Adams v. Persona, Inc.

Filing 20

MEMORANDUM OPINION AND ORDER denying 7 Motion to Dismiss. Signed by U.S. District Judge Lawrence L. Piersol on 8/21/2015. (JLS)

FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

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DAMON ADAMS
Plaintif~

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vs.

PERSONA, INC.
Defendant.

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AUG 2 1 2015
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ERIC

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CIV 14-4191

MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT'S MOTION TO
DISMISS

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Before the Court is Defendant Persona, Inc.'s (Persona) motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). Persona is seeking to dismiss two of Plaintiff Damon
Adams's (Adams) causes of action. The first, Count II in Plaintiffs Complaint, is an allegation
ofunlawful retaliation in violation of the Americans with Disabilities Act ("ADA" or the "Act").
The second, Count IV of the Complaint, is an allegation of associational discrimination also in
violation of the ADA. For the following reasons, the motion will be denied.

BACKGROUND
Because this is a Rule 12(b)(6) motion to dismiss, the facts set out in the Complaint, taken as
true, must be viewed in light most favorable to Complainant-Adams and all logical inferences
must be drawn in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007).
A. Plaintiff's Alcohol Dependency

Adams began working for Persona in February 1982 at Persona's plant and warehouse in
Madison, South Dakota During his time with Persona, Adams was promoted to various
positions, reaching the position of Plant Manager by the time Adams was terminated from
employment. Adams, during all relevant time working for Persona, suffered from alcoholism. In
August 2012, after being notified of possible alcohol related misconduct at the workplace, David
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Holien (Holien), Persona's CEO, Al Haselhorst (Haselhorst), Persona's Production Manager, and
Carol Hinderaker (Hinderaker), Persona's President of Human Resources, met with Adams.
During this meeting, Adams was told that Persona was engaging in a "fact finding mission,"
Complaint at 3, and was asked questions about his alcohol consumption. In response, Adams
admitted to his alcohol dependency. Hinderaker thereafter advised Adams to enter treatment and
that Persona would allow him ten weeks leave. Additionally, Adams was suspended from work
and his employment status set to be reevaluated in thirty days.
Several days following the "fact finding" meeting, Adams spoke with Hinderaker and was
informed of his suspension. Hinderaker also stated that she would attempt to find a new position
for Adams upon his return, but that it may not be in Madison. Furthermore, Adams was informed
by Hinderaker that the ten weeks of leave would be covered through Adams's accumulated
vacation pay and that he would have four weeks of accumulated vacation pay remaining. Adams
entered a 30-day treatment facility on the same day he spoke with Hinderaker. He completed the
treatment on September 12, 2012 and, on September 28, again met with Holien, Haselhorst,
Hinderaker, and Greg Kulesa (Kulesa), Persona's President. At this meeting, Adams detailed his
struggle with alcoholism and expressed his commitment to his job, his recovery, and sobriety.
Further, Adams stated his wish to return to his old position as Plant Manager. Adams was again
told that Persona was engaging in a "fact finding mission" and that it was "'not prepared to make
a decision'" as to Adams's employment. Complaint at 4. On October 10, 2012, Adams again met
with Kulesa, Haselhorst, Holien, and Hinderaker. This time Adams was told that Persona was
terminating Adams as ofthat day.

B. Daughter's Autoimmune Disease
Adams's daughter suffers from an autoimmune disease requiring transfusion treatments
every six to eight weeks. Adams's daughter's health insurance was provided through Adams's
insurance plan with Persona. In November of2011, Hinderaker held a company meeting wherein
she stated that Persona's health insurance premiums were to be increased to 22.51 %. It was also
at this meeting that Hinderaker stated that two of Persona's employees were causing the
premium hike. Specifically, the Complaint alleges that Hinderaker implicitly named Adams as
one of the two employees insofar as Hinderaker stated "that one reason the insurance premium
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rates were going to be higher was because one employee's daughter needed treatments every six
to eight weeks and the treatments were expensive." Complaint at 2.
On August 14, 2012, a day after Adams entered treatment, Adams's wife, Jody, spoke with

Dennis Holien (Chairman Holien), Persona's Chairman of the Board, regarding Hinderaker's
November 2011 comments regarding the Adams' daughter's treatments. Chairman Holien stated
that Persona runs a report "every so often to see which employees have the highest payout of
insurance benefits, ..." and the report indicated that Adams was an employee with one of the
highest amounts. Complaint at 4.
In February 2013, Adams filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (EEOC). On September 29, 2014, the EEOC dismissed Adams's
charge and issued a Notice of Suit Rights. This action followed.
DISCUSSION
In considering a motion under Federal Rule of Civil Procedure 12(b)(6), the factual
allegations of a complaint are assumed true and construed in favor of the plaintiff, "even if it
strikes a savvy judge that actual proof of those facts is improbable." Twombly, 550 U.S. at 556,
cited in Data Mfg., Inc. v. United Parcel Serv., Inc., 557 F.3d 849, 851 (8th Cir. 2009). "While a
complaint attacked by a Rule 12(b)( 6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires
more than labels and conclusions, and a formulaic recitation ofthe elements of a cause of action
will not do." Twombly, 550 U.S. at 555 (internal citations omitted). The complaint must allege
facts, which, when taken as true, raise more than a speculative right to relief. Id. (internal
citations omitted); Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008).
Although a plaintiff in defending a motion under Rule 12(b)(6) need not provide specific facts in
support of its allegations, see Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam), it must
include sufficient factual information to provide the grounds on which her claim rests, and to
raise a right to relief above a speculative level. Twombly, 550 U.S. at 555-556 & n. 3. Although
Federal Rule of Civil Procedure 8 may not require "detailed factual allegations," it "demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal,
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556 U.S.662, 678 (2009). What is demanded to survive a motion to dismiss is facial plausibility.

Id. Determining whether a claim has facial plausibility is "a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense." Ashcroft, 556 U.S. at
679.
A. Count II, Retaliation)
"The ADA provides that '[n]o person shall discriminate against any individual because
such individual has opposed any act or practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter.'" Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013)
(quoting 42 U.S.c. § 12203(a». The Eighth Circuit "has also held that a person who is
terminated for unsuccessfully seeking an accommodation may pursue a retaliation claim under
the ADA, if he had a good faith belief that the requested accommodation was appropriate." Id.
(citing Heisler v. Metropolitan Council, 339 F.3d 622, 632 (8th Cir. 2003». To state a claim of
retaliation in violation of the ADA, Plaintiff must (1) establish he was engaged in a protected
activity, (2) show he suffered adverse employment action, and (3) show a causal connection
between the first two elements. Heisler, 339 F.3d at 632. See Foster v. Time Warner, 250 F.3d
1189, 1194 (8th Cir. 2001). See also Mora v. University of Texas Southwestern Medical Center,
469 Fed. Appx. 295, 298 (5th Cir. 2012) (applying the prima facie factors when reviewing a
district court's grant of Rule 12(b)(6) dismissal).

I The Eighth Circuit indicated in Wallin v. Minnesota Dept. of Corrections, 153 F.3d 681 (8th Cir. 1998), that
alcoholism may qualify as a disability under the ADA, but "evidence that [] [the] alcoholism [has] impaired a major
life activity" must be presented by the plaintiff. Wallin, 153 F.3d at 686 n. 4 (citing Burch v. Coca-Cola Co., 119
F.3d 305, 315-16 (5th Cir. 1997) (there must be an individualized showing that alcoholic plaintiff suffered
permanent impairment, and evidence that alcoholics, in general, are impaired is inadequate»); Office of the Senate
Sergeant at Arms v. Office ofSenate Fair Employment Practices, 95 F.3d 1102, 1105 (Fed. Cir. 1996) (citing Crewe
v. United States Office of Personnel Management, 834 F.2d 140, 141-42 (8th Cir. 1987») ("[I]t is well-established
that alcoholism meets the definition of a disability."). The issue of whether Plaintiff's alcoholism qualifies as a
disability under the ADA, however, is not contested in the instant motion and the Court will proceed under the
presumption that Plaintiff is disabled within the meaning of the ADA. Notwithstanding, the ADA prohibits
retaliation against a good faith request for accommodation even if the alleged disability turns out to be uncovered by
the ADA. Heisler v. Metropolitan Council, 339 FJd 622, 630 n. 5 (8th Cir. 2003). See Larkin v. Methacton School
nist., 773 F. Supp. 2d 508, 529 (E.D. Pa. 2011) (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 502 (3rd Cir.
1997» ("'[P]laintiff[s] in [] ADA retaliation case[s] need not establish that [they are] a qualified individual with a
disability."') (internal quotations omitted) (emphasis in original).
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The fIrst issue that must be resolved in Plaintiffs favor in order to state a claim of
retaliation is whether he engaged in a protected activity. A request for an accommodation is a
protected activity and it is, therefore, unlawful to retaliate against such a request. See Kirkeberg

v. Canadian Pacific Ry., 619 F.3d 898, 908 (8th Cir. 2010). See also Heisler, 339 F.3d at 632
(citing Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3rd Cir. 2003». "Where the
disability, resulting limitations, and necessary reasonable accommodations, are not open,
obvious, and apparent to the employer ... the initial burden rests primarily on the employee ..."
to make the employer aware ofa disability. Wallin v. Minnesota Dept. o/Corrections, 153 F.3d 681,
689 (8th Cir. 1998). The employer is deemed to know of the disability when the employee
expressly tells the employer, a third-party tells the employer, or the employer observes the
disability. Schmidt v. Safeway, Inc., 864 F. Supp. 991, 997 (D. Or. 1994). Upon being made
aware of the disability, an employer "must 'make a reasonable effort to determine the
appropriate

accommodation. '"

EEOC

v.

Convergys

Customer

Management

Group,

Inc.(Convergys), 491 F.3d 790, 795 (8th Cir. 2007) (quoting Cannice v. Northwest Bank Iowa
NA., 189 F.3d 723, 727 (8th Cir. 1999».
It is clear that a request from an employee suffering from alcoholism that he is granted a
leave of absence to attend in-patient recovery would be protected from retaliation. It is of no
consequence that the request is ultimately denied or that the employee does not qualifY as
disabled. In the context of retaliation, therefore, the ADA operates to protect employees seeking
reasonable accommodation. What Defendant is contesting, however, is whether Plaintiff actually
requested the accommodation, i.e., engaged in a protected activity. Defendant asserts that it, and
not Plaintiff, recommended that Plaintiff seek treatment for alcoholism thereby eliminating any
claim that Plaintiff engaged in the protected activity of requesting an accommodation. The
Eighth Circuit has not squarely dealt with the constitution of a "request," but Office ofthe Senate

Sergeant at Arms v. Office of Senate Fair Employment Practices (Sergeant at Arms), 95 F.3d
1102 (Fed. Cir. 1996) and Corbett v. National Products Co., Civ. A. No. 94-2652, 1995 WL
133614 (E.D. Pa. March 27, 1995), each offer guidance.
In Sergeant at Arms, William L. Singer (Singer) was employed with the United States
Capital Police (Capital Police). The Capital Police had in place a policy requiring employees to
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notifY the department of unscheduled absences at least one hour prior to the beginning of a shift.
Singer violated this rule a total of 14 times and received notices of discipline. Due to the high
number of absences, the Capital Police inquired into whether alcohol consumption was causing
Singer's violations. Singer denied. Subsequently, upon receiving several more notices of
discipline, Singer was informed that one more could result in the termination of employment.
Singer eventually received another notice for violating the absence rule. At this point, Singer
informed Capital Police that alcoholism was causing his absences. Singer voluntarily entered
rehabilitation. Singer's termination was nevertheless recommended, but he was thereupon
offered a "last-chance agreement." Sergeant at Arms, 95 F.3d at 1104. The agreement, which
Singer unsuccessfully attempted to negotiate, required Singer to participate "in a substance
dependency recovery program, but contained no provision for retroactive relief." Id. Singer
thereafter filed an employment discrimination claim against the Office of the Senate Sergeant at
Arms ("SAA") with the Independent Hearing Board of the Office of Senate Fair Employment
Practices (the "Board"). The Board concluded that Singer qualified as a disabled individual
under the ADA, that the Capital Police had knowledge of Singer's disability prior to its
institution of the agreement, that Singer was entitled to reasonable accommodation, and that the
Capital Police failed to provide a reasonable accommodation. The Board ultimately found that
Singer was entitled to '''a firm choice and a fresh start,' meaning that [Singer] was entitled to a
choice between treatment and discipline and that, ifhe chose treatment, prior discipline would be
rescinded and all documentation of the discipline would be purged from his personnel file." Id.
The SAA appealed, arguing that "it had no duty to provide Singer with a retroactive
accommodation for his alcoholism ..." Id. at 1105.
On the issue of whether the SAA was required to grant Singer the "firm choice and fresh

start," it argued that its prospective accommodation based on Singer's disclosure of his
alcoholism was sufficient and that ''were [] such a retroactive accommodation [required of
employers], employees whose past disciplinary violations are expunged would not be held to the
same standard as others; rather, they would be treated more favorably than others, ..." Id. at
1106. The SAA further argued that the ADA allowed employers to hold alcoholic employees to
the same standards as non-alcoholic employees. The Federal Circuit agreed that ''retroactive

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accommodation" is not required, but stated that the "firm choice" offer comported with the
ADA's statutory requirement of reasonable accommodations.
Treatment would seem to be essential to any accommodation for alcoholism If an
individual refuses treatment when offered, then discipline is appropriate.... The
SAA provided Singer with such an accommodation. It advanced him leave to
obtain in-patient treatment, and it allowed him to perform his job on a restricted­
duty status while he continued his recovery. The SAA's accommodation enabled
Singer to perform the essential functions of his job and that was in conformity
with the requirements ofthe statute.

Id. at 1107. The court went on to note that a reasonable accommodation is required as to a known
disability and the duty to accommodate arises only when such knowledge is gained by the
employer, "and its duty is therefore prospective from the time when it gained knowledge of the
disability.,,2 Id. See Hill v. Kansas City Area Transp. Authority, 181 F.3d 891, 894 (8th Cir.
1999) (holding that an employee requesting a second chance after violating a work policy is not
analogous to requesting a disability accommodation).
In Corbett, Frederick R. Corbett (Corbett), an alcoholic, entered into a 28-day treatment
facility on his own accord. The following day, Corbett's wife called his employer, National
Products Co. (National), to inform it that Corbett had entered treatment. A day after being
notified of Corbett's entry into treatment (two days after Corbett actually entered treatment),
Corbett's wife was told to notify Corbett that he was terminated as of that day. Corbett sued
National alleging that National terminated his employment in violation of the ADA. "In essence,
plaintiff contended that he was fired because he sought treatment for alcoholism." Corbett, 1995
WL 133614, at *1. A jury found in favor of Corbett and National moved for judgment
notwithstanding the verdict.
National argued "that it had no duty to hold Corbett's job open while he was in
rehabilitation. . . ." because (1) Corbett failed to specify a request for accommodation, (2)
Corbett was incapable of performing the job even with accommodation, and (3) the ADA does

2 The Eighth Circuit has indicated, in dicta, that when employers act on a perception that an employee suffers from
alcoholism by attempting to establish such "and demonstrates performance problems related to [] alcoholism, [the
employer] might [be] able to avail itself of the opportunity to accommodate [the employee's] disability." Miners v.
Cargill Communications, Inc., 113 F.3d 820, 825 (8th Cir. 1997) (discussing the knowledge requirement enunciated
by the Federal Circuit in Sergeant at Arms, 95 F.3d at 1107).

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not require employers to keep a job vacant for an employee who cannot regularly attend. Id. at
*3 (emphasis added). As to National's first argument, the court stated that "[w]hile Corbett did
not specifically request a reasonable accommodation from National, he did so in essence when
his wife called to inform [National] of his entry into the treatment program." Id. at *4. Title VII
"does not require the plaintiff to speak any magic words before he is subject to its protections.
The employee need not mention the ADA or even the term accommodation.'" Id. (quoting
Safeway, 864 F. Supp. at 997). See England, 644 F.3d at 1049 (quoting Taylor v. Phoenixville
Sch. Dist., 184 F.3d 296, 313 (3rd Cir. 1999)) ("Although the notice or request 'does not have to

be in writing, be made by the employee, or formally invoke magic words 'reasonable
accommodation,' it 'nonetheless must make clear that the employee wants assistance for his or
her disability."') (emphasis omitted)); Cloe v. City ofIndianapolis, 712 F.3d 1171, 1176 (7th Cir.
2013) ("Once the employer has been put on notice, the employer must take reasonable steps to
accommodate the employee's disability."). The court likewise rejected National's fmal two
assertions as without merit. Id. (''National's argument that it had no duty to provide Corbett with
a reasonable accommodation is without merit. National contends it had no such duty because
plaintiff could not perform his job ... and employers have no obligation under the ADA to hold
.
")
open aJob....

The Court agrees with Adams and the Sergeant at Arms holding that a request for leave
to attend rehabilitation for alcohol dependency qualifies for ADA protection as a request for
accommodation. It further agrees with Adams that he adequately pled that Persona retaliated
against a request from Adams. The employer has a duty to reasonably accommodate an
employee's disability once the employer has such knowledge of the necessity. Nothing in the
ADA prescribes how the accommodation is requested. What the ADA does require, however, is
that an employer reasonably accommodate the known disabilities of its employees. One such
wayan employer becomes aware of the need for an accommodation is being informed of an
employee's disability by the employee himself. That is what happened here. Thus, Adams's
admission to alcohol dependency may be construed as his request for accommodation. After all,
Adams was not required to explicitly request accommodation in order for Persona's duty to
accommodate to be triggered. Thus, it follows that the admission by Adams itself was the
request.
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Further, the Corbett court's holding regarding "magic language" is aptly applied here.
From the employer's perspective, Corbett holds that no specific language needs to be uttered by
an employee before the employer has a duty of reasonable accommodation. It therefore follows
that, from the employee's perspective, the request for an accommodation itself requires no
precise language. As the Eighth Circuit held in Convergys, once the employer has knowledge
that accommodation is necessitated, it becomes its duty to accommodate. Here, Persona held a
"fact finding" meeting with Adams and its suspicions as to his alcohol abuse were confirmed.
Adams's confirmation of his alcohol dependency was the act necessary to put Persona on notice
and trigger its duty to accommodate. While no explicit request for accommodation was made by
Adams, a reasonable juror could conclude that Persona retaliated against the admission of
dependency itself as it was that admission that triggered Persona's duty to accommodate. Thus,
again, Adams confirming his substance dependency operated as the necessary request for
accommodation and satisfies the first prong of the primafacie case. 3
Next, Plaintiff must show that he was subject to adverse employment action. Termination
of employment undeniably constitutes adverse employment action. Hill v. Walker, 918 F. Supp.
2d 819, 828 (E.D. Ark. 2013) (citing Dropinski v. Douglas Cnty, 298 F.3d 704, 707 (8th Cir.
2002)), afI'd, 737 F.3d 1209 (8th Cir. 2013). Plaintiff, thus, easily satisfies the second prong of
the primafacie case as it is undisputed that he was terminated as Defendant's employee.
Finally, Plaintiff must satisfy the causation requirement. "In . . . retaliation claims, a
temporal connection between an event and an adverse employment action can serve as evidence
supporting a primafacie[] showing of causation." Myers v. Hog Slat, Inc., No. C13-3032-LTS,
2014 WL 5422554, *12 (N.D. Iowa Oct. 24, 2014). "[T]iming alone[,however,] is not adequate
There is an alternative ground for finding that Adams engaged in a protected activity. The Court is of the opinion
that accepting Persona's position that Adams failed to adequately request accommodation would be to condone a
type of"anticipatory retaliation." See Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993) ("Action taken
against an individual in anticipation of that person engaging in protected opposition to discrimination is no less
retaliatory than action taken after the fact; consequently we hold that this form of preemptive retaliation fulls within
the scope of 42 U.S.C. § 2000e-3(a)."); Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (interpretation of Title
VII should not "provide a perverse incentive for employers to fire employees who might bring Title VII claims.").
While Sauers and Robinson dealt with employer retaliation against an employee's filing of a discrimination charge,
filing charges and requesting accommodation both fall within the ambit of activity protected against retaliation.
Thus, an employer would be equally prohibited from anticipating an employee's request for an accommodation by
preemptively suggesting its own, thereby commandeering the employee's protected activity, and then terminating
employment.
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to establish causation unless the timing is 'very close,' usually meaning less than one month." Id.
(citing Lors v. Dean, 746 F.3d 857, 865-66 (8th Cir. 2014) (stating that claims of retaliation
generally require more than mere temporal connection» (emphasis in original). See Sprenger v.
Federal Loan Bank ofDes Moines, 253 F.3d 1106, 1114 (8th Cir. 2001) ("We have been hesitant

to find pretext or discrimination on temporal proximity alone and look for proximity in
conjunction with other evidence."); Walker, 918 F. Supp. 2d at 833 (citing Smith v. Allen Health
Sys. Inc., 302 F.3d 827, 833 (8th Cir. 2002) (two weeks "barely" sufficient for causation» ("In

detailing what amount of time, by itself, between a protected activity and an adverse employment
action is sufficient to maintain a claim in the retaliation context, the Eighth Circuit concluded
that two months cannot justifY a finding ofcausation, where a 'matter of weeks' can.").
Beyond timing, the Eighth Circuit has also held that "not every prejudiced remark made
at work supports an inference of illegal employment discrimination." Lors, 746 F.3d at 866
(citing Rivers-Frison v. Southeast Mo. Cmty. Treatment Ctr., 133 F.3d 616,619 (8th Cir. 1998»
(alterations omitted). The Eighth Circuit has "carefully distinguished between comments which
demonstrate a discriminatory animus in the decisional process or those uttered by individuals
closely involved in employment decisions, from stray remarks in the workplace, statements by
nondecisionmakers, or statements by decisionmakers unrelated to the decisional process." [d.
(citing Rivers-Frison, 133 F.3d at 619). To demonstrate causation, Adams "must provide
evidence that [his] requests for accommodations were a 'substantial or motivating factor' for 'his
termination.'" Cloe, 712 F.3d at 1180 (quoting Smith v. Bray, 681 F.3d 888, 900 (7th Cir. 2012».
To that end, Adams may '''present[] a convincing mosaic of circumstantial evidence that would
support the inference that a retaliatory animus was at work.'" [d. (quoting Bray, 681 F.3d at
910).
Drawing all logical inferences in Adams's favor, the record before the Court alleges
facts, which, taken as true, raise more than a speculative right to relief Twombly, 550 U.S. at
555. The Complaint states that Adams was confronted about his alcohol consumption; he
admitted to struggling with dependency; he was granted leave to and did attend treatment; and he
was subsequently terminated from employment. The Court finds this sequence sufficient to
withstand Defendant's Rule 12(b)(6) motion to dismiss. While temporal connection may be used
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circumstantially, unless the timing is very close it, without more, will not be enough to
successfully plead causation. Adams was terminated approximately two months after he admitted
to alcoholism and Persona offered him leave to enter treatment. That amount of time, alone,
cannot establish causation. As noted above, the Eighth Circuit has held that even two weeks is
"barely" sufficient for establishing causation. Smith, 302 F.3d at 833. The Complaint, however,
alleges other circumstantial evidence that satisfies the causation requirement of the prima facie
case. Adams was granted ten weeks of leave to pursue treatment. Pay for those ten weeks was to
be drawn from Adams's accumulated vacation pay. Rather than allowing the full ten weeks to
elapse, Persona reevaluated Adams's employment status 30 days after leave was granted and
terminated the employment short of the full ten weeks. The Court finds these factual allegations
sufficient to plead a claim of retaliation. Therefore, Count II of Adams's Complaint withstands
Persona's Rule 12(b)(6) motion to dismiss.
B. Count IV, Associational Discrimination
The ADA provides in part: "As used in subsection (a) of this section, the term
'discriminate' includes . . . (4) excluding or otherwise denying equal jobs or benefits to a
qualified individual because of the known disability of an individual with whom the qualified
individual is known to have a relationship or association[.]" 42 U.S.C. § 12112(b)(4). See Lopez
v. City ofBrookings, 489 F. Supp. 2d 971,979 (D.S.D. 2007). "Under the ADA, it is unlawful to
discriminate against an employee because of his association with a person with a disability."

Myers, 2014 WL 5422554, at *11. Moreover, the Act proscribes discriminatory conduct that is
based on costs incurred by the employer resulting from the disability of an employee's family

member.Id. (citing Larimer v. Int'[ Bus. Mach. Corp., 370 F.3d 698, 700 (7th Cir. 2004)). To
properly state a claim of associational discrimination, a plaintiff must show "(1) he was qualified
for the position, (2) he was subject to adverse employment action, (3) he was known to be
associated with a disabled individual, and (4) his discharge occurred under circumstances raising
a reasonable inference that the association with a disabled individual was a determining factor in
[Defendant's] decision to [discharge PlaintiftJ." Myers, 2014 WL 5422554, at *11. ''These
allegations constitute aprimafacie case, and are required to show a 'causal connection' between
a defendant's knowledge of an association with a disabled individual and an adverse
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employment action." Coffman v. QC Financial, No. 8:07CV427, 2008 WL 4104676, *2 (D. Neb.
Aug. 29, 2008) (citing Dollinger v. State Ins. Fund, 44 F. Supp. 2d 467,480 (N.D.N.Y. 1999»
(applying the four factor test in deciding if the plaintiff could withstand a Rule 12(b)(6) motion
to dismiss).
Adams has adequately alleged a prima facie case of associational discrimination. First, he
was qualified for his position as, since first starting at Persona, he was promoted to Plant
Manager. Second, as discussed above, he was terminated, which qualifies as adverse
employment action. Third, Persona was aware that Adams's daughter was disabled and required
treatment. As the Complaint alleges, it was disclosed at the November 2011 meeting that an
employee's dependent, i.e., Adams's daughter, was causing insurance premiums to rise due to
her necessary medical treatments. In addition, a Persona official told Adams's wife that Adams
was one of two employees with the highest insurance payouts. Taken together, it can be
concluded that Persona was aware that Adams had a daughter covered by and using the
insurance provided by Persona.
Fourth, the Complaint sufficiently alleges causation, satisfYing the final prong. 4 The
Complaint, states that Persona knew Adams's daughter was disabled and required treatment, he
was one of two employees causing insurance premiums to rise, and that Adams was terminated
as a result. Moreover, it has been sufficiently alleged that Persona knew it was Adams's daughter
causing the insurance premiums to rise the 22.51 %, which Adams asserts caused Persona to
terminate him. During the November 2011 meeting, Hinderaker impliedly pointed to Adams as a
cause of the premium increase by stating that "one reason the insurance premium rates were
going to be higher was because one employee's daughter needed treatments every six to eight
weeks and the treatments were expensive." Complaint at 2. The Complaint also states that

IfAdams's only basis ofcausation was temporal in nature, it would be insufficient. "In employment discrimination
... , a temporal connection between an event and an adverse employment action can serve as evidence supporting a
prima facie showing of causation." Myers, 2014 WL 5422554, at * 12. Timing, alone, is insufficient unless the
temporal connection is near in time, "usually meaning less than one month." ld (citing Lars, 746 F.3d at 866). The
Complaint alleges that Persona was aware in November 2011 that two employees were causing insurance premiums
to rise. Persona's awareness that Adams was one of the two employees was confirmed in August 2012 when a
Persona official spoke to Adams's wife regarding Adams's daughter. Adams was terminated on October 10, 2012.
The temporal connection of two months with no other basis for causation is insufficient to independently prove
causation. As explained, there is other circumstantial evidence to also support a causation claim at this state of the
case.
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Adams's daughter requires the medical treatment described by Hinderaker. In conjunction with
Hinderaker's comments at the November meeting, Chairman Holien's statements to Adams's
wife provides further circumstantial evidence that Persona knew Adams was a cause of the
increase in insurance costs. Thus, the Complaint adequately imputes to Persona knowledge of
Adams's daughter and her needs. Further, the several statements made by Persona officials
provide sufficient circumstantial evidence that Persona engaged in associational discrimination.
Therefore, Adams withstands Persona's Rule 12(b)(6) motion to dismiss Count IV of the
Complaint.
CONCLUSION

Adams has sufficiently alleged a prima facie case of retaliation. The Court finds that his
admitting to alcohol dependency constitutes a request for an accommodation against which the
ADA prohibits employer retaliation. In addition, Adams has also sufficiently alleged a prima
facie case of associational discrimination. The facts alleged in the Complaint provide satisfactory

circumstantial evidence that Adams was terminated from his position with Persona as a result of
his daughter needing medical treatment. Accordingly,
IT IS ORDERED (1) that Defendant's motion to dismiss Counts II and IV of Plaintiffs
Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is denied and (2)
that Adams furnish the Court with a copy of the relevant Right to Sue Letter.

/) \ ,,1"

Dated this ~ ~day of August, 2015
BY THE COURT:

~~ ~~LU.II----'"
~ence
L. Piersol
United States District Judge

ATTEST:

JOSEPH HAAS, Clef.

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