Anderson-Posey v. UNUM Life Insurance Company of America et al
OPINION AND ORDER by Judge Claire V Eagan : denied in part and moot in part; denied as to plaintiffs disability discrimination claim and moot as to plaintiffs claims for breach of contract and breach of fiduciary duty. ; denying 27 Motion to Dismiss (djh, Dpty Clk)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
UNUM LIFE INSURANCE COMPANY OF
AMERICA and CVS PHARMACY, INC.,
Case No. 16-CV-0086-CVE-FHM
OPINION AND ORDER
Now before the Court is CVS Pharmacy, Inc.’s Partial Motion to Dismiss Plaintiff’s Second
and Third Causes of Action and Brief in Support Thereof (Dkt. # 27). Defendant CVS Pharmacy,
Inc. (CVS), asks the Court to dismiss plaintiff’s discrimination claim under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101-12213 (ADA), arguing that plaintiff failed state a prima facie
case of disability discrimination under the ADA, and that plaintiff’s ADA claim is fundamentally
inconsistent with her claim under the Employment Retirement Income Security Act of 1974, 29
U.S.C. §§ 1001-1461 (ERISA). Dkt. # 27, at 5-12. CVS also asks the Court to dismiss plaintiff’s
breach of contract and breach of fiduciary duty claims, incorporating the reasoning and arguments
set forth in UNUM Life Insurance Company of America’s (UNUM) Motion to Dismiss Plaintiff’s
Second Cause of Action and Brief in Support (Dkt. # 24). Dkt. # 27, at 12. Plaintiff responds that
she made a well pled claim for disability discrimination under the ADA, and that plaintiff’s ADA
and ERISA claims are not fundamentally inconsistent. Dkt. # 29, at 2-9. After CVS filed its partial
motion to dismiss (Dkt. # 27), and with leave of the Court, plaintiff filed an amended complaint
(Dkt. # 28-1) withdrawing her claims for breach of contract and breach of fiduciary duty. See Dkt.
# 31. Thus, CVS’s partial motion to dismiss is moot as to its request to dismiss plaintiff’s second
cause of action. See also id. (finding UNUM’s motion to dismiss plaintiff’s second cause of action
This suit arises from plaintiff’s allegations that UNUM improperly denied her disability
benefits, and that CVS discriminated against her based on her disability. Dkt. # 28-1. Plaintiff began
working for CVS as a dispensing pharmacist in January 2011. Id. at 3; Dkt. # 29, at 6. In June 2013,
plaintiff fractured her coccyx, which resulted in chronic pain requiring management with narcotics.
Dkt. # 28-1, at 3. In January 2014, UNUM approved plaintiff for long-term disability (LTD)
benefits. Id. at 4. In May 2014, plaintiff’s LTD benefits were cancelled because Christopher Hunter,
M.D., released plaintiff to return to work. Id. However, Dr. Hunter also stated that plaintiff is unable
to perform her occupational demands with narcotics in her system. Id. Plaintiff sought
accommodation for her disability, but CVS denied her request. Id. at 6. In October 22, 2014, CVS
terminated plaintiff’s employment. Id. at 4. Plaintiff filed a discrimination claim against CVS with
the Equal Employment Opportunity Commission (EEOC). Dkt. # 2-1. On November 3, 2015, the
EEOC dismissed plaintiff’s claim because it could not conclude that the ADA had been violated.
Id. On February 10, 2016, plaintiff filed this suit against UNUM and CVS for improper denial of
benefits under ERISA, breach of contract, breach of fiduciary duty, and discrimination under the
ADA. Dkt. # 2. On August 30, 2016, plaintiff filed an amended complaint, alleging the same ERISA
and ADA claims as in plaintiff’s original complaint, but withdrawing plaintiff’s breach of contract
and breach of fiduciary duty claims. Dkt. ## 28-1, 31.
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine
whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is
properly granted when a complaint provides no “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its
face.” Id. “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). Plaintiff’s factual allegations “must be enough to raise
a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “Once
a claim has been stated adequately, it may be supported by showing any set of facts consistent with
the allegations in the complaint.” Id. at 562. Although decided within an antitrust context, Twombly
“expounded the pleading standard for all civil actions.” Ashcroft, 556 U.S. at 683. For the purpose
of making the dismissal determination, a court must accept all the well-pleaded allegations of the
complaint as true, even if doubtful in fact, and must construe the allegations in the light most
favorable to a claimant. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210,
1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir.
2002). However, a court need not accept as true those allegations that are conclusory in nature.
Erikson v. Pawnee Cnty. Bd. of Cnty. Comm’rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001).
“[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon
which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991).
CVS argues that plaintiff failed to state a claim of discrimination, arguing that plaintiff failed
state a prima facie case of disability discrimination under the ADA, and that plaintiff’s ADA claim
is fundamentally inconsistent with her ERISA claim. Dkt. # 27. Plaintiff responds that she made a
well pled claim for disability discrimination under the ADA, and that plaintiff’s ADA and ERISA
claims are not fundamentally inconsistent. Dkt. # 29, at 2-9.
The ADA prohibits “discriminat[ion] against a qualified individual on the basis of disability
in regard to job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). To prevail on an ADA discrimination claim, a plaintiff must establish that:
“(1) she is a disabled person as defined by the ADA; (2) she is qualified with or without reasonable
accommodation, to perform the essential functions of the job held or desired; and (3) the employer
discriminated against her because of her disability.” Doyal v. Okla. Heart, Inc., 213 F.3d 492, 495
(10th Cir. 2000). CVS argues that plaintiff has failed to allege facts that show plaintiff is able to
perform the essential functions of her job with or without a reasonable accommodation. Dkt. # 27,
at 6. However, accepting all facts pled by plaintiff as true, and granting all reasonable inferences
from the pleadings in favor of plaintiff, see e.g., Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228
(10th Cir. 2012), the Court finds that plaintiff has stated a claim for disability discrimination under
Plaintiff asserts that she “suffered a fractured coccyx, resulting in chronic pain, which
required narcotics for chronic pain management,” and that she “sought accommodation for her
disability but was denied such accommodations by CVS.” Dkt. # 28-1, at 3, 6. Plaintiff also asserts
that CVS terminated her employment because of her disability, and that CVS engaged in intentional
discrimination “with malice or reckless indifference” to plaintiff’s rights. Id. at 6. These facts are
sufficient for the Court “to draw the reasonable inference that [CVS] is liable for the misconduct
alleged,” Ashcroft, 556 U.S. at 678. Plaintiff asserts that she requested an accommodation under the
ADA; it is a reasonable inference that by asking for accommodation she is also asserting that she
can perform the essential functions of her job with that accommodation. Plaintiff is “not required
to specifically allege all the elements of a prima facie case of discrimination.” Asebedo v. Kan. State
Univ., 559 F. App’x 668 (10th Cir. 2014)1; see also Swierkiewicz v. Sorema N.A., 534 U.S. 506,
510 (2002) (holding that there is no pleading standard that requires a plaintiff to establish a prima
facie case). Plaintiff’s factual allegations may be sparse, but she has asserted enough detail to state
CVS also asks the Court to dismiss plaintiff’s ADA claim because it is fundamentally
inconsistent with her ERISA claim. Dkt. # 27, at 6. CVS asserts that, in support of her ERISA claim,
plaintiff alleges she is unable to perform the essential functions of her job. Id. CVS argues that these
alleged assertions preclude plaintiff from arguing that she can perform the essential functions of her
position as required to sustain a claim under the ADA. Id.
First, plaintiff has made no clear assertion that she cannot perform the essential functions of
her position with an accommodation. Neither the LTD policy nor Dr. Hunter’s statements mention
the effects of an accommodation, see Dkt. ## 28-1, at 4; 27, at 7, and plaintiff’s statement that her
This and all other unpublished opinions are not precedential, but they may be cited for their
persuasive value. See Fed. R. App. 32.1; 10th Cir. R. 32.1.
disability is “debilitating” does not, as CVS argues, equate to plaintiff asserting that “she was unable
to perform the job duties of any gainful occupation,” see Dkt. # 27, at 8 (emphasis in original). The
Court construes plaintiff’s allegations in the light most favorable to plaintiff; this does not allow
interpreting plaintiff’s assertions that she is severely hurt as assertions that she is totally disabled
to the detriment of her claims.
Second, even if the facts plaintiff alleges to support her ERISA and ADA claims conflict,
“[a] party may state as many separate claims or defenses as it has, regardless of consistency.” Fed.
R. Civ. P. 8(d)(3). To support its argument, CVS cites several cases granting summary judgment
motions on the basis of the plaintiff’s ADA claim conflicting with her LTD benefits. See Dkt. # 27,
at 8-12. However, none of the cases cited is analogous to this case at this time. Most of the cases
cited were decided on a motion for summary judgment, see e.g., Krensavage v. Bayer Corp., 314
F. App’x 421, 423 (3rd Cir. 2008); Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 551 (D.
Kan. 1995); Reigel v. Kaiser Found. Health Plan of N.C., 859 F. Supp. 963, 964 (E.D.N.C. 1994),
and the one case cited that was disposed of on the pleadings, involved a plaintiff who had already
been approved to receive Social Security disability benefits, for which he had provided a medical
certification from his doctor that stated he was totally and permanently disabled, see Kelley v. Civil
Criterion Catalysts & Techs. L.P., No. 3:13-cv-298, 2013 WL 5754926, at *2 (N.D. Ind. Oct. 23,
2013). Here, the motion at issue is a motion to dismiss, plaintiff has made no unequivocal statement
of complete disability, and no entity has adjudged plaintiff as totally disabled. Thus, the Court will
not estop plaintiff from arguing her ADA claim, and CVS’s motion to dismiss should be denied.
IT IS THEREFORE ORDERED that CVS Pharmacy, Inc.’s Partial Motion to Dismiss
Plaintiff’s Second and Third Causes of Action and Brief in Support Thereof (Dkt. # 27) is denied
in part and moot in part. It is denied as to plaintiff’s disability discrimination claim under the
Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213; it is moot as to plaintiff’s claims for
breach of contract and breach of fiduciary duty.
DATED this 13th day of October, 2016.
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