Case Information
*1 CLERK'S OFFICE .U S. DISX CG JRT AT ROANOKE, VA FILED MAt 2 1 2219 IN THE UNITED STATES DISTRICT COURT JULIA C DUDLEY CLERK FOR TilE W ESTERN DISTRICT 0F VIRGW IA BY: CHA RLOTTESV ILLE D IV ISION C M ICRAEL DONALDSON,
Plaintiff, Civil Action N o. 3:18CV 00097 M EM O R ANDU M OPPW O N By: H on. Glen E. Conrad TRAE-FUELS, LLC, et a1.,
Senior United States District Judge D efendants.
M ichael Donaldsoh filed this action under the Am ericans w ith Disabilities A ct of 1990 (%çADA''), 42 U.S.C. jj 12101-12213, against Trae-Fuels, LLC (Eçerrae-Fuels'') and EnviroTech Services, lnc. (ssEnviroTech''). The defendants have moved to dismiss the complaint under Rule 12(b)(6) of the Fçderal Rules of Civil Procedure. For the reasons set forth below , the court will deny the defendants' m otion.
Backeround
The following facm al allegations, taken from the plaintifps com plaint, are accepted as true
for purposes of the pending motion. See Erickson v. Pardus,
On October 17, 2013, Donaldson began working as the financial controller of Trae-Fuels, a limited liability company in Bumpass, Virginia that manufacturers heating pellets. Compl. !! 13, 15, D ld. N o. 1. D onaldson reported directly to John Frink, the general m anager of Trae-Fuels, and K evin W hyrick, the chief financial oftk er of EnviroTech, Trae-Fuel's m anaging m em ber. Id. !! 17, 30-31. Chris LaRocco, EnviroTech's coporate strategist, and Betb Aleman, its *2 director of hum an resources, also supervised the perform ance of certain duties assigned to Donaldson. ld. !! 35-36.
In M ay of 2014, Donaldson w as diagnosed w ith çsinoperable A denocarcinom a pancreatic cancer (Stage IV).'' ld. ! 37. Of the two primary types of pancreatic cancer, Adenocarcinoma is ççthe deadlier and more common.'' Id. ! 38. $$ln 2014, 75% of individuals with Adenocarcinoma pancreatic cancer died w ithin one year of diagnosis, w ith only 6% having a s-year life expectancy survival rate.'' 1d. ! 39.
Upon learning of the diagnosis, D onaldson's supervisors expressed concern about his ability to w ork. For instance, LaRocco told Donaldson that his aunt had died from pancreatic cancer, and he inquired as to w hether Donaldson w ould want to work part-tim e as a result of the diagnosis. Id. !! 51-52. 0n another occasion, W hyrick asked Donaldson if his particular type of cancer was EEslow or aggressive-'' ld. ! 55.
On M ay 19, 2014, Donaldson mèt with an oncologist. 1d. ! 42. During the appointment, Donaldson's temperature was elevated. Id. ! 43. Consequently, Donaldson was hospitalized for a few days. Ld..a On the day that he was discharged from the hospital, W hyrick informed Donaldson by telephone that the defendants had <chired a temporary accountant to assist (himj while he was sick, since (Donaldson) was the only accountant in the Trae-Fuels office.'' 1d. ! 44.
lm m ediately thereafter, D onaldson left on a pre-planned trip to Utah to adopt a newborn child. L1.J.Z ! 45. Upon remrning to work on M ay 27, 2014, Donaldson began to train the temporary accountant at W hyrick's direction. J#. ! 46. However, because the plaintiff was çsfunctioning w ell,'' the defendants decided to release the tem porary accountant shortly thereafter. ld. ! 47. Aleman acknowledged that the hiring of the temporary accountant was upremature,'' since Donaldson tthad continued to perfol'm his duties well despite his health issues.'' Id. ! 49.
Prior to his cancer diagnosis, D onaldson never received any negative feedback or reviews regarding his job pedbnnance. Id. ! 59. However, within a few weeks of being informed of the diagnosis, Aleman and LaRocco met with Donaldson and critically questioned his decision to leave his company cell phone at the oftlce while he was in Utah. Id.!! 60.-63. At the beginning of the meeting, Aleman indicated that she was çç<documenting''' their conversation. 1d. ! 62. Donaldson advised Alem an and LaRocco that the phone w as not working properly and that he had left it with the office administrator to be repaired while he was gone. J#= !! 64-65. Donaldson Stalso explained that his supervisors and colleagues lcnew he was available on his personal phone and that his hom e, com pany cell, and personal cell phone num bers w ere listed on the com pany contact list available to all employees.'' 1d. ! 66. çtln fact, Plaintiffs supervisors had called him on his personal cell phone many timej before this incident.'' 1d. ! 67.
In late June or early July 2014, Donaldson advised the defendants that he would be undergoing chemotherapy at Johns Hopkins in Baltimore, Maryland. J.d..a ! 76. Donaldson provided a copy of his chem otherapy schedule to Frink, W hyrick, and Trae-Fuel's offce m anager. Ld-a ! 78. 'l'he schedule consisted of chemotherapy on ççtwo put of every three Fridays.'' 1d. ! 77. D onaldson advised Frink that he intended to m aintain a full, forty-hour w orkweek while Frink subsequently inform ed D onaldson that the defendants had undergoing treatment. 1d. ! 79. EEagreed to this plan.'' 1d. ! 80.
Donaldson started chemotherapy on July 3, 2014. 1ka ! 76. He handled the treatment 6çextremely well'' and çsexperienced no negative symptoms.'' Li ! 82. As a result, he iEwas able to m aintain a forty to forty-tsve-hour work week, even on w eeks that he underwent chem otherapy-'' 1d.
N onetheless, on A ugust 20, 2014, less than two m onths after he began chem otherapy, Frink and A lem an inform ed D onaldson that he was being term inated and should not return to *4 work. 1d. ! 83. SW leman provided no explanation for the flring, but began the conversation by saying $W e are not letting you go because you are sick.''' 1d.! 84. W hen Donaldson inquired as to the reason for his term ination, EW lem an said only t1 think you know what it is''' and did not respond any further. Ld-a! 86. Prior to his termination, none of Donaldson's supervisors voiced any concerns regarding hisjob performance. Id. !! 88-90.
Procedural H istoa A Aer exhausting his adm inistrative rem edies, D onaldson filed the instant action against Trae-Fuels and EnviroTech for alleged violations of the AD A . In Count 1 of the com plaint, Donaldson claims that, by terminating him, the defendants ççdenied ghisq request for reasonable accomm odations and refused to engage in an interactive process to identify reasonable accommpdations.'' Id. ! 104. In Count I1, Donaldson claims that the defendants termipated his employment Eçbecause of his disability'' and because they çsregarded (him) as disabled.'' Id. ! 113.
The defendants have moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The defendants' motion has been fully Viefed and argued and is now ripe for disposition.
Standard of R eview
Rule l2(b)(6) permits a party to move for dismissal of a complaint for failure to state a
claim upon which relief can be granted. W hen deciding a m otion to dism iss under this rule, the
court m ust accept as trpe al1 w ell-pleaded allegations and draw all reasonable factual inferences in
the plaintim s favor. Erickson.
Discussion
The A DA prohibits discrim ination ttagainst a qualifed individual on the basis of disability
in regard to . . . the hiring, advancem ent, or discharge of em ployees, . . . and other term s,
conditions, and privileges of employment-'' 42 U.S.C. 121 12(a). Eçsuch unlawful
discrim ination can include the failure to m ake lreasonable accom m odations to the know n physical
or mental limitations of an otherwise qualified individual with a disability who is an applicant or
employee . . . .''' W ilson v. Dollar Gen. Corp.,
In m oving to dism iss the complaint, the defendants argue that Donaldson's allegations are insufficient to establish that he w as disabled w ithin the m eaning of the A DA and that both claim s are subject dismissal on that ground. The defendants also argue that Donaldson has failed to plausibly allege that they refused to provide an accommodation. For the following reasons, the court finds both argum ents unpersuasive.
1. Disabilitv W ithin the M eanine of the A DA
Under the ADA, Esltqhe tenn çdisability' means with respect to an individual---tA) 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. j 12102(1). 'I'he term ççmajor life activities'' is defned to include, am ong others, ççconcentrating, thinking, com m unicating, and w orking,'' as w ell as Eçthe operation *6 of a major bodily function,'' including the çdfunctions of the immune system, normal cell growth, (and) digestive . . . functions.'' 1d. j 1210242).
In 2008, Congress enacted the ADA Amendments Act of 2008 (ûWDAAA''), Pub. L. No.
1 10-325, 122 Stat. 3553, which tEbroadened the defnition of tdisability.''' Sum m ers v. A ltarum
lnst.. Corp..
ln this c>se, D onaldson claim s that he w as acm ally disabled at a1l tim es relevant to this action, since his Ktpancreatic cancer was a physical limitation that substantially limited his major bodily functions regarding his normal cell growth and his digestive functions.'' Compl. ! 40. Donaldson alternatively asserts that the defendants perceived or regarded him as disabled as a result ofhis cancer diagnosis. 1d. !! 41, 131.
A lthough certain allegations regarding the lim iting effects of the plaintifrs pancreatic
cancer are arguably conclusory, the court is of the opinion that this im paitm ent, as described in the
complaint, plausibly qualiGes as a disability under the AD A . This conclusion is consistent w ith
the regulations im plem enting the A DAA A, w hich recognize that cancer w ill qualify as a disabling
im painnent ççin virtually all cases,'' since tçcancer substantially lim its norm al cell grow th.'' 29
C.F.R. j 1630.2()(3); see also Alston v. Park Pleasant. Inc.,
D onaldson also claim s that the defendants regarded him as having a disability. Under the
ADA, as amended, t:gaqn individual meets the requirements of çbeing regarded as having (a
disabling) impairment' if the individual establishes that he or she has been subjected to an action
prohibited un/er this chapter because of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.'' 42 U.S.C.
j 12012(3)(A). Thus, the question of whdher a plaintiff is regarded as disabled ççttzrns on the
*8
employer's perception of the employee.'' Francis v. City of Meriden,
View ing the facm al allegations in the light m ost favorable to Donaldson, the court concludes that the cpm plaint plausibly alleges that the defendants term inated his em ploym ent because of his cancer diagnosis. The com plaint indicates that, prior to his diagnosis, the plaintiff never received any negative feedback, review s, or com plaints about his w ork from Frink, W hyrick, or anyione else at Trae-Fuels or EnviroTech . H ow ever, upon leam ing that he had been diagnosed with pancreatic cancer, A lem an and LaR occo criticized him for leaving his com pany cell phone at the oftsce, and A lem an noted that she was docum enting their conversation w ith the plaintiff. Additionally, D onaldson's supervisors expressed concern about the plaintiffs ability to work and hired a temporary accountant to assist him Stwhile he was sick.'' Compl. ! 44. Less than two m onths after Donaldson began chem otherapy, the defendants term inated his em ploym ent, even though he m aintained a full-tim e w ork schedule w hile undergoing treatm ent. At the time of his termination, Donaldson was once again referred to as being çtsick.'' 1d. ! 84 (internal quotation marks omitted). Although Aleman told Donaldson that the stattzs of his health w as not the reason for his term ination, the facts alleged in the complaint, when view ed in D onaldson's favor, support a contrary inference at the pleading stage.
For all (lf these reasons, the court concludes that D onaldson has adequately alleged that he was both acfually disabled and regarded as disabled by the defendants. Consequently, the court must reject the defendànts' argumint that çr onaldson was not impaired or disabled in any way.'' D efs.' Br. Supp. M ot. D ism iss 7, Dkt. No. 13.
1I. Failure to A ccom m odate
The defendants also seek dism issal of Count 1 on the basis that they ççgranted, not refused, 1d. at 5. For the follow ing M r. Donaldson's requested accom m odations for m edical treatm ent'' reasons, the court finds this argum ent unpersuasive.
As indicated above, unlawful discrim ination under the ADA ('can include the failure to
m ake regsonable accom m odations to the known physical or m ental lim itations of an otherwise
qualiGed individual w ith a disability who is an applicant or employee-'' W ilson,
ln moving to dismiss Count 1, the defendants argue that the only accommodation requested by Donaldson w as that he be allow ed to undergo chem otherapy two out of every three Fridays, and that the com plaint expressly states that %%lEnviro-fech and Trae-Fuels agreed to this plan.'' Compl. ! 80. The problem with this argument is that the complaint goes on to allege that Donaldson was term inated less than two m onths after he began undergoing chemotherapy. See . 1/.. ! 83. Courts have recognized that em ployers cannot Eçescape liability for failure to provide reasonable accom m odation by term inating em ploym ent.'' Roberts v. Progressive lndependence. lnc., 183 F.3d 1215, 1220 (10th Cir. 1999). Because Donaldson plausibly alleges that the defendants %çterminated ghisq employment rather than retain him as an employee and provide (the requested *10 accommodauonl,'' the court concludes that the complalnt states a clm'm for Rboth a fallure to accommodate and wrongful tennlnnuom'' E.E.O.C. v. Orioh Energy Sys.. No. 1;14-cv-00619, [5]
Conelusion Forthe reasons stated, the courtwlll deny the defendnnts' mouon to dlsmiss. The Clerk Ls diregted to Rnd copies of this m emorandum oplnion and the accompanylng order to a11 counsel of record.
DATED: Thls %1 day of M ay F , 2019.
Senior Unitd Sutes Dlstriot Judge