Kieffer v. Planet Fitness of Adrian, LLC

Cary Kieffer, Plaintiff, v. Planet Fitness of Adrian, LLC d/b/a Planet Fitness of Adrian, Damian Berry, and Justin Bailey, Defendants.

Case No. 17-cv-11307

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 18, 2017

Judith E. Levy United States District Judge

Mag. Judge Stephanie Dawkins Davis

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [8] AND DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION

This is an employment discrimination case. Pending is defendants' motion to dismiss plaintiff's federal claims for failure to state a claim, and request for the Court to decline to exercise supplemental jurisdiction. (Dkt. 8.) For the reasons set forth below, the motion is granted.

I. Background

The following facts are drawn from plaintiff's complaint, and are treated as true for the purposes of this motion.

Plaintiff Cary Kieffer served in the United States military for twelve years, from 1996 until 2008. On January 13, 2007, plaintiff suffered injuries to his leg and eye during an ambush in Mosul, Iraq.¹ He was also diagnosed with Post-Traumatic Stress Disorder ("PTSD") as a result of his military service. Plaintiff's manifestation of PTSD includes anxiety and panic attacks.

Plaintiff was hired to work for defendant Planet Fitness at their Adrian, Michigan location on October 9, 2015. When plaintiff was hired, he advised defendants, including Damian Berry, the owner of the franchise, and Justin Bailey, the general manager of the Adrian location, of his disabilities related to his military service. He also informed them that he would need to take pre-planned leave at certain times as a reasonable accommodation to attend medical appointments in Ann Arbor, Michigan, related to his disabilities.

In December 2015, plaintiff was promoted to the position of fitness instructor. In May 2016, plaintiff requested permission to take short breaks of one to two minutes to deal with anxiety attacks arising fromhis PTSD. Plaintiff does not state whether this request was granted, or whether he took any such breaks.

On May 28, 2016, plaintiff requested unpaid leave from his job for three medical appointments during the week of June 20, 2016. The request was granted. In late June 2016, plaintiff was given a raise. On July 5, 2016, plaintiff was terminated from his job "for no reason whatsoever." (Dkt. 1 at 6.) Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Michigan Department of Civil Rights on August 11, 2016. (Dkt. 1-2.) On February 1, 2017, the EEOC issued a Dismissal and Notice of Rights, including a Right to Sue letter. (Dkt. 1-3.)

Plaintiff timely filed suit on April 25, 2017, asserting claims for discrimination and retaliation under the Americans with Disabilities Act ("ADA"), failure to accommodate and wrongful discharge under Michigan's Persons With Disabilities Civil Rights Act ("PWDCRA"), and an unspecified claim under the Uniform Services Employment and Reemployment Rights Act of 1994 ("USERRA"). Defendants filed a motion to dismiss plaintiff's federal claims on June 21, 2017. (Dkt. 8.)The motion is fully briefed, and the Court determines that oral argument is not necessary pursuant to E.D. Mich. Local R. 7.1(f)(2).

II. Legal Standard

When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must "construe the complaint in the light most favorable to the plaintiff and accept all allegations as true." Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plausible claim need not contain "detailed factual allegations," but it must contain more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

III. Analysis

Although defendants' motion to dismiss is styled as one brought under both Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to state a claim, it is only the latter. Defendants move to dismiss all of plaintiff's federal claims, and state that the Court must decline the exercise of supplementaljurisdiction over the remaining state law claims. (Dkt. 8-1 at 9.) Defendants have misread 28 U.S.C. § 1367(c)(3), which states that "district courts may decline to exercise supplemental jurisdiction over a claim [that is sufficiently related to the claims over which the court has original jurisdiction]. . . if . . . the district court has dismissed all claims over which it has original jurisdiction." Section 1367(c) is permissive, not mandatory, and is not properly the subject of a motion to dismiss for lack of subject matter jurisdiction. Instead, the Court will interpret the motion as a request for the Court to decline to exercise supplemental jurisdiction over plaintiff's state law claims if his federal claims are dismissed.

Plaintiff's complaint sets forth that he requested two types of accommodations in May 2016: time for a short break when he was having a PTSD-related anxiety attack, and unpaid time to attend three medical appointments. According to his EEOC Charge of Discrimination, "[his] requests were granted." (Dkt. 1-2.) Further, he stated in that Charge of Discrimination that on July 5, 2016, he "was sent a text message from [his] employer stating that due to [his] prior commitments, [he] was terminated." (Id.) Plaintiff's complaint not onlydoes not expand on this text message to explain what "prior commitments" means, it omits any mention of the text message entirely and instead says that he was fired for "no reason whatsoever."

Plaintiff asserts that he was discriminated and retaliated against under the ADA, and that defendants violated USERRA by discriminating against him on the basis of his disabilities, because his disabilities arose from his service.

A. ADA - Discrimination

"To recover on a claim for discrimination under the ADA, a plaintiff must show that he or she (1) is disabled, (2) otherwise qualified to perform the essential functions of the position, with or without accommodation, and (3) suffered an adverse employment action because of his or her disability." Ferrari v. Ford Motor Co., 826 F.3d 885, 891 (6th Cir. 2016). Defendants do not dispute that plaintiff is disabled within the meaning of the ADA, or that he was qualified to perform the essential functions of the position, with or without accommodation. Instead, defendants argue that plaintiff has failed to plead that he suffered an adverse employment action because of his disability.

Plaintiff alleges that at every point he requested an accommodation, it was given to him. Plaintiff argues that the close proximity between his requests and his termination give rise to an inference that his termination was because of his disability. (Dkt. 12 at 20.) However, plaintiff cites Bernau v. Architectural Stainless, Inc., Case No. 17-cv-10766, 2017 WL 2831518 (E.D. Mich. June 30, 2017), in which that court held that temporal proximity creates such an inference for a claim under Michigan's Workers Disability Compensation Act, not the ADA. Id., at *5.

Under the ADA, "temporal proximity may establish a prima facie case only if the temporal proximity is 'very close'." Barrett v. Lucent Techs., Inc., 36 F. App'x 835, 843 (6th Cir. 2002) (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001); Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999) (without additional evidence, two to five months is insufficient to create a triable issue of causation); Cooper v. City of North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986)). Further, intervening facts may "negate any inferences that may arise from the temporal proximity between the protected activities and plaintiff's termination." Barrett, 36 F. App'x at 843. In the time betweenplaintiff's requests for accommodation and his termination, his requests were granted and he was given a raise for his performance at work. Other than bare recitations of the applicable legal standard, plaintiff pleads no facts that would establish his disabilities were the but-for cause of his termination.

Plaintiff may also meet his prima facie burden under the indirect method of establishing a claim for disability discrimination. To do so, he must show that "(1) he or she is disabled, (2) he or she is otherwise qualified for the position, with or without reasonable accommodation, (3) he or she suffered an adverse employment decision, (4) the employer knew or had reason to know of the plaintiff's disability, and (5) the position remained open while the employer sought other applicants or the disabled individual was replaced." Ferrari, 826 F.3d at 891-92 (further citations omitted). Here, plaintiff does not plead that the position remained open after he was terminated, that the employer sought other applicants, or that he was replaced.

Plaintiff argues that these facts can be "inferred from his Complaint." (Dkt. 12 at 21.) However, to survive a motion to dismiss, the complaint must "contain sufficient factual matter" to state aplausible claim for relief. Iqbal, 556 U.S. at 678 (emphasis added). The Court cannot infer a series of post-termination actions by defendants that are alleged nowhere in the complaint.

Because plaintiff fails to plausibly plead a claim for discrimination under the ADA, this claim is dismissed.²

B. ADA - Retaliation

The ADA states: "No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). The ADA "protects individuals only from retaliation for engaging in, or aiding another who...