Opinion
CIVIL ACTION NO. 3:00-CV-2438-G.
March 29, 2001.
MEMORANDUM ORDER
Before the court is the defendant's motion to dismiss for failure to state a claim. For the reasons discussed below, the motion is granted.
I. BACKGROUND
On November 6, 2000, the plaintiff Jana Thompson filed her original complaint, claiming that the defendant Cargo Master, Inc. ("Cargo Master") discriminated against her because of her alleged disability — multiple sclerosis ("MS") — in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. See Plaintiff's Original Complaint ¶ 6. Thompson contends that Cargo Master's discriminatory practices and policies include, but are not limited to, the following:
(a) Discriminating against Plaintiff in the terms, conditions and privileges of employment;
(b) . . . [T]erminating her;
(c) Failing to make reasonable accommodations for Plaintiff's disability; and
(c) [sic] Retaliating against Plaintiff in violation of the [ADA].Id. On November 21, 2000, Cargo Master filed the instant motion to dismiss. See Motion to Dismiss for Failure to State a Claim. Seeking to cure the alleged pleading deficiencies identified in the instant motion, on December 15, 2000, Thompson sought leave of court to amend her complaint. See Plaintiff's Alternative Motion for Leave to File Plaintiff's First Amended Original Complaint at 1. The court granted Thompson's motion for leave, see Order (Dec. 18, 2000), and the first amended complaint — which alleges no new causes of action — was filed on December 18, 2000. See Plaintiff's First Amended Original Complaint (the "Complaint") ¶¶ 6-10.
II. ANALYSIS A. Standard for Dismissal Under Rule 12(b)(6)
FED. R. CIV. P. 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." A motion under Rule 12(b)(6) should be granted only if it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994) (citations omitted). Before dismissal is granted, the court must accept all well-pleaded facts as true and view them in the light most favorable to the non-movant. See Capital Parks, Inc. v. Southeastern Advertising and Sales System, Inc., 30 F.3d 627, 629 (5th Cir. 1994) (citation omitted); Norman v. Apache Corporation, 19 F.3d 1017, 1021 (5th Cir. 1994) (citations omitted); Chrissy F. by Medley v. Mississippi Department of Public Welfare, 925 F.2d 844, 846 (5th Cir. 1991).
B. Pleading Requirements Under the ADA
In order to establish a prima facie case of discrimination under the ADA, the plaintiff must show: (1) that he or she suffers from a disability; (2) that he or she is qualified for the job; and (3) that he or she was subject to an adverse employment action. See Zenor v. El Paso Healthcare System, Limited, 176 F.3d 847, 853 (5th Cir. 1999). The ADA defines "disability" as follows:
a. a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual;
b. a record of such an impairment; or
c. being regarded as having such an impairment.
42 U.S.C. § 12102(2). A "qualified individual with a disability" is defined as "an individual with a disability 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).
In the case at bar, Thompson fails to set forth facts in her complaint which can be interpreted as stating a claim under the ADA. Thompson alleges that she suffers from multiple sclerosis; that multiple sclerosis is "a physical impairment that substantially limits one or more major life activities"; and that she "has a record of an impairment and was regarded as having an impairment." Complaint ¶ 6. However, Thompson has offered no factual basis whatsoever for any of these allegations. For example, she has not described "the nature and extent of [her] alleged disability any where [sic] in the complaint." Abbasi v. Herzfeld Rubin, P.C., 863 F. Supp. 144, 146 (S.D.N.Y. 1994); see also Scott v. Estes, 60 F. Supp.2d 1260, 1267-68 (M.D. Ala. 1999) ("Multiple sclerosis can be a disability under [ 42 U.S.C. § 12102(2)(A)]. However, the determination of whether an impairment is actually a disability under subsection (A) must be an individualized inquiry.") (internal quotation and citations omitted); Sorensen v. University of Utah Hospital, 194 F.3d 1084, 1087 (10th Cir. 1999) (where plaintiff's hospitalization and MS symptoms affected her for only a brief period of time and did not presently impact her ability to perform her job, she had not suffered an impairment that substantially limited a major life activity); Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir. 1996) (plaintiff "substantially limited" in a "major life activity" where MS impaired her ability to lift).
Nor has Thompson set forth any specific facts supporting her contentions that she has a record of an impairment and was regarded as having an impairment. See Complaint ¶ 6. Finally, Thompson has failed to allege any facts in support of her contention that she is a qualified individual with a disability, i.e., "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that [she] holds or desires." 42 U.S.C. § 12111(8). Accordingly, Thompson's claim of disability-based discrimination must be dismissed. See Tuchman v. DSC Communications Corporation, 14 F.3d 1061, 1067 (5th Cir. 1994) ("In order to avoid dismissal for failure to state a claim . . ., a plaintiff must plead specific facts, not mere conclusory allegations. [The court] will . . . not accept as true conclusory allegations or unwarranted deductions of fact.") (internal citations, quotation marks, and ellipses omitted).
Thompson has been given a fair opportunity to plead her case with the required level of factual specificity. Dismissal is therefore appropriate. See Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986) ("plaintiffs cannot be allowed to continue to amend or supplement their pleadings until they stumble upon a formula that carries them over the threshold. . . . At some point a court must decide that a plaintiff has had a fair opportunity to make his case.") Cf. Nieto v. San Perlita Independent School District, 894 F.2d 174, 176 (5th Cir. 1990) (holding that defendants were entitled to qualified immunity from civil rights claims of plaintiff who, when ordered to plead with more particularity, amended his complaint but "included no significant additional details of his claim").
III. CONCLUSION
For the foregoing reasons, Cargo Master's motion to dismiss Thompson's complaint is GRANTED.