Ford v. United Airlines Inc (UAL)

Filing 18

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THERESSA F. FORD,
Plaintiff,
v.
UNITED AIRLINES, INC.,
Defendant.

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June 27, 2018
David J. Bradley, Clerk

CASE NO. 4:18-cv-0924

MEMORANDUM AND ORDER
Pending before the Court in this disability discrimination and retaliation
dispute is Defendant United Airlines, Inc.’s Motion to Dismiss in Part (the
“Motion”) [Doc. # 7]. Pro se Plaintiff Theressa F. Ford1 filed a response, to which
Defendant timely replied.2

The Motion is now ripe for decision.

Having

considered the parties’ briefing, the applicable legal authorities, and all pertinent
matters of record, the Court concludes that the Motion should be granted in part
and denied in part.

1

Although she is proceeding in this case pro se, Plaintiff is an attorney licensed to
practice in the State of Texas.

2

See Plaintiff’s Memorandum in Response to Defendant’s 12(b)(6) Motion to
Dismiss in Part (“Response”) [Doc. # 15]; Defendant’s Reply Brief in Support of
its Motion [Doc. # 16]

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I.

BACKGROUND
Plaintiff has been employed by Defendant since 2009.3 In 2013, Defendant

became aware that Plaintiff suffers from Lupus and has provided on-going, but
unspecified, work accommodations as a result. On June 13, 2014, Plaintiff was in
a serious car accident in which she injured her spine. According to Plaintiff, as a
result of the accident, she “had difficulty using her right arm and right leg,” “had
difficulty walking without a limp,” “could not stand for more than 5-10 minutes,”
and “could not lift even a pot on the stove to cook or bend to do household chores
like laundry or make the bed.”4 At the time of the June 2014 accident, Plaintiff
was working for Defendant as a “ramp employee.”
Following the accident, Plaintiff took leave from her employment with
Defendant. The Complaint does not specify the exact nature of the leave, or
whether she or Defendant initiated the leave. In May 2015, Plaintiff’s doctor

3

In her Response, Plaintiff makes new allegations that were not asserted in her
Complaint and attaches documents that were not attached to her Complaint.
Plaintiff may not supplement her Complaint through her Response. See Lone Star
Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)
(“The court’s review is limited to the complaint, any documents attached to the
complaint, and any documents [the defendant] attached to the motion to dismiss
that are central to the claim and referenced by the complaint”). Consequently, the
background for this case is derived solely from the well-pleaded allegations in the
Complaint. As explained hereafter, Plaintiff is granted leave to amend certain of
her deficiently pleaded claims.

4

Complaint [Doc. # 1], ¶ 9.

2
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cleared her to return to work, but Defendant refused to reinstate her. At some point
thereafter, Plaintiff was required to submit to a four-hour functional capabilities
exam (FCE) with a doctor chosen by Defendant. According to Plaintiff, she was
required to lift 99 pounds during the FCE even though Defendant only requires
new “ramp employee” hires to be able to lift 50 pounds.
On August 14, 2015, Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) for disability discrimination on
the grounds that Defendant was making it more difficult for her to return to work
because she was disabled. On August 17, 2015, Defendant’s agent called Plaintiff
and informed her that although she was able to lift between 60 and 70 pounds
during her exam, she had failed the FCE because she was unable to lift 99 pounds.
According to Plaintiff, she also was told that she would be required to remain on
leave until Defendant’s doctor cleared her to return to work. Plaintiff informed the
caller that she recently had filed a charge of discrimination with the EEOC.
On August 19, 2015, Plaintiff received a call from one of Defendant’s
human resources representatives. Plaintiff alleges the representative told her that
she could return to work without any additional medical testing, and that she would
receive back pay to May 2015, when her own doctor had cleared her to return to
work. Defendant allowed Plaintiff to, and Plaintiff did in fact, return to work on
September 13, 2015.
3
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Plaintiff filed this lawsuit on March 24, 2018. In her Complaint, Plaintiff
asserts various claims under the Americans with Disabilities Act of 1990 (the
“ADA”). By the Motion, Defendant seeks dismissal, at least in part, of each of
Plaintiff’s claims on the grounds that Plaintiff has failed to state a claim upon
which relief can be granted.
II.

LEGAL STANDARDS
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure is viewed with disfavor and is rarely granted. Turner v. Pleasant, 663
F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co.,
563 F.3d 141, 147 (5th Cir. 2009)). The complaint must be liberally construed in
favor of the plaintiff, and all facts pleaded in the complaint must be taken as true.
Harrington, 563 F.3d at 147. The complaint must, however, contain sufficient
factual allegations, as opposed to legal conclusions, to state a claim for relief that is
“plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Patrick v.
Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir. 2012). When there are well-pleaded
factual allegations, a court should presume they are true, even if doubtful, and then
determine whether they plausibly give rise to an entitlement to relief. Iqbal, 556
U.S. at 679. Additionally, regardless of how well-pleaded the factual allegations
may be, they must demonstrate that the plaintiff is entitled to relief under a valid

4
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legal theory. See Neitzke v. Williams, 490 U.S. 319, 327 (1989); McCormick v.
Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997).
III.

ANALYSIS
Plaintiff asserts three distinct claims under the ADA in her Complaint:

disability discrimination, failure to accommodate a disability, and unlawful
retaliation. Defendant has moved to dismiss all of Plaintiff’s claims, at least
partially, on the grounds that they are inadequately pleaded. The Court addresses
the sufficiency of Plaintiff’s allegations with respect to each of her three claims in
turn.
A.

Disability Discrimination

Plaintiff’s first claim against Defendant in her Complaint is for
discrimination under the ADA. Plaintiff alleges that she was discriminated against
on the basis of her disability when Defendant unreasonably delayed her return to
work by refusing to reinstate her after her doctor cleared her for active duty.
According to Plaintiff, Defendant imposed this delay by making it more difficult
for her to obtain clearance from Defendant’s doctors by requiring her to travel
unusually long distances to see them and by mandating she meet a physical
requirement more difficult than that required for ramp employees, namely, lifting
up to 99 pounds. Defendant responds that Plaintiff’s allegations fail to support a
reasonable inference that she was subject to an adverse employment action, a
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necessary element of her disability discrimination claim. Defendant’s response in
this regard is not persuasive.
To state a prima facie case of disability discrimination, a plaintiff must
allege that: (1) she has a disability, or was regarded as disabled; (2) she was
qualified for the job; and (3) she was subject to an adverse employment decision
on account of her disability. Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d
586, 590 (5th Cir. 2016) (citation omitted). Under the ADA, as in the Title VII
context, adverse employment decisions include “only ultimate employment
decisions such as hiring, granting leave, discharging, promoting, or compensating.”
McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007); Mendoza v. City
of Palacios, 962 F. Supp. 2d 868, 872 (S.D. Tex. 2013) (same).
Defendant argues that Plaintiff merely alleges that she was subject to a
standard reinstatement process and that she “does not allege any particular delay in
the return-to-work process.”5 This argument contradicts Plaintiff’s well-pleaded
factual allegations that Defendant violated its own policies with respect to the
distance Plaintiff was forced to travel to see Defendant’s doctor and that Defendant
did not reinstate her because she failed the FCE by not being able to lift 99 pounds,

5

Response [Doc. # 15], ¶ 15.

6
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which she alleges is an unnecessarily heavy amount of weight.6 In addition,
Plaintiff does not allege in her Complaint that she was being compensated or
receiving benefits at the time Plaintiff informed Defendant that her doctor had
cleared her to return to work. Taking as true all of Plaintiff’s allegations, as the
Court must for a motion to dismiss, the allegations in Plaintiff’s Complaint support
a reasonable inference that, at a minimum, Defendant deprived Plaintiff of
compensation and benefits by unreasonably delaying her reinstatement for
discriminatory purposes.7 Accordingly, Plaintiff’s allegations support a reasonable
inference that Defendant subjected her to an adverse employment decision on the
6

See, e.g., Complaint [Doc. # 1], ¶ 12(d) (“Requiring plaintiff to lift 99 lbs. to
return to work is nearly 49 pounds more than defendant requires for any new hire
in the same position. No candidate applying for the same position Plaintiff holds
(Ramp Services Employee) is required to this test. Defendant’s medical leave
agent in Chicago called Plaintiff on August 17, 2015 stating Plaintiff failed the
FCE because she did not lift 99 lbs. even though she lifted 60-70 lbs. in some of
the categories.”).

7

Plaintiff alleges in her Complaint that when Defendant reinstated her she was told
that she “would be paid back pay to May when her doctor released her.” Id. It is
unclear from the allegations in the Complaint whether Plaintiff actually received
any back pay. To the extent Plaintiff was “made whole” for any delay in her
reinstatement in terms of compensation and benefits, it is unclear that she can
demonstrate that she was subject to an adverse employment decision within the
meaning of the ADA. See, e.g., Benningfield v. City of Houston, 157 F.3d 369,
378 (5th Cir. 1998) (finding that a delay in promotion was not an adverse
employment action where the plaintiff received the promotion with retroactive pay
and seniority); Mylett v. City of Corpus Christi, 97 F. App’x 473, 475 (5th Cir.
2004) (“A delay in promotion is not an adverse employment action where any
increase in pay, benefits, and seniority are awarded retroactively.”). The Court
does not resolve that question of fact here.

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basis of her disability. Plaintiff alleged sufficient facts to satisfy the third element
of her disability discrimination claim and, consequently, the Motion is denied with
respect to that claim.
B.

Failure to Accommodate

Plaintiff’s second claim in the Complaint is for failure to accommodate
under the ADA. Plaintiff alleges that she requested that her job duties be limited to
scanning baggage on four different occasions between August 2014 and February
2015 so that she could return to work. According to Plaintiff, she was capable of
scanning bags even during the period where she was unable to lift luggage.
Defendant argues that Plaintiff cannot establish a failure to accommodate claim
because she does not allege facts that show, with respect to the position of ramp
employee, she was a “qualified individual with a disability” when she requested
her accommodation. This argument has merit.
“To establish a failure to accommodate claim, the plaintiff must show that:
(1) the plaintiff is a qualified individual with a disability; (2) the disability and its
consequential limitations were known by the covered employer; and (3) the
employer failed to make reasonable accommodations for such known limitations.”
Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 442 (5th Cir. 2017) (quoting Feist
v. Louisiana, Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 452 (5th Cir.
2013)) (internal quotation marks omitted).
8
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In order for an individual to be

“qualified” for a position under the first element of this test, the individual must be
able to “perform the essential functions” of the position “with or without
reasonable accommodation.” Credeur v. Louisiana Through Office of Attorney
Gen., 860 F.3d 785, 792 (5th Cir. 2017). “A function is ‘essential’ if it bears ‘more
than a marginal relationship’ to the employee’s job.” E.E.O.C. v. LHC Grp., Inc.,
773 F.3d 688, 697 (5th Cir. 2014) (quoting Chandler v. City of Dall., 2 F.3d 1385,
1393 (5th Cir. 1993)). Further, “[t]he ADA does not require an employer to relieve
an employee of any essential functions of his or her job, modify those duties,
reassign existing employees to perform those jobs, or hire new employees to do
so.” Id. at 698; Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999)
(holding employer was not required to accommodate firefighter who could not
fight fires); see also Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 709 (5th
Cir. 1997) (“We cannot say that [an employee] can perform the essential functions
of the job with reasonable accommodation, if the only successful accommodation
is for [the employee] not to perform those essential functions.”).
In her Complaint, Plaintiff describes baggage scanning as one of the nonlifting “essential functions” of the ramp employee role.8 Plaintiff does not allege

8

See Complaint [Doc. # 1], ¶ 9 (“Plaintiff was otherwise qualified to perform the
essential functions of a ramp employee that did not require lifting such as scanning
passenger luggage.”).

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that Defendant has a dedicated position for baggage scanners. For Plaintiff to be
entitled to an accommodation limiting her work to baggage scanning, she must
allege with factual foundation that she was qualified to be a ramp employee with
Defendant United at the time she requested her accommodation.9 Plaintiff makes
no such allegations. To the contrary, despite acknowledging that lifting 50 pounds
is an essential function of the ramp employee position,10 Plaintiff admits that she
was unable to lift even light amounts of weight following her accident.11 Plaintiff
alleges in the Complaint that her doctor did not clear her for work until May 2015,
three months after her last alleged request for accommodation in February 2015.
Because the Complaint lacks adequate factual allegations to support a reasonable
inference that Plaintiff was a “qualified individual” within the meaning of the
9

See Green v. Medco Health Sols. of Texas, LLC, 947 F. Supp. 2d 712, 723 (N.D.
Tex. 2013), aff’d sub nom., 560 F. App’x 398 (5th Cir. 2014) (“The issue of
whether a plaintiff is “qualified” for her position appears to be determined at the
time of the adverse employment action.”) (citing Morton v. GTE N., 922 F. Supp.
1169, 1178 (N.D. Tex. 1996), aff’d, 114 F.3d 1182 (5th Cir. 1997); Cato v. First
Fed. Cmty. Bank, 668 F. Supp. 2d 933, 946 (E.D. Tex. 2009) (“To assert a claim
under the ADA’s accommodation provisions, Plaintiff must show: . . . that she was
a qualified individual with a disability at the time the request for accommodation
was made.”).

10

Complaint [Doc. # 1], ¶ 9. See also id., ¶ 12(d) (“Requiring [P]laintiff to lift 99
lbs. to return to work is nearly 49 pounds more than [D]efendant requires for any
new hire in the same [ramp employee] position.”).

11

Id., ¶ 9 (“Plaintiff could not lift even a pot on the stove to cook or bend to do
household chores like laundry or make the bed. In the first few weeks after the
accident, [P]laintiff needed assistance getting dress[ed].”).

10
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ADA at the times she requested accommodation, she has not pleaded an actionable
failure to accommodate claim.12 Accordingly, the Motion is granted without
prejudice to repleading with respect to the failure to accommodate claim.13
Plaintiff is reminded that any amended complaint must meet the strictures of
Federal Rule of Civil Procedure 11.
C.

Retaliation

Plaintiff’s final claim is for retaliation under the ADA. In support of this
claim, Plaintiff alleges four separate incidents or series of events of retaliation.
Only two are in issue in the Motion.14 First, Plaintiff contends that she was

12

Assuming arguendo that Plaintiff was a “qualified individual,” her failure to
accommodate claim arguably also is deficient because it essentially criticizes
Defendant for refusing to allow her to only perform certain essential functions of
the ramp employee role, i.e., scanning baggage, and relieve her from performing
others, i.e., lifting. Fifth Circuit precedent is clear that an employer is not required
under the ADA to modify a position’s essential functions or relieve an employee
from having to perform those essential functions.

13

In her Response, Plaintiff alleges for the first time that:
At the time of Plaintiff’s injury and even today, one of the main ramp
employees’ duties is to scan bags. At one point, defendant had employees
assigned to shifts where all those particular able-bodied employees were
required to do is scan bags. To date, Defendant’s [Houston] hub still has
employees in its bagroom area that sit at an induction belt and their only
assignments is to scan bags loaded on the belt by other employees during
their shift.
Response [Doc. # 15], ¶ 14(d).

14

Plaintiff originally also asserted a retaliation claim based on Defendant’s alleged
refusal to reinstate her medical benefits after she returned to work in September
(continued…)

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retaliated against “after filing an ethic[s] complaint with how HR refused to
investigate a fraud incident where” Plaintiff’s picture was used without permission
in connection with a work fundraiser.15 Specifically, Plaintiff alleges that as a
result of her ethics complaint, she was “called into the office with her union rep
every month” between March 2017 and July 2017 “for an attempt at writing her up
for attendance.”16 Second, Plaintiff contends that when she attempted to appeal her
attendance write-ups, the appeal process was tainted by delays and conflicts of
interest on the part of Defendant.17 Defendant persuasively argues that neither of
these incidents can serve as a basis for an ADA retaliation claim because neither
has any bearing on a protected activity under the ADA.

(continued…)
2015 until she agreed to pay for coverage for all of 2015, but has abandoned this
theory. Response [Doc. # 15], ¶ 15 (“Plaintiff is not challenging Defendant’s
motion to dismiss the claim for retaliation based on Defendant refusing to reinstate
plaintiff’s health benefits.”). Accordingly, the Motion is granted with respect to
that claim, which is dismissed with prejudice.
Plaintiff also asserts a retaliation claim that Defendant subjected her to an
allegedly harassing interview as part of its internal investigation into her EEOC
charge of discrimination. Defendant does not argue in the Motion that this claim
is subject to dismissal at this time. Accordingly, the Court does not reach the
sufficiency of that claim.
15
16
17

Complaint [Doc. # 1], ¶ 15.
Id.
Id., ¶ 16.

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“To establish a prima facie case of retaliation under the ADA . . . a plaintiff
must show that (1) she participated in an activity protected under the statute; (2)
her employer took an adverse employment action against her; and (3) a causal
connection exists between the protected activity and the adverse action.” Feist v.
Louisiana, Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir.
2013). “By its own terms, the ADA retaliation provision protects ‘any individual’
who has opposed any act or practice made unlawful by the ADA or who has made
a charge under the ADA.” Tabatchnik v. Cont’l Airlines, 262 F. App’x 674, 676
(5th Cir. 2008) (quoting Krouse v. Am. Sterilizer, 126 F.3d 494, 502 (3d Cir.
1997)). Plaintiff’s retaliation claims, which expressly relate to an ethics complaint
she filed regarding the “fraudulent” use of pictures of her without her consent and
to her challenge to allegedly unfair discipline as a result of that ethics complaint,
bear no relationship whatsoever to the ADA.

Neither incident implicates

Plaintiff’s alleged disabilities or the disability-related charge of discrimination she
filed with the EEOC. Said differently, neither incident involves any unlawful
practice or protected activity under the ADA. Plaintiff cites no authority, nor
makes any argument, to the contrary.

Plaintiff therefore has failed to allege

adequately the first element of her ADA retaliation claim based on her ethics
complaint and any discipline or appeals related thereto. The Motion is granted

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with respect to these two ADA retaliation claims theories and they are dismissed
with prejudice.
IV.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Defendant United Airlines, Inc.’s Motion to Dismiss in

Part [Doc. # 7] is GRANTED with respect to Plaintiff’s claim for failure to
accommodate, which claim is DISMISSED WITHOUT PREJUDICE. Plaintiff
is GRANTED LEAVE to amend her Complaint to replead this claim. The Court
will set a deadline for an amended pleading at the pretrial conference in this matter.
It is further
ORDERED that Defendant United Airlines, Inc.’s Motion to Dismiss in
Part [Doc. # 7] is GRANTED WITH PREJUDICE as to Plaintiff’s claims for
retaliation based on (i) Defendant’s alleged refusal to reinstate her health benefits,
(ii) Defendant’s disciplining Plaintiff for her ethics complaint, and (iii)
Defendant’s conduct regarding her appeal of that discipline. It is further
ORDERED that in all other respects, Defendant United Airlines, Inc.’s
Motion to Dismiss in Part [Doc. # 7] is DENIED.
SIGNED at Houston, Texas, this 27th day of June, 2018.

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NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE