United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on defendant's motion to
dismiss plaintiff's second amended
complaint for failure to state a claim upon which
relief can be granted, pursuant to Federal Rule of Civil
Procedure 12(b)(6). (DE 34). The issues raised have been
fully briefed, and in this posture are ripe for ruling. For
the reasons that follow, defendant's motion is denied.
OF THE CASE
initiated this action on December 1, 2017. On May 24, 2018,
plaintiff filed his first amended complaint, asserting
several claims against defendant under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12112;
Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq .; the
Civil Rights Act of 1866 (“CRA”), 42 U.S.C.
§ 1981; the North Carolina Equal Employment Practices
Act (“NCEEPA”), N.C. Gen. Stat. §§
143-422.1 et seq.; and North Carolina public policy.
Defendant filed its first motion to dismiss on July 27, 2018,
arguing that plaintiff's first amended complaint must be
dismissed in its entirety for failure to state a claim. The
court granted the motion, dismissing plaintiff's first
amended complaint without prejudice and allowing plaintiff 21
days to file a second amended complaint correcting the
deficiencies noted in the court's order. Plaintiff then
filed his second amended complaint on January 24, 2019,
alleging only that defendant failed to accommodate his
disability in violation of the ADA, 42 U.S.C. § 12112.
Defendant filed the instant motion to dismiss, again
asserting plaintiff fails to state a claim.
OF THE FACTS
5, 2016, plaintiff was hired by defendant as a social worker
in the foster care unit at New Hanover County Department of
Social Services (“NHCDSS”) (Compl. ¶ 8). As
a social worker, one of plaintiff's primary tasks was to
reunify families, which he did in several instances.
(Id. ¶ 10). Before working for defendant,
plaintiff was diagnosed with Attention Deficit Hyperactivity
Disorder (“ADHD”), which substantially limited
his ability to concentrate, think, interact with others,
work, and sleep. (Id. ¶ 11).
his previous employer, plaintiff's position with
defendant required him to work solely during business hours
in a cubical setting amongst other social workers.
(Id. ¶ 12; see id. ¶ 7). Due to
the distraction of his work setting, plaintiff found it
difficult to perform all of his duties, including timely
completion of necessary paperwork. (Id. ¶¶
13, 14). Plaintiff's supervisors held feedback sessions
with him to discuss his performance deficiencies.
(Id. ¶ 13). Plaintiff attempted to alleviate
some of the distraction of the work setting by working
partially from home, but was advised that working from home
was against company policy. (Id. ¶ 15).
Plaintiff later learned that defendant allowed other
employees to work from home. (Id. ¶ 18).
meantime, on or about August 29, 2016, plaintiff emailed Mark
Francolini (“Francolini”), defendant's chief
human resources officer, informing him of his disability and
requesting an accommodation. (Id. ¶ 16).
Francolini advised plaintiff to follow up with Ms. Knips
(“Knips”). (Id. ¶ 19). On September
2, 2019, plaintiff met with Knips to discuss possible
accommodations. (Id. ¶ 20). After a couple of
delays, plaintiff received a reasonable accommodation request
packet on October 4, 2016. (See id. ¶¶
October 5, 2016, plaintiff suggested to his supervisors that
he be transferred to an after-hours position in child
protective services as an accommodation, in part because
there is less distraction in that position. (Id.
¶ 25). The role was similar to the one he had with his
former employer. (Id. ¶¶ 25, 27).
Defendant advised that the position he referenced required
the applicant to have a master's degree in social work.
(Id. ¶ 26). Plaintiff requested the education
requirement be waived, but defendant refused. (Id.
about October 18, 2016, defendant provided accommodations for
plaintiff's ADHD, moving plaintiff to an different office
shared with another coworker and issuing a noise cancelling
headset. (Id. ¶¶ 29-30). However,
plaintiff's office was small, with about 18 inches
separating him from his coworker, and the headset provided to
plaintiff did not fit properly. (Id. ¶ 31).
Plaintiff informed defendant that the provided accommodations
were ineffective but received no response. (See id.
¶ 36). On December 6, 2016, plaintiff was terminated
because of the performance deficiencies addressed during
prior feedback sessions with his supervisors. (Id.
Standard of Review “To survive a motion to
dismiss” under Rule 12(b)(6), “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, 556 U.S. 662,
663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Factual allegations must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. In
evaluating whether a claim is stated, “[the] court
accepts all well-pled facts as true and construes these facts
in the light most favorable to the plaintiff, ” but
does not consider “legal conclusions, elements of a
cause of action, . . . bare assertions devoid of further
factual enhancement[, ] . . . unwarranted inferences,
unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 255 (4th Cir. 2009) (citations omitted).
makes it unlawful to “discriminate against a qualified
individual 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). To “discriminate against a
qualified individual on the basis of disability”
includes “not making reasonable accommodations to the
known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or
employee.” 42 U.S.C. § 12112(b)(5)(A). To state a
claim for failure to accommodate under the ADA, plaintiff
must allege “(1) that he was an individual who had a
disability within the meaning of the statute; (2) that the
[employer] had notice of his disability; (3) that with
reasonable accommodation he could ...