MEMORANDUM
Pоtential employers may hot discriminate against job applicants if they regard the applicant as disabled even if he is not. Typically, those seeking a remedy must timely exhaust administrative processes before filing suit. Here, Defendant City of Philadelphia (“City”) decided to withdraw a conditional job offer to Plaintiff Michael Cook (“Cook”) to serve as a police officеr two days after the City received results of psychological testing it required after making the conditional offer. Cook elected not to pursue an administrative remedy and filed this action under the Rehabilitation Act, 29 U.S.C. § 701 et seq. (“RA”) and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). The City moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Based on the ample weight of legal authority, Cook’s ADA claim is barred for his admittеd failure to exhaust his administrative remedies. His RA claim of “regarded as” disabled, based on the standards applied now, may proceed into discovery. The accompanying Order grants in part and denies in part the City’s motion to dismiss.
I. Background
Cook first applied to be a police officer in February 2012. (See Complaint at ECF Doc. No. 1, ¶ 16) He passed a multiple choice test and the City placed him in the top twenty-five percent (25%) of the candidates. (Id.) He аlso passed the required preliminary tests and examinations, including agility and reading tests. (Id. at ¶ 7) After the City’s September 2012 interview, the City offered Cook conditional employment subject to medical, psychological and polygraph examinations, background check, and completion of a personal data questionnaire. (Id. at ¶¶ 7-8) At some point thereafter, the City “informally” told Cook that the result of the polygraph examination was “unsuccessful,” which Cook challenged through unnamed “various
In April 2013, Cook tried again. He passed the polygraph test in April 2013. (Id. at ¶¶ 11-12) The City again gave Cook a conditional offеr of employment subject to “various testing,” including a Multiple Multiphasic Personal Inventory (“MMPI”) test. (Id. at ¶ 13) Cook passed the MMPI test and then took a psychological examination in early May 2013. (Id. at ¶¶ 13-14)
Two days after taking the psychological exam, the City withdrew Cook’s offer based on the psychological exam. (Id. at ¶ 15) Cook asked the City for a copy of the psychological exаmination, its findings and conclusions, and any other information regarding the psychological examination. (Id. at ¶ 16) The City decided not to provide Cook with a copy. (Id.)
Cook alleges that the City “regarded him as” having a psychological impairment or disability within the meaning of the RA and ADA and consequently failed to hire him as a police officer. (Id. at ¶ 17) The City moves to dismiss arguing: (1) Cook cannot plausibly show he is disabled; (2) Cook cannot show that he is qualified to be a police officer; and, (3) even assuming Cook could show that he was disabled and qualified, his ADA claim must be dismissed for failure to exhaust administrative remedies. (ECF Doc. No. 4)
II. Standard of Review
“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,
The Court of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion: (1) “the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim;’” (2) “the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumptiоn of truth;’ ” and, (3) “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Santiago v. Warminster Township,
III. Analysis
A. Plaintiffs Rehabilitation Act claim sufficiently alleges facts, accepted as true, which may state a claim to relief that is facially plausible.
In Count I, Cook alleges the City “regarded him as” disabled based on the results of the May 2013 psychological еxamination and then withdrew its conditional offer of employment on that basis. Section 504 of the RA “bars both federal agencies and private entities that receive federal funding from discriminating on the basis of disability and is not limited to the employment context.” Freed v. Consol. Rail Corp.,
Here, Plaintiff Cook must allege that he (1) is disabled within the meaning of the ADA; (2) is otherwise qualified to perform, with or without reasonable accommodations, the essential functions of his job; and (3) has suffered аn adverse employment decision as a result of the discrimination. McFadden v. Biomedical Systems Corp., Civ.A. No. 13-4487,
Plaintiff Cook is “disabled” if he (1) has “a physical or mental impairment that substantially limits one or more major life activities of such individual;” (2) “a record of such an impairment;” or (3) is “being regarded as having such an impairment.” 42 U.S.C. § 12102(1). Under the ADA, as amended by the ADA Amendments Act of 2008 (“ADAAA”), the definition of disability “shall be construed in favor of broad covеrage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” 42 U.S.C. § 12102(4)(A).
Here, Cook does not allege an actual disability that “substantially limits one or more major life activities” or a record of such an impairment. His only allegation is that the City “regarded him as having a mental or psychological impairment and as
The ADA, as amended by the ADAAA, defines “regarded as having such an impairment” as:
An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or percеived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
42 U.S.C. § 12102(3)(A).
The regulations implementing the ADA, as amended by ADAAA, instruct:
[A]n individual is ‘regarded as having such an impairment’ if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, оr is perceived to substantially limit, a major life activity.
29 C.F.R. § 1630.2(Z)(1) (2015).
Additionally, an individual is “regarded as having such an impairment”
any time a covered entity takes a prohibited action against the individual because of an actual or perceived impairment, even if the entity asserts, or may or does ultimately establish, a defense to such action.
29 C.F.R. § 1630.2(Z )(2).
“Thus, the plain language suggests that a [pjlaintiff nеed only plead that [he] was discriminated against because of an impairment (either actual or perceived).” Riley v. St. Mary Med. Ctr., Civ. A. No. 13-7205,
Viewing Cook’s allеgations of “regarded as” disability in the light most favorable to him, Cook alleges that he was successful in his second application as a police officer, was placed on a list of candidates, passed a polygraph test, a conditional offer of employment was extended to him, and, thereafter, he “passed” the MMPI test. (See ECF Doc. No. 1 at ¶¶ 11-13) Two days after Coоk submitted to the psychological examination, the City withdrew the conditional offer of employment “on the basis of the findings of his psychological examination.” (Id. at ¶ 15)
The Court finds that Cook has adequately alleged facts to support an inference, at this early stage of the litigation, that the City “regarded [him] as” having a mental or psychological disability. See Fowler,
The City’s arguments — that Cook cannot show he is disabled
B. The ADA claim must be dismissed for failure to exhaust administrative remedies.
The City seeks dismissal of Cook’s ADA claim (Count II) for failure to exhaust administrative remedies.
The relevant provisions of the ADA at issue here are Title I, “Employment,” 42 U.S.C. §§ 12111-12117, and Title II, “Public Services,” 42 U.S.C. §§ 12131-12134. Title I provides in relevant part:
No covered entity shall discriminate against a qualified individuаl on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a).
Title II provides in relevant part:
Subject to the provisions of this sub-chapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or bе denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132.
Title I incorporates the administrative procedures of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. See 42 U.S.C. § 12117; Churchill v. Star Enterprises,
Title II, on the other hand, incorporates the RA’s enforcement provisions which do not require a plaintiff exhaust his administrative remedies. See Helen L. v. DiDario,
In Saylor v. Ridge, the plaintiff brought employment discrimination claims under, inter alia, both Title I and Title II of the ADA. In determining whether the Title II claim should be dismissed, the court,, in 1998, recognized a split among authorities on whether Title II applies to claims of employment discrimination, including two earlier opinions from the district court.
Our Court of Appeals has not decided the specific issue of whether a claim for employment discrimination under the ADA is cognizable under Title II.
Additionally, the Court of Appeals for the Second, Seventh, Ninth and Tenth Circuits have аll held that Title II of the ADA does not cover disability-based employment discrimination claims, and that such claims must be brought after exhausting administrative remedies under Title I.
Here, the sound reasoning in Hemby-Grubb, as well as the opinions from the Courts of Appeals, leads this Court to find that Congress did not intend Title II of the ADA to apply to employment discrimination claims when it has expressly authorized a mechanism to bring employment claims under Title I. “It would seem a tortured reading of the ADA as a whole to construe that after covering employment in Title I, Title II likewise was intended to encompass employment actions without explicitly saying so.” Hemby-Grubb,
ORDER
AND NOW, this 2nd day of March 2015, upon consideration of Defendant’s Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (ECF Doc. No. 4), Plaintiff’s Response in Opposition (ECF Doc. No. 5), and Defendant’s Reply (ECF Doc. No. 8), it is ORDERED that the Defendant’s Motion is GRANTED IN PART and DENIED IN PART.
1. The Court denies Defendant’s motion to dismiss Plaintiffs claim under the Rehabilitation Act, 29 U.S.C. § 701 et seq.
2. The Court grants Defendant’s motion to dismiss Plaintiffs claim under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.
3. Defendant shall file an Answer to Count I of the Complaint no later than Monday, March 16, 2015.
Notes
. In defining the three-step analysis, the Court of Appeals noted: "Iqbal describes the process as only a 'two-pronged approach.' It preceded that description, however, by noting that it is often necessary to 'begin by taking note of the elements a plaintiff must plead to state a claim.’ Thus, we view Iqbal as outlining three steps.” Santiago,
. Section 504 provides:
No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
29 U.S.C. § 794(a).
. Similarly, "to make out a prima facie case of discrimination under the Rehabilitation Act, the employee bears the burden of demonstrating (1) that he or she has a disability, (2) that he or she is otherwise qualifiеd to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he or she was nonetheless terminated or otherwise prevented from performing the job." Donahue v. Conrail,
.Citing Koci, supra, the City argues that any impairment that is less than six months in duration is "transitory and minor” and not actionable. Section 12102(3)(B) specifically excludes "transitory and minor” impairments — those with a duration of six (6) months or less — from the "regarded as” prong of the definition of "disability.” See 42 U.S.C. § 12102(3)(B). In Koci, plaintiff alleged her employer terminated her because it regarded her as disabled from depression. In granting the employer’s motion to dismiss, the court found that the plaintiff failed to allege a perceived disability that would have been anything but transitory and minor because the onset of plаintiff's perceived depression occurred only twenty-two days before her termination. Koci,
. Notably, neаrly all of the cases cited by the City in support of its motion, including Terry v. Town of Morristown,
. The City concedes that Cook’s RA claim is not subject to an exhaustion requirement, citing Freed v. Consolidated Rail Corp.,
. See Bracciale v. City of Philadelphia, Civ. A.No. 97-2464,
. The Court of Appeals has addressed the issue of whether Title III applies in the employment context. In Ford v. Schering-Plough Corp.,
. In 1998, the Eleventh Circuit has reached the opposite conclusion. See Bledsoe v. Palm Beach County Soil & Water Conservation Dist.,