EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, KIMBERLY LOWE, Intervenor-Appellant, versus STME, LLC, d.b.a. Massage Envy-South Tampa, Defendant-Appellee.
Nos. 18-11121, No. 18-12277
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(September 12, 2019)
D.C. Docket No. 8:17-cv-00977-MSS-CPT; [PUBLISH]
Appeals from the United States District Court for the Middle District of Florida
Before JORDAN, GRANT and HULL, Circuit Judges.
In this consolidated appeal, the plaintiff Equal Employment Opportunity Commission (“EEOC”) and intervenor Kimberly Lowe appeal the entry of judgment for defendant STME, LLC, d.b.a. Massage Envy-South Tampa (“Massage Envy”), on their employment discrimination claims brought under the Americans with Disabilities Act of 1990 (“ADA”), as amended by the ADA Amendments Act of 2009. Although the EEOC brought only disability discrimination claims, it is undisputed that Lowe was not actually disabled when Massage Envy terminated her employment. The EEOC, however, alleged that Massage Envy violated the ADA because it fired Lowe when she refused to cancel her trip to Ghana, a country in West Africa. Massage Envy’s stated reason for the termination was its fear that Lowe might contract and later develop Ebola due to her Ghana travel. This case involves issues of first impression as to the meaning of “regarded as having such an impairment,” which is a statutory phrase contained in
I. FACTUAL BACKGROUND
Because this appeal arises at the motion-to-dismiss stage, we accept as true the facts as alleged in the EEOC’s complaint. See Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016).
A. Lowe’s Employment at Massage Envy
Massage Envy is a wellness franchise that offers massage and skin care services. In January 2012, Kimberly Lowe began working as a massage therapist at a Massage Envy located in Tampa, Florida. At all times relevant to this case, Lowe did not have a disability. Rather, she was both capable of performing her job duties and did perform her job duties in a satisfactory manner.
In September 2014, Lowe asked Massage Envy for time off so that she could visit her sister in Ghana, a country located in West Africa. Massage Envy’s business manager, Roxanna Iorio, initially approved Lowe’s request. However, on October 22, 2014, three days before her scheduled trip, one of Massage Envy’s owners, Ronald Wuchko, met with Lowe and told her that she would be fired if she went ahead with her travel plans.
Owner Wuchko was concerned that Lowe would become infected with the Ebola virus if she traveled to Ghana and would “bring it home to Tampa and infect everyone.” At that time in 2014, there was an Ebola epidemic in Guinea, Liberia, and Sierra Leone, three other nearby countries in West Africa. According to Wuchko, he was worried about the “potentially catastrophic consequences that an outbreak of Ebola could pose to America.” Because Lowe refused to cancel her trip, Wuchko terminated her employment during that October 22 meeting and before she left.
Lowe then traveled to Ghana as planned. She did not contract Ebola while there. In fact, as it turned out, there was no Ebola outbreak at all in Ghana in 2014.1 Upon her return from West Africa, Lowe did not work at Massage Envy and was not otherwise permitted to keep her massage appointment bookings at Massage Envy.
B. Lowe’s Charge and the EEOC’s Investigation
In November 2014, Lowe filed a Charge of Discrimination with the EEOC, asserting that Massage Envy terminated her employment because owner Wuchko believed that she would come into contact with a person having Ebola while in Ghana.
The EEOC investigated Lowe’s charge. Almost two years later, on September 6, 2016, the EEOC issued a Letter of Determination finding that there was “reasonable cause” to believe that Massage Envy terminated Lowe’s employment because it “regarded” her as disabled, in violation of the ADA. The EEOC invited Massage Envy to engage in conciliation efforts, but those efforts failed.
II. PROCEDURAL HISTORY
On April 26, 2017, the EEOC filed this lawsuit, alleging in the operative amended complaint that “Ebola is a physical impairment that substantially limits those infected in one or more major life activity, including, but not limited to, circulatory function and immune system function.” As such, the EEOC alleged that: (1) Massage Envy violated the ADA,
Later, in the district court proceedings, the EEOC informed the district court that it was “not alleg[ing] that Massage Envy ‘failed to reinstate or rehire’ Lowe” in its amended complaint. Relying on that representation, the district court considered the EEOC’s claims only to the extent they applied to Lowe’s October 22 termination, not to any later refusal to rehire her. We do the same on appeal.2
On June 20, 2017, Lowe moved to intervene in the lawsuit. In her intervenor complaint, Lowe recounted the same facts surrounding her termination as the EEOC set forth in its amended complaint. Based on those allegations, Lowe claimed that Massage Envy’s firing of her violated the ADA and the Florida Civil Rights Act of 1992 (“FCRA”) because the termination decision was based on unfounded fears and beliefs about Ebola and Lowe’s risk for the disease. Lowe’s claims were based on the same theory that the EEOC advanced—that Massage Envy perceived her as having a disability and fired her due to that perceived disability.
Thereafter, in July 2017, Massage Envy moved to dismiss the EEOC’s amended complaint for failure to state a claim and failure to exhaust administrative remedies. See
In a February 15, 2018 order, the district court: (1) granted Massage Envy’s motion to dismiss the EEOC’s amended complaint; (2) denied the EEOC’s motion to file a second amended complaint as futile; and (3) directed the clerk to terminate all pending motions as moot, which included Lowe’s still-pending motion to intervene. As to the merits of the ADA claims, the district court dismissed the EEOC’s “regarded as” disabled claim because Massage Envy did not perceive Lowe as having Ebola at the time it fired her. In so ruling, the district court declined to expand the ADA’s “regarded as having” prong of the disability definition to cases like this one, in which an employer fires an employee at a time when it “perceives [the] employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct.” The district court also concluded that the EEOC’s association claim lacked merit because the EEOC did not allege that Massage Envy knew that Lowe had an existing or past association with any person disabled by Ebola at the time it fired her.
As to the EEOC’s proposed second amended complaint, the district court denied the EEOC’s request to bring an unlawful interference claim because, inter alia, any such amendment would be futile, as Lowe had no existing rights under the ADA when she was fired because she was not disabled and had not associated with anyone who was disabled. Thereafter, the district court entered final judgment in favor of Massage Envy. This appeal followed.
III. STANDARD OF REVIEW
We review de novo a district court’s order granting a motion to dismiss for failure to state a claim. Boyle v. City of Pell City, 866 F.3d 1280, 1286 (11th Cir. 2017). “To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead ‘enough facts to state a claim to relief that is plausible on its face.’” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347–48 (11th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible when the plaintiff pleads sufficient facts to allow the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.” Boyle, 866 F.3d at 1286.
We also review de novo questions of law, such as the construction of a statute. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). We “may affirm the district court’s judgment on any ground that appears in the record, whether or not that ground was relied upon or even considered by the [district court].” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
IV. “REGARDED AS HAVING” A DISABILITY
In interpreting the ADA, we are guided by the traditional canons of statutory construction. “Our ‘starting point’ is the language of the statute itself.” Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1212–14 (11th Cir. 2010). We “assume that Congress used the words of the statute as they are commonly and ordinarily understood and must construe the statute so each of its provisions is given full effect.” United States v. McLymont, 45 F.3d 400, 401 (11th Cir. 1995). To that end, “[w]e do not look at one word or term in isolation, but instead we look to the entire statutory context.” Harrison, 593 F.3d at 1212 (quotations omitted). We now set forth the statutory text at issue here.
A. Statutory Text
Under
In
(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 (as described in paragraph (3)).
In turn, paragraph 3 in
For purposes of paragraph (1)(C): . . . 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 [the ADA] 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.
The relevant time period for assessing the existence of a disability, so as to trigger the ADA’s protections, is the time of the alleged discriminatory act. See Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306, 1312 (11th Cir. 2007) (assessing parallel provision of the Rehabilitation Act);3 Cash v. Smith, 231 F.3d 1301, 1306 n.5 (11th Cir. 2000) (“The
B. Analysis of “Regarded As Having” a Disability
There is no dispute that Lowe was a qualified individual and she suffered an adverse employment action. Rather, the main question is whether Lowe was “disabled” within the meaning of the ADA at the time of Massage Envy’s termination of her employment, that is, before her trip to Ghana. Lowe undisputedly did not have an actual existing disability or a record of disability when she was fired. Thus, the issue here becomes solely whether she was “regarded as having” a disability when fired.
The EEOC contends that Lowe meets the “regarded as” prong of the disability definition because Massage Envy regarded her (or perceived her) as having a disability due to its belief that she would contract Ebola in the future while traveling in Ghana. In reply, Massage Envy stresses that owner Wuchko did not perceive Lowe as having Ebola; rather he perceived her as having the potential or possibility of becoming infected in the future if she traveled to Ghana (i.e., becoming disabled in the future).
For several reasons, we must conclude that the disability definition in the ADA does not cover this case where an employer perceives a person to be presently healthy with only a potential to become ill and disabled in the future due to the voluntary conduct of overseas travel. The EEOC’s claim does not fall within the scope of the “regarded as having” prong of the ADA’s disability definition.
First, we do not read the “regarded as having” prong in
It follows that “impairment” in the “regarded as” statutory prong,
Second and similarly, when
Third, we recognize that the ADA directs that “[t]he definition of disability . . . shall be construed in favor of broad coverage of individuals.” See
Fourth, our conclusion is consistent with the EEOC’s own interpretive guidance, which states that a predisposition to developing an illness or disease is not a physical impairment. See Harrison, 593 F.3d at 1214 (“[A]lthough administrative interpretations
The EEOC disagrees, urging instead that the ADA is broad enough to prohibit an employer from firing an employee because the employer perceives that the employee will imminently contract a disease in the near future. The EEOC reaches this conclusion by focusing on the present tense of the verbs in the “regarded as” prong of the disability definition in
While it is true that the phrase “being regarded as having such an impairment” contains present tense verbs, the ADA’s plain language and context indicates that the Dictionary Act does not apply here as the EEOC suggests. See Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 199 (1993) (“‘Context’ [in the Dictionary Act] means the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts, and this is simply an instance of the word’s ordinary meaning.”).
As noted earlier,
We reject the EEOC’s reading of
And to come full circle, in reading the ADA most naturally, we would expect “regarded as having such an impairment” in
With these principles in mind, we conclude that the EEOC failed to state a “regarded as” disabled claim because it did not allege that Massage Envy perceived that Lowe had an existing impairment at the time it terminated her employment. The district court did not err in dismissing the EEOC’s “regarded as” claim.
V. ASSOCIATION DISCRIMINATION
Next, we turn to the EEOC’s claim of association discrimination under the ADA. See
Under
This association discrimination provision “was intended to protect qualified individuals from adverse job actions based on ‘unfounded stereotypes and assumptions’ arising from the employees’ relationships with particular disabled persons.” Oliveras–Sifre v. Puerto Rico Dep’t of Health, 214 F.3d 23, 26 (1st Cir. 2000). Indeed, the provision “was apparently inspired in part by testimony before House and Senate
To state a prima facie claim for association discrimination, the plaintiff must show: “(1) that she was subjected to an adverse employment action; (2) that she
was qualified for the job at that time; (3) that her employer knew at that time that she had a relative [or associate] with a disability; and (4) that the adverse employment action occurred under circumstances which raised a reasonable inference that the disability of the relative [or associate] was a determining factor in the employer’s decision.” Wascura v. City of S. Miami, 257 F.3d 1238, 1242 (11th Cir. 2001) (internal quotation marks and alteration omitted). As to the third prong, while the nature of the relationship in question need not be familial, see
Like the district court, we conclude that the EEOC failed to state an association discrimination claim under the ADA because it did not plausibly allege that Massage Envy knew that Lowe had an association with a specific disabled individual in Ghana when it terminated her employment. As a matter of fact, the only specific person that Massage Envy knew that Lowe would associate with in Ghana was her sister. But the EEOC never alleged that Lowe’s sister had Ebola or that Massage Envy thought that her sister had Ebola.5
Instead, the EEOC contended, in essence, that Massage Envy believed Lowe might come into contact with certain unknown individuals while traveling in Ghana whom Massage Envy thought might have Ebola. This is too attenuated to state an association discrimination claim under
Moreover, the EEOC failed to plausibly allege a sufficient association or relationship with said unknown individuals with Ebola in any event. Lowe certainly was not traveling to Ghana to assist with the Ebola epidemic. See, e.g.,
In so concluding, we are persuaded by the Fourth Circuit’s decision in Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002). In Freilich, the defendant hospital terminated the plaintiff physician. Id. at 209. In her complaint, the physician raised, inter alia, a claim for association discrimination under the ADA, alleging that she was discriminated against because she refused to end her
In this case, the EEOC has alleged an association even “looser” than the physician and patient relationship in Freilich. Here, the EEOC’s entire claim is based on Massage Envy’s concern that Lowe might come across some unknown person with Ebola while traveling in Ghana. But the EEOC has not cited to, nor are we aware of, a single case involving an association discrimination claim premised on an employer’s belief about an employee’s potential casual association with unknown disabled people.
At the end of the day, we need not, and do not, weigh in on whether it was unfair or misguided for Massage Envy to fire Lowe after she refused to cancel her trip to Ghana. As we have repeatedly and emphatically held, “[a]n employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason” contrary to federal law. Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1262 (11th Cir. 2001) (internal quotation marks omitted). Our sole concern is whether Massage Envy violated the ADA. On that score, the answer is no. The district court correctly dismissed this claim.
VI. UNLAWFUL INTERFERENCE
On appeal, the EEOC does not raise any arguments as to its claim that Massage Envy interfered with Lowe’s exercise and enjoyment of her rights under the ADA. However, Lowe does, arguing that the district court wrongly concluded that it would be futile to allow the EEOC to amend its complaint to add this interference claim.6 We disagree.
Under the Federal Rules of Civil Procedure, a district court “should freely give leave [to amend a complaint] when justice so requires.”
The district court properly denied the EEOC’s motion to file a second amended complaint because its interference claim would have been subject to dismissal as a
The problem with the EEOC’s interference claim, however, is that, when Massage Envy fired Lowe, she had no existing rights under the ADA. Of course, Lowe was not actually disabled by Ebola and thus had no right to a reasonable accommodation under the ADA. She had not associated with, or even planned to associate with, any known person disabled by Ebola either. Because Lowe had no rights under the ADA, Massage Envy could not and did not interfere with her exercise or enjoyment of those rights. Consequently, the EEOC could not have stated a plausible interference claim, and any amendment seeking to add such a claim to the complaint would have been futile.
VII. LOWE’S INTERVENOR COMPLAINT
On appeal, Lowe also argues that the district court erred in not allowing her to intervene in this lawsuit.8 Lowe contends that, although she timely moved to intervene, the district court did not rule on the merits of her motion. Rather, after determining that the EEOC’s claims were due to be dismissed with prejudice, it directed the clerk to terminate all pending motions as moot and close the case. Lowe’s motion to intervene was among those terminated motions. We agree with Lowe that the district court should have addressed the merits of her motion to intervene, rather than terminating it as moot.
Although district courts enjoy broad discretion in deciding how best to manage the cases before them, that discretion is not unfettered. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366–67 (11th Cir. 1997). “When a litigant’s rights are materially prejudiced by the district court’s mismanagement of a case, we must redress the [error].” Id. at 1367. As we have explained, “[f]ailure to consider and rule on significant pretrial motions before issuing dispositive orders can be an abuse of discretion” or constitute legal error. Id.
Here, Lowe timely filed her motion to intervene and she had an unconditional statutory right to intervene in this lawsuit. The district court thus had no discretion to deny her intervention under Rule 24(a). By failing to consider and rule on the merits of Lowe’s motion before dismissing the EEOC’s complaint, the district court effectively circumvented the mandates of both Rule 24(a) and
Nevertheless, because we have affirmed the district court’s dismissal of each of the EEOC’s claims, any error by the district court in declining to rule on Lowe’s motion to intervene was harmless. The standard for harmless error is whether the complaining party’s substantial rights were infringed upon. United States v. Mar. Life Caribbean Ltd., 913 F.3d 1027, 1033 (11th Cir. 2019); Haney v. Mizell Mem’l Hosp., 744 F.2d 1467, 1475 (11th Cir. 1984). The error by the district court prejudiced Lowe only if there is a “reasonable likelihood that the outcome would have been different” if the district court had permitted Lowe to intervene in the lawsuit before proceeding to decide the merits of the EEOC’s claims. See Mar. Life Caribbean Ltd., 913 F.3d at 1033 (internal quotation marks omitted).
Lowe was not prejudiced because there is no reasonable likelihood that the outcome of this proceeding would have been different had she intervened. In her intervenor complaint, Lowe advanced the exact same factual allegations, claims, and arguments that the EEOC had already made itself in the lawsuit. Just like the EEOC, Lowe claimed that Massage Envy perceived her as having a disability (Ebola) and fired her due to that perceived disability (Ebola), in violation of the ADA. Although Lowe brought that “regarded as” disabled claim under both the ADA and the FCRA, “disability-discrimination claims under the FCRA are analyzed using the same framework as ADA claims.” Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1255 (11th Cir. 2007). Therefore, if the district court had allowed Lowe to intervene, the court would have ultimately dismissed Lowe’s “regarded as” disabled claim for the same reasons that it dismissed the EEOC’s “regarded as” disabled claim. The outcome of the proceeding would not have differed.
In turn, we have affirmed on appeal the district court’s dismissal of the EEOC’s “regarded as” disabled claim, as well as its association discrimination and interference claims. And in so ruling, we have considered every issue that Lowe raised in her briefing, including her vigorous arguments that the district court erred in dismissing all three of the EEOC’s ADA claims. For
VIII. CONCLUSION
For the foregoing reasons, we must affirm the district court’s final judgment in favor of Massage Envy.
AFFIRMED.
JORDAN, Circuit Judge, concurring.
If we assume the facts alleged in the complaint are true, Mr. Wuchko engaged in the sort of stereotyping that the ADA was meant to prevent when he fired Ms. Lowe because she refused to cancel her trip to Ghana to visit her sister. See, e.g., Ross v. Campbell Soup Co., 237 F.3d 701, 707 (6th Cir. 2001) (“The ADA was enacted, in part, to eliminate the sort of stereotyping that allowed employers to see their employees primarily as their disabilities and not as persons differently abled from themselves.“); Lex Larson, 9 Employment Discrimination §153.09[3] (2d ed. 2019) (explaining that the ADA, among other things, was meant to target “ignorance-based employment discrimination“). From a policy perspective, then, the position of the EEOC and Ms. Lowe on the “regarded as having” language in
But in my view the court correctly concludes that the “regarding as having” language is best read to cover only an employer’s perception that an employee has an existing (i.e., current) disability. Under the circumstances, an appeal to one of the ADA’s motivating purposes “fail[s] to overcome the clear statutory language.” Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018). See also Mertens v. Hewitt Assocs, 508 U.S. 248, 261 (1993) (“[V]ague notions of a statute’s ‘basic purpose’ are nonetheless inadequate to overcome the words of its text regarding the specific issue under consideration.“) (emphasis deleted). I therefore join Parts I–V of the court’s opinion.
With respect to Part VI, which addresses the EEOC’s motion for leave to amend to assert an unlawful interference claim, I agree with everything except footnote 7. Unlike the court, I would decide the important question of whether the EEOC is required to exhaust administrative remedies (and satisfy all that the exhaustion doctrine entails) before filing suit. And I would hold, like the Seventh Circuit, that when the EEOC is the plaintiff, it can assert any claims it believes are warranted, and the doctrine of exhaustion of administrative remedies does not apply:
[E]xhaustion of administrative remedies is an issue when the suit is brought by a
private party but not when the Commission is the plaintiff. Were the private party permitted to add claims that had not been presented in the administrative charge filed with the EEOC, the Commission’s informal procedures for resolving discrimination charges . . . would be by-passed, in derogation of the statutory scheme. That is not an issue when the EEOC itself is the plaintiff, which is why a suit by the EEOC is not confined “to claims typified by those of the charging party[.]”
EEOC v. Caterpillar, Inc., 409 F.3d 831, 832–33 (7th Cir. 2005) (citations omitted) (quoting General Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980)).