Opinion
CA 00-0358-P-C
July 26, 2000
REPORT AND RECOMMENDATION
This cause is before the Magistrate Judge for entry of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), on the defendant's motion to dismiss the complaint for failure to state a claim upon which relief can be granted (Doc. 6), plaintiff's response to the motion to dismiss (Doc. 10), the defendant's supplement to its motion to dismiss (Doc. 12), plaintiff's first amended complaint (Doc. 13), and plaintiff's response to the defendant's supplement to the motion to dismiss (Doc. 14). The motion to dismiss came on for oral argument before the undersigned on June 27, 2000. Upon consideration of all pertinent pleadings, as well as the June 27, 2000 arguments of counsel for the parties, the Magistrate Judge recommends that the Court DENY the defendant's motion to dismiss.
FINDINGS OF FACT
These facts are taken from plaintiff's amended complaint filed June 26, 2000. (Doc. 13) All allegations contained in the amended complaint are accepted as true for purposes of this action. Sutton v. United Airlines, Inc., 527 U.S. 471, ___, 119 S.Ct. 2139, 2143, 144 L.Ed.2d 450 (1999).
1. E-Z Serve Convenience Stores, Inc. (hereinafter, "E-Z Serve"), is a corporation doing business in Alabama and regularly employs fifteen (15) or more employees. (Doc. 13, ¶¶ 5-6)
2. Jocelyn Riebe, a resident of Elberta, Alabama, was hired as a cashier by E-Z Serve in October of 1997. ( Id., at ¶¶ 4 7)
3. By December of 1997, Riebe had been appointed to assistant manager and worked in that capacity until January 5, 1999. ( Id., at ¶ 8) Plaintiff was acting manager during the months of December, 1998 and January, 1999. ( Id.)
4. Plaintiff has an obvious, severe case of asthma, which substantially limits her ability to breathe, walk and run. ( Id., at ¶¶ 10-11)
5. Riebe takes medication to lessen the symptoms of her asthma, but remains substantially limited. ( Id., at ¶ 12)
6. Plaintiff is qualified for all the positions in which she has served E-Z Serve in the past and is capable, with or without accommodation, of performing the essential functions of the employment positions she has held with E-Z Serve. ( Id., at ¶ 13)
7. E-Z Serve has not had any complaints regarding plaintiff's work performance due to her asthma. ( Id., at ¶ 14)
8. E-Z Serve has not had to make unreasonable accommodation for plaintiff during the time that she has been employed by the defendant. ( Id.)
9. On or about January 5, 1999, with proper notice to her employer, plaintiff took medical leave due to pneumonia and was off work under her doctor's care until January 19, 1999. ( Id., at ¶ 15)
10. Before returning to work on January 19, 1999, plaintiff was told by her supervisor that she would need a release from her doctor stating her work restrictions, if any. ( Id., at ¶ 16)
11. As plaintiff had no permanent restrictions relating to the pneumonia, her doctor prepared a list of restrictions relating to her asthma. ( Id., at ¶ 17)
12. Upon presenting the doctor's letter to her supervisor, plaintiff advised that she was ready and able to return to her full duties regardless of the restrictions and suggested, in the alternative, reasonable accommodations for her restrictions. ( Id., at ¶ 18)
13. Plaintiff's supervisor refused to return her to work until the restrictions were lifted in their entirety and chose not to investigate the feasibility of the reasonable accommodations suggested by plaintiff. ( Id., at ¶ 19)
14. Asthma is a permanent condition. ( Id., at ¶ 20)
15. Plaintiff was terminated from her job. ( Id.)
16. E-Z Serve was aware of plaintiff's asthma at all relevant times, including at the time of termination. ( Id., at ¶ 21)
CONCLUSIONS OF LAW
1. When considering a Rule 12(b)(6) motion to dismiss for failure of the plaintiff's complaint to state a claim upon which relief can be granted, a court must review the complaint to determine whether "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Arnold v. Board of Education of Escambia County, Alabama, 880 F.2d 305, 309 (11th Cir. 1989) ("It is well established that a complaint is not subject to dismissal unless it appears to a certainty that no relief can be granted under any set of facts that can be proved in support of the complaint's allegations."). A court may look only at the facts alleged in the complaint, see Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984) ("Consideration of matters beyond the complaint is improper in the context of a motion to dismiss[.]"), and must accept the allegations in the complaint as true and construe them in the light most favorable to the plaintiff, Roberts v. Florida Power Light Co., 146 F.3d 1305, 1307 (11th Cir. 1998), cert. denied, 525 U.S. 1139, 119 S.Ct. 1027, 143 L.Ed.2d 38 (1999).
2. Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, a plaintiff may, as a matter of course before a responsive pleading is served, file an amended complaint without leave of the court. An amended complaint supersedes the original complaint, Fritz v. Standard Security Life Ins. Co. of New York, 676 F.2d 1356, 1358 (11th Cir. 1982), and therefore, a pending Rule 12(b)(6) motion to dismiss is addressed to the amended complaint, see Sutton, supra, 527 U.S. at ___, 119 S.Ct. at 2143; accord 6 C. WRIGHT, A. MILLER M. KANE, FEDERAL PRACTICE AND PROCEDURE § 1476, at 556-557 (1990).
3. "In order to state a claim under the ADA [Americans with Disabilities Act], a plaintiff must allege (1) that [s]he suffers from a disability, (2) that [s]he is a qualified individual, and (3) that a `covered entity' discriminated against [her] on account of [her] disability." Cramer v. Florida, 117 F.3d 1258, 1264 (11th Cir. 1997). The defendant contends both that asthma is not a covered disability as defined in the Act and that she is not a qualified individual with a disability.
Clearly plaintiff has properly alleged that the defendant is a covered entity that discriminated against her on account of her disability. ( See Doc. 13)
4. The ADA defines "disability," with respect to an individual, as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). "Accordingly, to fall within this definition one must have an actual disability (subsection (A)), have a record of a disability (subsection (B)), or be regarded as having one (subsection (C))." Sutton, supra, 527 U.S. at ___ 119 S.Ct. at 2144.
5. Whether an individual has a disability under the ADA is an individualized inquiry. Sutton, 527 U.S. at ___, 119 S.Ct. at 2147. For purposes of the § 12102(A) prong, if an individual is taking measures to correct for, or mitigate, a physical impairment, the effects of those measures must be taken into account when evaluating whether that individual is "substantially limited" in a major life activity. Id. at ___, 119 S.Ct. at 2146.
[O]ne has a disability under subsection A if, notwithstanding the use of a corrective device, that individual is substantially limited in a major life activity. For example, individuals who use prosthetic limbs or wheelchairs may be mobile and capable of functioning in society but still be disabled because of a substantial limitation on their ability to walk or run. The same may be true of individuals who take medicine to lessen the symptoms of an impairment so that they can function but nevertheless remain substantially limited. Alternatively, one whose high blood pressure is "cured" by medication may be regarded as disabled by a covered entity, and thus disabled under subsection C of the definition. The use or non-use of a corrective device does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantially limiting.Id. at, 119 S.Ct. at 2149.
6. Plaintiff alleges in the amended complaint that though medication she takes for her asthma lessens the symptoms of her impairment she nonetheless remains substantially limited respecting her ability to breathe, walk and run. Accordingly, the undersigned finds that plaintiff has stated a claim that she is substantially limited in a major life activity because of her asthma.
7. The undersigned finds moreover, that plaintiff has stated a claim under § 12102(C). There are two ways in which individuals may fall within the statutory definition contained in subsection (C): "(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Sutton, 527 U.S. at ___, 119 S.Ct. at 2149-2150. In light of the allegations of the amended complaint, specifically, that the defendant at all times was aware of her asthma and her supervisor refused to allow her to return to work until the restrictions placed on her by her physician on account of her asthma were lifted in their entirety, the undersigned finds that plaintiff has stated a claim under subsection (C).
8. The sole remaining question for the Court is whether plaintiff is a "qualified individual with a disability." "The ADA defines a `qualified individual' 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.'" Cramer, supra, 117 F.3d at 1264, quoting 42 U.S.C. § 12111(8).
9. In her amended complaint, Riebe clearly alleges that she is a "qualified individual with a disability," and sufficiently supports that designation with averments that she is capable of returning to work and performing the essential functions of her job. Therefore, plaintiff has sufficiently stated a claim for relief under the ADA. See Cramer, supra.
CONCLUSION
Plaintiff has stated a claim under the Americans with Disabilities Act in her complaint, as amended, and therefore, the Magistrate Judge recommends that the defendant's motion to dismiss be DENIED.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.
DONE.