Jamile vs. Island Movers, Inc.
ORDER DENYING DEFENDANT ISLAND MOVERS INC.'S MOTION TO DISMISS re 20 - Signed by JUDGE SUSAN OKI MOLLWAY on 4/7/2017. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ISLAND MOVERS, INC.,
CIVIL NO. 16-00196 SOM-KJM
ORDER DENYING DEFENDANT
ISLAND MOVERS INC.’S MOTION
ORDER DENYING DEFENDANT ISLAND MOVERS INC.’S MOTION TO DISMISS
Plaintiff Hunter Jamile alleges that, while employed
by Defendant Island Movers, Inc., he suffered disability
He sues under the Americans With Disabilities
Act, 42 U.S.C. §§ 12101 et seq.
Island Movers seeks dismissal, asserting a lack of
jurisdiction and a failure to state a claim.
The motion is
The Complaint alleges that Island Movers hired Jamile
as a delivery driver on July 5, 2009.
Id., Page ID # 2.
time, Island Movers was allegedly “fully aware” of Jamile’s
disability involving his back, neck, and right shoulder.
In 2013, Jamile allegedly asked Island Movers to make an
electric pallet jack and/or a helper available as a reasonable
accommodation in light of his disability.
Jamile, Island Movers provided the “requested accommodation on
some occasions,” and, between February and November 2014,
allowed Jamile “sporadic use of the electric pallet jack and/or
a helper as requested.”
Id., PageID # 3.
informed Jared Byrd, a “Dispatcher/Supervisor,” that these
accommodations “were in place and had to be provided.”
On February 11, 2014, Jamile allegedly injured his
back while working without the requested accommodations.
In March 2014, he reportedly complained about Island Movers’
“failure to fully accommodate” his disability to Shirley Kranz
in Island Movers’ human resources department.
Kranz did not “address the situation” and “did not follow up”
Jamile alleges that he was “not offered the same
accommodations as other employees, such as light duty and/or
rehabilitation programs and was suspended and then terminated,
which was subsequently rescinded.”
Id., PageID # 3.
On December 29, 2014, Jamile filed a disability
discrimination charge with the Equal Employment Opportunity
Id., PageID # 2.
On January 26, 2016, the EEOC
issued a dismissal and right-to-sue letter.
Jamile filed his Complaint on April 25, 2016.
Id., PageID # 2.
STANDARD OF REVIEW.
A motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) may either attack the
allegations of the complaint as insufficient to confer upon the
court subject matter jurisdiction, or attack the existence of
subject matter jurisdiction in fact.
Thornhill Publ’g Co. v.
Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When the motion to dismiss attacks the allegations of the
complaint as insufficient to confer subject matter jurisdiction,
all allegations of material fact are taken as true and construed
in the light most favorable to the nonmoving party.
of African Am. Contractors v. City of Oakland, 96 F.3d 1204,
1207 (9th Cir. 1996).
When the motion to dismiss is a factual
attack on subject matter jurisdiction, however, the plaintiff’s
allegations are not presumed true, and the existence of disputed
material facts will not preclude the trial court from evaluating
the existence of subject matter jurisdiction.
594 F.2d at 733.
Island Movers brings a factual attack on this court’s
subject matter jurisdiction.
Island Movers says that Jamile
filed his ADA charge with the EEOC after the limitations period
Island Movers is mistaken in thinking that a
limitations issue implicates this court’s subject matter
The ADA “adopts the procedural requirements of
Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176
(9th Cir. 2000), overruled on other grounds by Socop-Gonzalez v.
I.N.S., 272 F.3d 1176, 1194-96 (9th Cir. 2001) (en banc).
Title VII statute of limitations is not a jurisdictional
requirement; it may be waived, and equitably tolled.”
West, 140 F.3d 1255, 1262 (9th Cir. 1998).
court does not examine Island Movers’ challenge to the
timeliness of Jamile’s EEOC filing under Rule 12(b)(1).
court instead considers the timeliness challenge under Rule
Rule 12(b)(6) provides for dismissal for “failure to
state a claim upon which relief can be granted.”
12(b)(6) of the Federal Rules of Civil Procedure, the court’s
review is generally limited to the contents of the complaint.
Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.
If matters outside the pleadings are considered, the
Rule 12(b)(6) motion is treated as one for summary judgment.
See Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44, 46 (9th Cir.
1997); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).
However, the court may take judicial notice of and consider
matters of public record without converting a Rule 12(b)(6)
motion to dismiss into a motion for summary judgment.
Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.
WMX Techs., Inc. v.
Miller, 197 F.3d 367, 372 (9th Cir. 1999).
allegations of law, unwarranted deductions of fact, and
unreasonable inferences are insufficient to defeat a motion to
Sprewell, 266 F.3d at 988; In re Syntex Corp. Sec.
Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Dismissal under Rule
12(b)(6) may be based on either: (1) lack of a cognizable legal
theory, or (2) insufficient facts under a cognizable legal
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699
(9th Cir. 1988) (citing Robertson v. Dean Witter Reynolds, Inc.,
749 F.2d 530, 533-34 (9th Cir. 1984)).
To survive a Rule 12(b)(6) motion to dismiss,
“[f]actual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted); accord Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“[T]he pleading standard Rule 8 announces does
not require ‘detailed factual allegations,’ but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
“While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”
Twombly, 550 U.S. at 555
(internal citations omitted).
The complaint must provide
“enough facts to state a claim to relief that is plausible on
Id. at 570.
“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.”
Iqbal, 556 U.S. at 678.
Jamile alleges that Island Movers discriminated
against him by failing to provide reasonable accommodations and
by unlawfully retaliating against him for having complained
about Island Movers’ alleged failure to provide reasonable
See ECF No. 1, PageID #s 3-4.
asserts that Jamile’s disability discrimination claim, which it
says is narrowly based on its alleged failure to accommodate
Jamile on only February 11, 2014, is time-barred.
PageID # 68-71.
ECF No. 20,
Island Movers argues that Jamile did not
sufficiently allege any other disability discrimination claims.
Id., PageID # 71.
To the extent Jamile asserts a retaliation
claim, Island Movers contends that Jamile failed to exhaust his
administrative remedies because he did not file a retaliation
charge with the EEOC before filing this lawsuit.
Reply, ECF No. 24, PageID # 97.
The ADA prohibits employers from discriminating
against “a qualified individual on the basis of disability in
regard to . . . the hiring, advancement, or discharge of
42 U.S.C. § 12112(a).
A plaintiff has the initial
burden of establishing a prima facie disability discrimination
claim by showing that “(1) he is a disabled person within the
meaning of the statute; (2) he is a qualified individual with a
disability; and (3) he suffered an adverse employment action
because of his disability.”
Hutton v. Elf Atochem N. Am., Inc.,
273 F.3d 884, 891 (9th Cir. 2001).
The Complaint Sufficiently Alleges That Jamile
Was “Disabled” and a “Qualified Individual” Under
Island Movers does not argue that the Complaint
insufficiently alleges that Jamile was “disabled” or was a
“qualified individual” within the meaning of the ADA.
Complaint in fact includes sufficient allegations regarding
these first two prongs of a prima facie ADA claim.
With respect to the first prong, the ADA defines
disability with respect to an individual as “(A) a physical or
mental impairment that substantially limits one or more of the
major life activities; (B) a record of such an impairment; or
(C) being regarded as having such an impairment.”
“An impairment covered under the ADA includes any
physiological disorder,” Coons v. Sec’y of U.S. Dep’t of
Treasury, 383 F.3d 879, 884 (9th Cir. 2004), and “major life
activities” include “lifting” and “working,” 29 C.F.R.
Under the ADA, the definition of
“disability” must be “construed in favor of broad coverage of
individuals” to the extent permitted by law.
The Complaint alleges that Island Movers was “fully
aware” of Jamile’s physical disability involving “his back,
neck, and right shoulder” at the time Jamile was hired.
No. 1, PageID # 2.
The Complaint also alleges that Island
Movers provided reasonable accommodations in the form of an
electric pallet jack or helper “on some occasions” and that
Jamile was allowed “sporadic use” of the jack and/or a helper as
Id., PageID # 3.
These factual allegations, when
taken as true, indicate that Island Movers considered Jamile to
The Complaint sufficiently alleges that Jamile was
“disabled” under the ADA.
With respect to the second prong, Jamile was also
required to be a “qualified individual.”
See 42 U.S.C.
To be a “qualified individual,” Jamile had to have
“the requisite skill, experience, education, and other jobrelated requirements” for his position as a delivery driver and
also had to be able to “perform the essential functions of
[this] position” with or without reasonable accommodation.
29 C.F.R. § 1630.2(m).
Jamile alleges that Island Movers knew
he had a disability involving his back, neck, and right
ECF No. 1, PageID # 2.
The Complaint indicates that
Island Movers considered Jamile as meeting the requirements to
be a delivery driver and as being able to perform the essential
functions of this position with reasonable accommodations.
Accordingly, the Complaint sufficiently alleges that Jamile was
“qualified” for purposes of stating a disability discrimination
The Complaint Sufficiently Alleges a Disability
Discrimination Claim Based on Island Movers’
Alleged Failure to Provide Reasonable
With respect to the third prong, Jamile alleges that
Island Movers discriminated against him by failing to
accommodate his disability.
See ECF No. 1, PageID # 3.
the ADA, discrimination against a qualified individual on the
basis of disability includes not providing “reasonable
accommodations to the known physical . . . limitations of an
otherwise qualified individual with a disability who is an . . .
employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of
the business of such covered entity.”
The ADA requires that, “once an employee
requests an accommodation or an employer recognizes the employee
needs an accommodation but the employee cannot request it
because of a disability, the employer must engage in an
interactive process with the employee to determine the
reasonable appropriate accommodation.”
Zivkovic v. S. Cal.
Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2001).
v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001).
The interactive process requires: “(1) direct
communication between the employer and the employee to explore
in good faith the possible accommodations; (2) consideration of
the employee’s request; and (3) offering an accommodation that
is reasonable and effective.”
Zivkovic, 302 F.3d at 1089
(citations omitted); see 29 C.F.R. § 1630.2(o)(3) (“T[he
interactive] process should identify the precise limitations
resulting from the disability and potential reasonable
accommodations that could overcome those limitations.”).
“Liability for failure to provide reasonable accommodations
ensues only where the employer bears responsibility for the
breakdown” in the interactive process.
Zivkovic, 302 F.3d at
The employer need only provide a reasonable
accommodation, not necessarily the accommodation that the
employee requests or prefers.
A reasonable accommodation must enable the employee to
perform the duties of the position.
Barnett v. U.S. Air, 228
F.3d 1105, 1115 (9th Cir. 2000); see also 29 C.F.R.
§ 1630.2(o)(1)(ii) (defining “reasonable accommodation” as
“[m]odifications or adjustments to the work environment, or to
the manner or circumstances under which the position held or
desired is customarily performed, that enable an individual with
a disability who is qualified to perform the essential functions
of that position”).
Reasonable accommodations may include “job
restructuring; part-time or modified work schedules;
reassignment to a vacant position; . . . and other similar
accommodations for persons with disabilities.”
§ 12111(9)(B); see also 29 C.F.R. § 1630.2(o)(2)(ii).
Island Movers argues that the Complaint generally
fails to allege a failure to provide a requested accommodation
or a refusal to accommodate Jamile.
PageID # 96.
See ECF No. 24,
Specifically, Island Movers contends that it did
not need to provide the requested accommodations unless Jamile
asked for them each time he needed them at work.
See id. (“If
Plaintiff only sporadically requested use of the electric pallet
jack and/or a helper, his sporadic use thereof does not
Island Movers’ suggestion that it
only needed to provide the accommodations, incident by incident,
when Jamile asked for them is not supported by the Complaint.
Instead of clearly limiting itself in the manner
Island Movers asserts, the Complaint alleges that, in 2013,
Jamile asked for “a reasonable accommodation for use of an
electric pallet jack and/or a helper due to his disability.”
ECF No. 1, PageID # 2.
The Complaint does not say that the
accommodation was only to be provided whenever Jamile made an
The Complaint rather says the accommodation
was provided “on some occasions” and sporadically.
The Complaint suggests that it was not provided whenever
Thus, Jamile alleges that, on February 11, 2014, he was
injured while “working without the accommodations.”
Complaint could be read as indicating that Island Movers agreed
to the requested accommodation whenever needed, not whenever
If Island Movers assigned work to Jamile,
Island Movers was at least arguably in a position to know when
accommodations were needed.
Quite apart from the issue of whether the Complaint
alleges a need for Jamile to make repeated specific requests for
accommodations, the Complaint clearly alleges that Island Movers
failed to engage in the required interactive process.
injury on February 11, 2014, Jamile allegedly complained about
the lack of accommodations, and Island Movers allegedly did not
The “duty to accommodate” is a “continuing duty that
is not exhausted by one effort.”
McAlindin v. Cty. of San
Diego, 192 F.3d 1226, 1237 (9th Cir. 1999).
That is, Island
Movers was required to engage with Jamile in addressing his
concerns after his injury.
See Humphrey, 239 F.3d at 1138
(“[T]he employer’s obligation to engage in the interactive
process extends beyond the first attempt at accommodation and
continues when the employee asks for a different accommodation
or where the employer is aware that the initial accommodation is
failing and further accommodation is needed.”).
The Complaint indicates that other accommodations,
such as light duty work or rehabilitation programs, may have
been reasonable alternatives that Island Movers offered other
employees but failed to offer Jamile.
See id., PageID # 3.
Viewed in the light most favorable to Jamile, the Complaint
alleges that Island Movers failed to provide reasonable
accommodations on multiple occasions between February and
November 2014, months after his initial request was made in
See Zivkovic, 302 F.3d at 1089.
Accordingly, this court
concludes that the Complaint sufficiently alleges a disability
discrimination claim based on Island Movers’ alleged failure to
provide reasonable accommodations and/or to engage in the
required interactive process.
Island Movers asserts that, even if the Complaint
sufficiently alleges a discrimination claim based on a failure
to provide reasonable accommodations, “any acts which occurred
prior to March 6, 2014 would fall outside the three hundred day
filing requirement with the EEOC” and therefore are “not
See ECF No. 24, PageID # 97.
Under 42 U.S.C.
§ 2000e-5(e), the limitations period for filing an ADA claim is
This provision “precludes recovery for discrete acts
of discrimination or retaliation that occur outside the
statutory time period.”
Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 105 (2002).
In an ADA suit, the failure to file an EEOC charge
within the statutory 300-day period is not a jurisdictional bar.
Santa Maria, 202 F.3d at 1176.
Rather, “it is treated as a
violation of a statute of limitations, complete with whatever
defenses are available to such a violation, such as equitable
tolling and estoppel.”
A violation of the statute of
limitations is an affirmative defense that is generally required
to be included in a responsive pleading under Rule 8 of the
Federal Rules of Civil Procedure.
Fed. R. Civ. P. 8; see also
Ledo Fin. Corp. v. Summers, 122 F.3d 825, 827 (9th Cir. 1997)
(“Although Rule 8 requires affirmative defenses to be included
in responsive pleadings, absent prejudice to the plaintiff an
affirmative defense may be [pled] for the first time in a motion
for summary judgment.”); Rivera v. Anaya, 726 F.2d 564, 566 (9th
Cir. 1984) (holding failure to raise statute of limitations
defense in initial pleading did not preclude bringing motion for
summary judgment based on that defense where no prejudice had
been claimed by plaintiffs).
The affirmative defense that a claim is too late need
not be addressed in a Complaint, as such an affirmative defense
not being jurisdictional, may be waived.
Nor can it be said in
the present case that any alleged untimeliness is clear from the
face of the Complaint.
The Complaint does not indicate when the first and
last acts of alleged discrimination occurred.
rather alleges that Island Movers provided “sporadic”
accommodations between February and November 2014.
Even if this court reads the Complaint as asserting separate and
discrete acts of disability discrimination rather than a single
allegedly continuing discriminatory practice, Island Movers does
not show entitlement to dismissal on limitations grounds.
While Jamile specifically alleges that Island Movers
failed to provide accommodations on February 11, 2014, the date
on which he was injured at work, Jamile also alleges that, in
March 2014, he complained about Island Movers’ failure to
accommodate him to the human resources department.
alleges that Island Movers did nothing to resolve the situation
or to follow up with him.
See id., PageID # 3.
referring to any specific date, the Complaint generally alleges
that Jamile “was not offered the same accommodations as other
employees such as light duty and/or rehabilitation programs.”
Jamile is thus alleging that, after his injury on
February 11, 2014, and after he had complained in March, he was
still not provided with reasonable accommodations.
Focusing on Jamile’s injury on February 11, 2014,
Island Movers notes that Jamile filed his charge with the EEOC
on December 29, 2014, more than 300 days after February 11,
This court sees no reason to ignore Jamile’s allegations
that Island Movers violated the ADA even after he was injured.
Moreover, if Island Movers includes a statute of limitations
defense in its Answer to the Complaint, Jamile may argue that
the limitations period was waived or should be equitably tolled,
a matter that would likely involve material beyond the Complaint
and is therefore not resolvable on a Rule 12(b)(6) motion to
See Sprewell, 266 F.3d at 988 (noting the court’s
review on a 12(b)(6) motion is generally limited to the contents
of the complaint).
Therefore, this court denies the motion to
the extent it relies on the argument that any claims asserted
The Retaliation Claim Is Not Dismissed For
Failure to Exhaust Administrative Remedies.
With respect to the third prong, Jamile also alleges
that he was retaliated against for having complained about
Island Movers’ alleged failure to provide him with reasonable
See ECF No. 1, PageID # 3.
Under the ADA, “No
person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter.”
To establish a prima facie case for a retaliation
claim under the ADA, Jamile must demonstrate that he engaged in
a protected activity, suffered an adverse employment action, and
that the two were causally connected.
See Pardi v. Kaiser
Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004).
Pursuing one’s rights under the ADA constitutes a
See, e.g., McAlindin, 192 F.3d at 1238
(stating that “vigorously asserting [one’s] rights” under the
ADA and other state and federal discrimination laws constitutes
An adverse employment action is any action
“reasonably likely to deter employees from engaging in protected
Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir.
When an adverse employment decision closely follows
complaints of discrimination, retaliatory intent may be
See Bell v. Clackamas Cty., 341 F.3d 858, 865-66 (9th
Cir. 2003) (holding that “[t]emporal proximity between protected
activity and an adverse employment action can by itself
constitute sufficient circumstantial evidence of retaliation”).
Jamile alleges that he “was suspended and then
terminated, which was subsequently rescinded” and that he
suffered discrimination for “complaining about this disability
ECF No. 1, PageID # 3.
This is a sufficiently
alleged retaliation claim.
Island Movers contends that any retaliation claim is
barred because Jamile failed to exhaust his administrative
The Complaint clearly alleges, “The Equal Opportunity
Employment Commission filed a Charge of Discrimination against
Defendant based upon disability discrimination on December 29,
ECF No. 1, PageID # 2.
The Complaint does not describe
the content of the EEOC charge.
Island Movers appears to be
arguing that the EEOC charge did not encompass retaliation, but
such an argument relies on material not in the Complaint or
anywhere else in the record.
This court cannot at this point
say that any retaliation claim is barred based on a failure to
exhaust administrative remedies.
Island Movers’ motion to dismiss is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 7, 2017.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Hunter Jamile v. Island Movers, Inc., Civ. No. 16-00196 SOM-KJM; ORDER
DENYING DEFENDANT ISLAND MOVERS INC.’S MOTION TO DISMISS.
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