ODYSSEOS v. RINE MOTORS, INC.
MEMORANDUM (Order to follow as separate docket entry) re 12 MOTION Motion for Partial Dismissal Signed by Honorable James M. Munley on 3/8/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RINE MOTORS, INC.,
Plaintiff Andreas Odysseos (hereinafter “plaintiff”) asserts that
Defendant Rine Motors, Inc.’s (hereinafter “the defendant”) decision to
terminate his employment violated his rights under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101, et seq. (hereinafter “ADA”) and the
Age Discrimination in Employment Act, 29 U.S.C. §§ 634, et. seq.
(hereinafter “ADEA”). Before the court for disposition is the defendant’s
motion to dismiss plaintiff’s ADA claim. (Doc. 12). For the reasons that
follow, the court will deny the defendant’s motion.
The instant discrimination action arose from plaintiff’s employment
with the defendant. The defendant, an automobile dealership in
Stroudsburg, Pennsylvania, employed plaintiff as a general sales manager
from December 14, 2011, until his termination on April 29, 2016. (Doc. 9,
Am. Compl. (hereinafter “Am. Compl.”) ¶¶ 5, 26).
On December 4, 2015, plaintiff informed the defendant’s owner,
William Rinehart, that he needed a biopsy of his prostate to determine
whether he had cancer. (Id. ¶ 10). Plaintiff’s biopsy was negative. (Id.
¶ 11). His biopsy incision, however, became infected. (Id. ¶ 12). This
required plaintiff to remain in the hospital from January 4, 2016, to January
12, 2016. (Id.)
Plaintiff returned to work on January 16, 2016. (Id. ¶ 13). Between
January 16, 2016, and the end of February 2016, plaintiff wore a heart
monitor to assess his heart rate. (Id. ¶ 14). Plaintiff avers that after his
return to work, Rinehart repeatedly asked him questions pertaining to or
regarding his health. (Id. ¶ 19). Although plaintiff missed only eight (8)
days of work and he assured Rinehart that he was in good health, plaintiff
avers Rinehart interviewed potential employees to replace him. (Id. ¶¶ 15,
17-18, 20). On April 29, 2016, Rinehart terminated plaintiff’s employment,
informing him that his job had been promised to a new person. (Id. ¶ 26).
On October 19, 2016, plaintiff filed a two-count complaint in the
United States District Court for the District of New Jersey. (Doc. 1). On
December 13, 2016, the matter was transferred to this court. (Doc. 7).
Plaintiff filed an amended complaint on December 19, 2016, alleging
disability and age discrimination claims under the ADA and the ADEA,
respectively. In the instant motion, the defendant seeks to dismiss only
plaintiff’s ADA discrimination claim. The parties have briefed their
respective positions and the matter is ripe for disposition.
As plaintiff brings suit pursuant to the ADA and the ADEA, we have
federal question jurisdiction. See 28 U.S.C. § 1331. (“The district courts
shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”).
Standard of Review
The defendant filed a motion to dismiss plaintiff’s ADA claim under
Federal Rule of Civil Procedure 12(b)(6). The court tests the sufficiency of
the complaint’s allegations when considering a Rule 12(b)(6) motion. All
well-pleaded allegations of the complaint must be viewed as true and in the
light most favorable to the non-movant to determine whether, “‘under any
reasonable reading of the pleadings, the plaintiff may be entitled to relief.’”
Colburn v. Upper Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting
Estate of Bailey by Oare v. Cty. of York, 768 F.2d 503, 506 (3d Cir. 1985)).
The plaintiff must describe “‘enough facts to raise a reasonable expectation
that discovery will reveal evidence of’ [each] necessary element” of the
claims alleged in the complaint. Phillips v. Cty. of Allegheny, 515 F.3d 224,
234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). Moreover, the plaintiff must allege facts that “justify moving the
case beyond the pleadings to the next stage of litigation.” Id. at 234-35. In
evaluating the sufficiency of a complaint, the court may also consider
“matters of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case.” Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations
omitted). The court need not accept legal conclusions or unwarranted
factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington,
Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion
Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
The defendant moves to dismiss plaintiff’s ADA claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted. The ADA is designed to eliminate
“discrimination against individuals with disabilities.” 42 U.S.C. § 12101. To
establish an ADA discrimination claim, a plaintiff must plead that: (1) he is a
disabled person within the meaning of the ADA; (2) he is otherwise
qualified to perform the essential functions of the job; and (3) he has
suffered an otherwise adverse employment decision as a result of
discrimination. Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 186 (3d
Cir. 2009) (citations omitted).
In the instant matter, the defendant contests only the first element,
that the plaintiff is a disabled person within the meaning of the ADA. Under
the ADA, a person qualifies as disabled when he has “a physical or mental
impairment that substantially limits one or more of the major life activities of
such individual,” “a record of such an impairment,” or is “regarded as
having such an impairment.” 42 U.S.C. §§ 12102(2)(A)-(C). Here, plaintiff
contends the defendant regarded him as disabled.
To be regarded as disabled within the meaning of 42 U.S.C.
§ 12102(2)(C), an individual must establish that he or she was “subjected
to an action prohibited under [the ADA] because of an actual or perceived
physical or mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). The ADA
“curtails an individual’s ability to state a ‘regarded as’ claim if the
impairment is ‘transitory and minor,’ which means it has an ‘actual or
expected duration of six months or less.’” Budhun v. Reading Hosp. and
Med. Ctr., 765 F.3d 245, 259 (3d Cir. 2014) (quoting 42 U.S.C.
§ 12102(3)(B)). The relevant inquiry in such a matter is “whether the
impairment that the employer perceived is an impairment that is objectively
transitory and minor.” Id.; 29 C.F.R. § 1630.15(f).1
In the instant matter, the defendant argues that plaintiff’s heart
impairment is objectively transitory and minor. First, with respect to the
“transitory” prong, the defendant contends that plaintiff wore a heart
monitor between January 16, 2016, and the end of February 2016. Thus,
the defendant argues that plaintiff’s impairment lasted, at most, three
months. Because “transitory” is defined by statute as “lasting or expected
to last six months or less,” 29 C.F.R. § 1630.15(f), the defendant concludes
that plaintiff’s impairment is objectively transitory. Second, with respect to
the “minor” prong, the defendant argues that plaintiff advised the
defendant’s owner, Rinehart, that he had completely recovered from his
hospitalization, that he never missed work for health reasons, and that he
only missed eight (8) days of work due to his post-biopsy infection. Thus,
The “transitory and minor” argument is a defense to an ADA claim. 29
C.F.R. § 1630.15(f). While a party may not ordinarily raise affirmative
defenses in a motion to dismiss, it may do so if the defense is apparent on
the face of the complaint. Budhun, 765 F.3d at 259 (citing Ball v. Famiglio,
726 F.3d 448, 459 n.16 (3d Cir. 2013)). Here, plaintiff does not dispute
whether the “transitory and minor” defense is apparent on the face of his
the defendant argues that plaintiff had only a minor impairment. We
The federal regulation interpreting the “transitory and minor”
impairment defense indicates that an employer that terminates an
employee with an objectively “transitory and minor” impairment, mistakenly
believing it to be symptomatic of a potentially disabling impairment, has
nevertheless regarded the employee as disabled. 29 C.F.R. § 1630, App.
Stated differently, an employer that takes a prohibited employment action
against an employee based on a perceived impairment that is not
“transitory and minor” has regarded the employee as disabled. Id.2 Here,
plaintiff has alleged facts sufficient to demonstrate that the defendant
The appendix to the Code of Federal Regulations provides a clear
illustration of how the “transitory and minor” defense is intended to operate:
For example, an employer who terminates an employee
whom it believes has bipolar disorder cannot take
advantage of this exception by asserting that it believed
the employee’s impairment was transitory and minor,
since bipolar disorder is not objectively transitory and
minor. At the same time, an employer that terminated an
employee with an objectively “transitory and minor” hand
wound, mistakenly believing it to be symptomatic of HIV
infection, will nevertheless have “regarded” the employee
as an individual with a disability, since the covered entity
took a prohibited employment action based on a
perceived impairment (HIV infection) that is not “transitory
29 C.F.R. § 1630, App.
regarded plaintiff as having a disabling heart impairment. Specifically,
plaintiff avers that his biopsy incision became infected and required plaintiff
to remain in the hospital from January 4, 2016, to January 12, 2016. (Am.
Compl. ¶ 12). Plaintiff returned to work on January 16, 2016. (Id. at ¶ 13).
Between January 16, 2016, and the end of February 2016, plaintiff wore a
heart monitor to assess his heart rate. (Id. ¶ 14). The defendant’s owner,
Rinehart, repeatedly asked about plaintiff’s health. (Id. ¶ 17). In particular,
Rinehart asked questions such as, “How is your infection?”; “How is your
heart?”; “Will the infection come back?”; “Are you still wearing the heart
monitor?” and “Do you still have a fast heartbeat?” (Id. ¶ 19). Plaintiff
continually assured Rinehart that his health was “as good as ever.” (Id.
¶ 20). Despite plaintiff’s assurances, Rinehart interviewed candidates for
plaintiff’s position, and, until at least April 21, 2016, continually asked
plaintiff his plans for retirement. (Id. ¶¶ 21-24).
Taking plaintiff’s well-pled allegations as true, the defendant’s owner,
Rinehart, may have believed plaintiff’s diagnostic heart monitoring to be
symptomatic of an impairment disabling enough to terminate plaintiff’s
employment. Indeed, Rinehart consistently asked plaintiff about his heart,
his health, and his plans for retirement from the day plaintiff returned to
work after his hospitalization, January 16, 2016, up to approximately one
week before he terminated plaintiff’s employment, April 21, 2016. At this
juncture, prior to the development of a full factual record, plaintiff has
sufficiently pled that the defendant “regarded” him as disabled. Therefore,
the court will deny the defendant’s motion to dismiss.
Based upon the above reasoning, the court will deny the defendant’s
motion to dismiss plaintiff’s ADA claim. An appropriate order follows.
Date: March 8, 2017
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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