Pellot v. United States of America et al, No. 3:2008cv01297 - Document 19 (D.P.R. 2009)
Court Description: ORDER denying 10 Motion to Dismiss. Answer to complaint due by 2/27/2009. Signed by Judge Raymond L. Acosta on 2/2/09. (ans)
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Pellot v. United States of America et al 1 Doc. 19 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 PEGGY A. PELLOT, 4 Plaintiff, 5 v. 6 7 8 CIVIL NO. 08-1297 (RLA) UNITED STATES OF AMERICA, et al., Defendants. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORDER DENYING MOTION TO DISMISS AND SETTING DEADLINE FOR DEFENDANTS TO ANSWER THE COMPLAINT Defendants have moved the court to dismiss the instant complaint under Rules 12(b)(1) and 12(b)(6) Fed. R. Civ. P. alleging that it fails to properly adduce our subject matter jurisdiction and that it also fails to state a colorable claim. Plaintiff instituted this action pursuant to the provisions of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Specifically, plaintiff seeks relief based on her supervisor’s alleged harassment and failure to accommodate her needs at work due to her diabetic condition. Defendants contend that the complaint fails to indicate that: she had a disability which substantially affected or limited one or more of her major life activities; plaintiff was qualified to perform the essential functions of her position and she suffered an adverse employment decision by reason of her disability. 26 Dockets.Justia.com 1 CIVIL NO. 08-1297 (RLA) Page 2 2 II. RULE 12(b)(1) AND RULE 12(b)(6) 3 As previously noted, movant argues dismissal premised on both 4 lack of subject matter jurisdiction as well as plaintiffs’ failure to 5 state a colorable claim. 6 The court’s authority to entertain a particular controversy is 7 commonly referred to as subject matter jurisdiction. “In the absence 8 of jurisdiction, a court is powerless to act.” Am. Fiber & Finishing, 9 Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 138 (1st Cir. 2004). 10 Federal courts are courts of limited jurisdiction and hence, 11 have the duty to examine their own authority to preside over the 12 cases assigned. “It is black-letter law that a federal court has an 13 obligation to inquire sua sponte into its own subject matter 14 jurisdiction.” McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004). See 15 also, Bonas v. Town of North Smithfield, 265 F.3d 69, 73 (1st Cir. 16 2001) (“Federal courts, being courts of limited jurisdiction, have an 17 affirmative obligation to examine jurisdictional concerns on their 18 own initiative.”) 19 Further, subject matter jurisdiction is not waivable or 20 forfeited. Rather, it involves a court's power to hear a case, it may 21 be raised at any time. Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 22 157 L.Ed.2d 867 (2004); United States v. Cotton, 535 U.S. 625, 122 23 S.Ct. 1781, 152 L.Ed.2d 860 (2002). “The objection that a federal 24 court lacks subject-matter jurisdiction... may be raised by a party, 25 or by a court on its own initiative, at any stage in the litigation, 26 1 CIVIL NO. 08-1297 (RLA) Page 3 2 even after trial and the entry of judgment.” Arbaugh v. Y&H Corp., 3 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). 4 The proper vehicle for challenging the court’s subject matter 5 jurisdiction is Rule 12(b)(1) whereas challenges to the sufficiency 6 of the complaint are examined under the strictures of Rule 12(b)(6). 7 In disposing of motions to dismiss for lack of subject matter 8 jurisdiction the court is not constrained to the allegations in the 9 pleadings as with Rule 12(b)(6) petitions. Rather, the court may 10 review extra-pleading material without transforming the petition into 11 a summary judgment vehicle. Gonzalez v. United States, 284 F.3d 281, 12 288 (1st Cir. 2002); Aversa v. United States, 99 F.3d 1200, 1210 (1st 13 Cir. 1996). 14 In disposing of motions to dismiss pursuant to Rule 12(b)(6) 15 Fed. R. Civ. P. the court will accept all factual allegations as true 16 and will make all reasonable inferences in plaintiff's favor. 17 Frazier v. Fairhaven Sch. Com., 276 F.3d 52, 56 (1st Cir. 2002); 18 Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 19 F.3d 30, 33 (1st Cir. 2001); Berezin v. Regency Sav. Bank, 234 F.3d 20 68, 70 (1st Cir. 2000); Tompkins v. United Healthcare of New England, 21 Inc., 203 F.3d 90, 92 (1st Cir. 2000). 22 Our scope of review under this provision is a narrow one. 23 Dismissal will only be granted if after having taken all well-pleaded 24 allegations in the complaint as true, the court finds that plaintiff 25 is not entitled to relief under any theory. Brown v. Hot, Sexy and 26 1 CIVIL NO. 08-1297 (RLA) Page 4 2 Safer Prods., Inc., 68 F.3d 525, 530 (1st Cir. 1995) cert. denied 116 3 S.Ct. 1044 (1996); Vartanian v. Monsanto Co., 14 F.3d 697, 700 4 (1st Cir. 1994). Further, our role is to examine the complaint to 5 determine whether plaintiff has adduced sufficient facts to state a 6 cognizable cause of action. Alternative Energy, 267 F.3d at 36. The 7 complaint will be dismissed if the court finds that under the facts 8 as pleaded plaintiff may not prevail on any possible theory. 9 Berezin, 234 F.3d at 70; Tompkins, 203 F.3d at 93. 10 It appearing that defendants’ challenges under our consideration 11 are directed at the sufficiency of the claims as plead in the 12 complaint, we shall examine plaintiff’s allegations by applying the 13 Rule 12(b)(6) criteria. 14 Except in cases where either a statute or rule specifically 15 imposes a heightened pleading standard, “courts faced with the task 16 of adjudicating motions to dismiss under Rule 12(b)(6) must apply the 17 notice pleading requirements of Rule 8(a)(2). Under that rule, a 18 complaint need only include a short and plain statement of the claim 19 showing that the pleader is entitled to relief. This statement must 20 give the defendant fair notice of what the plaintiff’s claim is and 21 the grounds upon which it rests... In... cases for which no statute 22 or Federal Rule of Civil Procedure provides for different treatment, 23 a court confronted with a Rule 12(b)(6) motion may dismiss the 24 complaint only if it is clear that no relief could be granted under 25 any 26 set of facts that could be proved consistent with the 1 CIVIL NO. 08-1297 (RLA) Page 5 2 allegations.” Educadores Puertorriqueños en Acción v. Rey-Hernández, 3 367 F.3d 61, 66 (1st Cir. 2004) (internal citations and quotation 4 marks omitted). “[U]nder Fed. R. Civ. P. 8 it is not necessary that 5 a legal theory be pleaded in the complaint if plaintiff sets forth 6 sufficient factual allegations to state a claim showing that he is 7 entitled to relief under some viable legal theory.” Fitzgerald v. 8 Codex Corp., 882 F.2d 586, 589 (1st Cir. 1989) (internal citations and 9 quotation marks omitted, italics in original). 10 REHABILITATION ACT 11 Disability discrimination in federal employment is specifically 12 covered by the provisions of the Rehabilitation Act and not by the 13 American with Disabilities Act (“ADA”), 42 U.S.C. 12101-12213. See, 14 Enica v. Principi, 544 F.3d 328, 338 n.11 (1st Cir. 2008) (“[a]s a 15 federal employee, [plaintiff] is covered under the Rehabilitation Act 16 and not the ADA.”) 17 However, “the case law construing the ADA generally pertains 18 equally to claims under the Rehabilitation Act.” Calero-Cerezo v. 19 U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004). See also, 20 Enica, 544 F.3d at 338 n.11 (“since the same standards apply to both 21 the Rehabilitation Act and ADA, we rely on precedent construing both 22 statutes”); Rios-Jimenez v. Principi, 520 F.3d 31, 41 n.6 (1st Cir. 23 2008) (“same standard of proof applies to claims under the ADA and 24 the Rehabilitation Act”); Freadman v. Metro. Prop. and Cas. Ins. Co., 25 484 F.3d 91, 103 (1st Cir. 2007) (“[c]laims under Title I of the ADA 26 1 CIVIL NO. 08-1297 (RLA) Page 6 2 and § 504 of the Rehabilitation Act are analyzed under the same 3 standards”); Oliveras-Sifre v. Puerto Rico Dep’t of Health, 214 F.3d 4 23, 25 (1st Cir. 2000) (“[a]n employment discrimination claim under 5 section 794 of the Rehabilitation Act is analyzed under the same 6 standards applicable to Title I of the ADA.”) 7 “The ADA and Rehabilitation Act prohibit discrimination against 8 an otherwise qualified individual based on his or her disability. The 9 Rehabilitation Act, the precursor of the ADA, applies to federal 10 agencies, contractors and recipients of federal financial assistance, 11 while the ADA applies to private employers with over 15 employees and 12 state and local governments.” Calero-Cerezo, 355 F.3d at 19. 13 The Rehabilitation Act protects employees from disability-based 14 harassment in the workplace if it is severe enough to constitute a 15 hostile work environment. “To establish a hostile work environment, 16 [plaintiff] ha[s] to show that [her] workplace was permeated with 17 discriminatory intimidation, ridicule, and insult that was 18 sufficiently severe or pervasive to alter the conditions of [her] 19 employment and create an abusive working environment.” Quiles-Quiles 20 v. Henderson, 439 F.3d 1, 7 (1st Cir. 2006) (citations and internal 21 quotation marks and brackets omitted). See also, Rios-Jimenez, 520 22 F.3d at 43. “Among the factors relevant to this inquire are the 23 severity of the conduct, its frequency, and whether it unreasonably 24 interfered with the victim’s work performance.” 25 F.3d at 7; Rios-Jimenez, 520 F.3d at 43. 26 Quiles-Quiles, 439 1 CIVIL NO. 08-1297 (RLA) Page 7 2 Employees with a disability are also entitled to a reasonable 3 accommodation in their place of work. “In addition to prohibiting 4 disparate treatment of individuals with disabilities, the 5 Rehabilitation Act and American with Disabilities Act (‘ADA’) impose 6 an affirmative duty on employers to offer a reasonable accommodation 7 to a disabled employee.” Enica, 544 F.3d at 338 (internal citation 8 and quotation marks omitted). “The federal statutes barring 9 discrimination based on disability do more than merely prohibit 10 disparate treatment; employers to they also impose an affirmative duty to 11 offer a ‘reasonable accommodation’ to a disabled 12 employee.” Calero-Cerezo, 355 F.3d at 19-20. 13 In order to establish a claim for discrimination under the 14 Rehabilitation Act plaintiff “must prove by a preponderance of the 15 evidence that: 1) she was disabled within the meaning of the statute; 16 2) she was qualified to perform the essential functions of the job, 17 either with or without a reasonable accommodation; and 3) the 18 employer took adverse action against her because of the disability.” 19 Rios-Jimenez, 520 F.3d at 41. 20 “In order to assert a claim for failure to accommodate under the 21 Rehabilitation Act, [plaintiff] must establish that she (1) suffers 22 from a ‘disability’ within the meaning of the statute, (2) is a 23 qualified individual inasmuch as she is able to perform the essential 24 functions of her job, with or without reasonable accommodation, and 25 26 1 CIVIL NO. 08-1297 (RLA) Page 8 2 (3) that, despite its knowledge of her disability, the [defendant] 3 did not offer a reasonable accommodation.” Enica, 544 F.3d at 338. 4 Specifically, defendants contend that “plaintiff must allege at 5 her complaint sufficient pleadings setting forth a disability under 6 the ADA or the Rehabilitation Act of 1973, by showing that she (1) 7 has a disability; (2) was qualified to perform the essential 8 functions of employment with or without reasonable accommodation; and 9 (3) suffered an adverse employment decision due to disability.” 10 Defendants’ Memorandum of Law (docket No. 11) p. 4. 11 We find that defendant’s first challenge is untenable. In the 12 complaint1 plaintiff indicates that she was diagnosed with diabetes 13 which she controls with Metformin and which requires that she eat at 14 regular intervals to avoid low sugar levels. 15 Diabetes has specifically been found to constitute an impairment 16 within the meaning of the statute. “We have little difficulty in 17 concluding that diabetes is a ‘physical impairment’ under the ADA... 18 Diabetes is a physical impairment under the ADA because it is a 19 physical condition affecting the digestive, hemic, and endocrine 20 systems... Also, EEOC regulations specifically include diabetes in 21 the definition of a physical impairment.” Fraser v. Goodale, 342 F.3d 22 1032, 1038 (9th Cir. 2003). 23 Next, defendant posits that plaintiff has failed to indicate 24 that she was qualified to perform the essential functions of her 25 26 1 Complaint ¶ 8. 1 CIVIL NO. 08-1297 (RLA) Page 9 2 3 position with or without accommodation. This argument is totally 4 without merit. At ¶¶ 7, 8 and 9, the pleading specifically states 5 that plaintiff had been employed with AAFES for 13 years and for 6 about 5 years held the position of Food Activity Foreman at Popeye’s 7 in Fort Buchanan, Puerto Rico. It is also evident from the complaint 8 that but for defendants’ discrimination she would still be working at 9 her job. 10 In her complaint2 plaintiff further described the type of 11 accommodation warranted by her diabetic condition, i.e., need for 12 regular break schedules, as well as defendant’s refusal to grant 13 plaintiff’s request for accommodation despite her repeated requests. 14 Additionally, there are abundant allegations regarding the 15 constant harassment plaintiff was subjected to by MR. LARRY BRYANT, 16 the new Food Court Manager, tantamount to a hostile environment 17 claim. 18 19 Based on the foregoing, we find that the complaint properly puts defendants on notice of her disability-based claims. CONCLUSION 20 21 22 Accordingly, defendants’ Motion to Dismiss (docket No. 10) is DENIED. 23 24 25 26 2 Complaint ¶¶ 13 and 16. 1 CIVIL NO. 08-1297 (RLA) Page 10 2 3 4 Defendants shall answer the complaint or otherwise plead on or before February 27, 2009. 5 IT IS SO ORDERED. 6 San Juan, Puerto Rico, this 2nd day of February, 2009. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 S/Raymond L. Acosta RAYMOND L. ACOSTA United States District Judge
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