JOHN D. BATES, United States District Judge
Plaintiff Eugene B. Blackwell, proceeding pro se, brings this action against his employer, SecTek, Inc. ("SecTek"). Blackwell alleges employment discrimination and a hostile work environment in violation of the Americans with Disabilities Act of 1990 ("ADA") and the Age Discrimination in Employment Act of 1976 ("ADEA"). SecTek has moved to dismiss Blackwell's complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, SecTek's motion will be granted and Blackwell's complaint will be dismissed.
SekTec hired Blackwell as a security officer for the Washington, D.C. headquarters of the National Aeronautics and Space Administration ("NASA") in 2006. 2d Am. Compl. at 1. In this position, Blackwell's duties include "control[ling] access to specific areas of [the NASA] facility; enforce[ing] property rules and regulations;... stop[ping] and if possible, detain[ing] persons engaged in criminal activities; ... [and] respond[ing] to emergency situations involving the safety and security of the facility." Id. at 7. In October 2011, when SecTek's allegedly discriminatory conduct began, Blackwell was seventy-three years old. Id. at 1.
On the morning of October 5, 2011, when Blackwell reported for work at the NASA facility, he parked his car in a handicapped parking space in the facility's parking garage. Pl.'s Am. Compl. at 4. Blackwell's supervisor, Joshua Primrose, asked whether he had a permit authorizing him to use the space. Blackwell replied that he did. Id. The next day, Primrose told Blackwell that SecTek had decided to require him to take a "Physical [examination]
Blackwell reported to We Care Physicals, LLC for "agility, vision, medical history, and physical testing." 2d Am. Compl. at 3. Lillian Willis, a physician's assistant, performed the physical exam. Instead of indicating that Blackwell had "no limiting conditions for [his] job," see id. at 4 (listing "disqualifying factors" for the security officer position, including "any disease or condition that interferes with the [employee's] cardiovascular function and the [employee's] safe and efficient job performance"), Willis noted in her medical findings that Blackwell suffered from "organic heart disease" and diabetes. Id. at 8-9. Because of these conditions — or, in Blackwell's view, "because [We Care Physicals] did not want to be liable for [Blackwell] if something happened to [him]" — Willis decided that a "doctor's clearance" would be necessary before any "agility testing" could be conducted. Id. Without completing any further testing, Blackwell returned to the NASA facility and delivered the results of Willis's exam to a Lieutenant Jenkins, who promised to pass them on to Primrose. Am. Compl. at 4.
A few days later, Blackwell reported to the NASA facility for his next previously scheduled duty shift. Id. When he arrived, however, he found that his shift had been assigned to another officer, because Blackwell's "test was not complete[] without the stress test." Id. After protesting that it was We Care Physicals' fault, not his, that he was unable to complete the testing, Blackwell "requested to be on vacation leave" while he completed the remaining tests. Id. Blackwell was then given four hours' pay for the day and sent home. Id.
Later, Blackwell "informed [Primrose] that [he] would have to go to [his] personal Primary Care [provider]," Kaiser Permanente, to have the final tests conducted.
The next day, Blackwell returned to Primrose with a revised version of the letter, which was now signed by a doctor and explicitly stated that Blackwell "may return to his work duties." Pl.'s Opp'n at 8. Primrose rejected this letter as well. Am. Compl. at 5. Only after Blackwell obtained a third letter — and even then, only after a NASA official intervened on Blackwell's behalf — did Primrose accept Blackwell's test results. See 2d Am. Compl. at 1. Blackwell returned to work on October 26, 2011. Am. Compl. at 5.
Presumably because of this alleged mistreatment, Blackwell filed an administrative charge with the U.S. Equal Employment Opportunity Commission ("EEOC") in November 2011, claiming discrimination on the basis of age and disability in violation of the ADEA and ADA. Am. Compl. at 2. Neither Blackwell's complaint nor SecTek's memorandum in support of its motion to dismiss explicitly states the out-come of Blackwell's EEOC charge. But Blackwell does claim that in December 2012, he received a letter from the EEOC in which "the Commission ... issued a determination on the merits of [his] charge." Pl.'s Opp'n at 2. Blackwell then proceeds to make the following statements in his complaint, which appear to be the findings of the EEOC charge: "I utilized a handicapped parking permit and space.... Primrose became aware of me using the space and moved to have me removed from the contract. At no time did ... Primrose inquire about my disability or my reason for using the handicapped permit." Id.
Although it is not readily apparent from the parties' pleadings, the Court infers from these statements that the EEOC dismissed Blackwell's administrative charge because Primrose did not impermissibly "inquire about [Blackwell's] disability." And because the EEOC's dismissal of Blackwell's administrative charge is a precondition to suit under the ADA and ADEA, see 42 U.S.C. § 12117(b); 29 U.S.C. § 626(d), Blackwell could not bring this action unless the EEOC had dismissed his charge. Therefore, the Court's inference is drawn in Blackwell's favor.
The final alleged incident of discrimination took place in December 2011, when Blackwell "approached [the SecTek] office... to sign out for the day ... at 5 minutes to 3:00 p[.]m." Am. Compl. at 6. Apparently, Blackwell's shift was not scheduled to end until exactly 3:00 p.m., because a supervisor immediately reprimanded him for attempting to leave early. Id. at 6. Blackwell claims that this was a "petty violation" deserving "a verbal warning, at best," and that his supervisors should have "wr[itten] up [his] relief for being late." Pl.'s Opp'n at 3. Instead, this supervisor and Primrose "wrote [Blackwell] up" and assigned him "4 to 8 [demerit] points." Am. Compl. at 6. This incident, Blackwell contends, was part of a larger "conspiracy ... to fire me," which began with the medical tests in October. Pl.'s Opp'n at 3.
Over a year and a half later,
After the deadline for his response to SecTek's motion had passed, Blackwell moved to submit "exhibits" in support of his complaint.
Instead of filing an opposition to the motion, Blackwell filed a second amended complaint three days later, see 2d Am. Compl., which the Court also granted leave to file. See Feb. 20, 2014 Order [ECF No. 13]. SecTek then moved to dismiss this second amended complaint. See Def.'s Mot. to Dismiss Pl.'s 2d Am. Compl. [ECF No. 14] ("Mot. to Dismiss"). After filing a one-sentence opposition in response, Blackwell filed what he again called an "amended complaint." Pl.'s Opp'n at 1. The Court construed this pleading as a supplemental memorandum in opposition to SecTek's motion to dismiss. See Pl.'s Opp'n. Thus, before the Court now is SecTek's motion to dismiss Blackwell's second amended complaint, opposed primarily by Blackwell's so-construed supplemental memorandum.
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain "`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.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson, 551 U.S. at 93, 127 S.Ct. 2197. Although "detailed factual allegations" are not necessary, to provide the "grounds" of "entitle[ment] to relief," plaintiffs must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotation marks omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955); accord Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.Cir.2009). Determining the plausibility of a claim for relief is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
Liberally construed, Blackwell's complaint brings three claims for employment discrimination against SecTek: (1) discrimination on the basis of age in violation of the ADEA, (2) discrimination on the basis of disability in violation of the ADA, and (3) a "hostile work environment" in violation of both the ADA and ADEA. SecTek moves to dismiss all three claims under Rule 12(b)(6) for failure to state a claim for relief. The Court will consider these claims in turn.
In relevant part, the ADA provides that: "No covered entity [including employers] shall discriminate against a qualified individual on the basis of a disability in regard to ... [his] terms, conditions, and privileges of employment." 42 U.S.C. § 12112. To state a claim for employment discrimination under the statute, a plaintiff must allege: "[1] that he had a disability within the meaning of the ADA, [2] that he was `qualified' for the position ..., and [3] that he suffered an adverse employment action because of his disability." Swanks v. WMATA, 179 F.3d 929, 934 (D.C.Cir. 1999). Because a plaintiff survives a motion to dismiss only if he alleges "sufficient factual matter ... to state a claim to relief that is plausible on its face," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks omitted), Blackwell's complaint must allege facts plausibly suggesting that each element has been satisfied to survive SecTek's motion.
Blackwell must first allege that he has a "disability" within the meaning of the ADA. Swanks, 179 F.3d at 934. The ADA defines a disability as "a physical or mental impairment that substantially limits one or more major life activities of [an] individual." 42 U.S.C. § 12102(1). "The operation of a major bodily function, including... circulatory ... functions," is a "major life activity." Id. § 12102(2)(B). And according to EEOC regulations, the term "substantially limits" is to be "construed broadly in favor of expansive coverage." 29 C.F.R. § 1630.2; see also 42 U.S.C. § 12102(4)(B)-(E) (generally defining a broad scope for the term "substantially limits"); Green v. American Univ., 647 F.Supp.2d 21, 29 (D.D.C.2009) (holding that an individual with "a condition similar to irritable bowel syndrome" pleaded a disability because "the functioning of the bowels [is] a major life activity"); Johnson v. District of Columbia, 572 F.Supp.2d 94, 106-07 (D.D.C.2008) (holding that an individual alleged a disability under the ADA because he was blind in one eye and had severe diabetes, causing him to fall asleep at unpredictable times).
Blackwell's complaint does not specifically identify his disability. But in her medical findings, as described in Blackwell's complaint, Willis, the physician's assistant at We Care Physicals, noted that Blackwell suffers from "organic heart disease," and this condition was apparently serious enough to lead Willis to delay more strenuous testing. See 2d Am. Compl. at 9. Assuming that Willis's findings were accurate, it is at least plausible that Blackwell suffers from a physical impairment — heart disease — that "substantially limits" the operation of his "circulatory functions." Thus, because the operation of an individual's circulatory functions is a "major life activity," Blackwell has sufficiently pleaded a disability under the ADA.
SecTek also argues that Blackwell has failed to allege that he is a "qualified
The "Certificate of Medical Examination" included in Blackwell's complaint describes his job duties: he is expected to "control access to specific areas of a facility;... detect and report criminal acts; stop and if possible, detain persons engaged in criminal activities; ... [and] respond to emergency situations involving the safety and security of the facility." 2d Am. Compl. at 7. And documents attached to that described "disqualifying factors" for the security officer position, which include "any disease or condition that interferes with [both] the [employee's] cardiovascular function and the [employee's] safe and efficient job performance." Id. at 4. (emphasis added) According to Blackwell's complaint, SecTek prepared this description in advance of Blackwell's medical exam with We Care Physicals. See 2d Am. Compl. at 3 (a letter instructing Blackwell to carry a packet of pre-prepared forms, including the Certificate of Medical Examination, to We Care Physicals, where the examining physician was to fill them out). Thus, this description represents the "employer's judgment" as to which functions of the security officer position are "essential." It therefore identifies the "essential functions" of Blackwell's job for the purposes of his ADA claim. See 42 U.S.C. § 12111(8).
Pointing to Blackwell's statement that it was "almost impossible for me to pass a stress test," SecTek argues that Blackwell's "own allegations demonstrate his inability to perform the essential functions of his position" as described above. See Mot. to Dismiss at 11 (quoting 2d Am. Compl. at 1). But as Blackwell alleges and SecTek does not dispute, Blackwell did pass the stress test, Am. Compl. at 4, and he ultimately obtained a letter from a doctor explicitly stating that he "may return to his work duties." Pl.'s Opp'n at 8. Thus, the mere fact that Blackwell initially doubted his ability to complete the test does not make Blackwell's ability to perform his job duties implausible. Instead, assuming that the stress test is designed to measure an employee's ability to perform the essential functions of the security officer job — such as stopping criminals and responding to emergencies — the fact that Blackwell ultimately passed suggests that he is qualified.
Moreover, it appears from the parties' pleadings that Blackwell still works for SecTek as a security officer. And as SecTek itself argues, "officers under the NASA contract could not work if `[a]ny disease or condition [] interfere[d] with cardiovascular function and the individual's safe and efficient job performance.'" See Mot. to Dismiss at 10 (quoting 2d Am. Compl. at 4) (emphasis added). Assuming that SecTek has the contractual right to terminate an employee who "[can] not work" for medical reasons, then logically either Blackwell's cardiovascular condition is not serious enough to "interfere with [his] safe and efficient job performance," or Blackwell is in fact unqualified and SecTek has nonetheless chosen to continue employing an unqualified security officer. The Court need not — and does not — determine which of these possibilities is in fact the case. But assuming, as the Court must at this stage, that Blackwell passed the stress test and that he continues to be employed at SecTek, it is at least plausible
Finally, SecTek argues that Blackwell fails to allege an adverse employment action within the meaning of the ADA. An adverse employment action "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
Although Blackwell's complaint does not specifically identify any action taken by SecTek as an adverse employment action, the Court will consider four possible adverse employment actions that Blackwell's complaint could be construed to allege. First, Blackwell claims that SecTek required him — and no other employees — to undergo a medical examination consisting of a physical and a stress test. Second, he alleges that SecTek required him to pay for that stress test with his own personal health insurance. Third, he alleges that he was required to take paid leave while he was waiting for clearance to return to work. And finally, he claims that SecTek unfairly disciplined him two months after completing the medical tests and returning to work.
The first potential adverse action alleged in Blackwell's complaint is the medical exam itself. Subject to certain exceptions, the ADA provides that its general prohibition against discrimination "shall include medical examinations and inquiries" by an employer. § 12112(d)(1). Specifically, an employer may not "require a medical examination [or] make inquiries of an employee as to whether such an employee is an individual with a disability or as to the nature or severity of the disability." § 12112(d)(4)(A). Here, Blackwell alleges that he was required to complete a series of medical tests just one day after his supervisor discovered his DMV-issued handicap parking permit. And "[t]o [his] knowledge, others were not
One exception to the ADA's prohibition on disability-related medical inquiries, however, is that employers "may make inquiries into the ability of an employee to perform job-related functions." § 12112(d)(4)(B); see, e.g., Doe v. U.S. Postal Serv., 317 F.3d 339, 345 (D.C.Cir. 2003) (holding that an employer's inquiry into the reason for an employee's work absences was a permissible job-related inquiry under the ADA). Again, Blackwell's complaint alleges that his duties as a security officer — the "job-related functions" at issue here — include physically strenuous tasks like responding to emergencies and "stop[ping] and if possible, detain[ing] persons engaged in criminal activities." 2d Am. Compl. at 7. And SecTek's required medical examination consisted of "agility, vision, medical history, and physical testing." Id. at 1, 3 ("[The medical exam could include] 20 push-ups, knee bends, touch[ing] ankles, etc."). Because vision, agility, and strength are required to "stop and if possible, detain" a criminal or to "respond to [an] emergency," these tests were plausibly related to Blackwell's ability to perform his job duties. 2d Am. Compl. at 7. Blackwell has therefore failed to plead that the physical exam and stress test were not "job-related," and hence they do not constitute adverse employment action under the ADA.
Blackwell also claims to have used his personal health insurance to pay for the stress test. Am. Compl. at 4. The ADA, which allows disability-related medical inquiries into "the ability of an employee to perform job-related functions," section 12212(d)(4)(B), does not specify who must pay for those inquiries. See generally § 12112(d). Although few courts have considered the issue, the Fourth Circuit has held (at least implicitly) that forcing an employee to pay for a medical examination is not an independent adverse employment action. See Porter v. U.S. Alumoweld Co., 125 F.3d 243, 245 (4th Cir.1997) (dismissing an employee's disability discrimination claim in part because the employee had refused to complete a job-related, employer-required medical examination at his own expense); see also Sullivan v. River Valley School Dist., 197 F.3d 804, 812 (6th Cir.1999) ("Though we also need not decide today whether the [defendant-employer] could require [the plaintiff-employee] to pay for the examinations, we note that the Fourth Circuit [in Porter] has upheld a dismissal where the employee refused to pay for a fitness-for-return-to-duty exam."). Other courts have held that requiring a job applicant to pay for a pre-employment medical exam is not an adverse employment action. See Laurent v. G & G Bus Serv., No. 10 Civ. 4055, 2013 WL 5354733, at *4 (S.D.N.Y. Sept. 25, 2013). And one court has presumed that an employer's failure to pay for a medical exam would be an adverse employment action only if the employer had a pre-existing contractual obligation to pay for the exam. Leitch v. MVM, No. 03-4344, 2004 WL 1638132, at *6 (E.D.P.A. July 22, 2004).
Here, Blackwell alleges that he was required to pay a $75 copay out-of-pocket to complete the stress test. He does not allege that SecTek was obligated — contractually or otherwise — to pay for the test. And although the one-time copay of $75
Blackwell also alleges that he was forced to take a total of fifty-two hours of paid vacation leave between October 11, 2011 (when he first missed a duty shift because of the exams) and October 26, 2011 (when he was cleared for duty and reinstated). See Am. Compl. at 4. Although forcing an employee to take leave without pay may constitute an adverse employment action, see Franklin v. Potter, 600 F.Supp.2d 38, 72 (D.D.C.2009), courts are reluctant to find an adverse action where an employee is paid for the time off — even if the employee has to take vacation time. See Walker v. Johnson, 501 F.Supp.2d 156, 172 (D.D.C.2007) (forcing an employee to take ten hours of paid administrative leave was not adverse employment action); O'Neill v. City of Bridgeport Police, 719 F.Supp.2d 219, 227 (D.Conn.2010) (forcing employee to take vacation time to observe a religious holiday was not adverse employment action); Figueroa v. New York Health and Hospitals Corp., 500 F.Supp.2d 224, 230 (S.D.N.Y. 2007) (forcing an employee to consolidate her vacation time into a two-week period was not adverse employment action).
Here, Blackwell claims that instead of having to take paid vacation time, he "should have been on [a]dmin[istrative] leave or comp[ensatory] time [off]." Pl.'s Opp'n at 3. But he also alleges that when he was first taken off of the work schedule, he "requested to be on vacation leave until [he could] return to work." Am. Compl. at 4. Of course, it is possible that Blackwell asked to take vacation time under the assumption that he would otherwise be placed on unpaid leave. But even drawing this factual inference in Blackwell's favor — as the Court must in this posture — forcing an employee to take paid vacation leave does not "constitute[] a significant change in [his] employment status." Burlington, 524 U.S. at 761, 118 S.Ct. 2257; cf. Sethi v. Narod, 12 F.Supp.3d 505, 528-29, 2014 WL 1343069, at *15 (E.D.N.Y.2014) (holding that depriving an employee of vacation days to which he was entitled would constitute adverse action). SecTek's deduction of vacation time for Blackwell's October absences is therefore not an adverse employment action under the ADA.
The fourth and final alleged adverse employment action took place in December 2011, when Blackwell was "written up" for attempting to leave five minutes before the end of his shift. Am. Compl. at 6. Like any other potential adverse employment action, a disciplinary action must cause "objectively tangible harm" to qualify, Douglas, 559 F.3d at 552, and "interlocutory or mediate decisions having no immediate effect upon employment conditions" are insufficient, Taylor v. FDIC, 132 F.3d 753, 765 (D.C.Cir.1997) (internal quotation marks omitted); see also Walker v. WMATA, 102 F.Supp.2d 24, 29 (D.D.C. 2000) (holding that an employer's "letter of admonishment" following an employee's allegedly inappropriate behavior toward a customer was not an adverse action).
Here, Blackwell does not allege that the write-up or the "4 to 8 [demerit] points" resulted in any "direct economic harm," such as a reduction in salary or benefits. See Burlington, 524 U.S. at 762, 118 S.Ct. 2257.
None of the incidents that Blackwell alleges actually constitute an adverse employment action for the purposes of his ADA claim. Hence, he fails to state a claim, and SecTek's motion to dismiss his ADA claim will be granted.
SecTek has also moved to dismiss Blackwell's ADEA claim for age discrimination. The ADEA makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To state a claim for relief under the ADEA, a plaintiff must plead that "(i) [he] suffered an adverse employment action (ii) because of [his] ... age." Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008). As is the case with the ADA, courts use Title VII standards to determine whether a plaintiff suffered an adverse action under the ADEA. See id. (applying Title VII's adverse-action standards to the ADEA and the Rehabilitation Act); Weigert, 120 F.Supp.2d at 17-20 (applying Title VII's adverse-action standards to the ADA). Thus, because Blackwell has failed to plead an adverse employment action under the ADA, see supra Section I.c, and because the ADA and the ADEA apply the same standards, Blackwell has also failed to allege an adverse employment action under the ADEA. Therefore, his ADEA claim must also fail.
Even had Blackwell sufficiently alleged an adverse employment action under the ADEA, he would still have to allege that SecTek took that action "because of" his age. Baloch, 550 F.3d at 1196. An adverse employment action is taken "because of" an employee's age only if "age was the `but-for' cause of the challenged adverse employment action." Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 180, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). A mere showing that "age was one motivating factor in [the employment] decision" is insufficient. Id.
Again, the four potential adverse actions alleged here are the medical exams, the Kaiser Permanente copay, the paid vacation time, and the December disciplinary incident. Blackwell alleges that Primrose ordered the medical examinations the day after he discovered Blackwell's handicapped parking permit. He alleges no facts — aside from his age itself — suggesting that his age was a factor in SecTek's decision to require the exams. Likewise, he offers no explanation whatsoever for his belief that he would "have to" pay for the stress test — let alone an explanation that would imply age discrimination on SecTek's part. From Blackwell's own allegations, it appears that SecTek placed him on vacation leave not because of his age, but rather at his own request. See Am. Compl. at 4 ("I requested to be on vacation leave until I [could] return to work."). And although Blackwell does allege
Finally, SecTek argues that Blackwell has not stated a hostile work environment claim in his complaint.
Blackwell's complaint contains only four factual allegations potentially relevant to his hostile work environment claim. First, the complaint alleges that Blackwell was required to take "a physical and stress test" and that "others were not subjected to the same tests." Am. Compl. at 2. Second, he alleges that he was required to pay the copay for medical tests. Id. at 4. Third, the complaint alleges that he took "[his] own vacation leave" while the results of those tests were pending.
But these allegations simply do not rise to the level of the "severe or pervasive" harassment required for a hostile work environment. They are more properly understood as part of a single "isolated incident" that began with Primrose's discovery of Blackwell's handicapped parking permit and ended with Blackwell's return to work a few weeks later.
For the foregoing reasons, SecTek's motion to dismiss Blackwell's complaint will be granted. A separate Order accompanies this Memorandum Opinion.