Jacquelyn D. Austin

REPORT AND RECOMMENDATION

OF MAGISTRATE JUDGE

This matter is before the Court on Defendant's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [Doc. 7] and Plaintiff's motion for leave to file an amended complaint [Doc. 21]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g), D.S.C., this magistrate judge is authorized to review all pretrial matters in employment discrimination cases, including cases under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and submit findings and recommendations to the District Court.

Plaintiff filed this action on July 23, 2012, alleging three causes of action: (1) "Americans with Disabilities Act - Discrimination"; (2) "Americans with Disabilities Act - Refusal to Provide Reasonable Accommodations"; and (3) "Americans with Disabilities Act - Violation of the Business Necessity Standard." [Doc. 1.] On August 31, 2012, Defendant filed a motion to dismiss pursuant to Rule 12(b)(6), arguing Plaintiff's third cause of action should be dismissed. [Doc. 7.] On September 17, 2012, Plaintiff filed a response in opposition or, alternatively, a motion to amend the Complaint. [Docs. 13, 21.] Defendant filed a reply on September 27, 2012, which also addressed Plaintiff's motion for leave to amend. [Doc. 14.] Accordingly, the motions are now ripe for review.

BACKGROUND

Plaintiff began working for Defendant in 1989. [Doc. 1 ¶ 9.] On June 30, 2010, Plaintiff suffered a work-related neck and back injury, but he did not miss work at that time. [Id. ¶ 10.] In September 2010, Plaintiff injured his shoulder at home, aggravating his previous neck and back injury and rendering him unable to work. [Id.] On September 10, 2010, Plaintiff began a one year, approved medical leave of absence. [Id. ¶ 11]

In January 2011, Plaintiff had surgery on his injured shoulder. [Id. ¶ 12.] In June 2011, he learned he had a cancerous tumor in his kidney, and he underwent kidney surgery on July 25, 2011. [Id. ¶ 13.] Plaintiff received short term and then long term disability benefits while he was recovering from his shoulder and kidney surgeries. [Id.]

On January 11, 2011, Dr. Michael Reing, who diagnosed Plaintiff's back and neck injuries, reviewed Plaintiff's job description and issued a statement that Plaintiff had no limitations and was capable of heavy duty work, with an estimated return to work date of January 27, 2011. [Id. ¶¶ 16-17.] However, Plaintiff did not return to work on January 27, 2011 because he was then receiving treatment for his shoulder injury. [Id. ¶ 19.]

On August 10, 2011, Dr. Pierce, who performed Plaintiff's shoulder surgery, released Plaintiff to return to full duty. [Id. ¶ 20.] Dr. Despradel, Plaintiff's kidney doctor, released Plaintiff to return to work on September 5, 2011. [Id. ¶ 23.] On September 8, 2011, Dr. Loudermilk, who was treating Plaintiff for the pain associated with his shoulder injury, issued a written statement that Plaintiff could return to work full duty with no restrictions. [Id. ¶ 21.] Thus, Plaintiff was released to return to work by all of his treating physicians before his one year of approved medical leave expired. [Id. ¶¶ 15, 24.]

On August 31, 2011, Dr. Walker, Defendant's company doctor, told Plaintiff that despite Plaintiff being released to return to work without restrictions by all of his treating physicians, Dr. Walker was going to require Plaintiff to do a three week program of "work hardening," and Dr. Walker placed new lifting restrictions on Plaintiff. [Id. ¶ 25.] The program prescribed by Dr. Walker kept Plaintiff out of work an additional three weeks, putting him over his one year leave of absence. [See id. ¶ 26.] Defendant has a policy that an employee can be terminated if the employee is absent from work for more than one year. [Id. ¶ 14.] Plaintiff was terminated on September 12, 2011 pursuant to Defendant's absence policy. [Id. ¶ 27.]

APPLICABLE LAW

A motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and entitle him to relief. Fed. R. Civ. P. 12(b)(6). When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Further, on a motion pursuant to Rule 12(b)(6), if matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d).

With respect to well-pleaded allegations, the Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:

Federal Rule of Civil Procedure 8(a)(2) requires 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." 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 "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . . .

DISCUSSION

Defendant contends Plaintiff's third cause of action is subject to dismissal because Plaintiff has not and cannot plead a cause of action under the ADA for an alleged violation of the business necessity standard. [Docs. 7-1, 14.] Defendant contends it had a good faith belief that a fitness-for-duty examination was necessary and reasonable upon Plaintiff's return to work and such examination is reasonable under the ADA. [Doc. 7-1 at 4-5.] Plaintiff argues the "Complaint alleges Defendant's examination was conducted based on assumptions instead of facts, was unauthorized, exceeded Defendant's rights, and was conducted in bad faith," which "provide[s] fair notice to Defendant of Plaintiff's claims and meet[s] the required pleading standard." [Doc. 13 at 3.] The Court agrees the Complaint adequately alleges a cause of action for violation of the business necessity standard.

Under the ADA, "[a] covered entity shall not require a medical examination . . . as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination . . . is shown to be job-related and consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A). Thus, employers may "make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job." 29 C.F.R. Pt. 1630, App. § 1630.14(c). Employers may also "require medical examinations necessary to the reasonable accommodation process described in ." Id.

"The ADA's requirement that an [examination] be consistent with business necessity is an objective one. That is, even a 'good faith' mandatory medical examination by an employer may nevertheless give rise to liability if the court determines that the examination was unwarranted." Tice v. Centre Area Transp. Auth., 247 F.3d 506, 518 (3d Cir. 2001). For an examination to be lawful under the ADA, the "employer must prove: (i) 'that the asserted "business necessity" is vital to the business,' (ii) 'that the examination . . . genuinely serves the asserted business necessity,' and (iii) 'that the request is no broader or more intrusive than necessary.'" Blake v. Baltimore Cnty., Md., 662 F. Supp. 2d 417, 422 (D. Md. 2009) (quoting Conroy v. N.Y. State Dep't of Corr. Serv., 333 F.3d 88, 97-98 (2d Cir. 2003)); see also Fredenburg v. Contra Costa Cnty. Dep't of Health Servs., 172 F.3d 1176, 1183 (9th Cir. 1999) (holding § 12112(d)(4)(A) "places the burden on the covered entity . . . to make the requisite showing" that the examination is job-related and consistent with business necessity, which is a factual determination).

Here, Plaintiff has pled sufficient allegations to support his claim that Defendant violated § 12112(d)(4)(A). First, Plaintiff's Complaint supports the reasonable inference that Defendant required Plaintiff to undergo a medical examination to determine his fitness to return to work. [See Doc. 1 ¶ 25 (stating that, ten days prior to the expiration of his medical leave of absence, Defendant's company doctor required Plaintiff to do a three week "work hardening" program and placed new lifting restrictions on Plaintiff).] Second, Plaintiff's allegations support a claim that the examination was not job-related and/or consistent with business necessity. For example, Plaintiff alleges Dr. Walker placed additional restrictions on Plaintiff even though his treating physicians released him to return to work. [Id.]Additionally, Plaintiff alleges Dr. Walker's restrictions necessarily delayed Plaintiff's return to work before his one year of approved medical leave expired, which led to Plaintiff's termination. [Id. ¶¶ 26-27.] These allegations sufficiently state a claim that the medical examination by Dr. Walker was not consistent with business necessity. Thus, the Court concludes Plaintiff has alleged sufficient factual matter that, if true, would entitle him to relief pursuant to § 12112(d)(4)(A), and therefore, Defendant's motion to dismiss should be denied.

RECOMMENDATION

Wherefore, based upon the foregoing, the Court recommends that Defendant's motion to dismiss [Doc. 7] be DENIED and (2) Plaintiff's motion for leave to file an amended complaint [Doc. 21] be DENIED.

IT IS SO RECOMMENDED.

Jacquelyn D. Austin

United States Magistrate Judge
October 25, 2012
Greenville, South Carolina