United States District Court, W.D. Pennsylvania
Bissoon United States District Judge
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.
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. ¶
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.
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.
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.
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.
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.
Whether Plaintiff is a “Qualified Individual With A
Disability” Under the ADA
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).
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'