United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
D. SCHROEDER, District Judge.
Equal Employment Opportunity Commission (“EEOC”)
brings this lawsuit against Advanced Home Care Inc.
(“Advanced”) alleging violations of the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101 et
seq. (“ADA”), for failure to reasonably
accommodate its employee, Elizabeth Pennell, and wrongful
termination. Before the court is Advanced's motion to
dismiss. (Doc. 6.) The motion has been fully briefed and is
ready for decision. (Docs. 7, 8, 9.) For the reasons set
forth below, the motion will be denied.
in the light most favorable to the EEOC as the non-moving
party, the operative facts are as follows:
offers in-home health care services to patients.
(See Doc. 1 ¶ 12.) On February 3, 2014,
Advanced hired Pennell to serve as a Patient Accounts
Representative at its High Point location. (Id.) The
main function of Pennell's job was to manage cases for
patients who required at home health care services. (See
Id.) This required that she spend some portion of her
typical work day on the telephone. (Id.)
the spring of 2015, Pennell began to experience frequent
asthma attacks and flare ups of bronchitis. (Id.
¶ 13.) That August, she collapsed at work, was
hospitalized, and subsequently was diagnosed with chronic
bronchitis and chronic obstructive pulmonary disease
(“COPD”). (Id. ¶ 14.) As a result
of these conditions, Pennell has difficulty talking
continuously for extended periods of time. (Id.
¶ 15.) Her conditions are aggravated by scents and odors
of the sort that she was regularly exposed to when working in
a cubicle at Advanced along with hundreds of other employees.
(Id. ¶ 16.)
her diagnosis, Pennell was out of work under the Family and
Medical Leave Act of 1993, 29 U.S.C. § 2601 et
seq., from August 5 through 30, 2015. (Id.
¶ 17.) When she returned to work, Pennell asked her
supervisor if she could telework either part-time or
full-time as an accommodation for her disability.
(Id. ¶ 18.) She requested this accommodation
because it would prevent her from being exposed to irritants
in her work environment and because she would not have to
take inbound calls while teleworking, meaning she would have
to spend less time continuously talking. (Id.) The
supervisor informed Pennell that she would get back to her,
but never did. (Id. ¶ 18.) Between August and
December of 2015, Pennell requested the accommodation of
telework on at least three separate occasions, but never
received a response. (Id. ¶ 19.)
November of 2015, Pennell was again hospitalized with
COPD-related symptoms. (Id. ¶ 20.) On November
11, 2015, she went on leave again. (Id.) In
December, while still on leave, she received a performance
review from her supervisor that stated she had met
Advanced's performance expectations. (Id. ¶
23.) Pennell's direct supervisor told her on more than
one occasion, however, that if she could not return to work
without restrictions on January 7, 2016, when her FMLA leave
ended, she would be terminated. (Id. ¶ 21.)
Pennell exhausted all twelve weeks of her leave but could not
return to work, and she was fired on January 8, 2016.
(Id. ¶¶ 20-21, 25.)
after her termination, Pennell filed an EEOC complaint
against Advanced, alleging violations of the ADA.
(Id. ¶ 7.) The EEOC issued Advanced a letter
stating that there was reasonable cause to believe that the
ADA had been violated and inviting Advance to engage in
conciliation. (Id. ¶ 8.) When that failed, the
EEOC filed the present action.
Rule of Civil Procedure 8(a)(2) provides that a complaint
must contain a short and plain statement of the claim showing
that the pleader is entitled to relief. Under Federal Rule of
Civil Procedure 12(b)(6), “a complaint must contain
sufficient factual matter . . . to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). A Rule 12(b)(6) motion to
dismiss “challenges the legal sufficiency of a
complaint considered with the assumption that the facts
alleged are true.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir.2009) (internal citations omitted).
Failure to Accommodate
provides a cause of action to a qualified individual with a
disability whose employer fails to make a reasonable
accommodation to a known physical or mental limitation unless
the employer can demonstrate that the requested accommodation
would impose an undue hardship. 42 U.S.C. §
12112(b)(5)(A). The elements of a failure to accommodate
claim are that (1) the employee is a qualified individual
with a disability; (2) the employer has notice of the
employee's disability and request for accommodation; and
(3) the employer failed to accommodate the employee. See
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d
562, 579-80 (4th Cir. 2015). A qualified individual is
“an individual who, with or without reasonable
accommodation can perform the essential functions of the
employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8). “A job
function is essential when ‘the reason the position
exists is to perform that function.'”
Jacobs, 780 F.3d at 579 (quoting 29 C.F.R. §
1630.2(n)(1)). A reasonable accommodation is “one that
‘enables [a qualified] individual with a disability . .
. to perform the essential functions of [a]
position.'” Id. at 580 (quoting 29 C.F.R.
§ 1630.2(o)(1)(ii)). “The statute expressly
contemplates that a reasonable accommodation may require
‘job restructuring.'” Id. (quoting
42 U.S.C. § 12111(9)(B)). Under the ADA, employers have
a “good faith duty to engage with [their employees] in
an interactive process to identify a reasonable
accommodation.” Id. at 581 (internal quotation
argues that the EEOC has failed to allege sufficient facts to
support the claim that Pennell is a qualified individual.
(Doc. 7 at 4-7.) Specifically, Advanced contends that the
complaint fails to allege facts to demonstrate the essential
function of Pennell's position or that Pennell could have
performed it with a reasonable accommodation. (Id.
at 4-9 (citing Cabrera Mejia v. Walmart, No.
1:14CV237, 2014 WL 5531432 (M.D. N.C. Nov. 3, 2014),
aff'd sub nom. Mejia v. Wal-Mart, 599 Fed.Appx.
520, at *3- 6 (granting a motion to dismiss because the
complaint failed to allege “even the most basic details
about [plaintiff's] job, let alone that ...