Sterling v. Coxcom LLC

Filing 12

ORDER denying 9 Motion to Dismiss as set forth herein. Signed by Honorable Timothy D. DeGiusti on 05/13/2016. (jb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
PIPER L. STERLING,
Plaintiff,
vs.
COXCOM, LLC d/b/a
COX COMMUNICATIONS,
Defendant.

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Case No. CIV-15-1377-D

ORDER
Before the Court is Defendant Cox Communications’ (“Cox”) Motion to
Dismiss [Doc. No. 9], to which Plaintiff Piper Sterling (“Sterling”) has responded
[Doc. No. 10]. The matter is fully briefed and at issue.
BACKGROUND
The present action arises from Sterling’s former employment with Cox and is
based on claims of disability discrimination in violation of the Americans with
Disabilities Act (“ADA”). Amend. Compl., ¶ 3 [Doc. No. 8]. The following facts are
taken from Sterling’s Amended Complaint and viewed in the light most favorable to
her. See Jordan-Arapahoe, LLP v. Bd. of Cty. Comm’rs, 633 F.3d 1022, 1025 (10th
Cir. 2011) (“When considering a motion to dismiss for failure to state a claim, a court
“accept[s] all well-pleaded facts as true and view[s] them in the light most favorable
to the plaintiff.”) (citing Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005)).

Sterling worked for Cox as a “NSC Technical Specialist I.” Amend. Compl.,
¶ 7. She suffers from Irritable Bowel Syndrome (IBS), a painful, non-life-threatening
condition involving the accumulation of gas in the colon. Id. ¶ 7. In August 2014,
Sterling sought an accommodation from Cox due to her IBS. Sterling’s doctor also
submitted a note on her behalf, indicating that she needed frequent bathroom breaks,
approximately every thirty minutes, because of her condition. Id. ¶ 12. Sterling was
still able to perform her job with the breaks. Id. ¶ 14. Cox, however, denied Sterling’s
request. Instead, Cox placed her on involuntary unpaid leave of absence. Id. ¶ 16.
After she was placed on leave, Sterling sought other positions with Cox regarding
which she felt qualified to perform, applying for at least twelve within a three-month
span. Id. ¶¶ 18, 19. She was not hired for any of them. Id. ¶ 21. Sterling eventually left
Cox to seek employment elsewhere. Sterling alleges the reason Cox placed her on
unpaid leave and failed to consider her for another position was because of her IBS
and request for an accommodation. Id. ¶ 22. For the above allegations, she requests
compensatory damages including but not limited to back pay, future wages, and
punitive damages, together with pre-and post-judgment interest, costs, attorney’s fees,
as well as such further appropriate relief.
Cox contends Sterling has not alleged specific facts sufficient to support a claim
upon which relief can be granted under the ADA. Specifically, Cox contends the
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Complaint is deficient in that it fails to state (1) the IBS symptoms Sterling
experienced, (2) the major life activities that were substantially limited by her IBS, (3)
her job duties, (4) the duration of the requested bathroom breaks, (5) the duties of the
other positions she sought, (6) how she was qualified for the other positions, and/or
(7) how placement in any of the other positions would have constituted a “reasonable
accommodation” as a matter of law. Mot. to Dismiss at 2-3.
STANDARD OF DECISION
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. The “plausibility” standard announced in Twombly and Iqbal is not considered
a “heightened” standard of pleading, but rather a “refined standard,” which the Tenth
Circuit has defined as “refer[ring] to the scope of the allegations in a complaint: if
they are so general that they encompass a wide swath of conduct, much of it innocent,
then the plaintiffs have not nudged their claims across the line from conceivable to
plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (citing

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Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011); Robbins
v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
The court of appeals has further noted that “[t]he nature and specificity of the
allegations required to state a plausible claim will vary based on context.” See id.
(quoting Robbins, 519 F.3d at 1248). “Thus, [it has] 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.’” Id. (quoting Robbins, 519 F.3d at 1247). Accordingly, in deciding Twombly
and Iqbal, there remains no indication the Supreme Court “intended a return to the
more stringent pre-Rule 8 pleading requirements.” Khalik, 671 F.3d at 1191 (citing
Iqbal, 556 U.S. at 679). It remains true that “[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 (2007) (quoting
Twombly, 550 U.S. at 555).
Lastly, “[w]hile the 12(b)(6) standard does not require that Plaintiff establish
a prima facie case in her complaint, the elements of each alleged cause of action help
to determine whether Plaintiff has set forth a plausible claim.” Khalik, 671 F.3d at
1191 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)).

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In reviewing a motion to dismiss, the Court neither assesses the legal feasibility
of the complaint, nor does it weigh the evidence which might be offered at trial.
Skinner v. Switzer, 562 U.S. 521, 529-30 (2011). Granting a motion to dismiss is “a
harsh remedy which must be cautiously studied, not only to effectuate the spirit of the
liberal rules of pleading but also to protect the interests of justice.” Dias v. City &
Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Duran v. Carris, 238
F.3d 1268, 1270 (10th Cir. 2001) (internal quotation marks omitted)). “Thus, a
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof
of [the alleged] facts is improbable, and that a recovery is very remote and unlikely.”
Sanchez v. Hartley, 810 F.3d 750, 756 (10th Cir. 2016) (quoting Twombly, 550 U.S.
at 556) (internal quotation marks omitted).
DISCUSSION
The above standard operates as a reminder – or perhaps more appropriate, a
caveat – that, at this stage, Sterling only has the burden of pleading rather than
proving a cognizable cause of action under the ADA. She is under no obligation to try
her case on a motion to dismiss. Glover v. Mabrey, 384 F. App’x 763, 772 (10th Cir.
2010) (unpublished); al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009)
(“Twombly and Iqbal do not require that the complaint include all facts necessary to
carry the plaintiff’s burden.”); see also Jurczyk v. Cox Commc’ns Kansas, LLC, No.

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14–CV–454–TCK–FHM, 2015 WL 84758, at *3 (N.D. Okla. Jan. 7, 2015) (predicting
Tenth Circuit would “not require a plaintiff ‘to go into particulars about the life
activity affected by her alleged disability or detail the nature of her substantial
limitations’ at the pleading stage”) (citations omitted); Musick v. Arvest Bank
Operations, Inc., No. CIV-05-716-HE, 2005 WL 2620554, at *2 (W.D. Okla. Oct. 14,
2005) (“A plaintiff alleging an ADA claim also is not required, in the Tenth Circuit,
to plead the major life activity she asserts was impaired.”) (citing Poindexter v.
Atchison, Topeka and Santa Fe R.R. Co., 168 F.3d 1228, 1232 (10th Cir.1999)).
The ADA provides in part that “[n]o covered entity shall discriminate against
a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). The statute
recognizes distinct causes of action for discrimination and failure to hire based on
disability.1 To state a prima facie case of discrimination under the ADA, Sterling must
allege that (1) she is disabled within the meaning of the ADA; (2) she is qualified,
with or without reasonable accommodation, to perform the essential functions of her
job or the desired job; and (3) she was discriminated against because of her disability.

1

Although Sterling’s Amended Complaint states it “is based on claims of
disability discrimination, harassment, failure to accommodate, and/or retaliation in
violation of the [ADA],” Amend. Compl. ¶ 3, her response brief indicates she intends
to only pursue claims of discrimination and failure to hire. Pl. Resp. at 13-21.
Plaintiff’s response only addresses the foregoing claims and the Court will
accordingly limit its order to the viability of those two causes of action.
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Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1266 (10th Cir. 2015). Virtually
the same elements apply to a failure to hire claim. To establish a prima facie case,
Sterling must show (1) she is disabled within the meaning of the ADA; (2) she is
qualified, that is, able to perform the essential functions of the job, with or without
reasonable accommodation; and (3) Cox failed to hire her under circumstances which
give rise to an inference that such failure to hire was based on her disability. Morgan
v. Hilti, 108 F.3d 1319, 1323 (10th Cir. 1997).
The ADA broadly defines “disability” as “(A) a physical or mental impairment
that substantially limits one or more of the major life activities of such individual; (B)
a record of such an impairment; or (C) being regarded as having such an impairment.”
42 U.S.C. § 12102(1). The Tenth Circuit has found that this definition contains three
elements. Doebele v. Sprint/United Management Co., 342 F.3d 1117, 1129 (10th Cir.
2003). “First, the plaintiff must have a recognized impairment; second, the plaintiff
must identify one or more appropriate major life activities; and third, the plaintiff must
show that the impairment substantially limits one or more of those activities.”
Doebele, 342 F.3d at 1129. “The plaintiff ‘must articulate with precision the
impairment alleged and the major life activity affected by that impairment.’” Id.

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(quoting Poindexter, 168 F.3d at 1232).2 Whether an individual is “disabled” under
the ADA is determined on a case-by-case basis. Albertson’s Inc. v. Kirkingburg, 527
U.S. 555, 566 (1999).
Although the present case presents a close call, after carefully reviewing Cox’s
motion, the allegations of the Amended Complaint, and the elements of the claims at
issue, the Court finds the motion should be denied. Sterling alleges that, by virtue of
her IBS, she was disabled within the meaning of the ADA but was qualified to
perform her job and the positions for which she applied. She further alleges that Cox
had notice of such disability, yet it discriminated against her by placing her on
involuntary unpaid leave and refused to hire her for other positions, eventually forcing
her resignation. As noted, at this preliminary stage of the litigation, the burden is on
the plaintiff to adequately plead, not prove, her claim. The complaint, as amended,
provides Cox with fair notice of Sterling’s claim and the grounds upon which it rests.
Whether that claim has any merit is a determination to be made another day, after a
more developed factual record. The Court’s function is not to weight the evidence but
to determine whether Sterling has set forth a plausible claim for relief. To that end,
Sterling has set forth a minimal showing of a cause of action under the ADA.

2

Although this statement may seem contradictory to the earlier decisions
regarding a plaintiff’s burden at the pleading stage, Doebele was decided after
summary judgment briefing was submitted to the district court.
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Accordingly, Cox’s Motion to Dismiss is denied.
CONCLUSION
Accordingly, Cox’s Motion to Dismiss [Doc. No. 9] is DENIED as set forth
herein.
IT IS SO ORDERED this 13th day of May, 2016.

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