MULLINS v. MILLER

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

DAVID M. MULLINS, )

)

Plaintiff, )

)

v. ) No. 1:20-cv-02900-JPH-TAB

)

MIKE MILLER, )

DAVID NAUTH, )

DAVID FLEISHHAKER, )

HEATHER WHITAKER, )

HOWARD WICKERSHAM, )

)

Defendants. )

ORDER DENYING DEFENDANTS' MOTION TO DISMISS

In May 2019, David Mullins was terminated from his position as a

meteorologist for the Indiana State Department of Health ("ISDH") Weights and

Measures Division. See dkt. 6 at 4. He has sued five state employees—his

former supervisor Mike Miller, ISDH Director David Nauth, ISDH senior

technician Howard Wickersham, ISDH attorney David Fleishhaker, and Indiana

State Personnel Director Heather Whitaker—alleging that he was terminated

because of his disability. Dkt. 6-1 at 4. Defendants filed a motion to dismiss

for failure to state a claim. Dkt. [18]. For the reasons below, that motion is

DENIED.

I.

Facts and Background

Because Defendants moved for dismissal under Rule 12(b)(6), the Court

accepts and recites "the well-pleaded facts in the complaint as true." McCauley

v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).

A. The operative complaint

Mr. Mullins has filed four complaints. See dkt. 1; dkt. 4; dkt. 6; dkt. 16.

Defendants have moved to dismiss the second amended complaint, dkt. 6,

arguing that it is the operative complaint because Mr. Mullins did not have

leave to file his third amended complaint, dkt. 16. Dkt. 18 at 1; see Fed. R.

Civ. P. 15(a)(1)(A) ("A party may amend its pleading once as a matter of course

within 21 days after serving it."). Mr. Mullins did not respond to this

argument. See dkt. 19. The Court therefore STRIKES the third amended

complaint, dkt. 16; the second amended complaint, dkt. 6, is the operative

complaint.

B. Factual allegations and procedural history

Mr. Mullins started working for the ISDH as a meteorologist on April 22,

2019. Dkt. 6 at 4; dkt. 6-1 at 1. During his employment, "it was well known"

that he was disabled—he used a handicapped parking spot and had difficulty

walking. Dkt. 6-1 at 4. On May 31, 2019, Mr. Mullins's supervisor, Mr. Miller,

told him that he was being terminated for an alleged disciplinary action and

because Mr. Mullins's skills were not progressing at an appropriate level for his

position. Dkt. 6-1 at 1. Mr. Mullins had not been informed of any performance

issues, and he had performed the same work for the federal government for

over twenty years. Id.

Mr. Mullins filed a charge of discrimination with the Equal Employment

Opportunity Commission in September 2019. Dkt. 6 at 5. He brought this

suit pro se on November 5, 2020, alleging that Defendants terminated his

employment in violation of the Americans with Disabilities Act ("ADA"), 42

U.S.C. §§ 12112 to 12117. See dkt. 1; dkt. 6.

II.

Applicable Law

Defendants may move under Federal Rule of Civil Procedure 12(b)(6) to

dismiss claims for "failure to state a claim upon which relief may be granted."

To survive a Rule 12(b)(6) 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 facially plausible claim is

one that allows "the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged." Id.

When ruling on a 12(b)(6) motion, the Court will "accept the well-

pleaded facts in the complaint as true," but will not defer to "legal conclusions

and conclusory allegations merely reciting the elements of the claim."

McCauley, 671 F.3d at 616.

III.

Analysis

To state an ADA claim, Mr. Mullins must "allege facts showing that:

(1) he is 'disabled'; (2) he is qualified to perform the essential function of the job

either with or without reasonable accommodation; and (3) he suffered an

adverse employment action because of his disability. Gogos v. AMS Mech. Sys.,

Inc, 737 F.3d 1170, 1172 (7th Cir. 2013). Defendants argue that Mr. Mullins

has not pleaded facts supporting the first and third elements. See dkt. 18.

A. Disability

Defendants argue that Mr. Mullins's "foot and knee issues," dkt. 6 at 4,

do not establish that he is disabled under the ADA because his complaint does

not explain those issues or how they affect his ability to work. Dkt. 18 at 4.

Mr. Mullins responds that his foot and knee troubles cause great pain when he

walks or moves. Dkt. 19 at 3.

The ADA defines "disability" as "(A) a physical or mental impairment that

substantially limits one or more major life activities . . . ; (B) a record of such

an impairment; or (C) being regarded as having such an impairment . . . ." 42

U.S.C. § 12102(1). A plaintiff must "identify his disability" to give defendants

fair notice of the claim, Tate v. SCR Medical Transp., 809 F.3d 343, 345–46 (7th

Cir. 2015). Pro se complaints, however, are interpreted liberally. Sause v.

Bauer, 138 S. Ct. 2561, 2563 (2018). Here, Mr. Mullins alleges that he has

"foot and knee issues" that make it difficult for him to walk and to lace up

shoes. Dkt. 6; dkt. 6-1 at 4. He also alleges that he "parked every day in a

handicap spot" and "was taking pain meds because of [his] feet." Id.

While a complaint containing only the word "disability" generally does not

provide fair notice, see Tate, 809 F.3d at 346, Mr. Mullins's complaint specifies

"foot and knee issues" that affect his ability to walk and to lace up shoes, and

that require pain medicine and parking in a handicapped spot. Dkt. 6 at 4;

dkt. 6-1 at 4. Walking is a major life activity under the ADA, see 42 U.S.C.

§ 12102(2)(A), so Mr. Mullins has alleged a disability that affects a major life

activity. That is enough to state an ADA claim. See Rowlands v. United Parcel

Serv. – Fort Wayne, 901 F.3d 792, 800–01 (7th Cir. 2018) (knee injuries that

"substantially interfered with [the] ability to walk . . . . [were] sufficient to

support" a claimed disability).

And while Mr. Mullins admits that he did not request accommodations,

dkt. 6-1 at 4, he is not bringing an ADA failure-to-accommodate claim. See

dkt. 6 at 4; see Hooper v. Proctor Health Care Inc., 804 F.3d 846, 851–53 (7th

Cir. 2015) (separately addressing ADA failure-to-accommodate and disability-

discrimination claims). In his complaint, Mr. Mullins checked the box for

"Termination of my employment" but not the box for "Failure to accommodate

my disability." Dkt. 6 at 4. His ADA discrimination claim does not require him

to request accommodations. Gogos, 737 F.3d at 1172 (listing elements of an

ADA discrimination claim, including being "qualified to perform the essential

function of the job either with or without reasonable accommodation").1

B. Causation

Defendants argue that Mr. Mullins does not clearly state that he

informed Defendants that he was disabled and "acknowledges that he was not

meeting his employer's legitimate expectations" in his complaint. Dkt. 18 at 4.

Mr. Mullins responds that Defendants knew that he was disabled and

nevertheless terminated his employment. Dkt. 19 at 2–3.

Mr. Mullins alleges that it was "well known" by his supervisor and other

ISDH employees that he was disabled. Dkt. 6-1 at 4. He alleges that Mr. Miller

knew that he parked in a handicap spot every day and that he was taking pain

medication for his difficulty walking. Id. The complaint also alleges that Mr.

Miller "issued a warning email about wearing and fully lacing up shoes"

because he knew that Mr. Mullins's foot and knee issues prevented him from

fully lacing up his shoes. Id. Mr. Mullins's complaint therefore alleges that

Defendants had knowledge of his disability before his termination. See Carlson

v. CSX Transp. Inc., 758 F.3d 819, 827 (7th Cir. 2014).

Defendants also argue that Mr. Mullins's complaint acknowledges that

he was not meeting his employer's legitimate expectations. Dkt. 18 at 4. But

the complaint says that he was terminated "unjustly . . . for an alleged

disciplinary action and for not allegedly progressing skills." Dkt. 6-1 at 1

1 At this stage, Defendants do not argue Mr. Mullins was not qualified to perform his

essential job functions, either with or without reasonable accommodations. See dkt.

18.

(emphases added). It goes on to allege that Mr. Miller "never at any time

informed the plaintiff of any lack of perceived skills nor was the plaintiff given

any opportunity for performance improvement." Id. Mr. Mullins therefore does

not admit that he failed to meet expectations. See id. Instead, he recounted

and contested the reason he was given for the termination. Id. (alleging that

the "removal was a violation of the ADA . . . and made to appear as a result of a

disciplinary action").

Finally, Defendants argue that Mr. Mullins "makes no allegations at all

regarding similarly-situated, non-disabled employees being treated more

favorably." Dkt. 18. This argument implicates the McDonnell Douglas

framework, which allows a plaintiff to make a prima facie case of discrimination

with certain evidentiary showings, including that a similarly situated coworker

was treated more favorably. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510

(2002). But that framework is "an evidentiary standard, not a pleading

requirement." Id. Plaintiffs are therefore "not required to include allegations—

such as the existence of a similarly situated comparator—that would

established a prima facie case of discrimination" under McDonnell Douglas.

Carlson, 758 F.3d at 827.

* * *

Mr. Mullins was required only to put his employer on notice of his claim.

See Tate, 809 F.3d at 345–346. "Employers are familiar with discrimination

claims and how to investigate them, so little information is required to put the

employer on notice." Carlson, 758 F.3d at 827. Mr. Mullins's complaint meets

that standard here by identifying his disability and alleging that he suffered an

adverse employment action because of it.

IV.

Conclusion

The Court STRIKES Mr. Mullins's third amended complaint, dkt. [16];

the clerk shall update the docket accordingly. Defendants’ motion to dismiss

Mr. Mullins's second amended complaint, dkt. 6, is DENIED. Dkt. [18].

SO ORDERED.

Date: 8/23/2021

SJamu Patrick lbanlove

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

DAVID M. MULLINS

Box 895

Idaho Springs, CO 80452

Alexander Robert Carlisle

OFFICE OF THE ATTORNEY GENERAL

Alexander.Carlisle@atg.in.gov