Forsyth v. Univ. of Ala. Bd. of Trs.

MARTIN FORSYTH, Plaintiff, v. UNIVERSITY OF ALABAMA BOARD OF TRUSTEES, Defendant.

Case No.: 7:17-cv-00854-RDP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION

June 15, 2018

MEMORANDUM OPINION

This case is before the court on Defendant's Motion to Dismiss Plaintiff's Amended Complaint. (Doc. # 36). The Motion has been fully briefed (see Docs. # 36, 40-41), and it is ripe for decision. After careful review, and for the reasons explained below, the court concludes that Defendant's Motion to Dismiss is due to be granted, but Plaintiff is due to be granted an opportunity to amend his complaint.

I. Background

Plaintiff worked as a carpenter in the facilities and grounds department at the University of Alabama at Tuscaloosa (the "University"), which is governed by Defendant University of Alabama Board of Trustees (the "Board"). (Doc. # 34 at ¶ 4). The Board hired Plaintiff in October 2005. (Id. at ¶ 6). According to Plaintiff, he received positive performance reviews from 2005 to 2009. (Id. at ¶¶ 7-9).

In 2010, Plaintiff was assigned work in the University's health department building. (Id. at ¶ 11). Plaintiff became aware that the building contained asbestos and reported his concerns to the University's environmental health and safety ("EHS") department. (Id. at ¶¶ 12, 17-18). Thereafter, Plaintiff alleges that his supervisors "began overly criticizing" him, and Michael Hubbard counseled him nineteen days after he reported the presence of asbestos. (Id. at ¶ 19). Two other employees received similar discipline from Neal DiChiara. (Id. at ¶ 20).

Plaintiff's Amended Complaint alleges that DiChiara "continued to look for opportunities to discipline Plaintiff over frivolous matters and to make false accusations against Plaintiff." (Id. at ¶ 23). In June 2011, DiChiara suspended Plaintiff for three and a half days without pay for insubordination. (Id.). Following this suspension, Plaintiff began to withdraw from coworkers and "became fearful that Mr. DiChiara was going to manufacture some excuse for firing him." (Id. at ¶ 25). In July 2013, Plaintiff was assigned to a renovation of the Sigma Chi fraternity house. (Id. at ¶ 27). Plaintiff learned that the EHS department had not tested the house for asbestos, and he reported his suspicion that there was asbestos in a ceiling to an EHS department employee. (Id.).

On July 12, 2013, DiChiara placed Plaintiff on a performance improvement plan. (Id. at ¶ 29). DiChiara's improvement plan discussed Plaintiff's "inability to interact with others," his negative attitude, his avoidance of other people, and his preference to work alone. (Id. at ¶ 30). Plaintiff alleges that DiChiara recognized that he suffered "from a mental impairment" because he required Plaintiff to read a self-improvement book. (Id. at ¶ 31).

According to the Complaint, "[b]y July 2013, Plaintiff was manifesting the symptoms of depression." (Id. at ¶ 33). Because of his depression, he became frustrated over small matters, interacted with a small group of individuals, expressed a negative attitude, felt constant anxiety at work, and suffered from sleeplessness. (Id. at ¶ 35). DiChiara allegedly aggravated Plaintiff's depression by instituting a performance improvement plan. (Id. at ¶ 36). In September 2013,DiChiara issued Plaintiff a written warning for his negative attitude in the workplace. (Id. at ¶ 37).

In October 2013, Plaintiff met with his supervisors and a University human resources employee. (Id. at ¶ 38). During that meeting, DiChiara questioned Plaintiff about his behaviors and his social interactions at work and at home. (Id.). Later in October 2013, DiChiara provided Plaintiff an amended performance improvement plan that required Plaintiff to meet with his supervisors every thirty days, even though DiChiara "knew or should have known that this action would further aggravate Plaintiff's depression." (Id. at ¶ 41).

In March 2015, DiChiara issued Plaintiff a "final counseling" based on his claim that Plaintiff displayed an unprofessional demeanor when asked to complete an assignment. (Id. at ¶ 43). Plaintiff asked to review the corrective counseling form DiChiara asked him to sign, but DiChiara refused to let him see it. (Id.). Plaintiff began counseling and treatment for his depression during the summer of 2015. (Id. at ¶ 44). His supervisors were aware that he sought counseling because he mentioned it to them. (Id.). In July 2015, University management discovered a locked makeshift break room in a residence hall. (Id. at ¶ 45). On July 27, 2015, DiChiara terminated Plaintiff for taking unauthorized breaks. (Id. at ¶ 47). Plaintiff has denied taking unauthorized breaks. (Id. at ¶ 48).

II. Standard of Review

The Federal Rules of Civil Procedure require that a complaint provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). However, the complaint must include enough facts "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more than "a formulaic recitation of the elements of a cause of action" do not meet Rule8 standards, nor do pleadings suffice that are based merely upon "labels and conclusions" or "naked assertion[s]" without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most favorable to the non-moving party. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

To survive a motion to dismiss, a complaint must "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility 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). Although "[t]he plausibility standard is not akin to a 'probability requirement,'" the complaint must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Id. A plausible claim for relief requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" to support the claim. Twombly, 550 U.S. at 556.

In considering a motion to dismiss, a court should "1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, 'assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'" Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App'x 136, 138 (11th Cir. 2011) (quoting Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task is context specific and, to survive the motion, the allegations must permit the court based on its "judicial experience and common sense . . . to infer more than the mere possibility of misconduct." Iqbal, 556 U.S. at 679. If the court determines that all of the well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S. at 570.

III. Analysis

Plaintiff raises two claims under § 504 of the Rehabilitation Act. First, Plaintiff claims that Defendant unlawfully terminated him because of his depression, which is a disability. (Doc. # 34 at ¶¶ 63-67). Second, Plaintiff claims that Defendant's evaluation and disciplinary system had a disparate impact on individuals manifesting symptoms of depression who were otherwise fully capable of performing their jobs. (Id. at ¶¶ 68-75).

In its initial brief, Defendant seeks dismissal of the Rehabilitation Act disparate treatment claim on two grounds. It primarily argues that Plaintiff has not sufficiently alleged a disability covered by the Rehabilitation Act. (Doc. # 36 at 10-12). Alternatively, it contends that the Amended Complaint fails to plausibly allege that the employment actions at issue occurred solely because of Plaintiff's alleged disability, since (1) the facts alleged do not show that the University was aware of Plaintiff's disability, and (2) the facts alleged indicate that Plaintiff's supervisors also disciplined and criticized him for reporting asbestos concerns. (Id. at 12-15). The court addresses each argument, in turn. The court then will discuss the additional arguments raised in Defendant's reply brief directed at the disparate impact Rehabilitation Act claim.

A. Plaintiff Has Plausibly Pled that His Depression Substantially Limited the Major Life Activity of Interacting with Others

The Rehabilitation Act defines the term "disability" to include: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1); see also 29 C.F.R. § 1630.2(g). "[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 42 U.S.C. § 12102(2)(A). Interacting with others also is a majorlife activity. 29 C.F.R. § 1630.2(i)(1)(i). See also Jacobs v. N.C. Admin. Office of Courts, 780 F.3d 562, 573 (4th Cir. 2015) (deferring to the EEOC's reasonable determination that interacting with others is a major life activity). To determine whether an impairment substantially limits a major life activity, the court compares the plaintiff's ability to perform the activity "to most people in the general population." 29 C.F.R. § 1630.2(j)(1)(ii). The functional limitation required for a disability is lower than that required by courts prior to the passage of the ADA Amendments Act in 2009, and it usually does not require the consideration of medical or statistical evidence. Id. § 1630.2(j)(1)(iv)-(v).

Pla...