Government contractor defeats ADA claim

Where an employee alleged a government contractor failed to accommodate his anxiety and depression, but the complaint admitted that an accommodation had already been put into place prior to the verification process for the employee’s short-term disability request and prior to his official termination, his accommodation claim was dismissed.

Background

Lemenuel Dungey alleges that Culmen International LLC violated the Americans with Disabilities Act, or ADA, and the Family and Medical Leave Act, or FMLA. Plaintiff specifically alleges that defendant wrongfully terminated his employment, failed to accommodate his disability and unlawfully retaliated against him. Defendant has filed a motion to dismiss. Plaintiff has also filed an amended complaint that defendant has moved to strike.

Amended complaint

The time to amend without court permission had long passed when the amended complaint was filed. Because this court had already issued a Rule 16 scheduling order at the time plaintiff filed the amended complaint, plaintiff must satisfy the heightened good cause standard to show why leave to amend should be given.

Plaintiff never sought leave to amend and instead sidestepped this court’s rules by directly filing the amended complaint. More problematic, plaintiff’s opposition to the motion represents that a magistrate judge requested that he itemize all damages “in the complaint.” This was not a true and accurate representation of the magistrate judge’s comments. Whether a misunderstanding or a stark misrepresentation, plaintiff has not demonstrated good cause for this court to grant leave to file the amended complaint.

New claim

For the first time before this court, plaintiff specifically raises a racial discrimination claim under Title VII, which although raised in his EEOC charge, was not addressed in his complaint. Even if this court were to consider the claims raised in plaintiff’s charge related to racial discrimination, the charge falls short of making a plausible racial discrimination claim.

The sole potentially race-related allegation in the charge turns on one colleague filing a complaint about plaintiff’s professionalism because he allegedly did not like plaintiff’s hair. But the charge goes no further in allowing this court to draw a plausible allegation that the dislike of plaintiff’s hair was indeed racially motivated.

Accommodation

A favorable reading of the complaint suggests that plaintiff’s anxiety and depression constitute a “disability” for purposes of his ADA claim. He has plausibly demonstrated that he received medical treatment from a psychiatrist thereby establishing “a record of” a “mental impairment.”

Under the ADA, to receive the protection of the statute, a plaintiff must show he has a disability and is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Plaintiff’s allegations, or lack thereof, do not reveal his inability to perform the essential functions of his job with his disability and further do not “show he could perform the essential functions of his position with a reasonable accommodation.”

And problematically, plaintiff still has not pleaded any specific detail surrounding (1) the nature of the accommodation he requested and (2) whether defendant rejected that accommodation. On the contrary, plaintiff pleads that “an accommodation had already been put into place” prior to the verification process for plaintiff’s short-term disability request and prior to his official termination. This allegation alone fails the fourth element required for plaintiff’s ADA accommodation claim to survive dismissal.

Disability discrimination

Plaintiff also alleges defendant unlawfully discriminated against him and terminated him because of his disability in violation of the ADA. Plaintiff’s termination qualifies as an adverse employment outcome. But plaintiff’s complaint sprinkles no crumbs for this court to find that he was able to perform the essential functions of his job or that he was meeting his employer’s legitimate performance expectations at the time of his termination.

Finally, over three months elapsed between plaintiff’s disability disclosure and his termination, effectively foreclosing his ADA discrimination claim. On this ground, plaintiff’s allegations fail to state a facially plausible ADA discrimination claim and therefore merit dismissal with prejudice as amendment would be futile.

FMLA retaliation

The complaint admits that plaintiff never submitted the short-term disability request form to be completed by the treating physician. The complaint further concedes that the request remained pending with Lincoln Financial. Without having formally submitted the requisite FMLA forms to his employer, plaintiff cannot receive the protections afforded to those who have followed proper FMLA protocol. The allegations do not provide a plausible basis to believe plaintiff’s employer was aware that he had actually made a short-term disability request. This claim also will be dismissed with prejudice as amendment would be futile.

Defendant’s motion to strike granted. Defendant’s motion to dismiss granted.

Dungey v. Culmen International LLC, Case No. 1:21-cv-01027, Sept. 20, 2022. EDVA at Alexandria (Alston). VLW 022-3-416. 16 pp.