Equal Employment Opportunity Commission v. Stme, Llc

MOTION to dismiss for failure to state a claim and failure to exhaust administrative remedies

M.D. Fla.July 7, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) Plaintiff, ) ) v. ) Case No.: 8:17-cv-00977-MSS-TBM ) STME, LLC d/b/a MASSAGE ENVY- ) SOUTH TAMPA, ) ) Defendant. ) ) DEFENDANT STME, LLC’s d/b/a MASSAGE ENVY - SOUTH TAMPA MOTION TO DISMISS PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S AMENDED COMPLAINT PURSUANT TO FEDERAL RULE 12(b)(6) AND MEMORANDUM IN SUPPORT Defendant, STME, LLC d/b/a MASSAGE ENVY - SOUTH TAMPA (“Defendant” or “Massage Envy”), by and through its undersigned counsel, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, respectfully moves the Court to enter an order dismissing the Amended Complaint and Demand for Jury Trial filed by Plaintiff Equal Employment Opportunity Commission (“Plaintiff” or “EEOC”) and as grounds therefore, states as follows: MOTION TO DISMISS 1. Plaintiff’s Amended Complaint raises a disturbing red flag in this litigation. Recognizing that its initial attempt to state a “regarded as” claim under the Americans With Disabilities Act, as amended (“ADA”) was doomed to failure (as detailed in Defendant’s prior Motion to Dismiss (Doc. 8)), Plaintiff’s Amended Complaint reflects a material shift in Plaintiff’s position based on allegations that are indisputably beyond the scope of Charging Party Kimberly Lowe’s Charge of Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 1 of 21 PageID 66 2 Discrimination (“Charge”), inconsistent with Lowe’s Charge and the EEOC’s investigation of Lowe’s Charge, and fail to state a claim upon which relief may be granted under the ADA. 2. As Lowe makes clear in her Charge, Defendant terminated her employment on October 22, 2014 before her planned trip to Ghana on October 25, 2014, because Owner, Ron Wuchko, allegedly believed that she could come into contact with a person having EBOLA and bring the disease home and to work after her trip. (EEOC Charge, Ex. A). Lowe further alleged that she was discriminated against because Defendant “perceived [her] as disabled or perceived [her] as having potential to become disabled” [emphasis added] in violation of the ADA. (Ex. A). In the portion of the Charge captioned “Date(s) Discrimination Took Place,” Lowe identified the beginning and ending date of discrimination as October 22, 2014 - the date of her termination. (Ex. A). Lowe NEVER made any allegation or claim that Defendant subjected her to any discriminatory act following her termination of October 22, 2014, including but not limited to, any claim that Defendant failed to reinstate or rehire her, or otherwise not permit her to return to work following her return from Ghana. 3. The EEOC undertook an investigation of Lowe’s Charge and issued a Letter of Determination (“LOD”) on September 6, 2016 summarizing its findings. (EEOC Letter of Determination, Ex. B). Not surprisingly, the EEOC made NO finding as to any claim by Lowe that Defendant did not permit her to return to work upon her return from Ghana (i.e., following her termination) because this allegation was never raised by Lowe in her Charge. 4. Consistent with Lowe’s allegations in the Charge, Plaintiff’s initial Complaint alleged that Defendant violated the ADA “by terminating Lowe because it regarded her as disabled because of it believed [sic] that she could contract Ebola.” (Doc. 1, ¶26). In other words, Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 2 of 21 PageID 67 3 Defendant allegedly violated the ADA because it perceived Lowe as having the potential to become disabled (just as Lowe had alleged in her Charge). 5. Defendant subsequently moved the Court to dismiss Plaintiff’s Complaint because Plaintiff failed to allege that Lowe had an existing impairment, or that Defendant held any belief that Lowe had an existing impairment - EBOLA or otherwise - when Defendant terminated Lowe’s employment on October 22, 2014. (Doc. 8). Defendant further argued that Plaintiff’s attempt to extend the ADA’s coverage to Lowe’s claim of being perceived or “regarded as” having the potential to become disabled (or to develop an impairment) in the future, was frivolous, unreasonable and without legal foundation. (Doc. 8). 6. Thereafter, in an apparent admission that its initial pleading was doomed to fail, Plaintiff materially changed its position to assert two new claims against Defendant, i.e., that Defendant violated the ADA (1) “by terminating and not permitting Lowe to return to work upon her return from Ghana because it regarded her as disabled;” and (2) “by terminating and not permitting Lowe to return to work upon her return from Ghana based upon Massage Envy’s fears and beliefs about Ebola and based upon her association with people in Ghana whom Massage Envy believed to be disabled by Ebola.” (Doc. 14, ¶¶28-29). Because Lowe never alleged in her Charge, and the EEOC never made any finding that Defendant failed to reinstate or rehire Lowe, or otherwise not permit Lowe to return to work upon her return from Ghana either because it regarded Lowe as disabled or because of Lowe’s actual association with “people in Ghana,” Plaintiff failed to exhaust administrative remedies as to these claims, which accordingly, should be dismissed with prejudice. 7. Plaintiff also fails to state an “association discrimination” claim. The ADA prohibits employers from engaging in “association discrimination” by “… excluding or otherwise denying Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 3 of 21 PageID 68 4 equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association” [emphasis added]. 42 U.S.C. §12112(b)(4). Here Plaintiff fails to allege any specific association with any person in Ghana known to be disabled by EBOLA. Instead, Plaintiff loosely contends that Defendant terminated Lowe and did not permit her to return to work upon her return from Ghana because of Defendant’s alleged fears and beliefs about EBOLA and Lowe’s association with unidentified “people in Ghana” who were “believed” - not “known” (as required to state an “association discrimination” claim) - to be disabled by EBOLA. (Doc. 14, ¶29). In addition to failing to exhaust administrative remedies as to this claim, Plaintiff’s attempt to state an “association discrimination” claim fails on its face in the absence of any allegation of Lowe’s specific association with a person known to be disabled by EBOLA. Of course, Plaintiff cannot legitimately make any such allegation because as Lowe acknowledged in her Charge, her employment was terminated before she traveled to Ghana. This fact is fatal to Plaintiff’s purported “association discrimination” claim. 8. In addition to the assertion of new allegations and claims that were never raised by Lowe during the EEOC administrative process, Plaintiff has dug an even deeper hole by deliberately wordsmithing to create ambiguity regarding Lowe’s termination date to have the Court believe, or at least to leave the door open to an interpretation that Lowe was terminated following her return from Ghana (and thus, following her association with “people in Ghana” who Defendant allegedly “believed” to be disabled by EBOLA). This attempt by Plaintiff to distance itself from the fact that Lowe’s employment was terminated on October 22, 2014, prior to her trip to Ghana, is inconsistent with Lowe’s Charge, the EEOC’s LOD, and Plaintiff’s initial pleading, and cannot support a claim for relief. Smedley v. Fulton County School District, 1:09-CV-1715- Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 4 of 21 PageID 69 5 HTW, *3 (N.D.Ga. June 6, 2011), 2011 WL 13175900 (“[c]ontradictory or inconsistent factual allegations in a complaint cannot support a claim for relief”). 9. To the extent Plaintiff’s Amended Complaint may somehow be interpreted to state a “regarded as” claim under the ADA based on Lowe’s termination of October 22, 2014, prior to her trip to Ghana, and as addressed in Defendant’s initial Motion to Dismiss (Doc. 8), Plaintiff fails to allege that Lowe had EBOLA or that Defendant regarded Lowe as having EBOLA at the time of her termination, and there is no cause of action under the ADA for being perceived as having the potential to become disabled. Any such claim by Plaintiff to the contrary should be dismissed with prejudice. MEMORANDUM OF LAW In considering a motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., factual allegations in the complaint are taken as true and construed in the light most favorable to the plaintiff. Speaker v. U.S. Dep't of Health and Human Servs. Ctrs. for Disease Control and Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). Pursuant to Federal Rule 8, “[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he statement need only ‘give the defendant fair notice of what the ... claim is and the ground upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citation omitted). However, a plaintiff must present “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Dismissal is warranted under Fed.R.Civ.P. 12(b)(6) if … there is a dispositive legal issue which precludes relief.” Cosby v. Lee County, 55 F.Supp.3d 1393, 1398 (M.D.Fla.2014). Courts “… need not accept factual claims that are internally inconsistent, facts which run counter Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 5 of 21 PageID 70 6 to facts of which the court can take judicial notice, conclusory allegations, unwarranted deductions, or mere legal conclusions asserted by a party.” Campos v. I.N.S., 32 F.Supp.2d 1337, 1343 (S.D.Fla.1998); see also, Smedley v. Fulton County School District, 1:09-CV-1715-HTW, 2011 WL 13175900, *3 (N.D.Ga. June 6, 2011) (“[c]ontradictory or inconsistent factual allegations in a complaint cannot support a claim for relief”); and Bell v. J.B. Hunt Transp., Inc., 427 Fed.Appx. 705, 707 (11th Cir. 2011) (“conclusory allegations, unwarranted deductions of fact or legal conclusions masquerading as facts will not prevent dismissal”). The “[d]etermination of whether plaintiff exhausted her administrative remedies with the EEOC is a legal determination for the Court.” Brooks v. CSX Transportation, Inc., No. 3:09-cv- 379-J-25TEM, 2013 WL 12091685, *4 (M.D.Fla. March 29, 2013). “A motion to dismiss for failure to exhaust administrative remedies is treated as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted.” Jones v. Bank of America, 985 F.Supp.2d 1320, 1325 (M.D.Fla.2013); see also, Duble v. FedEx Ground Package System, Inc., 572 Fed.Appx. 889, 892 (11th Cir. 2004), cert denied, --- U.S. ---, 135 S.Ct. 2379, 192 L.Ed.2d 165 (2015) (“[e]xhaustion of administrative remedies is a matter in abatement that should be raised in a motion to dismiss…”). When deciding a 12(b)(6) motion to dismiss, “a court must limit its consideration to the complaint, the written instruments attached to it as exhibits, ‘documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.’” Hodge v. Orlando Utilities Comm’n, No. 6:09-cv-1059-Orl-19DAB, 2009 WL 5067758, *3 (M.D.Fla. Dec. 15, 2009) citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). “… [A] document attached to a motion to dismiss may be considered by the court without converting the motion into one for summary judgment only if the attached document is: (1) central to the plaintiff’s claim; and (2) Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 6 of 21 PageID 71 7 undisputed.” Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). “‘Undisputed’ … means that the authenticity of the document is not challenged.” Id. “No action alleging a violation of … [the ADA] may be brought unless the alleged discrimination has been made the subject of a timely-filed EEOC charge.” Alexander v. Fulton County, Ga., 207 F.3d 1303, 1332 (11th Cir. 2000), overruled on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003). Accordingly, documents relating to the EEOC administrative process are central to a plaintiff’s ADA claim and routinely considered by courts in deciding motions to dismiss for failure to exhaust administrative remedies. See, e.g., Jones v. Bank of America, 985 F.Supp.2d 1320,1326 (M.D.Fla.2013) (considering plaintiff’s FCHR “no cause” determination, charge of discrimination, Intake Questionnaire, rebuttal to defendant’s position statement to the FCHR, and FCHR investigative memorandum in dismissing plaintiff’s claims with prejudice for failure to exhaust administrative remedies); Brooks v. CSX Transp. ,Inc., 3:09-cv-379-J-32HTS, 2009 WL 3208708, at *5 n. 6 (M.D.Fla. Sept.29, 2009) (considering plaintiff’s undisputed EEOC Charge of Discrimination in dismissing plaintiff's claims); Lambert v. Ala. Dept. of Youth Servs., 150 Fed.Appx. 990, 993-94 (11th Cir. 2005) (considering an EEOC charge of discrimination attached to a motion to dismiss in affirming the dismissal of plaintiff's Title VII claims for failure to exhaust administrative remedies where plaintiff’s “claim to the EEOC, that he was suspended for being disrupted and transferred to a less desirable shift on the basis of his race and gender, would not reasonably lead the EEOC to investigate whether [plaintiff] was being forced to wax and strip floors or being denied sick leave on the basis of his race and gender” as alleged in the complaint); and Rogan v. Giant Eagle, Inc., 113 F.Supp.2d 777, 782 (W.D.Pa.2000) (“[i]t is clear to us that ... we may consider the EEOC charge and related EEOC documents, including the letter from the EEOC summarizing its Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 7 of 21 PageID 72 8 investigation, the right to sue letter, and the intake questionnaire, either as undisputed documents referenced in the complaint or central to the plaintiff's claim, or as information which is a matter of public record, without converting this motion to one for summary judgment”). The Court may also take judicial notice of relevant public records in deciding a Rule 12(b)(6) motion to dismiss. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1280 (11th Cir. 1999); see also, Hawthorne v. Baptist Hospital, Inc., No. 3:08cv154/MCR/MD, 2008 WL 5076991, *3- 5 (N.D.Fla. Nov. 24, 2008) (taking judicial notice of public records attached to defendant’s motion to dismiss relating to hearings and proceedings before the FCHR and DOAH in dismissing plaintiff’s Florida Civil Rights Act claims with prejudice); and Mann v. Green, No. CV407-140, 2008 WL 1766779, *1-2, n. 2 (S.D.Ga. April 17, 2008) (taking judicial notice of plaintiff’s EEOC actions in dismissing plaintiff’s Rehabilitation Act and Title VII claims). In deciding a Rule 12(b)(6) motion to dismiss, “it is proper for a judge to consider facts outside of the pleading and to resolve factual disputes so long as the factual disputes do not decide the merits and the parties have sufficient opportunity to develop a record.” Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008) (Prison Litigation Reform Act case) (footnotes omitted); and Tillery v. U.S. Dept. of Homeland Sec., 402 Fed.Appx. 421 (11th Cir. 2010) (district court did not err in considering evidence outside pleadings or in making findings of fact regarding exhaustion requirement in Title VII case). A. Plaintiff’s “regarded as” and “association discrimination” claims based on Defendant’s alleged refusal to reinstate, rehire or otherwise not permit Lowe to return to work following her return from Ghana should be dismissed With Prejudice for failure to exhaust administrative remedies. Before filing suit in a district court under Title I of the ADA (covering disability based employment discrimination claims), a plaintiff must first file a charge of discrimination with the EEOC. 42 U.S.C. §12117(a) (applying the procedures of 42 U.S.C. §2000e-5 (Title VII) to the Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 8 of 21 PageID 73 9 ADA); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). This includes “the EEOC itself.” EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002). “For a charge to be timely in a deferral state such as Florida, it must be filed within 300 days of the last discriminatory act.” Id. at 1271. “EEOC regulations provide that charges should contain, among other things, ‘[a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.’” Alexander, 207 F.3d at1332 (11th Cir. 2000) citing 29 C.F.R. §1601.12(a)(3). The EEOC charge and investigation is “[t]he starting point of ascertaining the permissible scope of a [subsequent] judicial compliant...” Id. at 1332. “A plaintiff’s judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Id. (quotation omitted). While judicial claims that amplify, clarify, or more clearly focus the allegations in an EEOC charge are permissible, the Eleventh Circuit has “cautioned ‘that allegations of new acts of discrimination are inappropriate for a post-charge judicial complaint.’” Duble, 572 Fed.Appx. at 892 citing Gregory v. Georgia Depart. of Human Resources, 355 F.3d 1277, 1279-80 (11th Cir. 2004). “The Supreme Court explained that each discrete discriminatory act starts a new clock for filing an EEOC charge alleging that act …” Abram v. Fulton County Government, 598 Fed.Appx. 672, 675 (11th Cir. 2015) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 2072, 153 L.Ed.2d 106 (2002)). “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify.” Morgan, 536 U.S. at 113, 122 S.Ct. at 2072. Each discrete alleged discriminatory act is a “separate actionable unlawful employment practice” and starts a new clock for filing an EEOC charge. Id. Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 9 of 21 PageID 74 10 A discrete discriminatory act occurs on the day that it happens. Id. at 2070. The time period to file an EEOC complaint starts to run upon the occurrence of the discriminatory act, “… not the point at which the consequences of the act become painful.” Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981); see also, Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 234, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976) (time period to file an EEOC complaint started to run at the time of employee’s discharge, and not at the conclusion of the collective bargaining agreement’s grievance-arbitration procedures when the employee’s discharge became “final”). To exhaust administrative remedies, a plaintiff must amend a previous charge or file a new one for each alleged discrete discriminatory act. Duble, 572 Fed.Appx. 889 (plaintiff failed to exhaust his administrative remedies as to his termination claim because he never amended his charge or filed a new one asserting this claim); Ramon v. AT & T Broadband, 195 Fed.Appx. 860, 866 (11th Cir. 2006) (district court did not err in finding that plaintiff failed to exhaust administrative remedies regarding plaintiff’s retaliation and hostile work environment claims, which could not have reasonably been expected to grow from the allegations in the charge); EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271-72 (11th Cir. 2002) (EEOC not entitled to extend limitations period where failure to hire claimants amounted to discrete, one-time events and not a continuing violation as claimed by EEOC); Green v. Office of the Sheriff’s Office, No. 3:99-cv-658-J-21-HTS, 2002 WL 32128623, *3 (M.D.Fla. Nov. 8, 2002) (plaintiff failed to exhaust her administrative remedies where disciplinary action taken against plaintiff after she filed her EEOC charge was not made the subject of a separate, or amended charge); and Ray v. Freeman, 626 F.2d 439, 442 (5th Cir. 1980) 1 (district court appropriately declined to consider 1 Bonner v. City of Prichard,661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981). Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 10 of 21 PageID 75 11 discrete acts of discrimination occurring after plaintiff filed her revised administrative complaint). Here Lowe filed a Charge of Discrimination, which was stamped “Received” by the EEOC on December 2, 2014. (Ex. A). Lowe had signed her Charge a few days earlier on November 28, 2014. (Ex. A). As is clear from the face of the Charge, Lowe admitted that her employment was terminated on October 22, 2014, three (3) days before her planned trip to Ghana. (Ex. A).2 In the section of her charge captioned “Date(s) Discrimination Took Place,” Lowe identified the earliest and latest date of discrimination as October 22, 2014 - the date of her termination. Lowe’s termination is the sole alleged unlawful employment practice identified by Lowe in the Charge. Lowe made NO allegation in her Charge of any discriminatory conduct after the October 22, 2014 date of her termination, including but not limited to, any allegation that Defendant failed to reinstate or rehire Lowe, or otherwise did “… not permit[ ] Lowe to return to work upon her return from Ghana.”3 (Doc. 14, ¶28). Nor is there any allegation in Lowe’s Charge that she sought to return to work at any time after her termination even though Plaintiff disingenuously alleges that Defendant did not “permit[ ]” her to do so. The “crucial element of a charge of discrimination is the factual statement contained therein.” Evans v. U.S. Pipe & Foundry, Co., 696 F.2d 925, 929 (11th Cir. 1983). Clearly, Plaintiff’s “regarded as” and “association discrimination” claims (Doc. 14, ¶¶28, 29) based on Defendant’s alleged refusal or failure to permit Lowe to return to work following her return from Ghana (i.e., after her 2 Indeed, Plaintiff admitted that Lowe’s employment was terminated on October 22, 2014, and that Lowe traveled to Ghana after her termination, in its initial pleading. (Doc. 1, ¶¶ 20, 21; see also, Doc. 14, ¶24). 3 Obviously, given Lowe’s admission in the Charge that Defendant terminated her employment on October 22, 2014 prior to her planned trip to Ghana on October 25, 2014 (Ex. A), and Plaintiff’s admission that Lowe traveled to Ghana after October 22, 2014 (Doc. 14, ¶24; see also, Doc. 1, §21), Plaintiff is foreclosed from any legitimate, good-faith claim that Defendant terminated Lowe’s employment after her return from Ghana or that Defendant discriminated against her because of her associated with “people in Ghana” since she had not yet traveled to Ghana at the time of her termination. Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 11 of 21 PageID 76 12 employment had already been terminated), which appear for the first time in the Amended Complaint, are beyond the scope of Lowe’s Charge and not properly before the Court. As the Eleventh Circuit cautioned, “… new acts of discrimination are inappropriate for a post-charge judicial complaint.’” Duble, 572 Fed.Appx. at 892. Additionally, Plaintiff’s allegation that Defendant failed to reinstate or rehire Lowe, or otherwise did not permit Lowe to return to work after her return from Ghana does not appear anywhere in the EEOC’s September 6, 2016 LOD (Ex. B) summarizing its investigation of Lowe’s Charge.4 Significantly, in its LOD, the EEOC restated Lowe’s allegations as follows: Charging Party alleged that she was discriminated against in violation of the Americans with Disabilities Act when Respondent regarded her as disabled and terminated her 3 days prior to a planned trip to Ghana because the Respondent believed she might contract Ebola” [emphasis added]. (Ex. B, pg. 1). These allegations are not even recognizable in Plaintiff’s Amended Complaint. Not surprisingly, the evidence obtained by the EEOC during its investigation of Lowe’s Charge related solely to Defendant’s decision to terminate Lowe’s employment prior to her trip to Ghana “because of its unsubstantiated concerns regarding the safety of their employees and clients related to her potential exposure to a disease.” (Ex. B, pg. 1). Glaring in its absence is any mention of Defendant’s purported refusal or failure to permit Lowe to return to work following her return from Ghana upon which Plaintiff rests its recently created “regarded as” and “association discrimination” claims in the Amended Complaint.5 As further evidenced by the EEOC’s LOD, these claims could not be reasonably expected to grow out of Lowe’s Charge, and they clearly did not. Accordingly, Plaintiff’s “regarded as” and “association discrimination” claims should be dismissed with prejudice for failure to exhaust administrative remedies. 4 Plaintiff refers to its determination in paragraph 8 of its Amended Complaint. (Doc. 14). 5 Nor does Plaintiff make any allegation that Lowe sought to return to work following her trip to Ghana even though it disingenuously alleges that Defendant did not permit her to return. Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 12 of 21 PageID 77 13 B. Plaintiff’s recently created “association discrimination” claim fails to state a claim upon which relief may be granted under the ADA and should be dismissed with prejudice on this basis (in addition to Plaintiff’s failure to exhaust administrative remedies). The ADA prohibits “association discrimination.” 42 U.S.C. §12112(b)(4). Specifically, employers are prohibited from “… excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association” [emphasis added]. Id. “The legislative history of section 12112(b)(4) [association discrimination] makes clear that the provision was intended to protect qualified individuals from adverse job actions based on ‘unfounded stereotypes and assumptions’ arising from the employees’ relationships with particular disabled persons.” 6 Oliveras-Sifre v. Puerto Rico Dep’t of Health, 214 F.3d 23, 26 (1st Cir. 2000). To establish an “association discrimination” claim, a plaintiff must show that “(1) she was subjected to an adverse employment action, (2) she was qualified for the job at the time, (3) she was known by [Defendant] at the time to have a relative [or associate] with a disability, and (4) the adverse employment action occurred under circumstances which raised a reasonable inference that the disability of the relative was a determining factor in [Defendant’s] decision” [emphasis added]. Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1230-31 (11th Cir. 1999). As is clear from the plain language of the statute and the elements of proof to establish an “association discrimination” claim, a plaintiff must allege a “specific association with a disabled individual.” Oliveras-Sifre, 214 F.3d at 26 (concluding that plaintiffs failed to allege a specific association with a disabled person as required to state an association discrimination claim); and Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216 (4th Cir. 6 There is no independent cause of action under the ADA for fears and beliefs about a disease. Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 13 of 21 PageID 78 14 2002) (“generalized references to association with disabled persons or to advocacy for a group of disabled persons are not sufficient to state a claim for associational discrimination under the ADA”). Here Plaintiff contends that Lowe was terminated and not permitted to return to work upon her return from Ghana because of Defendant’s alleged “fears and beliefs about Ebola and … [Lowe’s] association with [unknown] people in Ghana whom Massage Envy believed to be disabled by Ebola.” (Doc. 14, ¶29). This claim by Plaintiff is completely nonsensical and necessarily presumes Defendant’s knowledge of Lowe’s association with unidentified “people in Ghana” whom Defendant allegedly “believed” to be disabled by EBOLA, even though as the administrative proceedings and Plaintiff’s initial Complaint make clear, Lowe had not even traveled to Ghana at the time of her termination, and thus, had not yet associated with such unidentified people in Ghana whom Defendant allegedly “believed” to be disabled by EBOLA. The fact that Lowe had not even traveled to Ghana at the time of her termination is fatal to Plaintiff’s purported “association discrimination” claim. Moreover, as is clear from the plain language of Plaintiff’s claim, such unidentified “people in Ghana” were not “known” by Defendant to be disabled as required to state an “association discrimination” claim. There is no cause of action under the ADA for potentially associating with persons who are not known to be disabled. So even if Plaintiff’s “association discrimination” claim were properly before the Court (which it is not because Lowe failed to exhaust administrative remedies as to this claim), because Plaintiff fails to allege any specific association with a person known to be disabled, her purported “association discrimination” claim fails on its face and accordingly, should be dismissed with prejudice. Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 14 of 21 PageID 79 15 C. Plaintiff’s misleading suggestion that Defendant terminated Lowe’s employment following her return from Ghana is contrary to Lowe’s Charge, the EEOC’s LOD, and Plaintiff’s initial Complaint, and does not support a claim for relief. Retreating from its doomed longstanding position throughout the administrative process that Defendant violated the ADA because it perceived Lowe as having the potential to become disabled, Plaintiff now resorts to wordsmithing in its Amended Complaint to create ambiguity regarding Lowe’s termination date and to disingenuously suggest that Lowe could have been terminated after her return from Ghana, rather than 3 days before her trip to Ghana. In doing so, Plaintiff has arrogantly and needlessly enlarged the scope of these proceedings, unduly burdening Defendant with the additional costs of responding to claims that appear for the first time in the Amended Complaint, in a desperate attempt to find some way to frame its disagreement with Defendant’s decision to terminate Lowe’s employment as a violation of law. More should be expected of a government agency. Contrary to the Charge, the EEOC’s LOD, and its initial Complaint, Plaintiff would now have the Court believe that Lowe’s discharge occurred after her trip to Ghana (thus, after her association with “people in Ghana”) - or at least Plaintiff opens the door to this interpretation - to advance its improper and newly asserted discrimination claims based on alleged discriminatory acts after Lowe’s return from Ghana. For example, Plaintiff alleges in its Amended Complaint that “[a]lthough [Lowe’s] trip had been approved, on October 22, 2014 … [Roxanna] Iorio and one of Massage Envy’s owners Ron Wuchko, told Lowe that if she traveled to Ghana she would be terminated and not permitted to return to work at Massage Envy upon her return [emphasis added]. (Doc. 14, ¶20). Yet in its initial pleading, Plaintiff was clear that “Wuchko terminated Lowe at the October 22, 2014 meeting …” [emphasis added]. (Doc. 1, ¶20). Now Plaintiff carefully avoids any allegation that Wuchko actually terminated Lowe’s Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 15 of 21 PageID 80 16 employment on October 22, 2014 prior to her trip to Ghana to suggest that Lowe’s employment could have been terminated sometime thereafter. Additionally, Plaintiff contends that Defendant “violated the ADA, as amended, by terminating Kimberly Lowe and not permitting her to return to work her scheduled shifts following a trip to Ghana, West Africa, because of concerns related to her potential exposure to Ebola based on her association with people in Ghana whom Massage Envy believed to be disabled by Ebola.” (Doc. 14, pg. 1). Again, this allegation by Plaintiff deliberately leaves the door open to an interpretation that Lowe’s employment may have been terminated following her trip to Ghana. Previously, Plaintiff’s position was that Defendant violated the ADA “by terminating Kimberly Lowe because it regarded her as disabled due to her impending trip to Ghana” [emphasis added], i.e., before she traveled to Ghana. (Doc. 1, pg. 1). Because the Charge, EEOC LOD, and Plaintiff’s initial pleading make clear that Lowe’s employment was terminated on October 22, 2014 before her trip to Ghana (and thus, before her association with “people in Ghana”),7 the Court should not accept the unwarranted deductions of fact and legal conclusions asserted by Plaintiff in its Amended Complaint, which run counter to these records. Plaintiff’s contradictory and inconsistent allegations in the Amended Complaint cannot support a claim for relief. Smedley, 2011 WL 13175900 at *3. D. Any claim, which may somehow be extracted from the Amended Complaint, that Defendant did terminate Lowe’s employment prior to her trip to Ghana because it regarded her as disabled, fails to state a claim upon which relief may be granted under the ADA and should be dismissed With Prejudice. To establish a “regarded as” claim under the ADA, a plaintiff must show that she has been subjected to a prohibited action “because of an actual or perceived physical or mental impairment [emphasis added] whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. §12102(3)(A); 29 C.F.R. §1630.2(l); and Wolfe v. Postmaster 7 Plaintiff admits that Lowe traveled to Ghana after October 22, 2014. (Doc. 14, ¶24; see also, Doc. 1, ¶21). Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 16 of 21 PageID 81 17 General, 488 Fed.Appx. 465, 468 (11th Cir. 2012) (under the ADAAA, “…a plaintiff need demonstrate only that the employer regarded him as being impaired, not that the employer believed the impairment prevented the plaintiff from performing a major life activity”). “Despite the changes brought about by the ADAAA, the elements of a plaintiff's prima facie case remain the same.” Barlow v. Walgreen Co., 8:11-CV-71-T- 30EAJ (M.D. Fla. Mar. 14, 2012), 2012 WL 868807, *4 (citing 29 C.F.R. § 1630.2(j)(1)(i)). Specifically, “the [p]laintiff must still allege that she ‘has been subjected to an action prohibited by the ADA as amended because of [emphasis in original] an actual or perceived impairment…’” Marecheau v. Equal Employment Practices Commission, No. 13-CV-2440 (VEC) (S.D.N.Y. Sept. 30, 2014), 2014 WL 5026142 *6 (citing 29 C.F.R. §1630.2(g)(1)(iii)); see also, Powell v. Gentiva Health Services, Inc., 13- 0007-WS-C (S.D.Ala. Feb. 12, 2014), 2014 WL 554155, *7 (“[t]he fundamental evidentiary flaw in plaintiff’s ‘regarded-as’ theory is that the record is devoid of facts from which one could reasonably infer that … [the defendant] perceived … [the plaintiff] to have a physical or mental impairment”). “Under the ADAAA and the final regulations, a covered entity ‘regards’ an individual as having a disability if it takes an action prohibited by the ADA (e.g., failure to hire, termination, or demotion) based on an individual’s impairment or on an impairment the covered entity believes the individual has [emphasis added]...” EEOC, Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, https://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm. As the Eighth Circuit recently explained in Morriss v. BNSF Railway Company, “… the ADA does not prohibit an employer from acting … on its assessment that although no physical impairment currently exists there Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 17 of 21 PageID 82 18 is an unacceptable risk of a future physical impairment” [emphasis added]. 817 F.3d 1104, 1113 (8th Cir. 2016), cert. denied, 137 S.Ct. 256 (2016).8 The EEOC regulations define a physical or mental impairment as “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems … or [a]ny mental or psychological disorder…” 29 C.F.R. §1630.2(h)(1) & (2). As further explained in the regulations, “[i]t is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments.” 29 C.F.R. Pt. 1630, Appx. §1630.2(h). “Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.” Id. Clearly, Plaintiff does not, and cannot, contend that Lowe had EBOLA or that Defendant regarded Lowe as having EBOLA when Defendant terminated her employment on October 22, 2014, prior to her trip to Ghana. “... [T]he definition [of impairment] … does not include characteristic predisposition to illness or disease [emphasis added]. 29 C.F.R. Pt. 1630, Appx. §1630.2(h). In fact, as explained by the EEOC in its Compliance Manual, “… [a] person may be predisposed to developing an illness or a disease because of factors such as environmental, economic, cultural or social conditions. This predisposition does not amount to an impairment [emphasis added].” EEOCCM §902.2(c)(2). Any alleged belief by Defendant that Lowe could contract Ebola, i.e., become predisposed to EBOLA, because of her then impending trip to Ghana is precisely the 8 In its Amicus Curiae Brief on behalf of the plaintiff-appellant in Morriss (No. 14-3858 (8th Cir.), Amicus Curiae Brief, pgs. 24-25, 29-31, filed March 23, 2015), the EEOC pointed to various pre-ADAAA cases where the courts reasoned that the plaintiffs were treated as if they had physical impairments based on physical conditions, such as, morbid obesity (Cook v. Rhode Island Department of Mental Health, Retardation, and Hosps.,10 F.3d 17 (1st Cir. 1993), psychiatric illness (Doe v. N.Y. Univ., 666 F.2d 761 (2nd Cir. 1981), a record of tuberculosis (Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S. 273 (1987), etc. Unlike these cases, Plaintiff has not alleged that Lowe suffered from any underlying physical impairment, whether actual or perceived, or that Lowe had a record of impairment at the time of her termination. Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 18 of 21 PageID 83 19 type of environmental condition that is specifically excluded from the definition of impairment under the EEOC’s own regulations and is not a sufficient basis upon which to base a “regarded as” claim. The ADA, relevant case law, regulations, and even the EEOC’s own interpretive guidance make clear that an existing impairment, or the belief that an impairment exists at the time of the adverse action, is required to prove a “regarded as” claim. Any contradictory position that may be taken by Plaintiff in this action is not entitled to deference. See, Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (“[w]e have never applied … [Chevron deference]9 to agency litigating positions that are wholly unsupported by the regulations, rulings, or administrative practice”). “It is incumbent upon the courts to faithfully adhere to the intended scope of the statute so that it does not become a catch-all cause of action for discrimination based on … any number of other things [e.g., an impending trip to Ghana] far removed from the reasons the statutes were passed.” Coleman v. Georgia Power Co., 81 F.Supp.2d 1365, 1370 (N.D.Ga.2000) (internal quotations omitted). The law is clear that to fall within the protection of the ADA, the employer must regard the employee as being presently disabled, not potentially disabled in the future due to voluntary conduct, such as, impending travel plans. In the absence of any allegation that Lowe’s pre-Ghana termination was based on an underlying actual or perceived impairment (as opposed to the possibility of developing an impairment in the future), Plaintiff fails to state a “regarded as” claim under the ADA. 9 In Bowen, the Secretary of Health and Human Services argued that its novel position was entitled to deference under the rationale of cases including, but not limited to, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844, 104 S.Ct. 2778, 2781-2783, 81 L.Ed.2d 694 (1984). Id. at 212. These cases are collectively referred to as Chevron deference in the instant motion. Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 19 of 21 PageID 84 20 CONCLUSION The law is well settled that absent proof of discrimination, “[t]he employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.” Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984). The lengths to which Plaintiff has demonstrated that it is willing to go to frame its disagreement with Defendant’s decision to terminate Lowe’s employment as a violation of the ADA is nothing short of an abuse of power, which has needlessly enlarged these proceedings requiring the expenditure of substantial resources by Defendant to respond to an unreasonable, eleventh hour material shift in position by Plaintiff based on allegations and claims, which were never raised during the administrative proceedings, which are inconsistent with the administrative proceedings, and which present dispositive legal issues precluding relief. WHEREFORE, based on the foregoing, Defendant respectfully requests that the Court grant its Motion to Dismiss, summarily dismiss Plaintiff’s Amended Complaint in its entirety and with prejudice, and grant all further relief that the Court deems proper including, but not limited to, costs and attorney fees under the standard set forth in Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (a prevailing defendant’s attorney fees are recoverable “upon a finding that the plaintiff's action was frivolous, unreasonable, or [emphasis added] without foundation, even though not brought in subjective bad faith).” Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 20 of 21 PageID 85 21 Dated this 7th day of July 2017 Respectfully submitted, s/ Sharon A. Wey SHARON A. WEY, Esq. Florida Bar No.: 0048010 NIKHIL JOSHI, Esq. Florida Bar No.: 0123803 Miller Tack & Madson ATTORNEYS FOR DEFENDANT 3550 Buschwood Park Drive Suite 135 Tampa, Florida 33618 Telephone: (813) 963-7736 Facsimile: (813) 969-3639 Email: sharon@peolawyers.net nik@peolawyers.net CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 7, 2017, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will send an electronic notification to all counsel of record, and a copy of the same has been served via E-mail and/or U.S. Mail to Plaintiff’s counsel, Oshia Gainer Banks, oshia.banks@eeoc.gov, and Brandi L. Meredith, brandi.meredith@eeoc.gov, EEOC Miami District Office, Miami Tower, 100 SE 2nd Street, Miami, Florida 33131. A courtesy copy of the foregoing has been served via E-mail and/or U.S. Mail to Charging Party, Kimberly Lowe’s, counsel, Michele Leach-Pachinger, mlp@lplaw- mediations.com, 4112 53rd Avenue East, #20802, Bradenton, Florida 34202. s/ Sharon A. Wey Attorney for Defendant Case 8:17-cv-00977-MSS-TBM Document 16 Filed 07/07/17 Page 21 of 21 PageID 86 Case 8:17-cv-00977-MSS-TBM Document 16-1 Filed 07/07/17 Page 1 of 1 PageID 87 Case 8:17-cv-00977-MSS-TBM Document 16-2 Filed 07/07/17 Page 1 of 2 PageID 88 Case 8:17-cv-00977-MSS-TBM Document 16-2 Filed 07/07/17 Page 2 of 2 PageID 89