E.E.O.C. v. J.H. Routh Packing Co.

Decision Date05 December 2000
Docket NumberNo. 99-4482,99-4482
Citation246 F.3d 850
Parties(6th Cir. 2001) Equal Employment Opportunity Commission, Plaintiff-Appellant, v. J. H. Routh Packing Co., Defendant-Appellee. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 98-07731, David A. Katz, District Judge.

Robert J. Gregory, OFFICE OF THE GENERAL COUNSEL, Washington, D.C., Caren I. Friedman, EQUAL EMPLOYMENT OPPORTUNITY, Washington, D.C., for Appellant.

Bari E. Goggins, Thomas H. Barnard, Jr., ULMER & BERNE, Cleveland, Ohio, John A. Coppeler, FLYNN, PY & KRUSE, Port Clinton, Ohio, for Appellee.

Before: MARTIN, Chief Judge; JONES and COLE, Circuit Judges.

BOYCE F. MARTIN, JR., Chief Judge.

OPINION

The Equal Employment Opportunity Commission brought an employment discrimination claim against J. H. Routh Packing Company, pursuant to the Commission's public enforcement authority under the Americans with Disabilities Act, 42 U.S.C. § 12117(a). The Commission appeals the district court's grant of Routh's motion for judgment on the pleadings. For the following reasons, we REVERSE and REMAND to the district court for further proceedings.

I.

In 1995, J. H. Routh Packing Company offered Jason Polak a job as a meat cutter/trimmer, contingent upon Polak's passing a physical examination. As part of this physical examination, Polak completed a health questionnaire and inventory in which he disclosed his history of epilepsy. He stated in the questionnaire that his epilepsy was controlled by medication and that he had experienced a seizure within the past two months. When Routh learned of this seizure, it terminated Polak's employment, advising him that he must be seizure-free for at least six months before Routh would consider hiring him again.

Polak has taken medication for his epilepsy since he was a child, and as an adult, Polak has not experienced grand mal seizures. During the times relevant to this case, Polak experienced petit mal seizures approximately six times per year. His petit mal seizures last approximately ten to thirty seconds, during which time he is conscious and fully aware of what is happening, although his ability to talk and chew are affected. Prior to these seizures, Polak experiences a warning or "aura," which often allows him to fight off a seizure. If he cannot prevent the seizure, he sits down for approximately one minute until the seizure passes. After resting for a few minutes, Polak is able to continue whatever he was doing prior to the seizure. Polak has held jobs requiring the use of knives, vegetable chunkers, box openers, and sharp instruments, and has never suffered an epilepsy-related injury while working with these instruments.

In December 1998, the Commission filed a complaint under the Americans with Disabilities Act against Routh on behalf of Polak and "all other similarly situated qualified individuals with disabilities." Routh answered the complaint in February 1999. After the Supreme Court held in Sutton v. United Air Lines, Inc., 527 U.S. 471, 475 (1999), that "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment," Routh moved for judgment on the pleadings. The Commission filed a brief in opposition to the motion, and on October 13, the district court granted Routh's motion. The Commission appeals that decision.

II.

We review de novo a district court's grant of judgment on the pleadings. See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). The standard of review for a judgment on the pleadings is the same as that for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See id. We must "construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief." Id. (citing Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir. 1990)).

The Federal Rules of Civil Procedure provide for a liberal system of notice pleading. See Fed. R. Civ. P. 8(a). The Rules "do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957); see also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993); Vector Research, Inc. v. Howard & Howard Attys. P.C., 76 F.3d 692, 697 (6th Cir. 1996).

A.

The Americans with Disabilities Act defines an individual disability to be one of three things: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). The Commission's complaint alleges that "[a]t all times relevant to the events alleged in this complaint Mr. Polak was a qualified individual with a disability (epilepsy or seizure disorder) who, with or without an accommodation, could perform the essential functions of the job of meat cutter/trimmer for Defendant." Paragraph eleven of the complaint declares that Polak has taken medication for his epilepsy since he was a child, describes the types and frequency of seizures he experiences, and explains the physical effects of his seizures. The district court found these claims insufficient, saying, "Before the EEOC can take its case to a jury, however, it must identify some major life activity . . . in which Polak is substantially limited."

The Commission has promulgated a regulation defining "major life activities" to be "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. §1630.2(i). Federal jurisprudence is unclear on the necessity of including such a major life activity in a complaint under the Act. Few circuits have addressed the issue, and the district courts that have decided the question have reached inconsistent conclusions.

The Tenth Circuit issued a confusing statement on the question in Poindexter v. Atchison, Topeka and Santa Fe Railway Co., 168 F.3d 1228, 1232 (10th Cir. 1999): [W]e emphasize that in order to state a claim under the [Act], a plaintiff must articulate with precision the impairment alleged and the major life activity affected by that impairment.

This holding does not in any way change the federal notice pleading requirements. A plaintiff has the option of clarifying his or her position at the pleading stage or waiting until trial to prove with particularity the impairment and major life activity he or she asserts are at issue.

Whether plaintiffs in the Tenth Circuit must articulate the impairment and the major life activity "with precision" in the complaint, or whether they retain the option of waiting until trial "to prove with particularity the impairment and major life activity" is unclear. Poindexter seems to say both and thus provides us with little guidance.

The Third Circuit touched on the question in Menkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113 (3d Cir. 1998). In a footnote, the court addressed the defendant's request to affirm the district court's dismissal on the grounds that the plaintiff was not disabled. See Menkowitz, 154 F.3d at 117 n.2. The footnote states:

[W]e decline to accept the hospital's invitation at this stage of the litigation. Appellant in his complaint states that his disability is 'a disorder recognized as a disability under the' [Act] and the Rehabilitation Act. . . . We find this allegation, which we must accept as true, sufficient to meet the notice pleading requirements of Fed.R.Civ.P.8 with respect to his disability.

The court found sufficient simply alleging that the disability is recognized under the Act, thereby implicitly including a substantially affected major life activity without requiring it to be pleaded expressly.

The Seventh Circuit also briefly discussed what a plaintiff bringing a discrimination claim under the Act must plead. In Homeyer v. Stanley Tulchin Associates, Inc., 91 F.3d 959, 961 (7th Cir. 1996), the court held:

The district court recognized that Homeyer's complaint alleged that her physical condition (chronic severe allergic rhinitis and sinusitis) substantially impaired her ability to breathe and that her condition, when aggravated by [smoke], substantially limited her ability to work. With these allegations, it would seem that under the liberal federal notice pleading standards, Homeyer sufficiently pled the initial element of an ADA claim, i.e., that she suffers from a 'disability' as defined in the Act. Homeyer was not required to plead facts or evidence to support her allegations; she was not even required to include a theory of the case. Her complaint was clear enough to inform [the defendant] of her claim.

The court emphasizes the liberalness of notice pleading, but at the same time, the plaintiff in Homeyer pled the major life activity that her disability limited, meaning that the court did not directly address what a complaint under the Act must include. In another case, the Seventh Circuit reversed a district court's grant of judgment on the pleadings where the plaintiff stated "quite plainly that he suffers from a psychiatric illness and has been diagnosed as a manic depressive." Duda v. Board of Education, 133 F.3d 1054, 1059 (7th Cir. 1998). The plaintiff alleged that the defendant regarded him "as disabled and substantially limited in major life activities." Id. The court apparently found sufficient simply alleging that the defendant regarded the plaintiff as...

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