Cash v. Magic City Motor Corporation

Filing 25

MEMORANDUM OPINION. Signed by District Judge Glen E. Conrad on 1/20/2017. (ssm)

CLERK'S OFFICE U.S. DIST. COURT

AT ROANOKE, VA
FILED

JAN 2 0 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
.
JOSEPH GREGORY CASH,

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Plaintiff,
v.
MAGIC CITY MOTOR CORPORATION,
Defendant.

Civil Action No. 7:16-CV-00192
MEMORANDUM OPINION

Hon. Glen E. Conrad
Chief United States District Judge

Plaintiff Joseph Gregory Cash ("Cash") brings this action against his former employer,
Magic City Motor Corporation ("Magic City"), alleging discrimination in violation of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. The case is currently
before the court on Magic City's motion to dismiss plaintiffs amended complaint. For the
reasons stated, the court will grant in part and deny in part the defendant's motion to dismiss.
Background

The following facts, taken from the plaintiffs amended complaint, are accepted as true
for purposes of the defendant's motions to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94
(2007).
From September of2010 through August of2013, Cash worked at Magic City's Roanoke
location as a Service Director. Am. Comp.

~

8. He left for another employment opportunity, but

came back on April 19, 2015 to work as a Service Advisor at Magic City's Lexington location.
Id.

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8-9. Throughout the duration of his employment, Cash was a model employee and received

positive feedback. Id.

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10.

On May 17, 2015, a day when Cash was not working, he felt ill. Id.

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11. He contacted

his supervisor and requested the next day off, a request which was granted. Id.

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13-14. Cash's

physician excused him from work from May 18, 2015 until June 8, 2015. Id.

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15. Cash was

diagnosed with a bleeding ulcer, which required endoscopic surgery and various tests. At all
relevant times, Cash and his wife were in communication with a supervisor at Magic City, Jay
Zane ("Zane"), regarding Cash's condition. Cash also informed Zane and others that he suffered
from anemia and that the bleeding ulcer prevented Cash from effectively treating his anemia. Id.
~

16-19.
On or around June 9, 2015, Cash returned to work with a note from his physician, asking

Magic City to allow Cash to work full-time in Roanoke or, in the alternative, half days from
Cash's regular Lexington location. Id.

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20. In response, Zane confronted Cash and told him that

his position in Lexington would be filled by someone else. Id.

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23. Zane also stated that Cash's

salary would decrease from $1,250.00 per week to $800.00 per week. Id.

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24-26. Cash

requested the opportunity to return to the Lexington location at his original salary once his
condition improved, which Zane denied. Id.

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24, 26. At some point, Zane also accused Cash of

being unable to work for a period of time in April of 2012 when Cash had his hip replaced. Id.
~

25. Cash stopped working on or around June 19, 2015, as he could not make ends meet with

the reduced salary. Id.

~

28-29.

On April 21, 2016, Cash filed a four-count complaint alleging violations of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. On July 1, 2016, the court
held a hearing on defendant's motion to dismiss. The court granted plaintiffs oral motion for
leave to amend and took under advisement defendant's motion to dismiss. On July 30, 2016,
plaintiff filed a five-count amended complaint, alleging: (1) discrimination; (2) discriminatory
discharge; (3) failure to accommodate; (4) retaliation; and (5) discrimination for being "regarded
as" having a disability. The matter has been fully briefed and is ripe for review.

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Standard of Review

"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint."
Edwards v. City of Goldsboro, 178 F .3d 231, 243 (4th Cir. 1999). When deciding a motion to
dismiss under this rule, the court must accept as true all well-pleaded allegations and draw all
reasonable factual inferences in the plaintiff's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007);
see also Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir. 2013). The Federal
Rules of Civil Procedure "require [] only a 'short and plain statement of the claim showing that
the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim
is and the grounds upon which it rests."' Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Accordingly, "[w]hile 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 of the elements of a cause of action will not do."
Twombly, 550 U.S. at 555 (internal citation and quotation marks omitted). To survive dismissal
for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true,
to 'state a claim for relief that is plausible on its face."' Iqbal, 556 U.S. at 678 (2009) (quoting
Twombly, 550 U.S. at 570). "[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged-but it has not
'shown'-'that the pleader is entitled to relief."' Iqbal, 556 U.S. at 678 (citing Fed. R. Civ. Pro.
8(a)(2)).

Discussion
The ADA, as amended by the ADA Amendments Act of 2008 (the "ADAAA"), prohibits
discrimination "against a qualified individual on the basis of disability in regard to ... the hiring,

3

advancement, or discharge of employees, . . . and other terms, conditions, and privileges of
employment." 42 U.S.C. § 12112(a). A qualified individual is one who "with or without
reasonable accommodation, can perform the essential functions of the employment position that
such individual holds or desires." 42 U.S.C. § 12111(8). A "disability" means "a physical or
mental impairment that substantially limits one or more major life activities of such individual;
... a record of such impairment; ... or being regarded as having such an impairment." 42 U.S.C.
§ 12102. "[M]ajor life activities include, but are not limited to, caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, and working." Id.

§ 12102(2)(A). Whether a plaintiff is disabled is a question of law for the court. See HoovenLewis v. Caldera, 249 F.3d 259, 268 (4th Cir. 2001) ("Whether [the plaintiff] meets the
definition of the statute, and therefore can bring a claim under the statute, is a question of law for
a court, not a question of fact for a jury."). Pursuant to the ADAAA and its regulations, the
definition of disability "shall be construed in favor of broad coverage of individuals." 42 U.S.C.

§ 12102(4)(A).
I. Discrimination in Violation of the ADA
To establish a prima facie case of disability discrimination, a plaintiff must show that (1)
the employer is subject to the ADA; (2) the plaintiff was a person with a disability within the
meaning of the ADA; (3) the plaintiff was not otherwise qualified to perform the essential
functions of his job, with or without reasonable accommodation; and (4) the plaintiff suffered an
adverse employment action which "occurred under circumstances that raise a reasonable
inference of unlawful discrimination." See Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53
F.3d 55, 58 (4th Cir. 1995). "An adverse employment action is a discriminatory act which

4

'adversely affect[s] the 'terms, conditions, or benefits' of [a plaintiff's] employment."' James v.
Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004) (quoting Von Gunten v.
Maryland, 243 F.3d 858, 865 (4th Cir. 2001)). In the instant matter, the defendant does not assert
that it was not a covered employer or that Cash was otherwise not qualified to perform the
essential functions of his job. Instead, the defendant argues that Cash has failed to plead that he
was disabled or regarded as disabled at the time of the allegedly adverse employment actions,
and that Cash ·has not pled facts supporting his claims for discrimination, discriminatory
discharge, failure to accommodate, or retaliation. Conversely, Cash argues that he has pled that
he had an impairment, of which his employer was aware, sufficient to demonstrate that he was
either disabled or regarded as disabled, and that he has alleged facts sustaining his claims.
A. Disabled Pursuant to the ADA

For the reasons set forth, the court concludes that Cash has sufficiently pled that he was
"regarded as" disabled under the ADA. Cash, however, has failed to plead that he was actually
disabled. To plead a disability, a plaintiff must assert that he has a physical impairment, he must
identify a major life activity, and he must plead that the physical impairment substantially limits
that life activity. See Kothe v. Continental Teves, Inc., 461 F. Supp. 2d 466, 471 (W.D. Va.
2006). A "physical impairment" means any "disorder or condition . . . affecting one or more
body systems." 29 C.F.R. § 1630.2(h)(1). A substantially limiting impairment is one that
"substantially limits the ability of an individual to perform a major life activity as compared to
most people in the general population." 29 C.F.R. § 1630.20). "Major life activities are defined
broadly as including 'caring for oneself, performing manual tasks, seeing, hearing, eating
sleeping, walking,

standing, lifting,

bending, speaking, breathing, learning, reading,

concentrating, thinking, communicating, and working."' Signore v. Bank of America, N.A., No.

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2:12CV539, 2013 WL 5561612, at *7 (E.D. Va. Oct. 8, 2013) (quoting 42 U.S.C.

§ 12102(2)(A)).
Here, the court concludes that Cash has failed to plead facts giving rise to an actual
disability. Cash has alleged that he had impairments consisting of a bleeding ulcer requiring
endoscopic surgery and various tests, and anemia. He has not identified a major life activity or
alleged that these impairments substantially limited a major life activity. While Cash does plead
that anemia "may make you feel tired and weak," he has not pled that his anemia made him feel
tired or weak. See 29 C.F.R. § 1630.2(g)(1) ("Disability means, with respect to an individual
.... ") (emphasis added). Moreover, the court cannot find that Cash's bald assertion that his
"condition substantially limited [his] major life activities of working and his ability to care for
himself' is more than a mere recitation of the elements. Twombly, 550 U.S. at 555 ("[A]
formulaic recitation of the elements of a cause of action will not do.").
While the regulations make clear that whether an impairment is substantially limiting
does not require an "extensive analysis" and is not a "demanding standard," a plaintiff must still
plead that the impairment "substantially limits the ability of an individual to perform a major life
activity as compared to most people in the general population." 29 C.F.R. § 1630.2G). A
substantial limitation on the ability to work "'requires, at a minimum, that plaintiffs allege they
are unable to work in a broad class of jobs,' not simply a particular job." Schapiro v. New York
City Dep't of Health, 25 F. App'x 57, 61 (2d Cir. 2001) (rejecting plaintiffs claims of
discrimination when plaintiff had only demonstrated a limitation in the ability to work a specific
job at a specific location) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999)).
Here, plaintiff was apparently able to return to work, full-time, in Roanoke. Am. Compl.

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24-26.

He has alleged no aspect of his work that he was unable to do or was otherwise limited in

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performing.
Similarly, other than simply stating that he was substantially limited "in his ability to care
for himself," Cash provides no facts supporting this contention or describing what aspect of
caring for himself he could not perform without substantial limitation. "To be substantially
limited in the major life activity of caring for himself, [plaintiff] must have an impairment that
'prevents or severely restricts' his ability to care for himself compared with how unimpaired
individuals normally care for themselves in daily life." Didier v. Schwan Food Co., 465 F.3d
838, 842 (8th Cir. 2006) (quoting Fenney v. Dakota, Minn. & E.R.R. Co., 327 F.3d 707, 715 (8th
Cir. 2003)). In his amended complaint, Cash does not claim that his anemia or bleeding ulcer
created a substantial limitation to care for himself "as compared to most people in the general
population." 29 C.P.R. § 1630.20).
Plaintiff cites two cases in support of his argument: Croy v. Blue Ridge Bread, Inc., No.
3:12-CV-00034, 2013 WL 3776802 (W.D. Va. July 15, 2013) and Vande Zande v. State of
Wisconsin Department of Administration, 44 F.3d 538 (7th Cir. 1995). The court believes these
cases to be readily distinguishable. In Croy, the plaintiff was diagnosed with HIV, and the
defendant did not challenge the contention that the plaintiff was disabled. Moreover, the
Supreme Court has previously pronounced that HIV is a physical impairment within the meaning
of the ADA. Bragdon v. Abbott, 524 U.S. 624, 631 (1998) ("We hold respondent's HIV
infection was a disability under [the ADA]."). Similarly, in Vande Zande, a paralyzed plaintiff
suffered from pressure ulcers, which required that she stay home for weeks at a time to treat
them. 44 F.3d at 543. The Seventh Circuit determined that the pressure ulcers, despite being
intermittent, were "a characteristic manifestation of an admitted disability ... a part of the
underlying disability and hence a condition that the employer must [have] reasonably

7

accommodate[d]." Id. at 544. Here, Cash makes no claim of an underlying disability, let alone an
"admitted disability." Id. To the extent anemia can be construed as such an "underlying
disability," the amended complaint does not suggest that Cash's anemia substantially limited a
major life function or that the bleeding ulcer was a "characteristic manifestation" of that anemia.
Id. In sum, plaintiff has not put forth factual allegations indicating that his physical impairment
substantially limited a major life function. Iqbal, 556 U.S. at 678. Accordingly, plaintiff does not
state a claim for discrimination based on an actual disability.
Nonetheless, plaintiff also alleges that he was "regarded as" disabled by Magic City. The
statutory definition of "disability" contemplates that an individual qualifies when he is "regarded
as having such an impairment." 42 U.S.C. § 12102(1). Enactment of the ADAAA broadened
coverage under the "regarded as" prong of the definition of disabled. Accordingly, pursuant to
the ADAAA, an individual is no longer required to demonstrate that the disability he is regarded
as having substantially limits a major life activity, or that his or her employer mistakenly
believed that the impairment substantially limits a life function. Instead, the statute provides:
An individual meets the requirements of "being regarded as having such an
impairment" if the individual establishes that he or she [1] has been subjected to
an action prohibited under this chapter [2] 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) (emphasis added). Therefore, the "regarded as" analysis "focuses not
on [the plaintiff] and his actual abilities, but rather on the reactions and perceptions of the
persons interacting or working with him." Kelly v. Drexel Univ., 94 F.3d 102, 108-09 (3d Cir.
1996). Importantly, the ADAAA requires only that a plaintiff plead and prove that the defendants
regarded him as having a physical or mental impairment, "no matter the defendants' view of the
magnitude of the effect of the perceived impairment on [his] life activities." Mercado v. Puerto

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Rico, 814 F.3d 581, 588 (1st Cir. 2016). Some courts have held, post-ADAAA, that "all that an
ADA plaintiff must show ... for the 'regarded as' prong is that a supervisor knew of the
purported disability." Rubano v. Farrell Area School Dist., 991 F. Supp. 2d 678, 693 (W.D. Pa.
2014) (citing sources).
While the court questions whether the Fourth Circuit would find that simply notice of an
impairment would suffice to plead that one was "regarded as" disabled, the court need not
address that issue here. Plaintiff has alleged other facts in support of his claim that Magic City
regarded him as disabled.
First, the court believes that plaintiff has sufficiently pled that he suffered from a physical
impairment. The ADA, as amended by the ADAAA, does not define physical impairment. The
Equal Employment Opportunity Commission ("EEOC") has issued regulations implementing the
statute, which define the term to mean "[a]ny physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body systems, such as neurological,
musculoskeletal, special sense organs, respiratory, . . . digestive, genitourinary, immune,
circulatory, hemic, lymphatic, skin, and endocrine." 29 C.P.R. § 630.2(h)(1). Magic City does
not address whether plaintiff's bleeding ulcer, anemia, or both are physical impairments, and
Cash alleges that the bleeding ulcer required surgery and left him unable to alleviate his anemia.

Am. Compl. ~ 16, 19.
Second, plaintiff has pled more than mere knowledge of the purported disability on the
part of his employer. Cash alleges that he "continuously communicated" with Zane regarding the
status of his condition and leave. Id.

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18. When Cash requested to work from Roanoke full-time

or Lexington half-time, Zane expressed anger and referenced a prior surgery that left Cash
unable to work. ld.

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21, 25. Taking into consideration the liberal requirements of notice

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pleading as established by Rule 8 of the Federal Rules of Civil Procedure, including the
requirement that all reasonable inferences must be resolved in favor of the pleader, the court
believes that plaintiff has pled, albeit just barely, facts suggesting that Magic City perceived
Cash to have an impairment. See Iqbal, 556 U.S. at 678.
The defendant correctly notes that the "regarded as" theory of disability is not available
when the employer, mistakenly or not, believes that an employee has a merely "transitory and
minor" impairment. Id. § 12102(3)(8); see also Sharp v. Profitt, --- F. App'x ---, 2016 WL
7468086, at *8 (6th Cir. Dec. 28, 2016). A transitory condition is defined as one lasting six
months or less. 42 U.S.C. § 12102(3)(8). The EEOC regulations contemplate that a defendant
bears the burden of demonstrating that a plaintiffs impairment is objectively transitory and
minor as it is an affirmative defense. See id.; 8udhun v. Reading Hosp. and Med. Ctr., 765 F.3d
245, 259 (3d Cir. 2014) ("The ADA regulations list being 'transitory and minor' as a defense to
an ADA claim."). The court recognizes that "while ordinarily a party may not raise affirmative
defenses at the motion to dismiss stage, it may do so if the defense is apparent on the face of the
complaint." Id.; Goodman v. PraxAir, Inc., 494 F.3d 458, 464 (4th Cir. 2007). In the instant case,
the plaintiff has alleged that the condition is "chronic," and the facts pled do not provide any
indication as to whether the parties expected Cash to need a long recovery. Am. Compl.

~

16. At

this point in the litigation, the court does not believe it appropriate to consider the merits of
Magic City's affirmative defenses. See Richmond, Fredericksburg & Potomac R. Co. v. Forst, 4
F.3d 244, 250 (4th Cir. 1993) ("A motion under Rule 12(b)(6) is intended to test the legal
adequacy of the complaint, and not to address the merits of any affirmative defenses.").
Therefore, Cash has sufficiently alleged that his employer was aware of his impairment.
To sustain his claim for being "regarded as" disabled, Cash must also plead facts indicating that

10

he was "subjected to an action prohibited under this chapter because of [this] ... perceived ...
impairment." 42 U.S.C. § 12102(3)(A); see also Haulbrook v. Michelin N. Am., Inc., 252 F.3d
696, 703 (4th Cir. 2001) (noting that "the fact that an employer is aware of an employee's
impairment, without more, is insufficient to demonstrate either that the employer regarded the
employee as disabled or that perception caused the adverse employment action") (citations
omitted). As discussed below, the court believes Cash's complaint to be adequate.

B. Adverse Employment Actions
"An adverse action is one that 'constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits." Hoyle v. Freightliner,
LLC, 650 F.3d 321, 337 (4th Cir. 2011) (citing Burlington Industries, Inc. v. Ellerth, 524 U.S.
742, 761 (1998)). "[C]ourts use Title VII standards to determine whether a plaintiff suffered an
adverse action under the [ADA]." Blackwell v. SecTek, Inc., 61 F. Supp. 3d 149, 161 (D.D.C.
2014). "Typical" examples of adverse actions are "discharge, demotion, decrease in pay or
benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion
...."Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999). A "reassignment can only form the
basis of a valid [] claim if the plaintiff can show that the reassignment had some significant
detrimental effect." James, 368 F.3d at 376 (quoting Boone, 178 F.3d at 256 (4th Cir. 1999)).
There is little question, however, that a reduction in salary or a reassignment with a reduction in
salary can constitute an adverse employment action. Sparenberg v. Eagle Alliance, No. JMF-141667, 2015 WL 6122809, at *8 (D. Md. Oct. 15, 2015) (finding that plaintiff presented a
retaliation claim in regard to "his transfer and reduction in pay"); Davidson-Nadwodny v. WalMart Assocs., Inc. No. CCB-07-2595, 2010 WL 1328572, at *8 (D. Md. Mar. 26, 2010) ("Wal-

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Mart's decision to transfer [plaintiff] to a lower-paying position after she [engaged in a protected
activity] and its failure to compensate her for the difference in pay are sufficient to constitute
adverse actions on their own."); Brand v. N.C. Dep't of Crime Control and Public Safety, 352 F.
Supp. 2d 606, 614 (E.D. Va. 2004) (finding that plaintiff had sufficiently alleged an adverse
employment action when plaintiffs employer decided to reduce plaintiffs pay despite the
reduction being effectuated much later).
Here, after hearing of Cash's request to work from Roanoke or half days in Lexington
until his condition improved, Magic City informed Cash that his position in Lexington would be
filled. Am. Compl.

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23. Magic City then reassigned Cash to Roanoke and told him that his

salary would be reduced by thirty-six percent. Id.

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24. When Cash asked if he could return to

Lexington upon regaining his health, Magic City reported to Cash that his transfer to Roanoke
and the accompanying reduction in salary were permanent. Id.

~

27. From these factual

allegations, the court believes that Cash has sufficiently pled that he was subject to an adverse
employment action.
Cash, however, must further plead a causal relatio_nship between the protected activity
and the adverse employment action. He may do so by demonstrating that the adverse
employment action "occurred under circumstances that raise a reasonable inference of unlawful
discrimination." See Ennis, 53 F.3d at 58. In the context of retaliation cases, as discussed below,
the Fourth Circuit has held that proximity in time can be sufficient to establish the necessary
causal connection between an employee's protected activity and the adverse employment action.
See Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004) ("We assume, without deciding, that .
. . the employer's knowledge [of a protected activity] coupled with an adverse action taken at the
first opportunity satisfies the casual connection element of the prima facie case."); Williams v.

12

Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989) (holding that termination shortly after
protected activity satisfied causal connection element at prima facie stage). Here, on May 17,
2015, Cash told his employer that he felt ill. Am. Compl.
between May 15, 2015 and June 8, 2015. Id.

~

~

12-13. He was released from work

15. On June 9, 2015, Cash presented his doctor's

note requesting that he work from Roanoke or half days from Lexington. Id.
was told that his Lexington position would be filled. Id.

~

~

20. That day, he

23. Two days later, on June 11, 2015,

Zane informed Cash that the reduction in salary would be permanent. Id.
Zane reported that the transfer to Roanoke would also be permanent. Id.

~
~

26. Within a week,

27. With less than a

month between disclosure of Cash's illness and the permanent transfer and reduction in salary,
the court is satisfied that Cash has pled sufficient facts to suggest a causal connection needed to
make out a prima facie case. Accordingly, the court will deny defendant's motion to dismiss
Count I.

II.

Discriminatory Discharge
Cash also alleges that he was discharged because of his disability, asserting that he had to

quit working for Magic City because he "could not make ends meet." Am. Compl.

~

28. When

claiming constructive discharge, a plaintiff must plead (1) that the defendant created intolerable
working conditions; and (2) that the defendants did so deliberately in an effort to force plaintiff
to leave his employment. Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1132 (4th Cir.
1995). Constructive discharge arises from the employer's "calculated effort to pressure [the
employee] into resignation through the imposition of unreasonably harsh conditions, in excess of
those faced by his co-workers." Bristow v. The Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.
1985). "Intolerability is not established by showing merely that a reasonable person, confronted
with the same choices as the employee, would have viewed resignation as the wisest or best

13

decision . . . . Rather, intolerability ... is assessed by the objective standard of whether a
reasonable person in the employee's position would have felt compelled to resign-that is,
whether he would have had no choice but to resign." Blistein v. St. John's College, 74 F.3d
1459, 1468 (4th Cir. 1996) (citations omitted), overruled on other grounds, Oubre v. Entergy
Operations, Inc., 522 U.S. 422 (1998). "Deliberateness exists only if the actions complained of
'were intended by the employer as an effort to force the employee to quit."' E.E.O.C. v. Clay
Printing Co., 955 F.2d 936, 944 (4th Cir. 1992) (quoting Bristow, 770 F.2d at 1255). "Thus, each
claimant must [plead facts showing] that [the employer's] actions were specifically intended to
force each claimant to quit." ld. (emphasis in original).
Deliberateness is difficult to prove and "[e]ven truly awful working conditions may not
rise to the level of constructive discharge." Hill v. Verizon Maryland, Inc., No. RDB-07-3123,
2009 WL 2060088, at *13 (D. Md. July 13, 2009). Simply put, the court cannot conclude that the
amended complaint alleges sufficient deliberateness or intolerableness giving rise to a plausible
claim for relief for constructive discharge. While the alleged reduction in salary is a sufficiently
adverse employment action to sustain Cash's claim for discrimination, the court does not believe
that there are adequate factual assertions supporting the contention that Magic City intended to
pressure Cash to quit. Accordingly, the court will dismiss Cash's claim for discriminatory
discharge.

III.

Failure to Accommodate

Cash also alleges that Magic City discriminated against him because it failed to
accommodate his disability. The ADAAA formally adopted what was already the majority view:
that "a covered entity ... need not provide a reasonable accommodation ... to an individual who
[is merely regarded as disabled.]" 42 U.S.C. § 12201(h); see Mercer v. Drohan Mgmt. Grp., Inc.,

14

No. 1:10CV1212, 2011 WL 5975234, at *7 (E.D. Va. Nov. 28, 2011) (discussing the ADAAA's
adoption of the majority view). As discussed above, Cash has failed to plead an actual disability
and therefore, does not have a cause of action for failure to accommodate.
IV.

Retaliation

Finally, Cash claims that Magic City retaliated against him for disclosing his disability
and for asking for an accommodation. Under 42 U.S.C. § 12203, "[n]o person shall discriminate
against any individual because such individual has opposed any act or practice made unlawful by
this chapter .... " To establish a prima facie case of retaliation, the plaintiff must show that (1)
he has engaged in conduct protected by the ADA; (2) that he suffered an adverse action
subsequent to engaging in the protected conduct; and (3) that there was a causal link between the
protected activity and the adverse action. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d
205, 216 (4th Cir. 2002). A protected activity may include "voicing one's own opinions in order
to bring attention to an employer's discriminatory activities" as well as "complain[ing] to []
superiors about suspected violations." Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 54344 (4th Cir. 2003). In the context of the ADA, a request for accommodations is a protected
activity. See Haulbrook, 252 F.3d at 706; Wagoner v. Lewis Gale Med. Ctr., LLC, No. 7:15-CV00570, 2016 WL 7156796, at *5 (W.D. Va. Dec. 7, 2016) ("The prevailing view, in the Fourth
Circuit and elsewhere, is that requesting an accommodation constitutes protected activity under
the ADA.").
However, "[c]omplaints are not considered protected activities when they fail to make
any allegations about discrimination based on a protected characteristic." McGruder v. Epilepsy
Found. of Am., Inc., No. 11-cv-02310, 2012 WL 832800, at *5 (D. Md. Mar 9, 2012). In this
case, it appears that Cash revealed diagnoses of a bleeding ulcer and anemia, neither impacting

15

his ability to engage in full-time work in Roanoke. This discussion is not protected under the
ADA. See Feliciano v. Reger Grp., No. 1:14-cv-985, 2014 U.S. Dist. LEXIS 183364, at *4 (E.D.
Va. Sept. 10, 2014) ("This Court cannot find any binding case law supporting Plaintiffs
suggestion that discussing a short term disability with one's supervisors is a protected activity
under the ADA."); see also Staten v. State of Md. Dep't of Labor, Licensing, and Regulation,
No. RDB-07-3409, 2010 WL 1246036, at *4 (D. Md. Mar. 26, 2010) ("A plaintiffs complaint to
her employer ... must be about unlawful employment practices .... "); Grazioli v. Genuine Parts
Co., 409 F. Supp. 2d 569, 584 (D.N.J. 2005) (stating that the plaintiff did not engage in protected
activity when she merely informed her employer of her disability). Thus, by simply telling Magic
City about his condition, Cash did not engage in a protected activity.
However, Cash also asked for a reasonable accommodation, which is a protected activity,
when he presented his doctor's note requesting that he work full-time from Roanoke or part-time
from Lexington. Wagoner, 2016 WL 7156796, at *5. Unlike a claim for failure to accommodate,
Cash need not be actually disabled when claiming that he was retaliated against in requesting an
accommodation, provided the he had a good faith belief that he was entitled to request the
accommodation. See Williams v. Philadelphia Housing Auth. Police Dep't, 380 F.3d 751, 759
n.2 (3d Cir. 2004) ("[A]n ADA retaliation claim based upon an employee having requested an
accommodation does not require that a plaintiff show that he or she is 'disabled' within the
meaning of the ADA .... [A] plaintiff need only show that she had a reasonable, good faith
belief that she was entitled to request the reasonable accommodation .... "); Cassimy v. Bd. of
Educ., 461 F.3d 932, 938 (7th Cir. 2006) (finding that a plaintiffs good-faith request for
accommodations was a protected activity that supported a claim for retaliation).

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While Magic City was "not required to provide [Cash] with the specific 'accommodation
he may request, but only with reasonable accommodation as is necessary to enable him to
perform his essential functions,"' as discussed previously, "[a]n adverse action is one that
'constitutes a significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a significant
change in benefits." E.E.O.C. v. Newport News Shipbuilding & Drydock Co., 949 F. Supp. 403,
408 (E.D. Va. 1996) (quoting Harmer v. Virginia Elec. and Power Co., 831 F. Supp. 1300, 1306
(E.D. Va. 1993)); Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (citing
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). The court has already
determined that Cash has sufficiently pled that he was subjected to an adverse employment
action when his employer permanently transferred his position to Roanoke and reduced his
salary. Accordingly, the court believes Cash has adequately pled the first two elements of a
retaliation claim.
Cash must also plead a causal relationship between the protected activity and the adverse
employment action. "[P]laintiffs may demonstrate such a causal relationship [by] show[ing] that
the adverse act bears sufficient temporal proximity to the protected activity." Westmoreland v.
Prince George's Cty., Md., 876 F. Supp. 2d 594, 613 (D. Md. 2012) (citing Clark Cty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273-74 (2001)). Here, Cash was told that his position in Lexington
would be filled and that his salary reduction would be permanent within two days of the request
for accommodation. The court believes that these events are sufficiently close to state a claim for
retaliation. See Clark, 532 U.S. at 273 ("The cases that accept mere temporal proximity between
an employer's knowledge of the protected activity and an adverse employment action as
sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal

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proximity must be very close."); Williams, 380 F.3d at 760 (noting that "two days between the
protected activity engaged in and the alleged retaliation" can suffice). Consequently, the court
will deny defendant's motion to dismiss with regard to Count IV of the amended complaint.

V.

Disability Discrimination for Being Regarded As Disabled
The plaintiff asserts a fifth cause of action for being discriminated against because he was

regarded as disabled. The court notes that being regarded as disabled is not a separate cause of
action, but a method of demonstrating that one has a disability for purpose of the ADA
discrimination claim. 42 U.S.C. § 12102(2); Reynolds v. Am. Nat. Red. Cross, 701 F.3d 143,
150 (4th Cir. 2012) (noting that the plaintiff did not meet the definition of disability as required
to sustain a claim for discrimination, in part, because he could not establish that he was regarded
as disabled). Because the court addressed whether Cash was regarded as disabled in determining
whether Cash had stated a claim for discrimination in Count I, the court will not repeat the
analysis here. The court will also dismiss Count V of the amended complaint as duplicative of
Count I.

Conclusion
For the foregoing reasons, Magic City's motion to dismiss will be granted in part and
denied in part. Count I and IV of the amended complaint remain. The Clerk is directed to send
copies of this memorandum opinion and the accompanying order to all counsel of record.
DATED: This

:J.o'i4 day of January, 2017.
Chief

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