Okyere v. John Bean Technologies Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO. 5:20-CV-190-FL

PETER OKYERE, )

)

Plaintiff, )

)

v. )

)

ORDER

JOHN BEAN TECHNOLOGIES )

CORPORATION, )

)

Defendant. )

)

)

This matter is before the court on defendant’s partial motion to dismiss (DE 7). The motion

has been briefed fully, and in this posture the issues raised are ripe for ruling. For the reasons that

follow, the motion is granted in part and denied in part.

STATEMENT OF THE CASE

Plaintiff commenced this action on May 6, 2020, under the Family Medical Leave Act

(“FMLA”) and the Americans with Disabilities Act (“ADA”) against defendant, plaintiff’s former

employer. Plaintiff claims that defendant retaliated against plaintiff for his exercise of FMLA

rights (“Count I”) and interfered with those rights (“Count II”); discriminated against plaintiff

because of his disability (“Count III”); and retaliated against him for exercise of his ADA rights

(“Count IV”), all of which resulted in his termination. Plaintiff seeks damages stemming from his

termination.

On July 6, 2020, defendant filed the instant partial motion to dismiss, seeking dismissal of

all claims except for plaintiff’s claim of FMLA retaliation (“Count I”). Defendant relies upon

plaintiff’s charge and amended charge to the Equal Employment Opportunity Commission

(“EEOC”). Plaintiff filed his response on July 27, 2020, to which defendant replied on August 10,

2020.

STATEMENT OF FACTS

The facts alleged in the complaint may be summarized as follows. Plaintiff was employed

by defendant as a repair technician for over a year and a half, starting in April 2019 and ending

October 1, 2020, with his termination. In May 2019, plaintiff suffered “bilateral quadriceps tendon

ruptures.” (Compl. ¶17). In June 2019, plaintiff contacted his manager and the human resources

department regarding FMLA leave and, after providing the relevant information and documents,

was approved for such.

Plaintiff took his FMLA leave before visiting an orthopedic doctor in September 2019,

who recommended that plaintiff return to work with light duty restrictions. Thereafter, plaintiff

contacted defendant’s human resources department to notify them of his ability to return to work

with restrictions and requested accommodation for light duty work. Plaintiff alleges that he did

not hear anything back from defendant, which caused plaintiff, in October 2019, to contact

defendant regarding disability benefits. At this time, plaintiff was informed that defendant had

lost its contract with the Raleigh-Durham International Airport (“RDU”) and that employees were

being transferred to other job sites. This caused plaintiff to again contact the human resources

department about returning to work, but plaintiff heard nothing before being terminated effective

October 1, 2019. Plaintiff alleges that other similarly situated non-disabled employees, who had

not exercised their FMLA rights, were informed of the end of defendant’s contract with RDU and

given the option to transfer to other locations. These employees were also informed on how to

apply for a position with the new contract holder that was replacing defendant at RDU.

Plaintiff filed a claim with the EEOC on December 13, 2019, and an amended claim on

December 17, 2019, alleging discrimination on the basis of disability and retaliation. About two

months later, on February 13, 2020, the EEOC issued a dismissal and notice of rights to plaintiff,

who then brought the instant suit on May 6, 2020.

COURT’S DISCUSSION

A. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), “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, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-

pled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not

consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further

factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (quotations

omitted). “Although plaintiffs need not prove their prima facie case at the pleading stage, they

must ‘allege facts sufficient to state all the elements of [their] claim.’” Wicomico Nursing Home

v. Padilla, 910 F.3d 739, 751 (4th Cir. 2018) (alteration in original) (internal citations omitted)

(quoting Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003)); see also

McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir.

2015) (explaining that plaintiff “was required to allege facts to satisfy the elements of a cause of

action created by th[e relevant] statute”).

B. Analysis

1. Count II: FMLA Interference

The FMLA grants employees of covered employers the right to take up “to a total of 12

workweeks of leave during any 12–month period” when, inter alia, an employee is burdened with

“a serious health condition that makes the employee unable to perform.” 29 U.S.C.

§ 2612(a)(1)(D). The employee, after returning from FMLA leave, is “entitled to be restored to

his previous position or an equivalent position, so long as he would have retained that position or

an equivalent one absent the taking of leave.” Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d

422, 426 (4th Cir. 2015) (citing 29 U.S.C. § 2614(a)).

The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the

exercise of or the attempt to exercise, any right provided under [the FMLA].” 29 U.S.C.

§ 2615(a)(1). Claims for violations of the prescriptive rights set forth in §§ 2612-2615 are “known

as ‘interference’ or ‘entitlement’ claims.” Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541,

546 (4th Cir. 2006). “To make out an ‘interference’ claim under the FMLA, an employee must

thus demonstrate that (1) he is entitled to an FMLA benefit; (2) his employer interfered with the

provision of that benefit; and (3) that interference caused harm.” Adams, 789 F.3d at 427.

“Right to reinstatement to his or her original position or an equivalent post” is a benefit

that an employee is entitled to under the FMLA. Vannoy v. Fed. Reserve Bank of Richmond, 827

F.3d 296, 301 (4th Cir. 2016).1 An equivalent position is defined as “one that is virtually identical

1 Accordingly, denial of reinstatement is properly considered as interference with an employee’s FMLA rights.

See, e.g., Yashenko, 446 F.3d at 549 (discussing failure to reinstate as a potential interference claim in the context of

plaintiff’s position being eliminated while he was on leave and his subsequent discharge upon return from leave);

Waag v. Sotera Def. Sols., Inc., 857 F.3d 179, 189 (4th Cir. 2017) (discussing plaintiff’s claim that he was reinstated

to the employee’s former position in terms of pay, benefits and working conditions, including

privileges, perquisites and status” and that involves “the same or substantially similar duties and

responsibilities, which must entail substantially equivalent skill, effort, responsibility, and

authority.” 29 C.F.R. § 825.215(a).

However, “the FMLA does not require an employee to be restored to his prior job after

FMLA leave if he would have been discharged had he not taken leave.” Yashenko, 446 F.3d at

547; see also 29 C.F.R. § 825.216(a) (“An employee has no greater right to reinstatement or to

other benefits and conditions of employment than if the employee had been continuously employed

during the FMLA leave period. An employer must be able to show that an employee would not

otherwise have been employed at the time reinstatement is requested in order to deny restoration

to employment.”). Yet, even

[i]f the employee’s original worksite has been closed, the employee is entitled to

the same rights as if the employee had not been on leave when the worksite closed.

For example, if an employer transfers all employees from a closed worksite to a

new worksite in a different city, the employee on leave is also entitled to transfer

under the same conditions as if he or she had continued to be employed.”

29 C.F.R. § 825.215(e)(1).

There is no dispute at this juncture whether plaintiff was entitled to FMLA leave, and, as

explained by the court above, such leave comes with the accompanying prescriptive right to be

reinstated to the same or equivalent position. Yashenko, 446 F.3d at 549. The facts as alleged by

plaintiff permit a reasonable inference that he was not offered the same or equivalent position

when he attempted to return from FMLA leave to engage in light duty work,2 and, instead, he was

to a “sham” position in terms of interference); see also Fry v. Rand Constr. Corp., 964 F.3d 239, 245 (4th Cir. 2020)

(suggesting that even “retaliation-for-exercise claims” might fall under [the] subsection (a)(1)” prohibition on

interference with FMLA rights). Accordingly, defendant’s arguments to the contrary are inapposite.

2 The parties have not raised, so the court does not address, the federal regulations regarding the interaction

between the FMLA reinstatement requirements and the ADA’s reasonable accommodation requirements. See, e.g.,

29 C.F.R. § 825.702(c)(4), (d)(2).

ignored and terminated. (See Compl. ¶¶ 23-28). Plaintiff has also plausibly alleged that he would

not would have been discharged had he not taken leave, even in light of the RDU contract not

being renewed, because, as alleged by plaintiff, other employees at the RDU worksite that did not

take leave were transferred to new worksites. (Compl. ¶ 29-30). Such an alleged violation causes

harm to plaintiff in the form of “compensation and benefits lost ‘by reason of the violation,’” and

would allow for “‘appropriate’ equitable relief, including employment, reinstatement, and

promotion.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (first quoting 29

U.S.C. § 2617(a)(1)(A)(i)(I); then quoting 29 U.S.C. § 2617(a)(1)(B)). Accordingly, at the

12(b)(6) stage, plaintiff has adequately stated a claim for FMLA interference.

Defendant argues based on Fortune v. Gaylor Electric, Inc., No. 1:19 CV 346, 2020 WL

6038295 (W.D.N.C. May 28, 2020), report and recommendation adopted, No. 1:19-CV-00346-

MR-WCM, 2020 WL 3638132 (W.D.N.C. July 6, 2020), that a termination is properly considered

under the FMLA’s retaliation provisions, not its interference provisions. Regardless of plaintiff’s

alleged termination, however, plaintiff has stated a claim of FMLA interreference where, as here,

he alleges his employer interfered with a provision of an FMLA benefit, which reinstatement to a

same or similar position plainly is. See 29 U.S.C. § 2614.

Defendant additionally suggests that plaintiff’s allegations are analogous to those in

Yashenko, where the plaintiff’s position was eliminated as part of “legitimate reorganization” and

the plaintiff “chose not to apply for any of the numerous open positions, despite suggestions that

he apply” from his employer. 446 F.3d at 550. Here, however, plaintiff alleges that despite

defendant’s contract ending at RDU, RDU-site workers were offered the option transfer to other

locations. (Compl. ¶ 29). This takes the alleged factual scenario from the realm of Yashenko and

into the situation discussed in the EEOC regulations, where “an employer transfers all employees

from a closed worksite to a new worksite in a different city,” which still results in the leave-taking

employee being “entitled to transfer under the same conditions as if he or she had continued to be

employed.” 29 C.F.R. § 825.215(e)(1). This does not prevent the defendant from later in the

proceedings meeting the “burden of proving that an employee would have been laid off during the

FMLA leave period and, therefore, would not be entitled to restoration” even absent his or her

taking leave. See id. § 825.216(a)(1).

Therefore, defendant’s motion to dismiss insofar as it seeks dismissal of plaintiff’s FMLA

inference claim, Count II in the complaint, must be denied.

2. Count III: ADA Discrimination

a. Administrative Remedy Exhaustion3

The administrative remedy exhaustion procedures under Title VII have been adopted for

ADA claims, see 42 U.S.C. § 12117 (citing 42 U.S.C. § 2000e-5), and require the filing of a charge

with the EEOC, Sydnor v. Fairfax County, 681 F.3d 591, 593 (4th Cir. 2012). “The EEOC charge

defines the scope of the plaintiff’s right to institute a civil suit.” Bryant v. Bell Atl. Md., Inc., 288

F.3d 124, 132 (4th Cir. 2002) (Title VII4). This is because “the goals of providing notice and an

opportunity for an agency response would be undermined . . . if a plaintiff could raise claims in

litigation that did not appear in his EEOC charge.” Sydnor, 681 F.3d at 593. Yet, “the exhaustion

requirement should not become a tripwire for hapless plaintiffs.” Id. “Documents filed by an

3 As an initial note, the parties describe the charge-filing requirement of the ADA as a jurisdictional

prerequisite, which is in conflict with the Supreme Court’s recent holding that Title VII’s charge-filing requirement

is not jurisdictional. See Fort Bend County v. Davis, 139 S. Ct. 1843, 1846 (2019); see also Stewart v. Jones Util. &

Contracting Co. Inc., 806 F. App’x 738, 740 (11th Cir. 2020) (describing Title VII and the ADA’s exhaustion

requirement as “a claims-processing rule, not a jurisdictional prerequisite, and a defendant may waive it as a defense

if the issue is not timely raised”). Accordingly, although discussed by the parties under Rule 12(b)(1), which considers

subject matter jurisdiction, the court analyzes plaintiff’s ADA claims as stated in the complaint under the auspices of

Rule 12(b)(6).

4 It is appropriate to rely on Title VII precedent in analyzing ADA claims. See Fox v. Gen. Motors Corp., 247

F.3d 169, 176 (4th Cir. 2001) (stating that “courts have routinely used Title VII precedent in ADA cases”).

employee with the EEOC should be construed, to the extent consistent with permissible rules of

interpretation, to protect the employee’s rights and statutory remedies.” Fed. Express Corp. v.

Holowecki, 552 U.S. 389, 402 (2008). Accordingly, “discrimination claims stated in the initial

charge, those reasonably related to the original complaint, and those developed by reasonable

investigation of the original complaint may be maintained in a subsequent [ADA] lawsuit.” Evans

v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996); Sydnor, 681 F.3d at 594

(explaining that so long as “a plaintiff’s claims in her judicial complaint are reasonably related to

her EEOC charge and can be expected to follow from a reasonable administrative investigation,”

she “may advance such claims in her subsequent civil suit” (quotation omitted)).

In Sydnor, the Fourth Circuit found this standard was met, noting, first, plaintiff’s charge

and her formal lawsuit “involved the same place of work and the same actor.” Id. The court also

noted that the plaintiff described the “same type of discrimination” in her suit and in her charge

and did not allege different bases of discrimination in each, such as race in one and sex in the other.

Id. Finally, the court found pertinent that “plaintiff’s description of her disability did not shift

from the administrative to judicial proceedings,” that is “her limited walking ability,”

distinguishing her from litigants who “attempt to avoid the exhaustion requirement by raising new

disabilities for the first time in court.” Id.

Here, plaintiff’s claims in his EEOC charges and in his formal lawsuit are reasonably

similar enough to achieve the goal of notice to defendant employers and allowing adequate

administrative investigation and resolution. In pertinent part, plaintiff’s amended EEOC charge5

5 Although plaintiff did not attach his EEOC charges as part of his pleadings and instead they come before the

court as an attachment to defendant’s motion to dismiss, “courts may consider a document that the defendant attaches

to its motion to dismiss if the document ‘was integral to and explicitly relied on in the complaint and if the plaintiff[]

do[es] not challenge its authenticity.’” CACI Int’l, Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir.

2009) (quoting CACI Int’l v. St. Paul Fire & Marine Ins. Co., 567 F.Supp.2d 824, 829 (E.D.Va. 2008)). Here,

plaintiff’s EEOC charges are integral to his complaint, which details his filing with the EEOC, and plaintiff does not

challenge their authenticity and, rather, relies on them in arguing against the motion to dismiss.

alleges that the discrimination against him was based on retaliation and disability. (Def.’s Mot.

Dismiss, Ex. A (DE 9-1) at 3). Specifically, plaintiff stated in the charge that he had surgery for a

serious medical condition, took leave, and, when he returned from leave and requested light duty

work, was fired. (Id.) Plaintiff in his charge alleges that this was done because of his disability

and that other workers received different treatment than he did. (Id.). Plaintiff’s complaint claims

substantially the same, explicitly alleging “unlawful discrimination and harassment against

[p]laintiff due to his disability,” and that his “bilateral quadriceps tendon ruptures caus[ed] him to

become disabled.” (Compl. ¶¶ 2, 17). The complaint more specifically alleges that plaintiff “has

an actual disability, has a record of being disabled, and/or is perceived as being disabled” by

defendant. (Id. ¶ 18).

Defendant argues that plaintiff failed to exhaust his administrative remedies in regard to

his “record of having disability” and “perceived disability” because the EEOC charge, as construed

by defendant, only includes a claim of discriminatory discharge in violation of the ADA based on

actual disability.

The Court of Appeals for the Fourth Circuit has not explicitly ruled whether a claim in an

EEOC charge of actual disability discrimination is reasonably related to a complaint’s claims of

record of disability and/or perceived disability or whether those claims would be developed by

reasonable investigation of a claim of actual disability in an EEOC charge. The court recognizes

that federal district courts that have addressed this issue are divided. Compare Kear v. Bd. of Cty.

Comm’rs, 491 F. Supp. 2d 1052, 1055-56 (D. Kan. 2007) (holding plaintiff failed to exhaust

“regarded as” and “record of” claim where EEOC charge stated only that “I am disabled”), with

Dyer v. Wiregrass Hospice, L.L.C., 532 F. Supp. 2d 933, 936 (M.D. Tenn. 2008) (“The scope of

an EEOC charge alleging disability discrimination extends to ‘regarded as’ claims in addition to

actual disability claims.”); and Cooper v. Rappahannock Shenandoah Warren Reg’l Jail Auth., No.

5:17-CV-00079, 2017 WL 4933050, at *5 (W.D. Va. Oct. 31, 2017) (“[Defendant’s] argument

that [plaintiff] cannot plead a ‘regarded as’ claim because the EEOC Charge stated he had an

impairment [does not] hold water.”).

Even assuming that plaintiff’s claim of record disability or perceived disability is a new

and different claim in his complaint, the court finds that such claim would be both “reasonably

related” to the EEOC charge’s allegation of actual disability and would be “expected to follow”

from a reasonable administrative investigation into the claim of actual disability discrimination.

Sydnor, 681 F.3d at 594; see Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 189 (3d Cir. 1999)

(“The possibility that a plaintiff will bring both an actual disability and a ‘regarded as’ claim is

simply one allowed by law.”).

The allegation of disability discrimination in plaintiff’s EEOC charge is broad enough to

encompass all three theories of disability discrimination and is different than alleging only

discriminatory conduct in an EEOC charge and then bringing a claim of retaliation in the

complaint. See, e.g., Miles v. Dell, Inc., 429 F.3d 480, 492 (4th Cir. 2005) (Title VII) (“[Plaintiff]

did not check the retaliation box on her charge form, and the narrative explaining her charge made

no mention of retaliation.”); Bryant, 288 F.3d at 133 (“Administrative investigation of retaliation

. . . could not reasonably be expected to occur in light of [plaintiff’s] sole charge of race

discrimination, and the investigation of the complaint did not touch on any matters other than race

discrimination.”).

In summary, as a matter of the ADA’s mandatory processing rule on filing a charge,

plaintiff has adequately alleged that he exhausted administrative remedies regarding his claims of

disability discrimination, inclusive of claims of actual disability, record of disability, and perceived

disability. Accordingly, the court denies defendant’s motion as far as it is premised on failure-to-

exhaust grounds.

b. Substantive ADA Discrimination Claim

“The ADA protects an employee against discrimination by an employer if the employee is

‘a qualified individual with a disability.’” Pollard v. High’s of Balt., Inc., 281 F.3d 462, 467 (4th

Cir. 2002) (quoting 42 U.S.C. §§ 12111(2), 12112(a)). For example, an employer illegally

discriminates based on disability if they wrongfully discharge a qualified employee based on that

disability. 42 U.S.C. § 12112(a); see Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir.

2001). An employer may also unlawfully discriminate against an employee under the ADA by

failing to “mak[e] reasonable accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability who is an applicant or employee.” 42 U.S.C.

§ 12112(b)(5)(A).

Either type of discrimination claim is premised on the employee showing “(1) that she has

a disability, (2) that she is a ‘qualified individual’ for the employment in question, and (3) that [her

employer] discharged her (or took other adverse employment action) because of her disability,”

Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 572 (4th Cir. 2015) (quotation omitted),

meaning that the determination of whether an employee is disabled within the meaning of the ADA

is a threshold question to that employee’s ADA discrimination claim, see Pollard, 281 F.3d at 467

(“[I]n order to come within the ADA’s protected class, a plaintiff must first show that she is

disabled within the meaning of the Act.”).

A disability under the ADA is defined as “(A) a physical or mental impairment that

substantially limits one or more of the major life activities of such individual” (actual disability);

“(B) a record of such an impairment” (record of disability); or “(C) being regarded as having such

an impairment” (perceived disability). See 42 U.S.C. § 12102(1). A substantially limiting

impairment is one that “substantially limits the ability of an individual to perform a major life

activity as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii).

However, “[a]n impairment need not prevent, or significantly or severely restrict, the individual

from performing a major life activity in order to be considered substantially limiting.” Id. §

1630.2(j)(1)(ii). Statutorily enumerated examples of “major life activities” include “caring for

oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and

working.” 42 U.S.C. § 12102(2)(A).

Plaintiffs may proceed in the alternative arguing disability under all three prongs of the

definition of disability. See, e.g., Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228,

236-38 (4th Cir. 2016); see also 29 C.F.R. § 1630.2(g)(2) (“An individual may establish coverage

under any one or more of these three prongs of the definition of disability.”).

As a preliminary issue upon which plaintiff’s substantive claims depend, the parties contest

whether plaintiff has adequately alleged that he is disabled within the meaning of the ADA.

i. Actual Disability

“A plaintiff is [actually] disabled if he can show ‘(1) that he has a physical or mental

impairment, (2) that this impairment implicates at least one major life activity, and (3) that the

limitation is substantial.’” Wicomico Nursing Home, 910 F.3d at 751 (quoting Heiko v. Colombo

Sav. Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006)).

Defendant contends that plaintiff has failed to allege sufficient facts to plead a claim based

on actual disability. The court agrees, finding that although plaintiff has properly pled facts

indicating a physical impairment, see Summers v. Altarum Inst., Corp., 740 F.3d 325, 332 (4th

Cir. 2014) (explaining that nothing in the EEOC regulations “suggest[s] that an ‘injury’ cannot be

an ‘impairment’” and that the regulations’ expansive definition of impairment “surely includes

broken bones and torn tendons”), he has failed to allege facts or details for the court to infer his

physical impairment limited a major life activity and did so in a substantial way.

Plaintiff alleges that he “suffered bilateral quadriceps tendon ruptures” and, shortly

thereafter, took approved FMLA leave. (Compl. ¶ 17). Plaintiff provides no additional facts

regarding the nature of his injury except that four months after, his orthopedic doctor released him

to return to work with light duty restrictions.6 Plaintiff fails to allege how his injury affected any

specific major life activity, let alone how that limitation is substantial. See, e.g., 29 C.F.R. §

1630.2(j)(4) (laying out a number of considerations under the substantially limited inquiry

including “difficulty, effort, or time required to perform a major life activity; pain experienced

when performing a major life activity; the length of time a major life activity can be performed”).

Plaintiff’s bare assertions, without supporting facts, that his injury disabled him and that

he is disabled within the meaning of the ADA are not adequate, as they are merely legal

conclusions. See Nemet Chevrolet, 591 F.3d at 255; see also Wicomico Nursing Home, 910 F.3d

at 751 (explaining that the allegation that plaintiffs are “qualified individuals with a disability” is

inadequate when “[t]his conclusory phrase is the sum total of the Complaint’s allegations

addressing the elements of an ADA claim”).

Accordingly, the complaint has not alleged sufficient facts supporting plaintiff’s claim of

actual disability.

ii. Record of Disability

A plaintiff has a record of disability where he or she has “a history of, or has been

misclassified as having, a . . . physical impairment that substantially limits one or more major life

6 This stands in stark contrast with more detailed allegations like that a severe injury prevented him from

walking for at least seven months. See Summers, 740 F.3d at 333.

activities.” Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 153 (4th Cir. 2012) (quotation

omitted).

Just as plaintiff has failed to allege facts regarding how his impairment substantially limited

one or more major life activities, plaintiff has failed to allege facts or indicate that defendant or

any of its employees knew, had records, or had misclassified plaintiff as having a physical

impairment that substantially limits one or more major life activities. Plaintiff’s request for FMLA

leave would not result in a record of an ADA cognizable disability by his employer given the

distinct definitions under each act. See 29 C.F.R. § 825.702(b) (“ADA’s ‘disability’ and FMLA’s

‘serious health condition’ are different concepts, and must be analyzed separately.”). Nor does

plaintiff’s allegation that he inquired into disability benefits sufficiently support a claim of record

of disability as it again fails to indicate what his employer knew or had recorded regarding his

physical impairment’s limitation on major life activities.

Finally, plaintiff’s allegation of an email to a human resources department employee

regarding restrictions and ability to do light duty work too fails to include the factual specificity

necessary to state a claim for record of disability. The fact that an employee can engage in work,

which is an enumerated major life activity, see 42 U.S.C. § 12102, under light duty restrictions,

without more detail, does not adequately allege that an impairment “substantially limits the ability

of [the employee] to perform a major life activity as compared to most people in the general

population.” 29 C.F.R. §1630.2(j)(ii); see also Rakity v. Dillon Cos., Inc., 302 F.3d 1152, 1161

(10th Cir. 2002) (“[A] history of light duty restrictions does not necessarily demonstrate a record

of substantial limitation in working.”).

While at this early stage of litigation plaintiff is not required to know and allege every

detail of an employer’s records and the facts known to relevant decisionmakers, plaintiff must still

allege some facts supporting that a history or misclassification of him having an impairment that

substantially limits one or more major life activity exists. Here, plaintiff has not done so, and

therefore, he has failed to adequately allege he had a record of disability.

iii. Perceived Disability

“An individual meets the requirement of ‘being regarded as having such an impairment’ if

the individual establishes that he or she has been subjected to an action prohibited under” the ADA

“because of . . . perceived physical or mental impairment whether or not the impairment limits or

is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A); see also 29 C.F.R.

§ 1630.2(g)(3) (explaining that this prong “does not require a showing of an impairment that

substantially limits a major life activity or a record of such an impairment”). If an individual’s

impairment has an “actual or expected duration of 6 months or less,” it is considered “transitory

and minor” and will not constitute disability under the regarded as prong. See 42 U.S.C.

§ 12102(3)(B); see also Summers, 740 F.3d at 329 n.1; but see also Miller v. Maryland Dep’t of

Nat. Res., 813 F. App’x 869, 876 (4th Cir. 2020) (“[A] plaintiff need not overcome the ‘transitory

and minor’ hurdle at the motion to dismiss stage.”). “[T]he analysis ‘focuses on the reactions and

perceptions of the [employer’s] decisionmakers’ who worked with the employee.” Wilson v.

Phoenix Specialty Mfg. Co., 513 F.3d 378, 385 (4th Cir. 2008) (alteration in original) (quoting

Runnebaum v. NationsBank of Md., N.A., 123 F.3d 156, 172–73 (4th Cir. 1997)). Finally, “[t]he

fact that an employer is aware of an employee’s impairment, without more, is ‘insufficient to

demonstrate either that the employer regarded the employee as disabled or that perception caused

the adverse employment action.’” Haulbrook, 252 F.3d at 703 (quoting Kelly v. Drexel Univ., 94

F.3d 102, 109 (3d Cir. 1996)).

For much the same reasons that plaintiff has failed to allege a sufficient factual basis for

actual disability or record of disability, he has failed to properly allege that he was perceived as

disabled within the meaning of the ADA.

Plaintiff claims that defendant was “placed on notice of [p]laintiff’s disability . . . when

[p]laintiff called” his manager, an alleged employee of defendant, and “inquired about FMLA

leave.” (Resp. Opp. Mot. Dismiss (DE 12) 7-8). As discussed previously, the request for FMLA

leave, without more, does not per se result in a determination that a plaintiff is actually disabled,

that the employer has a record that a plaintiff is disabled, or that the employer perceives the plaintiff

as disabled, due to the distinct definitions used by each statutory scheme. Further details of

plaintiff’s conversation with his manager could reasonably give rise to an inference that defendant

perceived, mistaken or otherwise, that plaintiff had an impairment that substantially limits a major

life activity; however, no such details are given in the complaint.

Plaintiff’s allegations that he notified human resources department employees that he had

been released to work with light duty restrictions and that he inquired about disability benefits both

fail to sufficiently state a claim that he was perceived as having a physical or mental impairment

that limits a major life activity. Plaintiff has not alleged anything regarding defendant’s perception

of his ability to engage in major life activities, like work, or facts that lead to reasonable inferences

that defendant perceived him to be substantially limited in any major life activities. The court

cannot allow plaintiff’s claim to proceed upon the mere speculation that plaintiff’s interactions led

defendant to perceive him as disabled; plaintiff is required to “allege facts sufficient to state all the

elements of [his] claim.” Wicomico Nursing Home, 910 F.3d at 751.

In summary, plaintiff has failed to adequately allege that he was disabled within the

meaning of the ADA under all three prongs of the ADA’s definition of such. Accordingly, he has

failed to state a claim of ADA discrimination, and the court must grant defendant’s motion to

dismiss Count III. The court dismisses plaintiff’s claim of ADA discrimination without prejudice.

3. Count IV: ADA Retaliation

In addition to prohibiting discrimination against qualified individuals on the basis of

disability, “[t]he ADA also prohibits retaliation against employees who seek the Act’s statutory

protections.” Laird v. Fairfax County, __ F.3d __, 2020 WL 6228005, at *3 (4th Cir. Oct. 23, 2020)

(citing 42 U.S.C. § 12203(a)-(b)). To prove a claim of retaliation under the ADA, a plaintiff must

show that “(1) she has engaged in protected conduct; (2) she suffered an adverse action after

engaging in the protected conduct; and (3) there was a causal link between the protected conduct

and the adverse action.” Id. at *3 n.4.

a. Protected Conduct

The enumerated examples of protected conduct under the ADA include opposing an act or

practice made unlawful by the ADA and making a charge, testifying, assisting, or participating in

any manner in an investigation, proceeding or hearing under the ADA. 42 U.S.C. § 12203(a). A

plaintiff “clearly engage[s] in protected activity by submitting a request for accommodation” when

he or she is “disabled within the meaning of the ADA.” See Jacobs, 780 F.3d at 577. Reasonable

accommodation means “[m]odifications or adjustments to the work environment, or to the manner

or circumstances under which the position held or desired is customarily performed, that enable

an individual with a disability . . . to perform the essential functions of that position.” 29 C.F.R. §

1630.2(o)(1)(ii), and may include “job restructuring” and “reassignment to a vacant position,” 42

U.S.C. § 12111(9)(B).

However, the Fourth Circuit has not squarely decided whether a plaintiff’s failure to show

he or she is disabled within the meaning of the ADA causes requesting an accommodation to

become an unprotected activity. See Haulbrook, 252 F.3d at 706 (assuming without further

discussion that plaintiff’s “request for accommodation” was a protected activity even though the

court found that his employer did not regard him as disabled, which was his sole theory of

disability); but see also 29 C.F.R. 1630.2(o)(4) (“A covered entity . . . is not required to provide a

reasonable accommodation to an individual who meets the definition of disability solely under the

‘regard as’ prong.”). Other circuits have found that such a request is still protected even if the

plaintiff is not disabled, see, e.g., Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 759

n.2 (3d Cir. 2004) (“[A]n ADA retaliation claim based upon an employee having requested an

accommodation does not require that a plaintiff show that he or she is ‘disabled’ within the

meaning of the ADA . . . .”), superseded by statute on other grounds, ADA Amendments Act of

2008, Pub. L. No. 110-325, § 6, 122 Stat. 3553, 3558 (2008), as recognized in Robinson v. First

State Cmty. Action Agency, 920 F.3d 182, 188 n.30 (3d Cir. 2019); Selenke v. Med. Imaging of

Colo., 248 F.3d 1249, 1264 (10th Cir. 2001); Standard v. A.B.E.L Servs., Inc., 161 F.3d 1318,

1328 (11th Cir. 1998). And they have done so relying on a “good faith belief” rationale, similar

to the Fourth Circuit’s analysis of oppositional retaliation where the opposed employer conduct

did not actually violate the ADA. Compare, e.g., Reynolds, 701 F.3d at 154 (“[A] plaintiff is not

required to prove the conduct he opposed was actually an ADA violation. Rather, he must show

he had a ‘good faith belief’ the conduct violated the ADA.” (quoting Freilich v. Upper Chesapeake

Health, Inc., 313 F.3d 205, 216 (4th Cir. 2002))), with Williams, 380 F.3d at 759 n.2 ([A] plaintiff

need only show that she had a reasonable, good faith belief that she was entitled to request the

reasonable accommodation . . . .”).

In sum, assuming, without deciding, that plaintiff’s request to return to work with light

duty restrictions was a request for a reasonable accommodation that would allow him to perform

the essential functions of that position, such a request may be considered protected activity even

though plaintiff has failed to adequately allege that he was disabled under the ADA.

b. Causal Link

Section 12203(a) contains a causal requirement in its text, prohibiting “discriminat[ion]

against any individual because such individual” has engaged in protected activity. 42 U.S.C.

§ 12203(a) (emphasis added). Accordingly, courts have required “a causal link between the

protected conduct and the adverse action,” as the third element of an ADA retaliation claim. See,

e.g., Laird at *3 n.4. In the absence of direct evidence of causation, “the employer’s knowledge

that the plaintiff engaged in a protected activity is absolutely necessary to establish the third

element of the prima facie case.” Dowe v. Total Action Against Poverty in Roanoke Valley, 145

F.3d 653, 657 (4th Cir. 1998).

In addition, “[a] lengthy time lapse between the employer becoming aware of the protected

activity and the alleged adverse employment action . . . negates any inference that a causal

connection exists between the two.” Id. By contrast, in some cases, “that [a] termination came so

close upon [a] filing of [a] complaint gives rise to a sufficient inference of causation to satisfy the

prima facie requirement.” King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003); see also Carter

v. Ball, 33 F.3d 450, 460 (4th Cir. 1994) (explaining that a court may find “a causal connection

between a plaintiff’s protected activity and her discharge where the employer, with knowledge of

a pending discrimination complaint, fired plaintiff approximately four months after the complaint

was filed” (emphasis added)).

“[W]hile a plaintiff is not required to plead facts that constitute a prima facie case in order

to survive a motion to dismiss, factual allegations must be enough to raise a right to relief above

the speculative level.” McCleary-Evans, 780 F.3d at 585 (quotations omitted). “For instance, if a

plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all

the elements of a prima facie case.” Id. at 584-585 (quotations omitted).

For example, in Miller v. Maryland Department of Natural Resources, 813 F. App’x 869

(4th Cir. 2020) (per curiam), the Fourth Circuit explained that although plaintiff “failed to allege

knowledge on the part of a decision maker,” plaintiff sufficiently alleged causation through

allegations of termination “one day short of four weeks after his last accommodation request,”

where “supervisors were aware of his need for accommodations but denied them,” and where

“[a]fter they became aware of [a]ppellant’s injury, his supervisors began falsely accusing him of

drug use and cheating after he expressed a need for accommodations.” Id. at 878-79.

Here, plaintiff alleges that “soon after he was cleared to return to work,” which appears to

be September 2019 based on other portions of his complaint, “[d]efendant terminated him effective

October 1, 2019.” (Compl. ¶¶ 22, 28). Reading this allegation in conjunction with plaintiff’s

allegation that around the time he was cleared by his doctor to return to work, September 2019, he

notified the human resources department that he had been “released to with work with light duty

restrictions,” supported by an accompanying “doctor’s note listing his restrictions,” (Compl. ¶ 23),

the court can reasonably infer that within a month of allegedly receiving plaintiff’s request for

accommodation, defendant terminated him. However, this is the extent of plaintiff’s factual

allegations regarding causation. He does not provide additional facts, in contrast to the complaint

in Miller, to raise the reasonable inference that, not only was his termination close in time to his

email to the human resources department notifying them of his light duty restrictions, it was

motivated by such. Per Miller’s example, although plaintiff is not required specifically to allege

knowledge on the part of a decisionmaker, he is still required to allege facts that raise his right to

relief above a speculative level, and such bare allegations, on their own, fail to raise an inference

of causation.

In sum, plaintiff has failed to adequately state a claim for ADA retaliation based on the

facts in his complaint. Accordingly, the court grants defendant’s motion to dismiss Count IV of

the complaint and dismisses plaintiff's ADA retaliation claim without prejudice.

CONCLUSION

Based on the foregoing, the defendant’s partial motion to dismiss (DE 7) is GRANTED IN

PART and DENIED IN PART. Plaintiff's ADA discrimination and retaliation claims are

DISMISSED WITHOUT PREJUDICE. Plaintiffs remaining claims are ALLOWED TO

PROCEED. The court LIFTS the stay imposed in the court’s August 3, 2020, order, and the parties

shall, within 14 days of this order, confer regarding a discovery plan, and then file a proposed

discovery plan and exchange mandatory initial disclosures both within 14 days after the 26(f)

conference.

SO ORDERED, this the 22nd day of December, 2020.

United States District Judge

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