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Plaintiff Can Amend ADA, Title VII Claims

Deborah Elkins//February 1, 2017

Plaintiff Can Amend ADA, Title VII Claims

Deborah Elkins//February 1, 2017//

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An African-American plaintiff who wears a visible leg brace and walks with a limp, and who was fired from his job as an assistant manager at an IHOP restaurant, may amend his complaint alleging discrimination under Title VII and the Americans with Disabilities Act, a Norfolk U.S. District Court says, on a recommendation from the magistrate judge.

Defendant argues that plaintiff’s allegation that he limped and walked slowly was an insufficient limitation to constitute a disability under the ADA.

The extent of plaintiff’s limitation may be a disputed fact which ought not to be resolved by a 12(b)(6) motion. Plaintiff has asserted that he suffers from a drop foot, that he is required to wear a leg brace to prevent his foot from dragging on the ground and that he limps and walks with a slow gait. These facts permit the reasonable inference that the major life activity, walking, is substantially limited. It is not for the court at this stage of the proceedings to determine as a matter of law that an individual suffering from a drop foot does not suffer a severe impairment under the ADA as a matter of law. Plaintiff has sufficiently pled that he is a qualified individual under the ADA. He also has sufficiently pled that he was perceived by his employer as having a disability. The restaurant manager observed plaintiff take a fall and shortly thereafter acknowledged that plaintiff had a “bad leg,” but he still would need to “pick up the pace.” From these facts the court may draw the reasonable inference that the manager observed plaintiff’s leg brace and his limitations in walking, including a resulting fall and attributed them to his “bad leg.”

Where plaintiff’s allegations fall short and do not rise to the level of plausibility, are his failure to assert facts supporting the proposition that he was meeting his employer’s expectations at the time of his discharge, and that the circumstances of his discharge raise the reasonable inference of unlawful discrimination. Plaintiff alleged he was fired after protesting his manager’s conduct in accusing him in front of customers of removing a credit card receipt without investigating the accusation. Plaintiff concludes that the reason for his termination was because of his real or perceived disability. However, plaintiff has failed to assert sufficient facts to support his conclusion.

Title VII claim

Other than identifying himself as African-American and the manager and the server who accused him about the credit card as white, plaintiff asserts no other facts about race in the complaint. The fact that an African-American was discharged by a white decision-maker does not, standing alone, state a Title VII claim. Making a “snap decision” to terminate plaintiff without investigating the accusation of a white co-worker, and that the manager spoke to him in a demeaning fashion, do not suggest that racial animus is afoot. Directing someone to “carry your ass” to the back and telling him “how about this, I’m firing your ass, how do you like that?” similarly do not raise an inference of racial discrimination. Coarse or rude behavior in the workplace does not plausibly support the proposition that such behavior is racially motivated.

The magistrate judge recommends leave to amend the ADA and Title VII claims, as well as plaintiff’s defamation claim, which does not clearly allege that the manager accused plaintiff of stealing.  However, dismissal without leave to amend is recommended for the claim for intentional infliction of emotional distress.

Coe v. CFRA LLC (Smith, Leonard) No. 2:16cv365, Dec. 22, 2016; Jan. 13, 2017; USDC at Norfolk, Va.; Steven B. Wylie for plaintiff; James C. Rollins for defendant. VLW 017-3-036, 20 pp.

VLW 017-3-036

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