Wallenstein v. Stopwatch Urgent Care Centers Inc

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

JENNIFER WALLENSTEIN,

Plaintiff,

v. Case No. 4:23-cv-300-CLM

STOPWATCH URGENT CARE

CENTERS, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

Jennifer Wallenstein sues her former employer, Rock Oak Group

Services, Inc.1, for age discrimination in violation of the Age Discrimination

in Employment Act (“ADEA”), violations of the Fair Labor Standards Act

(“FLSA”), and disability discrimination and retaliation in violation of the

Rehabilitation Act. (Doc. 1). Rock Oak seeks dismissal of Wallenstein’s age

and disability discrimination claims. (Doc. 9). For the reasons stated within,

the court GRANTS IN PART and DENIES IN PART Rock Oak’s motion to

dismiss (doc. 9).

STATEMENT OF THE ALLEGED FACTS

Wallenstein, who is over the age of 40, began working for Rock Oak in

January 2021 as a medical assistant. (Doc. 1 ¶¶ 14–15). Wallenstein suffers

from several disabilities, including a neurological disorder, ADHD, and

diabetes that limit her ability to think, move, lift, bend, twist, push, pull,

work, and stand. (Id. ¶¶ 16, 56). Rock Oak knew of Wallenstein’s disabling

conditions because she didn’t conceal them and discussed them with Rock

Oak many times. (Id. ¶ 18).

1 Rock Oak is a management company that employs all staff at Stopwatch Urgent Care

Clinics. According to Rock Oak, Stopwatch Urgent Care Centers is a brand name and has

no employees, so Wallenstein incorrectly identified Stopwatch as the Defendant in her

complaint. Wallenstein “has no reason to dispute this assertion.” (Doc. 15 at 1 n.1). For ease

of reference, the court will refer to the Defendant as Rock Oak throughout this

memorandum opinion and order.

Office protocol was for two medical assistants to work each 12-hour

shift. (Id. ¶ 20). But the second medical assistant on Wallenstein’s shift quit

about a month after Wallenstein started working for Rock Oak. (Id.). As a

result, Wallenstein was forced to work by herself for months, while the two

other medical assistants, who were both under 40 and not disabled, continued

to work the other 12-hour shift together. (Id. ¶ 21).

Wallenstein complained to clinal manager Olivia Brown about her

overwhelming workflow as the only medical assistant on her shift and that

she was being treated differently than the other younger and non-disabled

assistants. (Id. ¶ 23). Brown, who would make condescending or sarcastic

comments to Wallenstein, commented on how the other medical assistants

could work their shifts solo. (Id. ¶ 24). Brown also questioned if Wallenstein

was a good fit for the job and asked if Wallenstein had considered quitting.

(Id. ¶ 25).

Wallenstein asked Brown and the human resources managers about

whether they could hire another medical assistant to assist Wallenstein on

her shift. (Id. ¶ 26). Brown responded by commenting “all the others could do

it, maybe the job isn’t for you.” (Id. ¶ 27). Wallenstein asked to speak to the

COO, Mark Morgan, and though assistant manager, Bridget Byers emailed

Morgan, Wallenstein received no response. (Id. ¶ 28).

Provider Tracy Hackett emailed Morgan to report how Wallenstein

allegedly often forgot to write her triage notes. (Id. ¶ 29). Hackett knew about

Wallenstein’s ADHD and diabetes and would often comment in a

condescending manner about how Wallenstein “deserved a gold star” if she

did not make any mistakes at work for the day. (Id. ¶ 30).

In May 2021, Brown called Wallenstein to berate her and terminate her

employment by telling her “it was no longer working out, and you are not cut

out for [this work].” (Id. ¶ 31). Rock Oak then hired Youn Fong, a young

woman in her twenties with no experience and who did not have any

disabilities, to replace Wallenstein. (Id. ¶ 34). So after Wallenstein’s

termination, all three medical assistants were in their early twenties and did

not have disabilities. (Id. ¶ 35).

STANDARD OF REVIEW

In reviewing a Rule 12 motion, this court accepts the allegations in

Wallenstein’s complaint as true and construes them in the light most

favorable to Wallenstein. See Lanfear v. Home Depot, Inc., 679 F.3d 1267,

1275 (11th Cir. 2012). The ultimate question is whether Wallenstein’s

allegations, when accepted as true, “plausibly give rise to an entitlement of

relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). If the facts as pleaded

could entitle Wallenstein to relief, then the court must deny Rock Oak’s

motion to dismiss. If, however, the court accepts all of Wallenstein’s pleaded

facts as true, and Wallenstein still would not be entitled to relief, then the

court must grant the motion.

DISCUSSION

Rock Oak moves to dismiss Wallenstein’s age discrimination claim

(Count One) and disability discrimination claim (Count Three). A complaint

alleging employment discrimination needn’t include facts that establish a

prima facie case of discrimination under the McDonnell Douglas framework

to state a claim for relief. See Surtain v. Hamlin Terrace Found., 789 F.3d

1239, 1246 (11th Cir. 2015). Instead, the “complaint need only provide

enough factual matter (taken as true) to suggest intentional . . .

discrimination.” Id. (quotations omitted). So “when the well-pleaded factual

allegations of a complaint plausibly suggest that the plaintiff suffered an

adverse employment action due to intentional . . . discrimination,” the

complaint will survive a Rule 12 motion. See id.

A. Age Discrimination (Count One)

The ADEA prohibits employers from discriminating against employees

who are at least 40 because of their age. See 29 U.S.C. §§ 623(a)(1), 631(a). To

succeed at trial on her age discrimination claim, Wallenstein will need to

prove that age was the “but-for” cause of an adverse employment decision.

See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).

Rock Oak says that the court should dismiss Wallenstein’s age

discrimination claim for two reasons. First, Wallenstein being required to

work a shift alone, receiving criticism, and having a provider email Morgan

that she often forgot to write triage notes aren’t adverse employment actions.

Second, Wallenstein hasn’t plausibly alleged that Rock Oak terminated her

because of her age.

Wallenstein concedes that the only adverse employment action that she

has alleged is her termination. The court agrees that none of the other

actions that Wallenstein describes amount to an adverse employment action.

See Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (2001) (To establish an

adverse employment action in the discrimination context, a plaintiff “must

show a serious and material change in the terms, conditions, or privileges of

employment.” (emphasis in original)), overruled on other grounds by

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). So to the

extent that Wallenstein’s complaint could be construed as bringing an age

discrimination claim based on any act other than the termination of

Wallenstein’s employment, the court will dismiss those claims.

As for Rock Oak’s argument that Wallenstein hasn’t plausibly alleged

that her firing was because of her age, Wallenstein has alleged that she was

over 40 and replaced by someone in her early 20s. In fact, once Wallenstein

was fired, all the medical assistants were in their 20s. Plus, during

Wallenstein’s employment, Rock Oak treated the younger medical assistants

better than Wallenstein by not requiring them to work shifts alone. Despite

requiring Wallenstein to shoulder this heavier workload, the reason Rock

Oak gave for firing Wallenstein was that she was “not cut out for [this work].”

(Doc. 1 ¶ 31). Accepting these allegations as true and viewing the facts in a

light most favorable to Wallenstein, the court finds that Wallenstein has

plausibly alleged that Rock Oak preferred younger medical assistants and

that the rationale for her firing was pretext for age discrimination. So the

court will deny Rock Oak’s motion to dismiss Wallenstein’s age

discrimination claim based on her firing.

B. Disability Discrimination (Count Three)

To state a disability discrimination claim, a plaintiff must allege that

she was a “qualified individual” who suffered an adverse employment action

because of her disability. See Equal Emp. Opportunity Commission v. STME,

LLC, 938 F.3d 1305, 1314 (11th Cir. 2019); see also Ellis v. England, 432 F.3d

1321, 1326 (11th Cir. 2005) (“[U]nder the Rehabilitation Act, a plaintiff must

prove that he suffered an adverse employment action ‘solely by reason of’ his

handicap.”).2

Rock Oak once again asserts that the only adverse employment action

described in Wallenstein’s complaint is the termination of her employment

and that Wallenstein hasn’t plausibly alleged that her disability was the

“but-for” reason for her firing. As explained, the court agrees with Rock Oak

that the only adverse employment action that Wallenstein has alleged is the

termination of her employment. So to the extent that Wallenstein’s complaint

could be read as bringing a disability discrimination claim based on any act

other than Wallenstein’s firing, the court will dismiss those claims.

As for Wallenstein’s claim that Rock Oak fired her because of her

disability, Rock Oak doesn’t dispute that Wallenstein has adequately alleged

that she is disabled and qualified for her position as a medical assistant. And

though Rock Oak asserts that Wallenstein failed to plausibly allege that her

disability (rather than dissatisfaction with her job performance) is what led

to Wallenstein’s firing, the court disagrees. Wallenstein asserts that Rock

Oak replaced her with a non-disabled medical assistant. And throughout

Wallenstein’s employment with Rock Oak, the other, non-disabled medical

assistants were treated more favorably than Wallenstein because they

weren’t required to work shifts alone. Despite not requiring the non-disabled

medical assistants to work solo shifts, Brown repeatedly asked Wallenstein

why she couldn’t work solo shifts like her non-disabled colleagues. Finally,

though requiring Wallenstein to shoulder a heavier workload than her non-

disabled colleagues, the reason Brown gave for Wallenstein’s firing was that

she was “not cut out for [this work].” (Doc. 1 ¶ 31).

2 The disability discrimination claim in STME was brought under the Americans with

Disabilities Act (“ADA”), which has the same standard for liability as the Rehabilitation

Act. See Sutton v. Lader, 185 F.3d 1203, 1207 n.5 (11th Cir. 1999).

A reasonable person could infer from these allegations that

Wallenstein’s disability was the real reason for her firing.* So the court will

deny Rock Oak’s motion to dismiss Wallenstein’s disability discrimination

claim based on the termination of her employment.

CONCLUSION

For these reasons, the court GRANTS IN PART and DENIES IN

PART Rock Oak’s partial motion to dismiss (doc. 9). Wallenstein’s age

discrimination and disability discrimination claims are limited to her claims

that Rock Oak fired her because of her age or disability. The court GRANTS

Rock Oak’s motion for extension of time to answer the complaint. Rock Oak

has until on or before January 31, 2024, to answer Wallenstein’s complaint.

DONE and ORDERED on January 17, 2024

COREY Z MAZE 7

UNITED STATES DISTRICT JUDGE

3 “Rule 8(d) of the Federal Rules of Civil Procedure expressly permits the pleading of

alternative and inconsistent claims.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1273

(11th Cir. 2009). So Wallenstein’s allegations in Count One that Rock Oak fired her because

of her age don’t preclude her allegations in Count Three that Rock Oak fired her because of

her disability.