Summary
granting Rule 12(b) motion but noting (unlike the present case) that the plaintiff did not allege that he was prevented from returning to work in any position
Summary of this case from Blackburn v. Trs. of Guilford Technical Cmty. Coll.Opinion
1:02CV00221
January 17, 2003
MEMORANDUM OPINION
This matter involves allegations of discrimination based on the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. The case is currently before the court on Defendant City of Greensboro's ("City") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). Because Plaintiff Michael Terry ("Plaintiff") has failed to allege adequately that he was "regarded as" disabled pursuant to section 12102(2)(C) of the ADA, this court will grant the City's motion to dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
The following facts are stated in the light most favorable to Plaintiff. Plaintiff was employed as a police officer with the Greensboro Police Department ("Department"). While working for the Department, Plaintiff dislocated his shoulder in a work related incident. Plaintiff's injury affected "all activities associated with the use of upper extremities . . . including lifting, holding, pushing, and even sleeping." (Am. Compl. ¶ 14.) Plaintiff resigned on good terms with the Department after recovering from his injury during his tenure as a police officer. Although Plaintiff's injury "affected many major life activities," he did not require any accommodation to perform the essential functions of his job as a police officer. (Id.)
Subsequently, Plaintiff received a written offer of reemployment from the Department for a "sworn police officer" position. (Id. ¶ 8.) The human resources department later notified Plaintiff that he would have to submit to a medical examination relating to his prior shoulder injury before returning to the Department. Because a physician chosen by the City conducted the medical examination, Plaintiff's return to the Department was delayed for approximately three months. Plaintiff was not returned to work as a police officer; the Department placed him in the position of a telephone response technician.
Plaintiff alleges that he was not rehired immediately because the City perceived him to be unable to perform not only the sworn officer position, "but all other positions within the Department until September 1, 2001." (Id. ¶ 16) (emphasis added). By requiring the medical evaluation and failing to rehire Plaintiff promptly, Plaintiff alleges that the City discriminated against him by regarding him as a disabled individual pursuant to 42 U.S.C. § 12102 (2)(C). Plaintiff does not, however, contend that he is actually "disabled" according to the ADA.See 42 U.S.C. § 12102 (2)(A). His shoulder injury, which healed prior to his resignation, does not prevent him from performing the essential job functions of a police officer, and does not require any accommodation from the City.
Plaintiff timely filed a formal charge with the Equal Employment Opportunity Commission ("EEOC") for the City's alleged disability discrimination in failing to hire him promptly as a police officer. On or about December 20, 2001, the EEOC issued to Plaintiff a "right to sue" letter. Plaintiff initiated this action on March 21, 2002, on the basis of federal question jurisdiction pursuant to 42 U.S.C. § 12101 et seq. and 28 U.S.C. § 1331. Plaintiff requests a declaratory judgment that the City's action violated the ADA, a preliminary and permanent injunction preventing the City from violating the ADA's provisions, monetary damages for lost wages and retirement benefits, and liquidated damages. The City moved to dismiss the claim pursuant to Rule 12(b)(6) on April 10, 2002. On November 22, 2002, Plaintiff amended his complaint with the court's permission.
II. STANDARD OF REVIEW
A court should dismiss a case for failure to state a claim upon which relief can be granted "only in very limited circumstances." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989). When considering a motion to dismiss, the court must evaluate the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded factual allegations. Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994). Dismissal should not be granted "unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
III. DISCUSSION
Plaintiff does not allege that he suffers from an actual disability under the ADA. Rather, Plaintiff's sole contention is that the City wrongly perceived him as having a disability and discriminated against him because of this misperception. The ADA defines disability 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 impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102 (2). This court will begin its analysis with the ADA's "regarded as" provision, section 12102(2)(C), to determine whether Plaintiff has alleged adequately a claim of disability discrimination.
For a plaintiff to prevail on a perceived disability claim, he or she must show that "(1) a covered entity mistakenly believes that [he or she] 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 v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 2149-50 (1999). In both scenarios, an essential component of the plaintiff's claim is to show that the defendant misperceived his condition as substantially limiting one or more of his major life activities. See Pollard v. High's of Baltimore, Inc., 281 F.3d 462, 471 n. 5 (4th Cir. 2002), cert. denied, ___ S.Ct. ___, 2002 WL 1425135 (Oct. 7, 2002)
To determine what constitutes a substantial limitation on a major life activity, well-established case law and the EEOC's regulations guide this court's analysis. The major life activity at issue in this case is "working." The EEOC has interpreted "substantial limitation" on working to be a significant restriction on the ability to perform a broad range of jobs. 29 C.F.R. § 1630.2 (j)(3)(i). The EEOC further explains that "[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id.; see Farrish v. Carolina Commercial Heat Treating, Inc., 2002 WL 31163723, at *3 (M.D.N.C. Sept. 19, 2002) (relying on the EEOC's guidance in holding that the plaintiff was not substantially limited in the major life activity of working). An individual must be barred from general employment of a given type, as opposed to a specific job, to be substantially limited in the major life activity of working. Haulbrook v. Michelin North America, Inc., 252 F.3d 696, 703-04 (4th Cir. 2001). Simply because an individual is precluded from working in a specialized job or a particular job of choice does not rise to the level of substantial limitation for ADA purposes. Sutton, 527 U.S. at 492, 119 S.Ct. at 2151 (granting the defendant employer's motion to dismiss for failure to state a claim). An individual is not precluded from a substantial class of jobs if jobs using an individual's skills or a range of different types of jobs are made available. Id.
Although the EEOC's regulations concerning the ADA are not binding authority, many courts have relied on them for illustration and guidance. General Elec. Co. v. Gilbert, 429 U.S. 125, 142, 97 S.Ct. 401, 411 (1976) (stating that the EEOC regulations "do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance."); Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 n. 2 (4th Cir. 1996); Atkins v. USF Dugan, Inc., 106 F. Supp.2d 799, 804 n. 5 (M.D.N.C. 1999).
Plaintiffs in cases similar to the case at bar have failed to establish that they are "regarded as" disabled or that they are substantially limited in the major life activity of working. In Lucas v. Miami County, the Tenth Circuit rejected the plaintiff's claim that he was "regarded as" disabled when the county offered him a law enforcement job in the sheriff's office even though it was not the job the plaintiff had favored (a lieutenant position). The court's rationale was that because the sheriff's office did not preclude the plaintiff from "the entire class of law enforcement jobs," he was not denied the ability to work in a broad range of jobs. Lucas, 2001 WL 497372, at *3 (involving a plaintiff who suffered a non-work related injury to his vertebra as the alleged perceived disability). In Greenberg v. New York State, the court held that the plaintiff's sole plea that his perceived disability prevented him from being employed as a New York Correction Officer, but not from employment generally within the department, was insufficient as a matter of law to show that the plaintiff was substantially limited in his ability to work. Greenberg, 919 F. Supp. at 643 (involving a plaintiff allegedly perceived as mentally disabled because of the results of a psychological examination).
Lucas v. Miami County, 2001 WL 497372 (10th Cir. May 10, 2001).
Greenberg v. New York State, 919 F. Supp. 637 (E.D.N.Y. 1996).
Here, Plaintiff is not barred from working in the Department generally. In fact, the Department rehired Plaintiff with full knowledge of his prior shoulder injury. Although the City's written offer of re-employment was for a police officer position, and Plaintiff was eventually placed in the position of telephone response technician within the Department, this evidence is insufficient on its own to show that Plaintiff was substantially limited in his ability to work. Because the telephone response technician job is one within the Department, Plaintiff is not precluded from a broad range of jobs. Sutton, 527 U.S. at 493, 119 S.Ct. at 2151 (holding that although the global airline pilot position was not made available to the plaintiffs, various other positions utilizing their skills were made available to them within the company).
Notably, however, Plaintiff does not allege that the City prevented him from returning to work in any position, at all times, because of a perceived disability. Rather, Plaintiff claims that the City regarded him as disabled "until September 1, 2001," the date on which he was allowed to return to work at the Department. Plaintiff alleges that the City regarded him as disabled for the three months it took to determine whether he was medically certified to return to work; not after these three months had expired. (Am. Compl. ¶ 12.)
This court can determine whether Plaintiff has stated a claim for disability discrimination based only on the facts presented in the complaint and any amendments. Besides the medical certification relating to Plaintiff's shoulder injury, no other conduct, policy or practice is specified in the complaint to support the notion that the City regarded Plaintiff as disabled. Cf. Atkins v. USF Dugan, Inc., 106 F. Supp.2d 799, 808 (M.D.N.C. 1999) (holding that on the face of the complaint, the plaintiff's allegation that his employer made at least one suggestion regarding retirement implicated all jobs and sufficiently established a claim for disability discrimination under section 12102(2)(C) (emphasis added). Therefore, because the only factual basis for Plaintiff's claim is the City's requirement of a medical examination prior to returning to work, this court will focus its analysis on employer mandated medical examinations as prerequisites to returning to work.
Other than the required medical examination, Plaintiff alleges that "the Defendant's conduct" shows that the City perceived Plaintiff to be unable to work as a police officer and all other positions in the Department. Although Plaintiff is not required to plead with specificity pursuant to Rule 9 of the Federal Rules of Civil Procedure, Plaintiff's bald allegation that the City's conduct generally shows the City regarded Plaintiff as disabled is insufficient to state a claim for disability discrimination. See Overton v. Tar Heel Farm Credit, ACA, 942 F. Supp. 1066, 1068-70 (E.D.N.C. 1996) (holding that the plaintiff failed to state a claim for disability discrimination when he alleged, in a conclusory fashion, that he was regarded as disabled). Plaintiff also fails to allege that "negative reactions of others" relating to a myth or a fear about his misperceived disability substantially limited his ability to work. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 282-83, 107 S.Ct. 1123, 1128-29 (1987) (holding that an individual may be substantially limited in his or her ability to work because of the negative reactions of others to a visible physical impairment).
This court has held previously that a medical examination, on its own, is insufficient to establish that an employer regarded an individual as disabled. Nelson v. Thomasville Furniture Indus., 2002 WL 416374, at *5 (M.D.N.C. Jan. 17, 2002). Other courts have held that requiring an employee to submit to a medical or psychological evaluation before returning to work does not by itself establish that an employer regards the individual as disabled. See. e.g., Tice v. Centre Area Transp. Auth., 247 F.3d 506, 508-09 (3d Cir. 2001) (medical examination);Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999) (medical examination); Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998) (psychological evaluation). A request for such an evaluation, without more, does not prove that the employer perceives the employee to have an impairment that substantially limits one or more of the employee's major life activities. See Cody, 139 F.3d at 599. Mental and physical examinations have been upheld as preconditions to returning to work if the request is supported by a reasonable belief about the plaintiff's capabilities and the examination relates to the essential functions of the job. Sullivan, 197 F.3d at 811-12; Porter v. United States Alumoweld Co., 125 F.3d 243, 246 (4th Cir. 1997)
Whether an employer regarded an employee as disabled under the ADA is a fact-specific analysis. The request and circumstances surrounding a medical evaluation must be reviewed by the court in determining whether the employee was "regarded as" disabled within the meaning of the ADA. As the Third Circuit Court of Appeals has noted:
[I]f it turned out that the employer's examination was not limited to an assessment of those potential impairments that had occasioned the examination in the first place, but instead became a "wide-ranging assessment of mental or physical debilitation," such evidence might be highly probative as to the nature of the employer's perception.Tice, 247 F.3d 506, 516 (quoting Sullivan, 197 F.3d at 812) (internal citation omitted). Plaintiff has not alleged that the medical examination was conducted outside the boundaries of his prior shoulder injury. Plaintiff has also failed to show that the City lacked a reasonable basis for requiring a medical examination given his prior injury. Rather, an injury to Plaintiff's shoulder, which he admits affected his ability to lift, to hold and to push, among other activities involving the use of his upper extremities, would certainly relate to the essential functions of a police officer.
In addition, according to the EEOC's regulations, evaluations ordered by an employer to determine whether an employee can fulfill the essential functions of the job are appropriate. 29 C.F.R. § 1630.14 (c);Sullivan, 197 F.3d at 811-12; Porter, 125 F.3d at 246. Section 9.4 of the EEOC Technical Assistance Manual on the Employment Provisions of the ADA also state that an employer's mandate of a medical evaluation conducted after an on-the-job injury is job related and a business necessity pursuant to section 12112(d)(4) of the ADA. Porter, 125 F.3d at 246.
In the light most favorable to Plaintiff, this court is unable to articulate a non-job-related rationale for the City's request for medical certification. Plaintiff was not "regarded as" disabled by virtue of the City's mandatory medical examination. This court holds as a matter of law that Plaintiff is unable to state a claim for disability discrimination pursuant to 42 U.S.C. § 12102 (2)(C).
IV. CONCLUSION
For the reasons set forth above, the court will grant Defendant City of Greensboro's Motion to Dismiss.
A judgment in accordance with this memorandum opinion shall be filed contemporaneously herewith.