Burger v. Wolf Creek Nuclear Operating Corporation

Filing 16

MEMORANDUM AND ORDER RE: 10 Motion to Dismiss. The court shall grant defendant's motion to dismiss the amended complaint and, for reasons of futility, the court shall deny plaintiff leave to file the second amended complaint. The court, howev er, shall grant plaintiff twenty days from the date of this order to file another amended complaint. If plaintiff files an amended complaint, defendant may again consider whether to file a motion to dismiss. If an amended complaint is not timely filed, then the court shall direct that this case be closed. Signed by District Judge Richard D. Rogers on 8/27/2012. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RENA R. BURGER,
Plaintiff,
vs.

Case No. 11-4158-RDR

WOLF CREEK NUCLEAR
OPERATING CORPORATION,
Defendant.
MEMORANDUM AND ORDER
This disability discrimination and retaliation action is
before the court upon defendant’s motion to dismiss (Doc. No. 10)
and plaintiff’s motion for leave to file a second amended complaint
(Doc. No. 14).
I.

Background
Plaintiff started this action with a pro se complaint filed on

November 8, 2011.

Counsel entered an appearance on plaintiff’s

behalf and filed an amended complaint on March 5, 2012.

Defendant

was served and filed a motion to dismiss the amended complaint
pursuant to FED.R.CIV.P. 12(b)(6) for failure to state a claim.
Plaintiff’s response to the motion to dismiss asks the court for
leave to file a second amended complaint if the court determines
that the amended complaint is not adequately pleaded.

Defendant

has replied that filing the proposed second amended complaint would
be futile because it suffers from the same flaws as the amended
complaint.

As discussed below, the court finds that both the

amended complaint and the proposed second amended complaint fail to
state a claim.

Plaintiff, however, shall be granted another

opportunity to file an amended complaint.
II.

Allegations in the second amended complaint
The court’s discussion shall focus upon the proposed second

amended complaint because it adds to the allegations contained in
the amended complaint.

The second amended complaint alleges a

discrimination and a retaliation claim under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101.

It asserts that

plaintiff is employed by defendant and qualified to perform the
essential functions of her position, but it does not describe what
those functions are. Plaintiff claims that she suffers from “Lymes
disease and a thyroid disorder.” The complaint further states that
these “disabling conditions” substantially impair her sleeping,
concentration,

and

wakefulness.

According

to

the

complaint,

plaintiff asked defendant to implement reasonable accommodations,
such as placing her on a day shift, not requiring her to work
overtime, not placing her on a rotating shift, and not requiring
her to exceed a nine-hour work day.
denied.

These accommodations were

Plaintiff alleges that this represents intentional and

illegal discrimination and retaliation. Plaintiff also claims that
defendant’s decision “to involuntarily change Plaintiff’s shift”
was an unlawful act of retaliation.

2

III.

Rule 12(b)(6) standards
In Khalik v. United Air Lines, 671 F.3d 1188, 1190-92 (10th

Cir. 2012), the Tenth Circuit reviewed the standards applied to
Rule

12(b)(6)

motions

in

the

context

of

an

employment

discrimination action:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Recently the Supreme Court clarified this pleading
standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009): to withstand a Rule 12(b)(6) motion to dismiss,
a complaint must contain enough allegations of fact,
taken as true, “to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570, 127
S.Ct. 1955. A plaintiff must “nudge [his] claims across
the line from conceivable to plausible” in order to
survive a motion to dismiss. Id.
The Court explained two principles underlying the
new standard: (1) when legal conclusions are involved in
the complaint “the tenet that a court must accept as true
all of the allegations contained in a complaint is
inapplicable to [those] conclusions,” Iqbal, 129 S.Ct. at
1949, and (2) “only a complaint that states a plausible
claim for relief survives a motion to dismiss,” id. at
1950.
Thus, mere “labels and conclusions” and “a
formulaic recitation of the elements of a cause of
action” will not suffice. Twombly, 550 U.S. at 555, 127
S.Ct. 1955. Accordingly, in examining a complaint under
Rule 12(b)(6), we will disregard conclusory statements
and look only to whether the remaining, factual
allegations plausibly suggest the defendant is liable. .
. .
[W]e have concluded the Twombly/Iqbal standard is “a
middle ground between heightened fact pleading, which is
expressly rejected, and allowing complaints that are no
more than labels and conclusions or a formulaic
recitation of the elements of a cause of action, which
the Court stated will not do.” Robbins [v. Oklahoma, 519
F.3d 1242, 1247 (10th Cir. 2008)] (internal quotation
marks and citations omitted).
In other words, Rule 8(a)(2) still lives. . . .
3

[U]nder Rule 8, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.’” [Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct.
2197, 167 L.Ed.2d 1081 (2007)] (quoting Twombly, 550 U.S.
at 555).
The Tenth Circuit recognized in Khalik that a plaintiff need not
establish a prima facie case in her complaint.

671 F.3d at 1192.

Nevertheless, the court examined the elements of a prima facie case
to “help to determine whether Plaintiff has set forth a plausible
claim.”

Id.

In Khalik, the court concluded that allegations that

the plaintiff was discriminated or retaliated against for illegal
reasons, subjected to false investigation and false criticism, and
terminated for false and exaggerated reasons were not entitled to
an assumption of truth because they were “entirely conclusory.”
671 F.3d at 1193.

Looking at the remaining alleged facts, the

court decided that insufficient facts were alleged which related
the

job

action

taken

against

the

plaintiff

to

the

alleged

discrimination or retaliation.
IV.

Prima facie standards for an ADA discrimination claim
“A prima facie case of disability discrimination under the ADA

requires that the Employee (1) be a disabled person as defined by
the

ADA;

(2)

is

qualified,

with

or

without

reasonable

accommodation, to perform the essential functions of the job held
or desired; and (3) suffered discrimination by an employer or
prospective employer because of that disability.”
People, Inc., 684 F.3d 981, 985 (10th Cir. 2012).
4

EEOC v. Picture

“A person is ‘disabled’ under the ADA if he has ‘a physical or
mental impairment that substantially limits one or more major life
activities.’ 42 U.S.C. § 12102(1)(A). To satisfy this definition,
‘a plaintiff must (1) have a recognized impairment, (2) identify
one or more appropriate major life activities, and (3) show the
impairment substantially limits one or more of those activities.’”
Carter v. Pathfinder Energy Services, Inc., 662 F.3d 1134, 1142
(10th Cir. 2011) (quoting Berry v. T–Mobile USA, Inc., 490 F.3d
1211, 1216 (10th Cir. 2007) (internal quotation marks omitted)).
Although the ADA does not define the term “substantially
limits,” the Tenth Circuit has held that “[a]n impairment is
substantially limiting when it renders an individual either unable
or significantly restricted in her ability to perform a major life
activity compared to the average person in the general population.”
Johnson v. Weld County, 594 F.3d 1202, 1218 (10th Cir. 2010)
(internal quotation marks omitted).

“This inquiry is based on an

individual's own experience - - particularly where the impairment
is one whose symptoms vary widely from person to person - - because
an impairment that is disabling for some may not be disabling for
others.”

Carter, 662 F.3d at 1143 (interior quotations and

citations omitted).
V.

Defendant’s arguments against plaintiff’s discrimination claim
Defendant’s first argument against plaintiff’s discrimination

claim is that plaintiff has not alleged a “recognized impairment.”

5

Although the first amended complaint does not identify a recognized
impairment, the second amended complaint asserts that plaintiff has
Lyme disease and a thyroid condition. Although “thyroid condition”
is rather vague, the court believes plaintiff has made an adequate
allegation of a recognized impairment at least with the allegation
of Lyme disease.
Defendant next argues that plaintiff has not sufficiently
alleged that she is substantially limited in a major life activity.
Again, this allegation was missing from the amended complaint. But
in the proposed second amended complaint, plaintiff asserts that
her

disabling

conditions

substantially

concentration and wakefulness.

impair

her

sleeping,

Defendant has argued that this

allegation is insufficient because plaintiff does not provide any
factual support for why or how her ability to sleep, concentrate or
be awake is impaired.

The court remains mindful, as stated above,

that a plaintiff is not required to allege “specific facts.”

But,

without additional facts being alleged (facts which should be in
plaintiff’s power to observe), plaintiff is relying upon a mere
legal conclusion that her sleep, concentration and wakefulness are
“substantially impaired.” This bears similarity to the allegations
in Khalik that were characterized as conclusory.
In sum, without facts describing how plaintiff’s alleged
“disability”

substantially

limits

a

major

life

activity,

plaintiff’s disability discrimination claim is dependent upon mere

6

labels or conclusions that she is disabled for the purposes of the
ADA.

The

court

finds

that

plaintiff’s

allegations

are

too

conclusory in this regard and that plaintiff should be permitted
leave

to

file

another

amended

complaint

which

states

facts

describing how she is substantially impaired in a major life
activity by Lyme disease or a thyroid condition.
VI.

Prima facie standards for a retaliation claim
“A prima facie case of retaliation under the ADA requires:

(1)

that

[an

employee]

engaged

in

protected

opposition

to

discrimination, (2) that a reasonable employee would have found the
challenged

action

connection

materially

existed

between

materially adverse action.”
(interior

quotation

adverse,
the

and

protected

(3)

that

activity

a

causal

and

the

Picture People, 684 F.3d at 988

omitted).

A

good

faith

request

for

accommodation can constitute protected activity under the ADA.
Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003); Mondaine
v. Am. Drug Stores, Inc., 408 F.Supp.2d 1169, 1191 (D.Kan. 2006).
VII.

Defendant’s arguments against the retaliation claim
Defendant’s first argument against the retaliation claim is

that plaintiff has not alleged sufficient facts to make a plausible
claim that she was disabled under the ADA and, therefore, she
cannot make a viable claim that she was retaliated against for
making a good faith request for accommodation.

As the court shall

require additional allegations regarding plaintiff’s claim of

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disability, it is not necessary to rule further on this argument.
Defendant’s next argument is that plaintiff has failed to
allege facts suggesting that she suffered a materially adverse
employment action.

The court agrees.

A “materially adverse” job

action is one which “well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.”

Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (interior
quotation omitted).

In many, but not all, circumstances a change

in shift is not considered a materially adverse job action.

See

Ellis v. CCA of Tennessee, 650 F.3d 640, 649-50 (7th Cir. 2011)
(assignment to rotating shifts on a month-to-month basis); MoralesVallellanes v. Potter, 605 F.3d 27, 39 (1st Cir. 2010) cert. denied,
131 S.Ct. 978 (2011) (alteration of rest days in job posting);
McGowan v. City of Eufala, 472 F.3d 736, 742-43 (10th Cir. 2006)
(failure to reassign to day shift); Grube v. Lau Industries, Inc.,
257 F.3d 723, 728 (7th Cir. 2001) (change to second shift after 20
years on first shift); Benningfield v. City of Houston, 157 F.3d
369,

377

(5th

Cir.

1998)

cert.

denied,

526

U.S.

1065

(1999)

(transfer to night shift); Semsroth v. City of Wichita, 548
F.Supp.2d 1203, 1213 (D.Kan. 2008) aff’d, 555 F.3d 1182 (10th Cir.
2009) (revocation of transfer from one school to another); Jones v.
Wichita State University, 528 F.Supp.2d 1222, 1242-43 (D.Kan. 2007)
(temporary shift change).
the

second

amended

Absent additional factual elaboration,

complaint

improperly

8

relies

upon

a

legal

assumption

or

“materially

conclusion

adverse”

job

that

shift

actions

and,

decisions
in

turn,

constituted
“unlawful

retaliation.”
Defendant’s final argument is that insufficient facts are
stated in the proposed second amended complaint to support a causal
connection between alleged protected activity and a materially
adverse employment action.
argument.

The court also agrees with this

Before the court can determine whether plaintiff has

stated a plausible claim of retaliation, it would be helpful if
plaintiff

alleged

facts

explaining

when

plaintiff

asked

for

accommodation, who received the request, when plaintiff suffered an
adverse job action, and who made that decision.

See Khalik, 671

F.3d at 1194.
VIII.

Conclusion
For the above-stated reasons, the court concludes that the

amended complaint and the proposed second amended complaint fail to
state a claim under the ADA.

Therefore, the court shall grant

defendant’s motion to dismiss the amended complaint and, for
reasons of futility, the court shall deny plaintiff leave to file
the second amended complaint. See Frank v. U.S. West. Inc., 3 F.3d
1357, 1365 (10th Cir. 1993) (court may refuse leave to amend on the
basis of futility).

The court, however, shall grant plaintiff

twenty days from the date of this order to file another amended
complaint.

Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir.

9

1990) (the court should dismiss with leave to amend if it is
possible that the defect in the pleading can be corrected). If
plaintiff files an amended complaint, defendant may again consider
whether to file a motion to dismiss.

If an amended complaint is

not timely filed, then the court shall direct that this case be
closed.
IT IS SO ORDERED.
Dated this 27th day of August, 2012 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge

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