CARDENAS v. TACO BELL KFC et al
REPORT AND RECOMMENDED DECISION re 1 Complaint filed by ELENA CARDENAS. Objections to R&R due by 8/2/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TACO BELL KFC, et al.,
RECOMMENDED DECISION AFTER SCREENING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915(e)
In this action, Plaintiff Elena Cardenas alleges that Defendants Taco Bell KFC and
Ronald H. Giles sent her home from work when she suffered from a medical condition.
Plaintiff seeks money damages and reinstatement to her position.
Plaintiff filed an application to proceed in forma pauperis (ECF No. 2), which
application the Court granted. (ECF No. 5.) In accordance with the in forma pauperis
statute, a preliminary review of Plaintiff’s complaint is appropriate.
28 U.S.C. §
Following a review of Plaintiff’ complaint, I recommend the Court dismiss the
complaint unless Plaintiff amends her complaint on or before August 2, 2017, to state an
In her complaint, Plaintiff alleges that when she suffered from Bell’s Palsy, her
employer told her to go home because she could not see the computer. (Complaint at 4 -
5, ECF No. 1.) She contends she was medically restricted at the time. (Id.) Plaintiff seeks
to recover compensatory damages and injunction relief (i.e., a return to work).
STANDARD OF REVIEW
The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure
meaningful access to the federal courts for those persons unable to pay the costs of bringing
an action. When a party is proceeding in forma pauperis, however, “the court shall dismiss
the case at any time if the court determines,” inter alia, that the action is “frivolous or
malicious” or “fails to state a claim on which relief may be granted” or “seeks monetary
relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
“Dismissals [under § 1915] are often made sua sponte prior to the issuance of process, so
as to spare prospective defendants the inconvenience and expense of answering such
complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
When considering whether a complaint states a claim for which relief may be
granted, a court must assume the truth of all well-plead facts and give the plaintiff the
benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640
F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although a pro se plaintiff’s complaint is subject to “less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), this is
“not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a
claim, Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980). To allege a civil action in
federal court, it is not enough for a plaintiff merely to allege that a defendant acted
unlawfully; a plaintiff must affirmatively allege facts that identify the manner by which the
defendant subjected the plaintiff to a harm for which the law affords a remedy. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff evidently intends to assert a claim of disability discrimination under the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 – 12117, 2000e-5, and/or the
Maine Human Rights Act (MHRA), 5 M.R.S. § 4572.
To state a claim of disability discrimination in employment, Plaintiff must allege
facts showing (1) that her impairment qualified as a disability as defined by the ADA or
MHRA; (2) that she was qualified to perform the essential functions of her job with or
without a reasonable accommodation; and (3) that she suffered an adverse employment
action in whole or in part because of her disability. Lang v. Wal-Mart Stores E., L.P., 813
F.3d 447, 458 (1st Cir. 2016); Doyle v. Dep’t Of Human Servs., 2003 ME 61, ¶ 14, 824
A.2d 48, 54.
When the allegations in her complaint are viewed most favorably to her, Plaintiff
has arguably asserted sufficient facts from which a fact finder could conclude she suffers
or suffered from a condition that qualifies as a disability, and that she experienced an
adverse employment action because of her disability. Plaintiff, however, has not alleged
that she was or is qualified to perform the essential functions of her job with or without a
“Reasonable accommodations are modifications or adjustments to the work
environment, or to the manner in which the position’s duties are customarily performed,
that enable a qualified individual with a disability to perform the essential functions of that
position.” Murray v. Warren Pumps, LLC, 821 F.3d 77, 84 (1st Cir. 2016). Here, although
Plaintiff asserts that she was told to leave work because she could not see the computer,
Plaintiff has not asserted that she could perform the essential functions of the job with a
reasonable accommodation or without a reasonable accommodation. Indeed, Plaintiff does
not address her ability to perform the job. Plaintiff, therefore, has not asserted an actionable
disability discrimination claim.
Plaintiff might also intend to assert that she has a right to return to work after taking
medical leave. Both the federal Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2611 –
2619, and the Maine Family Medical Requirements (FMLR), 26 M.R.S. §§ 843 – 848,
guarantee to eligible employees the right to take medical leave under certain circumstances,
and prohibit employers from denying or interfering with the exercise of the right to take
leave, and from discriminating on the basis of certain conduct related to leave taking. 29
U.S.C. §§ 2612, 2615; 26 M.R.S. §§ 844, 847. Under the governing law, an employee has
a right to return to a position upon returning from qualifying leave. 29 U.S.C. § 2614(a);
26 M.R.S. § 845. If Plaintiff seeks to assert such a claim, she has not alleged sufficient
facts to state an actionable claim. For instance, Plaintiff has not alleged that she requested
leave, or that she was either denied leave or the right to return to work after exercising any
leave rights she might have.
Based on the foregoing analysis, after a review of Plaintiff’s complaint, pursuant to
28 U.S.C. § 1915(e)(2), I recommend the Court dismiss Plaintiff’s complaint unless
Plaintiff, on or before August 2, 2017, files an amended complaint in which she asserts an
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 19th day of July, 2017.
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