BARBARA J. ROTHSTEIN, District Judge.
This matter comes before the Court on Defendant City of Hartford's Motion to Dismiss Plaintiff Timothy Andrews's claims for disability discrimination, failure to accommodate, and retaliation pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and for intentional infliction of emotional distress. After reviewing the briefs and all other relevant material properly before the Court, the Court will grant Defendant's Motion to Dismiss and dismiss Plaintiff's complaint with prejudice. The Court's reasoning follows.
In 2009, Plaintiff Timothy Andrews began work as a paramedic for Defendant City of Hartford. (Doc. No. 1, Compl. ¶ 5). Diagnosed with diabetes thirty years ago, Andrews relies on a diabetic pump. (Id. ¶¶ 6, 8). Between January and February 2015, Andrews requested accommodations for his diabetes that included sensitivity training for his co-workers and intervention to stop harassment about his diabetes and diabetic pump. (Id. ¶¶ 9, 30). The City of Hartford did not provide those accommodations prior to Andrews's termination on February 3, 2015. (Id. ¶¶ 10, 43). Andrews successfully performed his duties as a paramedic without any adverse incidents until the events leading up to his termination. (Id. ¶¶ 7, 11).
On May 21, 2015, Andrews filed charges with the Equal Employment Opportunity Commission ("EEOC").
(Id.). On June 22, 2015, the EEOC issued a Right to Sue Letter. (Doc. No. 1, Ex. 1).
On September 22, 2015, Andrews filed his complaint alleging that the City of Hartford violated the ADA when it terminated him because of his disability; failed to provide reasonable accommodations; and retaliated against him for making such requests. (Id. ¶¶ 33-39, 40-47). Andrews additionally alleges an intentional infliction of emotional distress claim. (Id. ¶ 1). On November 3, 2015, the City of Hartford moved to dismiss all claims.
"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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678.
"When considering a motion to dismiss, all facts set forth in the plaintiff's complaint `are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.'" Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long Cnty., Ga., 999 F.2d 1508, 1510 (11th Cir. 1993)). All reasonable inferences should be drawn in favor of the plaintiff. St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002). Significantly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
The Court will review Plaintiff's claims in the following order: (1) disability discrimination; (2) failure to provide reasonable accommodations and retaliation; and (3) intentional infliction of emotional distress.
In order to establish a prima facie case of ADA discrimination, a plaintiff must show that he "(1) had a disability; (2) was otherwise qualified to perform the job; and (3) was discriminated against based on his disability." Collado v. United Parcel Serv., Co., 419 F.3d 1143, 1149 (11th Cir. 2005) (citing Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004)). The Court finds that Plaintiff fails to demonstrate a disability under the ADA. Accordingly, the Court confines its discussion to the disability element of an ADA claim.
The ADA defines disability as "(A) a physical or mental impairment that substantially limits one or more 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(1)(A)-(C) (2012). The Court addresses each definition in turn.
Section 12102(1)(A) requires a plaintiff to show that he suffers from a physical or mental impairment that substantially limits one or more of his major life activities. Plaintiff suffers from insulin-dependent diabetes, which is a physical impairment for ADA purposes. See 45 C.F.R. pt. 84 App. A, subpart (A)(3). Thus, the sole inquiry is whether Plaintiff demonstrates that his diabetes substantially limits one or more of his major life activities.
EEOC regulations define "substantially limits" as an inability "to perform a major life activity as compared to most people in the general population." 29 C.F.R. § 1630.2(j)(1)(ii) (2012). Major life activities can include: "[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working." Id. § 1630.2(i)(1)(i).
In his complaint, Plaintiff alleges that he was diagnosed with diabetes thirty years ago and that he now relies on a diabetic pump. (Doc. No. 1, Compl. ¶¶ 6, 8). Defendant contends that Plaintiff's complaint fails to show that Plaintiff's disability "substantially limits one or more [of his] major life activities." (Doc. No. 12, at 10). Defendant is correct. Plaintiff's complaint is silent on how his disability substantially impairs a major life activity.
In his Objection to Defendant's Motion to Dismiss, Plaintiff supplements his complaint, stating that his disability forces him to undress, tend to his pump, and bring in and store special diet foods in the community fridge. (Doc. No. 17-1, at 17-18). This, Plaintiff contends, substantially impairs "more than one of his life activities, to wit walking, talking, breathing, eating, sleeping, thinking, [and] learning." (Id.).
The Court remains unpersuaded. Even if the Court could consider facts outside the four corners of the complaint, undressing, tending to a diabetic pump, and bringing in and storing special diet foods does not suggest that Plaintiff is "significantly restricted" in any major life activity as compared to "the average person in the general population." See Collado, 419 F.3d at 1156 (holding that monitoring food intake and administering insulin injections does not substantially limit at least one major life activity).
Furthermore, Plaintiff alleges that he successfully performed his duties as a paramedic and maintained an excellent record until the events leading up to his termination. (Doc. No. 1, Compl. ¶¶ 7, 11). Given the strenuous nature of Plaintiff's former employment, the Court cannot conclude that Plaintiff demonstrates, or can demonstrate, that he is substantially limited in any major life activity. See Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir. 2000) (holding that plaintiff's "diabetes, migraines, and depression" do not substantially limit any major life activity when plaintiff, among other things, held a 40-hour-a-week-job for the previous eight years).
Alternatively, a plaintiff may demonstrate a disability under the ADA if that individual adduces evidence of a record relied on by an employer that indicates that the individual has or has had a substantially limiting impairment. See § 12102(1)(B); see also Hillburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1229 (11th Cir. 1999). Such records can include "education, medical, or employment records." Hillburn, 181 F.3d at 1229. Plaintiff has failed to adduce any evidence of a record of impairment.
A plaintiff is "regarded as" being disabled if he is perceived by his employer as having an impairment and if his employer significantly restricts his ability to perform a class or range of jobs. See Rossbach v. City of Miami, 371 F.3d 1354, 1359-60 (11th Cir. 2004); see also Collado, 419 F.3d at 1157. "As with real impairments, courts have held that a perceived impairment must be substantially limiting and significant." Gordon v. E.L. Hamm & Assoc., Inc., 100 F.3d 907, 913 (11th Cir. 1996).
Plaintiff fails to plead any facts to plausibly demonstrate that Defendant regarded him as being disabled or that Defendant restricted his ability to perform his job, let alone a class or range of jobs. While the complaint indicates that the Defendant was aware of Plaintiff's condition, (Doc. No. 1, Compl. ¶ 16), the "mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate that the employer regarded the employee as disabled." Sutton v. Lader, 185 F.3d 1203, 1209 (11th Cir. 1999); see also Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1217 (11th Cir. 2004) (holding that employer's awareness of employee's diagnosis, in addition to threatening termination and advertising for her replacement, failed to prove that employer regarded her as disabled).
Accordingly, Plaintiff's diabetes does not qualify as a disability under the ADA. The Court therefore dismisses with prejudice Plaintiff's claim of disability discrimination for failure to establish a prima facie case of ADA discrimination.
Before filing an ADA claim, a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1) (stating a charge must be filed 180 days after the alleged unlawful employment practice); 42 U.S.C. § 12117(a) (applying Title VII's procedures to the ADA). "The purpose of this exhaustion requirement is that the [EEOC] should have the first opportunity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts." Gregory v. Georgia Dep't of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (per curiam) (internal quotation marks omitted). Subsequent "judicial claims are allowed if they `amplify, clarify or more clearly focus' the allegations in the EEOC complaint, but . . . allegations of new acts of discrimination are inappropriate." Id. (quoting Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989)). Importantly, courts are "`extremely reluctant to allow procedural technicalities to bar [discrimination] claims.'" Id. at 1280 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460-61 (5th Cir. 1970)). The proper inquiry therefore is whether Plaintiff's judicial complaint is "like or related to, or grew out of, allegations contained in [the] EEOC charge." Id.
Defendant contends that Plaintiff failed to exhaust his administrative remedies with respect to his failure-to-accommodate and retaliation claims. Specifically, Defendant indicates that Plaintiff marked only the space labeled "Disability" when asked for the basis of the alleged discrimination, leaving the space labeled "Retaliation" blank. (Doc. No. 12, at 15). Furthermore, Plaintiff failed to "make any allegations of retaliation or denial of a request for reasonable accommodation in his charge of discrimination." (Id.). In response, Plaintiff argues that "he properly exhausted the grievance procedures" when he provided details of his discrimination to the Chief, Mayor, City Council, and Unemployment Compensation Division. (Doc. No. 17-1, at 20-21).
Two cases are instructive on this issue. The first is Gregory v. Georgia Department of Human Resources, 355 F.3d 1277, 1279 (11th Cir. 2004) (per curiam), in which a plaintiff filed an EEOC Charge of Discrimination that:
Plaintiff's subsequent judicial complaint claimed that her termination "was motivated by her race and/or in retaliation for complaining of . . . race discrimination against her." Id. Although plaintiff in Gregory did not mark the retaliation space on the EEOC template form, her EEOC charge included the fact that she made complaints to her employer about race discrimination, therefore warranting the Eleventh Circuit's finding that a retaliation claim was reasonably encompassed within her EEOC Charge. Id. at 1280-81; see also Parten v. Ala. Dep't of Tourism, 100 F.Supp.3d 1259, 1271 (M.D. Ala. 2015) ("[Plaintiff's] claim that she suffered retaliation for bringing complaints of harassment and sex discrimination to the Personnel Board lawyer is `like or related to' the claim in her EEOC charge that she was terminated for complaining of harassment to the Governor's office.").
By contrast, in Green v. Elixir Industries, Inc., 407 F.3d 1163 (11th Cir.), vacated, 428 F.3d 1008, replaced by, 152 F. App'x 838 (11th Cir. 2005), a plaintiff filed an EEOC Charge of Discrimination, checking only the space labeled "Race" as the basis of discrimination and stating the following:
407 F.3d at 1166. Plaintiff's subsequent judicial complaint alleged both racial hostile environment discrimination and racially-motivated termination. Id. After withdrawing its first opinion, the Eleventh Circuit determined that "all of the factual allegations contained in Green's EEOC charge relate to his termination and none relate to a retaliation claim." 152 F. App'x at 840. Specifically, the court explained that plaintiff "noted the date of his termination as both the earliest and latest date of discriminatory conduct; explained that his termination ostensibly stemmed from attendance policy violations; and stated that white males with inferior attendance records were retained." Id. at 840-41. "Nothing in Green's charge related to incidents of harassment, nor did anything mention the dates on which they occurred." Id. at 841; see also Houston v. Army Fleet Servs., L.L.C., 509 F.Supp.2d 1033, 1045 (M.D. Ala. 2007) (holding plaintiff failed to exhaust retaliation claim when "charge [made] no mention of any retaliation," "including any alleged retaliation concerning [employer's] conduct with regard to [plaintiff's] attempts to obtain unemployment benefits").
The Court finds that Plaintiff failed to exhaust his administrative remedies as to his failure-to-accommodate and retaliation claims. The facts in this case are closer to those in Green than to those in Gregory. Plaintiff's EEOC Charge of Discrimination, (Doc. No. 12, Ex. 1), makes no mention of Plaintiff's request for reasonable accommodations nor how that request led to retaliation in the form of termination.
Plaintiff's argument that he exhausted his failure-to-accommodate and retaliation claims when he provided details to the Chief, Mayor, City Council, and Unemployment Compensation Division is inapposite. The ADA requires a plaintiff to exhaust his claims by filing a charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a). The Court dismisses with prejudice Plaintiff's failure-to-accommodate and retaliation claims.
Plaintiff alleges that Defendant violated the "state action of intentional infliction of emotional distress." (Doc. No. 1, Compl. ¶ 1). Aside from this one allegation, Plaintiff fails to address the elements of intentional infliction of emotional distress nor includes this claim as a separate cause of action. At the same time, Plaintiff contends that Defendant's actions were "willful" and "malicious." (Id. ¶¶ 36-37, 45). Thus, the Court will assume that Plaintiff's complaint avers a claim for intentional infliction of emotional distress.
Section 11-47-190 of the Alabama Code provides the following:
To state a cause of action under section 11-47-190, a plaintiff must allege a factual pattern that demonstrates "neglect, carelessness, or unskillfulness." Franklin v. City of Huntsville, 670 So.2d 848, 852 (Ala. 1995). Plaintiff fails to allege a factual pattern that demonstrates any of these.
Moreover, a claim for intentional infliction of emotional distress requires a plaintiff to show that "`defendant's conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it.'" Walker v. City of Huntsville, 62 So.3d 474, 502 (Ala. 2010) (quoting Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38, 44 (Ala. 1990)). The tort of intentional infliction of emotional distress is, therefore, "an intentional tort" and thus barred by section 11-47-190. Id.; see also Brown v. City of Huntsville, 608 F.3d 724, 743 (11th Cir. 2010) ("[A] city is liable for negligent acts of its employees within the scope of their employment, but not intentional torts [or wanton misconduct] of its employees.").
Even if municipal immunity did not apply, Plaintiff's complaint fails to plead any facts that plausibly support the elements necessary to establish a claim for intentional infliction of emotional distress. Plaintiff fails to address the second element, and scatters "threadbare recitals" of the first and third elements throughout his complaint. Such "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. The Court therefore dismisses with prejudice Plaintiff's claim for intentional infliction of emotional distress.
For the reasons set forth above, the Court will GRANT Defendant's Motion to Dismiss. It is HEREBY ORDERED that Plaintiff's complaint be DISMISSED WITH PREJUDICE. An Order consistent with this Memorandum Opinion will be separately and contemporaneously issued on this same day, August 2, 2016.
