RICONDA v. US FOODS, INC.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JAMES RICONDA,

Plaintiff, Civ. No. 19-1111 (KM)

v. OPINION

US FOODS, INC., and JOHN DOES

1-5 and 6-10,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

This matter comes before the court on the motion of the defendant, US

Foods, Inc., to dismiss Counts 1, 2, and 3 of the complaint for failure to state a

claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6).!

Because the Complaint fails to allege that the plaintiff, Mr. Riconda, had a

condition that was or was perceived as a disability, the motion to dismiss is

granted.

I. STANDARD

Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a

claim upon which relief can be granted. The defendant, as the moving party,

bears the burden of showing that no claim has been stated. Animal Science

Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011).

1 The complaint contains five counts. Count 4, a claim under the federal Family

& Medical Leave Act, has already been dismissed. Riconda v. U.S. Foods, Civ. No. 18-

12238, 2018 U.S. Dist. LEXIS 216231 (D.N.J. Dec. 20, 2018}. Count 5 is not an

independent claim, but a prayer for equitable relief based on “New Jersey law,”

presumably referring to Counts 1, 2, and 3, so it stands or falls with them. For present

purposes, then, the motion to dismiss Counts 1, 2, and 3 is directed to the only

remaining substantive counts in the complaint.

]

For the purposes of a motion to dismiss, the facts alleged in the complaint are

accepted as true and all reasonable inferences are drawn in favor of the

plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp.

of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

Federal Rule of Civil Procedure 8{a) does not require that a complaint

contain detailed factual allegations. Nevertheless, “a plaintiff's obligation to

provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a

‘showing’ rather than a blanket assertion of an entitlement to relief.” (citation

omitted)). Thus, the complaint’s factual allegations must be sufficient to raise a

plaintiff's right to relief above a speculative level, so that a claim is “plausible

on its face.” Twombly, 550 U.S. at 570; see also West Run Student Hous.

Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013).

That facial-plausibility standard is met “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard

is not akin to a ‘probability requirement’. . . it asks for more than a sheer

possibility.” Id.

Ii. ALLEGATIONS OF THE COMPLAINT

The plaintiff, James Riconda, was formerly employed by the defendant,

US Foods, Inc. (Cplt. 7 1-2). He worked as a selector from June 15, 2015,

until US Foods terminated his employment on July 9, 2017. (Cplt. 4 4).

The initial events occurred during a work shift running from the night of

July 5 into the morning of July 6, 2017. On July 5, 2017, plaintiff became sick

at work and vomited in the bathroom. (Cplt. 7 6). At around 12 midnight, he

advised his supervisor, Estino, that he had become sick, and Estino told him to

take a break. (Cplt. 44 7-8). After the break, Mr. Riconda’s condition worsened;

he vomited and had diarrhea. (Cplt. J 9). At around 1:30 a.m. (it was now the

morning of July 6), he told the night manager, Frank Conrad, that he was

going to the emergency room, despite having no sick days left to use. Conrad

said it was okay to leave. (Cplt. $4 10-12).

At the hospital, Mr. Riconda was diagnosed with “a virus” and was told

not to return to work until July 9, 2017. Therefore, on July 6, 2017, Mr.

Riconda called in sick and said he would return with a doctor’s note on July 9,

2017. (Cplt. | 14). On July 9, 2017, he returned to work and gave the doctor’s

note to Mr. Conrad, who stated “okay.” (Cplt. 7 15).

The next day, July 10, 2017, Conrad called Riconda into his office and

terminated his employment based on his absence from July 7-9, 2017. The

termination became official on July 11, 2017.

The complaint alleges that, because of catching this virus, Mr. Riconda

was disabled and perceived as disabled within the meaning of the New Jersey

Law Against Discrimination (NJLAD). (Cplt. qq 19-20).

The counts of the complaint relevant to this motion are as follows:

Count 1 Disability discrimination (New Jersey Law Against

Discrimination (“NJLAD”))

Count 2 Perception-of-disability discrimination (NJLAD)

Count 3 Failure to accommodate (unspecified, but presumably including

NJLAD)

This state-law case was removed to federal court based on the parties’

diverse citizenship and an amount in controversy exceeding $75,000. 28 U.S.C.

§ 1332(a).

III. DISCUSSION

Commonly, a discriminatory-discharge case may require a full factual

record in which the employer’s motivations, the actual basis for the discharge,

the practicability of an accommodation, and so on may be explored. This is the

comparatively uncommon case that may be disposed of on threshold grounds.

The plaintiff alleges disability-based discrimination. His claim fails for lack of

an allegation of a disability.

The elements of a claim of discriminatory discharge under the NJLAD are

as follows:

[P}laintiff must demonstrate: (1) that plaintiff is in a protected

class; (2) that plaintiff was otherwise qualified and performing the

essential functions of the job; (3) that plaintiff was terminated; and

(4) that the employer thereafter sought similarly qualified

individuals for that job. Clowes v. Terminix Int'l, Inc., 109 N.J. 575,

596-97, 538 A.2d 794 (1988).

Victor v. State, 203 N.J. 383, 409, 4 A.3d 126, 141 (2010). “[Fjor claims of

disability discrimination, the first element of the prima facie case, that plaintiff

is in a protected class, requires plaintiff to demonstrate that he or she qualifies

as an individual with a disability, or who is perceived as having a disability, as

that has been defined by statute.” 203 N.J. at 410, 4 A.3d at 142.

To set forth a claim under NJLAD, then, a complaint must allege the

reality or perception of a “disability” within the meaning of the statute.?

The statute defines a disability as follows:

q."Disability” means physical disability, infirmity, malformation or

disfigurement which is caused by bodily injury, birth defect or

illness including epilepsy and other seizure disorders, and which

shall include, but not be limited to, any degree of paralysis,

amputation, lack of physical coordination, blindness or visual

impediment, deafness or hearing impediment, muteness or speech

impediment or physical reliance on a service or guide dog,

2 A reasonable accommodation /retaliation claim, too, depends on a threshold

allegation of a disability:

To state a claim for retaliation under the ADA or NJULAD, Plaintiff must

first show 1) that she requested a reasonable accommodation, 2) that she

suffered an adverse employment action, and 3) a causal connection

between the two events. See, e.g., Williams v. Phila. Hous. Auth. Police

Dep't, 380 F.3d 751, 759 (3d Cir. 2004). As Plaintiff cannot show she is

disabled, her request for accommodation is unreasonable and her

retaliation claims fail.

Adesanya v. Novartis Pharm. Corp., No. 213CV05564SDWSCM, 2016 WL 4401522, at

*7 (D.N.J. Aug. 15, 2016) (emphasis added), affd, 755 F. App'x 154 (3d Cir. 2018).

wheelchair, or other remedial appliance or device, or any mental,

psychological or developmental disability, including autism

spectrum disorders, resulting from anatomical, psychological,

physiological or neurological conditions which prevents the normal

exercise of any bodily or mental functions or is demonstrable,

medically or psychologically, by accepted clinical or laboratory

diagnostic techniques. Disability shall also mean AIDS or HIV

infection.

N.J. Stat, Ann. § 10:5-5(q).

Thus, the term “disability” includes “two specific categories’:

physical and non-physical. Nguyen v. Wal-Mart, 2013 WL

3222498, *6 (D.N.J. Jun.25, 2013). “To meet the physical

standard, a plaintiff must prove that he ... is (1) suffering from

physical disability, infirmity, malformation or disfigurement; (2)

which is caused by bodily injury, birth defect or illness ....” Id.

Expert medical evidence is required if “the existence of a handicap

is not readily apparent ....” Id.

Photis v. Sears Holding Corp., No. 11-CV-6799 JAP, 2013 WL 3872519, at *6

(D.N.J. July 25, 2013).

The definition of a disability is concededly broad. But a stomach virus,

resulting in a work absence of 24% to 3 days—a very common human

experience—is simply not in the same league as the conditions listed in the

statute. As alleged, it appears to have been nothing more than a transient bout

of flu, not meaningfully related to any “physical disability, infirmity,

malformation or disfigurement... which is caused by bodily injury, birth

defect or illness.” The case law is in accord with that commonsense

conclusion.3

Thus, in McCoy v. Port Liberte Condo Ass’n #1, Inc, Civ. No. 02-1313,

2003 WL 23330682 (D.N.J. Sept. 12, 2003) (Debevoise, J.), the plaintiff

I do not suggest, by the way, that a disability need be immutable or severe. See

Conoshenti v. Pub, Serv, Elec. & Gas Co., 364 F.3d 135, 150 (3d Cir. 2004) (citing case

law examples of disability during period of recovery from surgery or injury). The illness

here, however, is a garden-variety ailment that was not merely temporary but truly

transient.

experienced abdominal! pain, called in sick and went to the emergency room,

where she was diagnosed with “possible cystitis” and allegedly advised to stay

in bed for a few days. Under the then-current definition of “handicapped”

under the NJLAD, Judge Debevoise found, a bladder infection would be

unlikely to qualify.

In Photis, supra, the plaintiff suffered from a seizure and was admitted to

the hospital overnight on February 7, 2011. The diagnosis was equivocal. On

February 9 he returned to work, presenting a copy of his hospital release form.

This, wrote Judge Pisano, did not amount to a prima facie case of a “disability”

within the meaning of NJLAD; there were no indications that it was “anything

more than ‘a condition of limited duration’ or a ‘temporary emergency

situation.’ Spagnoli v. Brown & Brown Metro, Inc., 2007 WL 2362602, *9 (D.N.J.

Aug. 15, 2007).” Photis, 2013 WL 3872519, at *6.

I turn to the “perceived disability” prong of Mr. Riconda’s claim.

“NJLAD protects employees who are ... perceived to be disabled

from adverse employment action ....” Glenn v. Lawrence Twp. Police

Dep't, 2012 WL 933335, *7 (D.N.J. Mar.20, 2012). “In order to

demonstrate that a plaintiff is ‘perceived to have’ a disability, the

plaintiff must show that the employer ‘entertainjed] misperceptions

about the [plaintiff], either believing that the individual has a

substantially limiting impairment that he or she does not have or

that the individual has a substantially limiting impairment when,

in fact, the impairment is not as limiting as the employer believes.”

Id.

Photis, 2013 WL 3872519, at *7.

The “perceived” disability is alleged here as a legal conclusion, without

supporting facts. The Complaint does not state that the employer mistakenly

believed that this stomach bug was indicative of a more serious condition. It

does not allege that the employer jumped to the conclusion, for example, that

the plaintiff would be out of work for an extended period of time. Mr. Riconda

did return to work after 2'2 to 3 days, as the employer well knew. Stomach flu

is not a condition, such as epilepsy, that trails behind it a history of myths,

misconceptions, or prejudices. Indeed, virtually everyone has suffered from

something similar at one time or another.

This complaint, as pled, does not contain enough factual material to

establish that this ordinary ailment was, or was perceived as, a disability

within the meaning of NJLAD. The plaintiff may perceive his dismissal as

unfair or arbitrary, but I cannot find that he has successfully alleged that it

resulted from disability discrimination.

CONCLUSION

For the reasons stated above, the defendant’s motion to dismiss Counts

1, 2, and 3 of the Complaint is granted. Despite prior opinions having been

filed in this case, this is the first time that the sufficiency of the NJLAD

allegations has been tested. The dismissal is therefore without prejudice to the

filing, within 30 days, of a properly supported motion to amend the Complaint.

Dated: September 6, 2019

Hon, Kevin McNulty □

United States District Judge