Equal Emp't Opportunity Comm'n v. STME, LLC, s. 18-11121

• Citation: 938 F.3d 1305
• Decision Date: 12 September 2019
• Docket Number: No. 18-12277,Nos. 18-11121,s. 18-11121
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, Kimberly Lowe, Intervenor-Appellant, v. STME, LLC, d.b.a. Massage Envy-South Tampa, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

938 F.3d 1305

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,

Kimberly Lowe, Intervenor-Appellant,

v.STME, LLC, d.b.a. Massage Envy-South Tampa, Defendant-Appellee.

Nos. 18-11121

No. 18-12277

United States Court of Appeals, Eleventh Circuit.

September 12, 2019

Jeremy D. Horowitz, Washington, DC, Kimberly Anne Cruz, Miami, FL, Oshia Banks, Brandi Lorraine Meredith, Equal Employment Opportunity Commission, Tampa, FL, for Plaintiff-Appellant.

Ryan David Barack, Michelle Erin Nadeau, Kwall Barack Nadeau PLLC, Clearwater, FL, Monica Michele Leach-Pachinger, Leach-Pachinger Law & Mediations, Bradenton, FL, for Intervenor-Appellant.

Sharon A. Wey, Tampa, FL, Nikhil Joshi, Miller Tack & Madson, Sarasota, FL, for Defendant-Appellee.

Before JORDAN, GRANT and HULL, Circuit Judges.

HULL, Circuit Judge:

In this consolidated appeal, the plaintiff Equal Employment Opportunity Commission ("EEOC") and intervenor Kimberly Lowe appeal the entry of judgment for defendant STME, LLC, d.b.a. Massage Envy-South Tampa ("Massage Envy"), on their employment discrimination claims brought under the Americans with Disabilities Act of 1990 ("ADA"), as amended by the ADA Amendments Act of 2009. Although the EEOC brought only disability discrimination claims, it is undisputed that Lowe was not actually disabled when Massage Envy terminated her employment. The EEOC, however, alleged that Massage Envy violated the ADA because it fired Lowe when she refused to cancel her trip to Ghana, a country in West Africa. Massage Envy’s stated reason for the termination was its fear that Lowe would contract and later develop Ebola

due to her Ghana travel. This case involves issues of first impression as to the meaning of "regarded as having such an impairment," which is a statutory phrase contained in 42 U.S.C. § 12102(1)(C).

After review and oral argument, we conclude that, even construing the statute broadly, the terms of the ADA protect persons who experience discrimination because of a current, past, or perceived disability—not because of a potential future disability that a healthy person may experience later. Accordingly, we affirm the district court’s final judgment in favor of defendant Massage Envy.

I. FACTUAL BACKGROUND

Because this appeal arises at the motion-to-dismiss stage, we accept as true the facts as alleged in the EEOC’s complaint. See Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016).

A. Lowe’s Employment at Massage Envy

Massage Envy is a wellness franchise that offers massage and skin care services. In January 2012, Kimberly Lowe began working as a massage therapist at a Massage Envy located in Tampa, Florida. At all times relevant to this case, Lowe did not have a disability. Rather, she was both capable of performing her job duties and did perform her job duties in a satisfactory manner.

In September 2014, Lowe asked Massage Envy for time off so that she could visit her sister in Ghana, a country located in West Africa. Massage Envy’s business manager, Roxanna Iorio, initially approved Lowe’s request. However, on October 22, 2014, three days before her scheduled trip, one of Massage Envy’s owners, Ronald Wuchko, met with Lowe and told her that she would be fired if she went ahead with her travel plans.

Owner Wuchko was concerned that Lowe would become infected with the Ebola

virus if she traveled to Ghana and would "bring it home to Tampa and infect everyone." At that time in 2014, there was an Ebola epidemic in Guinea, Liberia, and Sierra Leone, three other nearby countries in West Africa. According to Wuchko, he was worried about the "potentially catastrophic consequences that an outbreak of Ebola could pose to America." Because Lowe refused to cancel her trip, Wuchko terminated her employment during that October 22 meeting and before she left.

Lowe then traveled to Ghana as planned. She did not contract Ebola

while there. In fact, as it turned out, there was no Ebola outbreak at all in Ghana in 2014.¹ Upon her return from West Africa, Lowe did not work at Massage Envy and was not otherwise permitted to keep her massage appointment bookings at Massage Envy.

B. Lowe’s Charge and the EEOC’s Investigation

In November 2014, Lowe filed a Charge of Discrimination with the EEOC, asserting that Massage Envy terminated her employment because owner Wuchko believed that she would come into contact with a person having Ebola

while in Ghana.

Based on that allegation, Lowe claimed that she was discriminated against because Massage Envy "perceived [her] as disabled or ... as having [the] potential to become disabled," in violation of the ADA.

The EEOC investigated Lowe’s charge. Almost two years later, on September 6, 2016, the EEOC issued a Letter of Determination finding that there was "reasonable cause" to believe that Massage Envy terminated Lowe’s employment because it "regarded" her as disabled, in violation of the ADA. The EEOC invited Massage Envy to engage in conciliation efforts, but those efforts failed.

II. PROCEDURAL HISTORY

On April 26, 2017, the EEOC filed this lawsuit, alleging in the operative amended complaint that "Ebola

is a physical impairment that substantially limits those infected in one or more major life activity, including, but not limited to, circulatory function and immune system function." As such, the EEOC alleged that: (1) Massage Envy violated the ADA, 42 U.S.C. § 12112(a), by "terminating and not permitting Lowe to return to work upon her return from Ghana because it regarded her as disabled"; and (2) Massage Envy violated the ADA, 42 U.S.C. § 12112(a) & (b)(4), "by terminating and not permitting Lowe to return to work upon her return from Ghana based upon Massage Envy’s fears and beliefs about Ebola and based upon her association with people in Ghana whom Massage Envy believed to be disabled by Ebola."

Later, in the district court proceedings, the EEOC informed the district court that it was "not alleg[ing] that Massage Envy ‘failed to reinstate or rehire’ Lowe" in its amended complaint. Relying on that representation, the district court considered the EEOC’s claims only to the extent they applied to Lowe’s October 22 termination, not to any later refusal to rehire her. We do the same on appeal.²

On June 20, 2017, Lowe moved to intervene in the lawsuit. In her intervenor complaint, Lowe recounted the same facts surrounding her termination as the EEOC set forth in its amended complaint. Based on those allegations, Lowe claimed that Massage Envy’s firing of her violated the ADA and the Florida Civil Rights Act of 1992 ("FCRA") because the termination decision was based on unfounded fears and beliefs about Ebola

and Lowe’s risk for the disease. Lowe’s claims were based on the same theory that the EEOC advanced—that Massage Envy perceived her as having a disability and fired her due to that perceived disability.

Thereafter, in July 2017, Massage Envy moved to dismiss the EEOC’s amended complaint for failure to state a claim and failure to exhaust administrative remedies. See Fed. R. Civ. P. 12(b)(6). While that Rule 12(b)(6) motion was pending, in October 2017, the EEOC moved to file a second amended complaint, in which it sought to raise an ADA unlawful interference claim. In that new claim, the EEOC alleged that when owner Wuchko told Lowe that she would be fired if she did not cancel her Ghana trip, Massage Envy coerced, intimidated, and threatened Lowe and interfered with her exercise and enjoyment of rights under the ADA, in violation of 42 U.S.C. § 12203(b). The EEOC suggested that Lowe’s interfered-with ADA rights were: (1) the right to a reasonable accommodation if Lowe actually developed Ebola

; and (2) the right to associate with disabled persons, i.e., people in Ghana with Ebola.

In a February 15, 2018 order, the district court: (1) granted Massage Envy’s motion to dismiss the EEOC’s amended complaint; (2) denied the EEOC’s motion to file a second amended complaint as futile; and (3) directed the clerk to terminate all pending motions as moot, which included Lowe’s still-pending motion to intervene. As to the merits of the ADA claims, the district court dismissed the EEOC’s "regarded as" disabled claim because Massage Envy did not perceive Lowe as having Ebola

at the time it fired her. In so ruling, the district court declined to expand the ADA’s "regarded as having" prong of the disability definition to cases like this one, in which an employer fires an employee at a time when it "perceives [the] employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct." The district court also concluded that the EEOC’s association claim lacked merit because the EEOC did not allege that Massage Envy knew that Lowe had an existing or past association with any person disabled by Ebola at the time it fired her.

As to the EEOC’s proposed second amended complaint, the district court denied the EEOC’s request to bring an unlawful interference claim because, inter alia, any such amendment would be futile, as Lowe had no existing rights under the ADA when she was fired because she was not disabled and had not associated with anyone who was disabled. Thereafter, the district court entered final judgment in favor of Massage Envy. This appeal followed.

III. STANDARD OF REVIEW

We review de novo a district court’s order granting a motion to dismiss for failure to state a claim. Boyle v. City of Pell City, 866 F.3d 1280, 1286 (11th Cir. 2017). "To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead ‘enough facts to state a claim to relief that is plausible on its face.’ " Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347–48 (11th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L.Ed.2d 929 (2007) ). "A claim is facially plausible when the plaintiff pleads sufficient facts to allow the court to draw the reasonable inference that the defendant is liable for the alleged misconduct." Boyle, 866 F.3d at 1286.

We also review ...