specific task that requires the reviewing
court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009).

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DISCUSSION
Defendant moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) on the
grounds that the Complaint fails to state discrimination and retaliation claims under the
Americans with Disabilities Act ("ADA"). Plaintiff proceeds pro se and, therefore, the
Court liberally construes his pleadings.
The ADA prohibits discrimination in employment on the basis of disability. See
42 U.S.C. § 12112. In order to state a claim of discrimination, a plaintiff must generally
show that (1) he belongs to the class of individuals protected by the statute; (2) he
suffered an adverse employment action despite being qualified for the position; and
(3) the adverse employment decision was a result of discrimination. See Shaner v.
Synthes, 204 F.3d 494, 500 (3d Cir. 2000). Similarly, to state a claim of retaliation
under the ADA, a plaintiff must allege: (1) protected employee activity; (2) adverse
action by the employer either after or contemporaneous with the employee's protected
activity; and (3) a causal connection between the employee's protected activity and the
employer's adverse action." Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d
Cir. 1997).
Disability. Defendant argues that the Complaint fails to allege that Plaintiff is
disabled within the meaning of the ADA because it does not allege that Plaintiff's
impairment substantially limits one or more major life activity as required by the ADA. It
further argues that its mere awareness of Plaintiff's heart condition does not establish
that Plaintiff was regarded as disabled.

4

A "disability'' is defined as "(A) a physical or mental impairment that substantially
limits one or more of the major life activities of [an] individual; (8) a record of such an
impairment; or (C) being regarding as having such an impairment." 42 U.S.C.

§ 12102(2). "[M]ajor life activities include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working." 42 U.S.C. § 12102(2)(A).
The Court liberally construes the Complaint and finds that Plaintiff has
adequately alleged a employment discrimination claim by reason of disability under the
ADA. The Complaint alleges that Plaintiff suffered a disability by reason of a heart
condition and that, unless he received a reasonable accommodation through the use of
AED, he was unable to work (a "major life activity'' per the statute) as a result of his
heart condition. A complaint must allege, not prove, a cause of action. The Complaint
alleges that Plaintiff has a heart condition, the condition constitutes a disability, and that
Plaintiff was terminated from his position because of that condition. The allegations
suffice to defeat the dismissal motion.
Adverse Employment Decision. In the alternative, Defendant contends that

Plaintiff has not established an adverse employment decision by reason of
discrimination. Defendant argues that Plaintiff's general claim that he was terminated
for discriminatory reasons is too broad. Further, it contends that Plaintiff did not
actually use his approved leave of absence because his surgery was canceled.
Liberally construing the allegations, as I must, they are adequate. Plaintiff
alleges that he suffers from a disability, that he sought a medical leave of absence due

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to the disability, and that after he sought leave, he was terminated. It matters not that
Plaintiff did not actually use the approved leave. What is important is that Plaintiff
alleges his dismissal is related to his disability. In addition, Plaintiff points to
comparators who received poor performance evaluations, but who were not disabled,
and who, rather than have their employment terminated, were transferred to different
locations. Accordingly, dismissal is not appropriate.
Retaliation. Defendant seeks dismissal of the retaliation claim on the basis that
the alleged facts are not unusually suggestive, temporal proximity alone does not
support an inference of causation, and Plaintiff failed to allege other facts that speak to
a retaliatory reason for his termination. Plaintiff's retaliation claim withstands the motion
to dismiss.
Plaintiff alleges that he engaged in protected activity when he sought a medical
leave due to his underlying medical condition, and Plaintiff's employment was
terminated, within ten days of requesting medical leave. While the temporal proximity
of ten days may in the end not be enough by itself to infer retaliatory motive, see
Blakneyv. City of Phi/a., 559 F. App'x 183, 186 (3d Cir. 2014) (temporal proximity of
two days is unusually suggestive of causation, but a temporal proximity greater than ten
days requires supplementary evidence of retaliatory motive), it is a good start. This
case is at the pleading, not summary judgment, stage. See Watson v. Rozum, 834
F.3d 417, 424 (3d Cir. 2016) ("Where the temporal proximity is not so close as to be
'unduly suggestive,' the appropriate test is 'timing plus other evidence."'). Given the
previous "meets expectations" rating, not that long before, it is enough at this stage.

6

Plaintiff need only allege, not prove, a cause of action, and Plaintiff had adequately
alleged a retaliation claim.
Having reviewed the Complaint and the charges of discrimination, attached
thereto, the Court finds that Plaintiff has adequately stated employment discrimination
claims based upon disability and retaliation. Accordingly, the Court will deny
Defendant's motion to dismiss.

CONCLUSION
For the above reasons, the Court will deny Defendant's motion to dismiss. (D.I.
13).
An appropriate order will be entered.

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