ANTHONY W. ISHII, Senior District Judge.
This is civil rights enforcement action by the United States Equal Employment Opportunity Commission ("EEOC") against numerous affiliated entities who operate senior living and nursing facilities in several states (collectively "Prestige"). The EEOC brings claims against Prestige for violations of the Americans with Disabilities Act ("ADA"). Currently before the Court is Prestige's Rule 12(b)(6) motion to dismiss. For the reasons that follow, the motion will be granted in part and denied in part.
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory.
From the Complaint, Prestige manages and provide senior nursing care facilities or senior assisted living facilities in California, Oregon, Washington, Alaska, Idaho, Montana, Nevada, and Arizona. Prestige either promulgated or implemented and followed policies that allegedly violated the ADA. Specifically, a "100% healed/100% fit for duty" return to work policy and a maximum leave policy. Further, Prestige did not offer light duty as a reasonable accommodation and ignored its obligation to engage in an interactive process. These policies do not permit reasonable accommodation for qualified individuals. At least thirteen individuals (Stephanie Chilton, Amanda Morales, Cece Chang, Catherine Olver, Generic Cowee, Linda Gagliardi, Claimant X,
Prestige argues that the EEOC seeks to recover on behalf of thirteen identified claimants for violations of the ADA. The Complaint is deficient with respect to ten claimants in that the Complaint fails to allege an impairment that affects a major life activity, or fails to identify essential job functions Without such allegations, there is no plausible ADA claims with respect to the ten claimants.
The EEOC argues that dismissal is inappropriate because it brings suit in its own name and the allegations state plausible claims. Prestige does not challenge any of the claims that are pled on behalf of the EEOC. If those claims are proven to be true, the EEOC argues that it may obtain relief on behalf of a class of individuals, which would include both named and unnamed individuals. It would be premature to determine without the benefit of discovery that the EEOC is not entitled to collect on behalf of specific individuals. Alternatively, even if the Court examines the allegations of the ten identified claimants as if they had brought their own individual suits, the allegations are sufficient for the Court to infer an entitlement to relief. Should the Court find that the Complaint is deficient, amendment could cure any deficiency.
Initially, the Complaint alleges three causes of action: one claim based on the 100% healed policy, one claim based on the maximum leave policy, and one claim based on the failure to hire Mitchell Miller. The EEOC brings these claims in its own name and in the public interest.
When the EEOC pursues class complaints, case law indicates that the complaint must identify at least one charging party/claimant and demonstrate that the individual has experienced discriminatory conduct that falls within the purview of the ADA.
With respect to the allegations concerning the ten additional complainants/class members, neither side cites cases that have directly addressed the issue. Typically, identification of class members who not identified in a complaint, as well as a determination of whether the EEOC may recover for them, occurs at a later stage of the proceeding after discovery has occurred.
The EEOC argues that no challenge with respect to additional class members is appropriate because it is not a proxy for any individual claimant or charging party, Rule 23 (regarding class actions) does not apply when a § 706 class claim is pursued, and it is not required to identify each member of the class to recover for the class. The Court agrees with each of these positions.
The EEOC also argues that it is inappropriate to determine that someone cannot recover at this stage of the proceedings without the benefit of discovery. The Court agrees with the EEOC to a certain extent. Generally, before a litigant or claimant's claims are finally determined against her, adequate discovery should occur.
In sum, the Court holds that when the EEOC pursues a class claim under § 706 and chooses to identify "additional class members" who have suffered some form of disability discrimination, the allegations must plausibly show that those "additional individuals" are protected by the ADA.
In order to plead a plausible claim under Title I of the ADA, a complaint must contain sufficient factual allegations for the court to conclude that the plaintiff had a "disability," was a "qualified individual," and suffered discrimination because of the disability.
The Complaint alleges that: (1) Stephanie Chilton was a Lead Cook at Prestige's Orville facility; (2) on August 27, 2013, Chilton injured her knee and was diagnosed with persistent right patellar dislocation; (3) Chilton submitted a note from her doctor that she could return to work on September 13, 2013; (4) Chilton submitted a leave request on August 30, 2013 and requested accommodations for her knee so that she could continue to heal; (5) on October 1, 2013, Chilton submitted a doctor's note that she could not return to work until February 1, 2014; (6) Chilton was terminated in October 2013; and (7) due to a back and hernia injury, Chilton was deemed unable to work in any capacity under California workers' compensation law on December 29, 2014.
Prestige challenges these allegations by arguing that the major life activity affected is not identified, the essential functions of the job are not identified, and there is no indication that Chilton could have performed the essential functions of the job upon her return considering the workers' compensation determination.
As noted above, an individual is disabled under the ADA inter alia when the individual has a physical or mental impairment that substantially limits one or more major life activities.
With respect to the workers' compensation determination, the EEOC responds that there is a passage of time between when Chilton sought accommodation and when she was determined to be permanently disabled under the workers' compensation laws. This is a valid point. The Complaint indicates that over a year passed between the time of Chilton's termination in October 2013 and the workers' compensation determination in December 2014. Physical conditions are not always static, sometimes they improve with time and sometimes they worsen.
With respect to the essential functions of the job of Lead Cook, Prestige is correct that the Complaint does not allege any essential functions for that position. The general rule, as explained above, is that some information regarding essential job functions is necessary in order to plausibly allege "qualified" status.
Under the ADA, it is possible for a leave of absence to be a reasonable accommodation.
Because an ADA plaintiff must still be able to demonstrate that she can perform the essential functions of their job at the conclusion of a leave of absence, the Court concludes that an ADA Title I plaintiff must include factual allegations that reasonably demonstrate that she will be able to perform the essential functions of the job upon her return from leave of absence. This generally can be accomplished by identifying the essential function that cannot/could not be adequately performed because of the "disability" and alleging that the disabled individual will be able to perform that function upon the conclusion of the leave of absence.
In sum, the factual allegations do not plausibly allege that Chilton is covered by the ADA because the allegations do not sufficiently indicate that she has a "disability" or that she is a "qualified individual." Dismissal without prejudice of Chilton as a class member is appropriate.
The Complaint alleges that: (1) Morales was a Personal Care Attendant at Prestige's Manteca facility; (2) Morales sustained nerve damage when a patient fell on her in the process of a wheelchair transfer; (3) Morales was placed on "light duty" and restricted to lifting no more than 5 lbs. by the facility's Worker's Compensation physician; (4) Morales's supervisors did not follow the restrictions placed on her, but told her that the her profession was not one of "light duty," and placed her to work in the kitchens; (5) Morales dropped a heavy pan of bacon while attempting to lift it and had to go the emergency room; (6) Morales was prescribed leave; (7) when leave was set to expire, Morales was still experiencing hurt ribs, difficulty breathing, and pain upon bending, and was pregnant; and (8) Morales was terminated for not attending work, even though she was under doctor's restrictions not to return.
Prestige challenges these allegations by arguing that the essential job functions are not identified, nor do they indicate whether Morales could perform the essential functions of her job with or without accommodation.
Like Chilton, the EEOC argues that since Morales sought a leave of absence as reasonable accommodation, it is unnecessary to identify any essential job functions. As discussed above, the EEOC must include allegations that indicate a class member will be able to perform the essential functions of the job upon her return. This can generally be accomplished by identifying the essential job function(s) that impacted by Morales's impairment and allege that she would be able to perform those functions upon her return.
The Court can reasonably infer at least one essential job function of the Patient Care Attendant from the allegations, the ability to lift and physically move patients. "Lifting" is a "major life activity."
The Complaint alleges that: (1) Chang was a Dietary Aide at Prestige's Linda Vista facility, but was terminated while working in the Laundry Department; (2) Chang was terminated because she could not lift 25 lbs.; (3) Chang requested light duty to accommodate her disability; (4) light duty was denied because there were allegedly no open positions and Prestige refused to evaluate the 25 lbs. restriction, insisting that she had to be able to lift 50 lbs.; (5) in January 2013, Chang reported to Prestige that she was suffering from back pain; (6) Chang submitted a doctor's note for leave with an estimated return to work date of February 18, 2013; (7) on February 18, 2013, Chang used her paid time off for March 2013; (8) on May 30, 2013, Chang submitted a doctor's note that permitted her return to work with a 10 lbs. lifting restriction, but Prestige did not engage in an interactive process to find her light duty assignments; (9) on August 8, 2013, Chang submitted a doctor's note that permitted a return to work with a 25 lbs. restriction; (10) on August 12, 2013, Chang was terminated because she could not lift 50 lbs.
Prestige challenges these allegations by arguing that the essential job functions are not identified, nor do they indicate whether Chang could perform the essential functions of her job with or without accommodation.
First, the Court understands that Chang suffers from back pain, but no physical condition is identified and it is unknown whether the back pain substantially limits a major life activity. The Complaint indicates that she was terminated for not being able to lift 50 lbs. As noted above, "lifting" is a major life activity, but an inability to lift more than 25 lbs. does not limit the major life activity of lifting.
Second, the allegations reasonably suggest that an ability to lift either 25 lbs. or 50 lbs. is an essential function of Chang's job in the Laundry Department. Chang was fired because she could not perform this essential function.
In sum, the factual allegations do not plausibly allege that Chang is covered by the ADA because the allegations do not sufficiently indicate that she has a "disability" or that she is a "qualified individual." Dismissal without prejudice of Chang as a class member is appropriate.
The Complaint alleges that: (1) Olver was a part-time Personal Care Attendant from January 3, 2014 to July 5, 2014; (2) Prestige's denied Olver's repeated requests for safety equipment to transfer patients safely, which caused her back pain; (3) Olver requested accommodations for a pre-employment back condition and for a "non-invasive procedure;" (4) after the requested accommodation, Olver's hours were reduced and she was terminated for allegedly not meeting credentialing requirements.
Prestige challenges these allegations by arguing that the essential job functions are not identified, they do not indicate whether she could perform the essential functions of her job with or without accommodation, and a "disability" is not identified.
First, the Court agrees with Prestige that a "disability" is not adequately identified. The Court understands that Olver suffers from back pain, but it is unknown whether there is an underlying impairment that causes pain and whether the back pain substantially limits a major life activity. Thus, there are insufficient allegations to plausibly indicate that Olver suffers from a "disability."
Second, as discussed above, it appears that one essential function of a Personal Care Attendant is the ability to lift or move a patient. Further, the allegations suggest that it is this essential function that affects Olver's back condition and necessitates an accommodation. However, there are no allegations that Olver can move patients either with or without an accommodation. Thus, the allegations do not sufficiently demonstrate that Olver was "qualified."
Third, although a non-invasive procedure is also identified, the procedure itself is not an impairment; at best, the procedure is treatment for an impairment. Merely identifying a general unknown "procedure" is insufficient to allege a "disability." If the procedure is for an impairment that substantially limits a major life activity, then the impairment and the major life activity need to be identified.
Finally, the EEOC argues that Olver sought a leave of absence and thus, should not have to identify essential functions. However, as with Chilton and Morales, the allegations are insufficient for the Court to conclude that a leave of absence would have permitted Olver to perform the essential functions of a Personal Care Attendant. For example, the EEOC has not expressly identified moving or lifting patients as the essential function that cannot be performed without a leave of absence, nor has it alleged that Olver would have been able to perform that function upon the conclusion of the leave.
In sum, the factual allegations do not plausibly allege that Olver is covered by the ADA because the allegations do not sufficiently indicate that she has a "disability" or that she is a "qualified individual." Dismissal without prejudice of Olver as a class member is appropriate.
The Complaint alleges that: (1) Cowee was the Lead Housekeeper at Prestige's Marysville facility; (2) on June 28, 2013, Cowee experienced pain in her shoulder, and was later diagnosed with Right Shoulder Adhesive Capsulitis; (3) on October 21, 2013, Cowee utilized FMLA leave through January 14, 2013; (4) Cowee was terminated 2 months after her FMLA expired; (5) at the time of her termination, a doctor's note indicated that she needed 45 days of additional leave; (6) Cowee was cleared to return to work in August 2014 without restrictions.
Prestige challenges these allegations by arguing that they do not indicate whether the shoulder pain limited a major life activity, nor do they indicate that Cowee could perform the essential functions of her job either with or without accommodation.
First, the Complaint identifies Cowee's physical impairment as right shoulder adhesive capsulitis. However, Prestige is correct that there are no allegations that identify the major life activity that was substantially affected by the condition. Without identifying the major life activity that is substantially limited, the allegations do not indicate that Cowee is disabled.
Second, the EEOC again argues that the essential functions of Cowee's job need not be identified because the accommodation Cowee sought was a leave of absence. It is true that no essential job function is identified. As discussed above, although no function of a job is performed by an employee on leave, generally a complaint must identify the essential function that the employee could not perform prior to the leave, but will be able to perform after the leave.
The Complaint alleges that Cowee was employed for six years when she was diagnosed with adhesive capsulitis. There are no indications that Cowee was under any restrictions or unable to perform all functions of her job prior to developing this impairment. Thus, whatever the essential functions of the position of Lead Housekeeper may be, it is reasonably inferred that Cowee was performing them. Further, unlike Chilton, Morales, and Olver, the Complaint also alleges that Cowee was cleared to return to work without restriction in August 2014. The reasonable inference from such an allegation is that Cowee's shoulder impairment was either healed or controlled to such a degree that she was again able to perform her job as she did prior to the requested leave of absence. That is, the allegation shows that Cowee could once again work as a Lead Housekeeper without the need for further accommodation following the leave of absence. Because of the nature of the accommodation sought, the absence of any indication that Cowee worked with any form of restriction in the years prior to requesting leave, and the allegation that Cowee was cleared to return to work without restriction following the requested period of leave, the Complaint plausibly indicates that Cowee was "qualified" under the ADA.
In sum, the factual allegations show that Cowee is "qualified," but do not show that she has a "disability." Dismissal without prejudice of Cowee as a class member is appropriate.
The Complaint alleges that: (1) Gagliardi was a Registered Nurse-Supervisor at Prestige's Porthaven facility; (2) in early 2013, Gagliardi began experiencing right foot pain; (3) the constant pulling of heavy objects during her shifts exacerbated the pain; (4) Gagliardi previously experienced similar pain in her left foot due to plantar fasciitis; (5) Gagliardi's prior employer granted her leave to have surgery on her left foot, after which she returned without pain or limitations; (6) Gagliardi requested 4 weeks of leave for the surgery and recovery; (7) Prestige never provided Gagliardi with FMLA paperwork and did not discuss accommodation under the ADA; (8) Gagliardi's surgery was moved up prior to Prestige providing leave paperwork or approval; (9) Gagliardi informed Prestige that surgery was moved up and that she would not be reporting for work, but Prestige terminated her in December 2013 when she did not show up for work on the date of her surgery; and (10) Gagliardi began working for another employer in February 2014, about sixty days after her surgery.
Prestige challenges these allegations by arguing that the allegations do not indicate whether the plantar fasciitis limited a major life activity, nor do they indicate that Gagliardi could perform the essential functions of her job either with or without accommodation.
First, the Court agrees with Prestige that, although plantar fasciitis appears to be the physical impairment that afflicted Gagliardi's right foot, the Complaint does not adequately identify what major life activity is substantially affected by the condition. Walking and standing are major life activities,
Second, the Court disagrees that the Complaint does not adequately allege that Gagliardi could perform the essential functions of her job. Gagliardi requested leave as an accommodation. Viewed in the light most favorable to the EEOC, the Complaint identifies an essential function of an Registered Nurse — Supervisor at Prestige's facility as the ability to push and pull heavy objects. The Complaint also fairly alleges that this essential function caused an aggravation of the plantar fasciitis and necessitated the leave of absence. Finally, the Complaint adequately indicates that Gagliardi would have been able to perform heavy pushing and pulling following her leave of absence. The Complaint alleges that, while at a prior employer, Gagliardi had surgery and a leave of absence that cleared up the same type of pain caused by plantar fasciitis in her left foot. The Complaint also alleges that Gagliardi required about 60 days of leave from Prestige because 60 days is the time that elapsed from the time of her surgery and termination to the time she started working for a new employer. Therefore, the allegations are sufficient to show that Gagliardi was a "qualified individual."
In sum, the allegations are sufficient to show that Gagliardi is "qualified," but they do not show that she has a "disability." Dismissal without prejudice of Gagliardi as a class member is appropriate.
The Complaint alleges that: (1) Claimant X is HIV positive; (2) Claimant X was a Dining Room Server/Dietary Aide at Prestige's Mira Loma facility in August 2012; (3) after several months working for Prestige, Claimant X asked his supervisor if he could swap his day shift for an evening shift once every 3 months in order to attend periodic medical appointments; (4) after eight months of missed medical treatments, Claimant X was forced to resign.
Prestige challenges these allegations by arguing that they do not identify the essential functions of the job, nor do they indicate that Claimant X could perform them either with or without accommodation.
The Court agrees that the essential functions of a Dining Room Server/Dietary Aide are not identified. However, the allegations are sufficient for the Court to conclude that Claimant X could perform the essential functions of a Dining Room Server/Dietary Aide. Claimant X did not request accommodation with respect to the method of performance of any essential function, nor did he request a device or equipment to help him perform a particular function, instead Claimant X merely requested to change shifts once every three months. Thus, for four days out of the year, Claimant X would be performing all functions of the Dining Roomer Server/Dietary Aid as he did on every other day, he would just be performing those functions during the evening shift as opposed to the day shift. Further, there is no indication that Claimant X was not otherwise performing all functions of the position. Therefore, the allegations are sufficient for the Court to conclude that Claimant X is a "qualified individual with a disability." Dismissal of Claimant X as a class member is inappropriate.
The Complaint alleges that: (1) Anthony Morelli worked at Prestige's Vancouver facility as a Cook from April 17, 2014 to July 8, 2014; (2) Morelli suffers from permanent nerve damage that resulted from an injury when he was seventeen years old; (3) Morelli suffers from constant leg and back spasms that make it hard for him to sit or stand in one position for more than ten to fifteen minutes at a time; (4) Morelli receives injections every 4 to 6 months to ease the pain and spasms; (5) Morelli requires 2 consecutive days of bed rest in order for the injection to be effective; (6) Morelli disclosed during his interview that he need two consecutive days for the injections and could not lift heavy objects; (7) Morelli was assured that he would not have to lift heavy objects; (8) Prestige did not grant Morelli leave unless he could find a replacement for the days need and required Morelli to lift heavy objects; (9) Morelli resigned when Prestige did not provide him leave, and the injections were needed.
Prestige challenges these allegations by arguing that there is no indication that Morelli could perform the essential functions of his job with or without accommodation. The EEOC argues that identification of the essential functions of the job are not necessary because Morelli requested leaves of absence.
Viewing the allegations in the light most favorable to the EEOC, the Court can reasonably infer that the ability to stand for more than 15 minutes at a time is an essential function of a Cook at Prestige's facility. The allegations also indicate that Morelli's nerve condition is adversely affected by standing for longer than 15 minutes and lifting heavy objects, but that the nerve condition is treated with injections two to three times per year and with limited leave following the injections. The fact that Morelli disclosed to Prestige that he had the nerve condition and required the injections and leave, but was still hired and told that no heavy lifting was required, indicate that both Morelli and Prestige believed that Morelli would otherwise be able to perform the essential functions of a Cook. That is, the allegations indicate that Morelli would be able to return from leave and be able to perform the essential functions of a Cook, including standing for longer than 15 minutes. Therefore, the allegations are sufficient to plausibly show that Morelli is a "qualified individual with a disability." Dismissal of Morelli as a class member is inappropriate.
The Complaint alleges that: (1) Hackett was a Resident Care Manager at Prestige's Toppenish facility; (2) Hackett sustained a torn rotator cuff after she fell at the Toppenish facility; (3) from April 30, 2007 through May 21, 2007, Hackett obtained FMLA leave and had shoulder surgery; (4) after her return to work, Hackett had an ergonomic work station; (5) the Washington State Department of Labor and Industries found that Hackett suffered from a Permanent Restriction that required modified duty from September 4, 2008 through October 26, 2008; (6) from 2008 through 2011, Hackett used the ergonomic workstation due to the permanent restrictions to her shoulder; (7) in November 2011, Hackett suffered an ankle injury and received FMLA leave from November 29, 2011 through February 2, 2012; (8) when Hackett returned to work, her office had been relocated to a smaller office that was too small for the ergonomic work station; (9) Prestige took away the ergonomic work station and did not return it, despite Hackett's requests that it be returned; and (10) Hackett resigned in June 2012 because the loss of the ergonomic work station exacerbated her shoulder pain.
Prestige challenges these allegations by arguing that there is no indication that the Washington agency's permanent disability determination was related to Hackett's shoulder condition or another injury, there are no allegations that Hackett's injuries substantially limited a major life activity, and there are no allegations that Hackett could perform the essential function of her job upon return from FMLA leave.
First, the Court agrees with Prestige that a major life activity that was substantially limited by the torn rotator cuff is not identified. Without identification of a major life activity that is substantially limited, Hackett does not have a "disability" under the ADA. Although the Washington agency issued a permanent restriction finding, it only required modified duty for about two months, September 5, 2008 to October 26, 2008, and it is unclear what criteria was assessed in making that determination. The ADA requirements for "disability" are not necessarily the same criteria used in other laws or by various state or federal agencies. It is theoretically possible to be disabled for purposes of one statutory scheme but not disabled for others.
Second, the allegations regarding the Washington agency's determination of a permanent restriction was made in 2008.
Third, Prestige is correct that the essential functions of a Resident Care Manager are not identified. However, the Complaint alleges that from 2008 to 2011, Hackett successfully utilized the ergonomic work station to perform that job. The Complaint shows that Hackett utilized the ergonomic workstation because of her shoulder condition. There are no indications that when Hackett used the ergonomic work station that she was unable to perform any function, essential or otherwise, of a Resident Care Manager. The ergonomic work station was removed following Hackett's FMLA leave (not ADA leave) in late 2011, and that leave was due to an ankle injury. The Complaint does not indicate that the 2011 FMLA leave had anything to do with Hackett's shoulder condition. Because Hackett's 2011 FMLA leave did not involve her alleged ADA physical impairment, and because Hackett was successfully performing her job with the accommodation of an ergonomic work station from 2008 to 2011, the Complaint plausibly indicates that Hackett could perform the essential functions of her job with the accommodation of an ergonomic workstation. The allegations show that Hackett is a "qualified individual."
In sum, the Complaint plausibly shows that Hackett is a qualified individual, but does not plausibly show that she has a "disability." Dismissal without prejudice of Hackett as a class member is appropriate.
The Complaint alleges that: (1) Johnston was a Laundry Worker at Prestige's Porthaven facility; (2) Johnston has long-term learning disability, PTSD, anxiety, and depression; (3) Johnston's learning disability makes it difficult for her to remember things; (4) Johnston needs a supervisor to write down her tasks rather than to tell her the tasks verbally; (5) Prestige personnel told the Laundry Supervisor that Johnston needed accommodation due to her disability; (6) shortly thereafter, Johnston was terminated.
Prestige challenges these allegations by arguing that there are no allegations that Johnson could perform the essential functions of her job with or without accommodation.
Prestige is correct that there are no allegations that identify what the essential job functions are, nor are there allegations that Johnston could perform the essential functions of the job. It is not necessary for the EEOC to identify every essential function, and the functions may even be alleged on information and belief. What is necessary is the identification of the essential function(s) that necessitate an accommodation in relation to Johnston's disability. Great detail is not required, but the allegations must permit the Court to reasonably infer that Johnston can perform those essential functions that affect her disability, with the accommodation of written instructions. But, because no essential functions are identified, the Complaint does not plausibly show that Johnston is "qualified." Dismissal without prejudice of Johnston as a class member is appropriate.
Accordingly, IT IS HEREBY ORDERD that:
1. Defendants' motion to dismiss is GRANTED in part in that alleged class member Chilton, Morales, Chang, Olver, Cowee, Gagliardi, Hackett, and Johnston are DISMISSED without prejudice as class members;
2. Defendants' motion to dismiss is otherwise DENIED;
3. Within fourteen (14) days of service of this order, the EEOC may file an amended complaint that addresses and corrects the deficiencies with respect to alleged class members Chilton, Morales, Chang, Olver, Cowee, Gagliardi, Hackett, and Johnston;
4. If the EEOC does not file an amended complaint, then Defendants shall file an answer within twenty-one (21) days of service of this order;
5. If the EEOC does file an amended complaint, then Defendants shall file an appropriate response within fourteen (14) days of service of the amended complaint.
