United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
August 2018, the Baptist Children's Homes of North
Carolina was looking for a married couple to provide live-in
child care at the residential facility it operates in
Thomasville, North Carolina. Plaintiff Dorien Rose and his
wife Lorelei Rose applied. The positions came together:
either both spouses would be hired, or neither would be.
After a multi-stage interview process that included several
inquiries about Mrs. Rose's hearing loss, neither was
receiving a right-to-sue letter, Mr. Rose filed suit,
alleging BCH and several individual BCH employees
discriminated against him based on Mrs. Rose's
disability, in violation of the Americans with Disabilities
Act. The individual defendants move to dismiss; BCH moves to
dismiss or, in the alternative, for judgment on the
pleadings; and Mr. Rose moves to amend his complaint.
the ADA does not permit individual liability, the claims
against the individual defendants will be dismissed. As to
BCH, Mr. Rose has alleged facts sufficient to state a claim
in the proposed amended complaint, and it would not be futile
for him to amend his complaint as proposed. Accordingly, the
Court grants Mr. Rose's motion to amend his complaint and
denies BCH's motion to dismiss as moot.
ASSERTED IN THE COMPLAINT AND PROPOSED AMENDED
August 2018, Mr. and Mrs. Rose applied for a position with
BCH in response to BCH's job posting for “a
Christian, married couple to serve as residential
houseparents.” Doc. 21-3 at 2; Doc. 2 at 8; Doc. 25 at p. 5
¶ 1. Either both spouses would be hired, or neither.
Doc. 2 at 8, 9; Doc. 25 at p. 5 ¶ 1, p. 7 ¶ 8.
Daily responsibilities included “[p]rovid[ing]
Christian Role Model and spiritual guidance and a Christian
environment to include Daily Devotions and regular church
attendance, ” as well as nearly three dozen other tasks
which do not appear religious in nature. Doc. 21-3 at 2-3.
The listed qualifications do not include any religious
training or experience. Doc. 21-3 at 3.
Mr. and Mrs. Rose applied and had two interviews online, they
came for an in-person interview. Doc. 25 at pp. 5-7
¶¶ 3-8; Doc. 2 at 8-9. Mrs. Rose twice had to ask
BCH interviewers to speak up, and one BCH representative,
Rusty Bunker, asked questions about her hearing loss. Doc. 2
at 9; Doc. 25 at pp. 6-7 ¶ 8.
follow-up conversation, Mr. Bunker told Mrs. Rose that BCH
was “very, very interested” in the couple and had
questions about Mrs. Rose's hearing loss and any needed
accommodations. Doc. 2 at 10; Doc. 25 at pp. 9-11 ¶ 12.
According to Mr. Rose's first complaint, Mrs. Rose
“informed them that we had service dogs, but could tell
that [there] would be an issue with them.” Doc. 2 at
10. According to the proposed amended complaint, Mrs. Rose
told Mr. Bunker that the dogs are “hearing dogs for
when someone is at the door or events take place outside that
she cannot hear, ” and they are “mostly used when
she is by herself.” Doc. 25 at p. 9 ¶ 12. Mrs.
Rose told Mr. Bunker she was trying to get hearing aids;
while visiting BCH, her hearing was a bit worse than usual
due to congestion; and she was speaking with Mr. Bunker by
phone “without any hearing accommodation.” Doc.
25 at pp. 9-10 ¶ 12. In addition, she told him
“she is usually okay if the person she is talking to is
looking at her;” that “she usually only has a
problem with someone knocking at the door;” and that
the BCH home's doorbells “should be fine for her
hearing.” Doc. 25 at p. 10 ¶ 12. After Mr. Bunker
inquired further about Mrs. Rose's service dogs, she told
him that “if anything, they would be restricted to her
room” and “that they are ADA dogs.” Doc. 25
at p. 10 ¶ 12.
the phone call, the Roses asked Mrs. Rose's mother if she
could care for the dogs if they were hired. Doc. 25 at p. 11
¶ 12. Later that same day, Mrs. Rose informed Mr. Bunker
that “the dogs were no longer an issue, ” Doc. 2
at 10; Doc. 25 at p. 11 ¶ 12, and “[n]o
accommodations will be needed.” Doc. 25 at p. 11 ¶
Bunker and BCH's director of Human Resources, John
Adamcik, called back the next day to discuss the dogs
further. They focused on Mrs. Rose's ability to care for
the children and on accommodations. Doc. 2 at 10; Doc. 25 at
pp. 12-13 ¶ 13. Mrs. Rose repeated that she would not
need accommodations and explained she had not taken the dogs
with her when she was a house parent at the Arkansas
Sheriff's Youth Ranch. Doc. 25 at pp. 12-13 ¶ 13.
Mrs. Rose told Mr. Bunker and Mr. Adamcik that “she has
functioned her entire life without having hearing aids,
” though she required accommodations in college to hear
certain professors. Id. at p. 13 ¶ 13.
weeks later, the director of BCH's Thomasville house,
Regina Keener, called to say they had “decided to go in
a different direction.” Id. at p. 14 ¶
15; see also Doc. 2 at 11. She asked the Roses
“to consider allowing them to call” if BCH has
another opening. Doc. 25 at p. 14 ¶ 15; see
also Doc. 2 at 11.
Rose filed a charge with the Equal Employment Opportunity
Commission and later received his right-to-sue notice. Doc.
25 at pp. 14-15 ¶¶ 17, 19; see also Doc. 2
at 12-16 (Charge of Discrimination filed against BCH by Mr.
Rose, and Dismissal and Notice of Rights from EEOC). Mr. Rose
then timely filed this case.
to the proposed amended complaint, two months after this
lawsuit was originally filed, Mrs. Rose-who also filed a
charge with the EEOC and then a federal case-received her
complete EEOC file. Doc. 25 at p. 15 ¶ 18. In the file
was an email by Ms. Keener dated November 13, 2018,
apparently written after Mr. Bunker's conversation with
Mrs. Rose about the service dogs and before Mrs. Rose
rescinded her accommodation request related to the dogs.
Id. at 21. Ms. Keener wrote that while the Roses
“were our next choice to consider for employment,
” her hearing loss and need for accommodations were a
surprise and that “I will need time to think about who
we choose next.” Id.
Motion to Dismiss by Individual Defendants
employees named as individual defendants in Mr. Rose's
original complaint move to dismiss Mr. Rose's claims
against them. There is no liability for individuals under the
ADA, whether in their personal or official capacities.
Swaim v. Westchester Acad., Inc., 170 F.Supp.2d 580,
583 (M.D. N.C. 2001); see also Woodbury v. Victory Van
Lines, 286 F.Supp.3d 685, 693-94 (D. Md. 2017) (citing
cases that interpret Title VII and ADA coextensively as to
the definition of an “employer” that bears
liability, which excludes individual supervisors). In Mr.
Rose's proposed amended complaint, Doc. 25, he names only
BCH as a defendant. The Court will grant the individual
defendants' motion to dismiss the ADA claim with
prejudice. Doc. 17.
Motion to Amend Complaint by Mr. Rose
Fed.R.Civ.P. 15(a)(2), “a party may amend its pleading
only with the opposing party's written consent or the
court's leave, ” which the court “should
freely give . . . when justice so requires.” “The
Fourth Circuit has stated that leave to amend under Rule
15(a) should be denied only in three situations: when the
opposing party would be prejudiced, when the amendment is
sought in bad faith, or when the proposed amendment would be