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Lowes v. The Summit School, Inc.

United States District Court, W.D. Pennsylvania

December 7, 2017

MICHAEL LOWES, Plaintiff,
v.
THE SUMMIT SCHOOL, INC., Defendant.

          MEMORANDUMANDORDER

          Cathy Bissoon United States District Judge

         I. MEMORANDUM

         Pending before the Court is a Motion to Dismiss filed by Defendant The Summit School, Inc. (Doc. 15), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, Defendant's Motion will be GRANTED and Counts I, III, and V of Plaintiff's Complaint will be DISMISSED WITHOUT PREJUDICE.

         A. BACKGROUND [1]

         Plaintiff Michael Lowes has suffered from chronic lower back pain for the past fourteen years. Doc. 1 ¶ 4. On June 5, 2013, Defendant hired Plaintiff as a night counselor. Id. ¶ 5. In the summer of 2015, Plaintiff further injured his back while lifting an object at work and he underwent surgery in August 2015. Id. ¶ 7. Following his surgery, Plaintiff took FMLA leave from August 5, 2015 until September 9, 2015. Id. ¶ 11. Plaintiff states that, following his surgery, he experiences great difficulty walking, standing, sitting, lifting, sleeping and a number of other activities as a result of the pain. Id. ¶ 8.

         On September 9, 2015, Plaintiff returned to work with several light duty restrictions. Id. ¶ 14. Defendant accommodated Plaintiff's light duty restrictions by assigning him to van patrol. Id. ¶ 16. Plaintiff alleges that, from September 9, 2015 through November 3, 2015, he was “subjected to a number of comments, which he considered to be harassment, ” and that “the comments were made primarily by” three individuals - Gabe Varrenti, Matthew Beasly and Russ Swanson. Id. ¶¶ 18-19. Plaintiff alleges that these individuals “question[ed] the necessity of [his] light duty restrictions, demand[ed] that the restrictions be lifted, and [made] veiled threats against [his] continued employment without a foreseeable end-date of his light duty restrictions.” Id. ¶ 20. The Complaint provides no details regarding Plaintiff's relationship with these three individuals, e.g., whether they were Plaintiff's co-workers or his supervisors.

         On November 3, 2015, Defendant removed Plaintiff from light duty and placed him on fire patrol, which required him to climb 40 steps a total of 21 times between 11:30 p.m. and 4:00 a.m. Id. ¶¶ 23-24. Defendant attempted to complete the fire patrol shift but, at 3:00 a.m., left a message for his supervisor, Ron Hreha, telling him that he could not tolerate the pain and he went home. Id. ¶ 25. Hreha did not respond to Plaintiff's message. Id. ¶ 26. Thereafter, Plaintiff went out on leave from November 5 to November 17, 2015, during which time he collected worker's compensation benefits. Id. ¶¶ 27, 30, 34. On November 5, 2017, Plaintiff sent an email to John McCloud, an alleged “agent” of Defendant, “complaining about the treatment of Hreha and his co-workers.” Id. ¶ 28. McCloud did not respond to Plaintiff's e-mail. Id. ¶ 29. On November 6, 2015, Hreha called Plaintiff and asked, ‘Are we cool?'” Id. ¶ 32. Hreha then stated that he did not receive Plaintiff's messages and that if Plaintiff had alerted him that he could not complete his fire patrol duties, he would have assigned him to van patrol. Id. ¶ 33.

         On November 17, 2015, Plaintiff was released to return to work with light duty restrictions. Id. ¶ 34. Upon his return, he was reassigned to van patrol. Id. ¶ 35. According to Plaintiff, however, Defendant provided him with a “sub-standard van, which had broken power steering, broken reclining bucket seats and broken driver's armrests.” Id. ¶ 36. Plaintiff asked to use a different van but was told that no other vans were available. Id. ¶ 39. At that time, Plaintiff observed, and took a picture of, another van that was not in use and functioned properly. Id. ¶ 39.

         On November 20, 2015, Plaintiff hand-delivered a letter from his legal counsel to Defendant requesting that Defendant stop discriminating against him. Id. ¶ 41. On November 23, 2015, Defendant again assigned Plaintiff a sub-standard van. Id. ¶ 42. In response to the assignment, Plaintiff sent another e-mail to Defendant, stating that he felt like Defendant was discriminating against him “because he was continually assigned to a sub-standard van while other vans were available.” Id. ¶ 43. Defendant did not respond to Plaintiff's e-mail. Id. ¶ 44. Plaintiff resigned his position the next day, November 24, 2015. Id. ¶ 45.

         After exhausting his claims before the EEOC, Plaintiff filed this action on May 26, 2017. Doc. 1. On September 25, the Court granted a partial motion to dismiss filed by Plaintiff pursuant to Fed.R.Civ.P. 41. Doc. 13. Defendant now moves to dismiss the remaining three counts in the Complaint, which assert claims against Defendant pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (Count I; Count III; Count V). Doc. 15.

         B. ANALYSIS

         1. Whether Plaintiff is a “Qualified Individual With A Disability” Under the ADA

         Defendant first argues that Plaintiff's ADA claims fail because he is not “a qualified individual with a disability” under 42 U.S.C. § 12112(a). The ADA defines a “disability” as “(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). In passing the ADAAA, Congress expanded the definition of “disability, ” which courts had interpreted narrowly under the ADA, and stressed that the ADA should be “construed in favor of broad coverage of individuals.” ADA Amendments Act of 2008, Pub.L. No. 110-325, § 4(a), 122 Stat. 3553, 3555; see also id. at *7 (“[T]he determination of whether an impairment substantially limits a major life activity . . . should require a degree of functional limitation that is lower than the standard for ‘substantially limits' applied prior to the ADAAA.”) (quotations and citation omitted).

         Defendant cites case law holding that temporary post-surgery physical limitations do not constitute a “disability” under the ADA. See Doc. 16 at pp. 5-6. However, the cases Defendant cites pre-date the passage of the ADAAA. Furthermore, Plaintiff does not claim that he is disabled because of a temporary injury following surgery; rather, Plaintiff alleges that he suffers from “chronic lower back pain, ” and that the 2015 workplace injury and surgery only resulted in “further” injury. Doc. 1 ¶¶ 4, 7. Defendant also argues that Plaintiff has not demonstrated that his impairment “substantially limits” a major life activity. Doc. 24 at p. 3. However, Plaintiff clearly alleges that he “experiences great difficulty walking, standing, sitting, lifting, sleeping and a number of other activities as a result of pain.” Doc. 1 ¶ 8. Particularly in light of the ADAAA's “command to construe ‘disability' ...


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