Atkins v. Usf Dugan, Inc.

• Decision Date: 11 August 1999
• Docket Number: No. 1:98CV00627.,1:98CV00627.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Jay Gilmer ATKINS, Plaintiff, v. USF DUGAN, INC., Defendant.

Page 799

106 F.Supp.2d 799

Jay Gilmer ATKINS, Plaintiff, v. USF DUGAN, INC., Defendant.

No. 1:98CV00627.

United States District Court, M.D. North Carolina.

August 11, 1999.

David Coventry Smith, Kilpatrick Stockton, L.L.P., Winston-Salem, NC, for Jay Gilmer Atkins, plaintiff.

John N. Taylor, Jr., Robinson & Lawing, Winston-Salem, NC, C. Ray Grantham, Jr., Robinson & Lawing, Winston-Salem, NC, M. Kathryn Webb, McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, KA, Scott Sanders, McDonald Tinker Skaer Quinn & Herrington, Wichita, KA, for USF Dugan Inc., defendant.

MEMORANDUM OPINION

BEATY, District Judge.

I. INTRODUCTION

This matter is before the Court on Defendant USF Dugan, Inc.'s ("Dugan" or "the Company"), Motion to Dismiss [Document # 13]. Plaintiff Jay Gilmer Atkins ("Atkins") has filed a Memorandum in Opposition to Defendant's Motion to Dismiss [Document # 12]. For the reasons stated herein, Dugan's Motion to Dismiss is granted in part and denied in part.

II. FACTUAL AND PROCEDURAL BACKGROUND¹

Dugan is a common carrier and maintains a facility in Greensboro, North Carolina. (Am.Compl. ¶ 6; Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss at 1.) Prior to his discharge, Atkins served as terminal manager of Dugan's Greensboro location. (Am.Compl.¶ 6.) By December 1996, he was diagnosed as having coronary heart disease, diabetes, and hypertension. (Id. at ¶ 7.)

Sometime just prior to December 17, 1996, Atkins suffered a heart attack which at least temporarily prevented him from continuing his employment with Dugan. (Id. at ¶¶ 7-8.) As a result, on December 17, 1996, he requested a medical leave of absence from the Company pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. (Id. at ¶ 8.) On December 24, 1996, Atkins underwent quadruple bypass surgery and was instructed by his physician to postpone returning to work until March 3, 1997. (Id. at ¶ 7.)

On January 15, 1997, Dugan wrote to Atkins, granting him his request for a medical leave of absence. (Id. at ¶ 9.) He was also instructed to provide Dugan with "medical certification of [his] serious condition" by the end of January 1997. (Id.) On January 22, 1997, Atkins forwarded to Dugan said written certification. (Id. at ¶ 10.)

On January 23, 1997, Dave Brodie ("Brodie"), Atkins's regional manager at Dugan, and Lisa McDonald ("McDonald"), a human resources employee with the Company, verbally notified Atkins that his employment would be terminated if he did not return to work by January 31, 1997. (Id. at ¶ 11.) Brodie also told Atkins that he was "too old and sick, that [Dugan] did not think he could handle the stress of the [terminal manager] job, and that he needed to retire." (Id.)

On January 24, 1997, Atkins wrote McDonald to inform her that he would not be able to return to the Company until March 3, 1997. (Id. at ¶ 12.) Atkins included in that correspondence a request that he be able to resume his duties with Dugan at that time. (Id.) However, the Company subsequently denied his request. (Id.) At some point after December 17, 1996, Dugan hired or promoted another individual to assume Atkins's job responsibilities. (Id.) That individual was "substantially younger" than Atkins. (Id.)

On May 15, 1997, Atkins filed a formal charge of age and disability discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Id. at ¶ 14.) On April 30, 1998, the EEOC issued to Atkins a "right to sue" letter. (Id.) On July 21, 1998, Atkins initiated the present action by filing his Complaint [Document # 1]. Among other things, he alleged violations of the FMLA, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and asserted state causes of action for "discharge in violation of public policy" and intentional and negligent infliction of emotional distress. After Atkins filed an Amended Complaint [Document # 11], Dugan filed the motion now before this Court.² For the reasons stated herein, the Court will grant in part and deny in part the Company's Motion to Dismiss.

III. STANDARD OF REVIEW

With respect to a motion to dismiss for failure to state a claim upon which relief can be granted, dismissals are allowed only in very limited circumstances. Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989). Generally, a court should not dismiss a complaint for failure to state a claim "unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993), cert. denied, 510 U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994). In making this determination, a court must view the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded factual allegations. Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994), cert. denied, 514 U.S. 1107, 115 S.Ct. 1956, 131 L.Ed.2d 849 (1995).

IV. DISCUSSION

Dugan's Motion to Dismiss is directed only at Atkins's ADA, discharge in violation of public policy, and intentional and negligent infliction of emotional distress claims. This Court will address each of these causes of action separately.

A. Violation of the ADA

As noted previously, Atkins has alleged, among other things, a violation of the ADA. (Am.Compl.¶¶ 35-44.) Specifically, Atkins asserts that

[b]ecause [he] suffered from a disability or was perceived by [Dugan] as suffering from a disability, [Dugan] willfully and intentionally discriminated against him with respect to the terms, conditions and privileges of his employment, including by failing to hold his position open for him and discharging him. Additionally, [Dugan] failed to reasonably accommodate that disability, despite [his] request, by refusing to hold his position open for a short duration.

(Id. at ¶ 41.) However, Dugan contends that Atkins has failed to properly allege that he is entitled to protection under the ADA. (Mem. in Supp. of its Mot. to Dismiss Pl.'s Am.Compl. at 2-11.)

Pursuant to the ADA, "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual 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).³ "The term `disability' means ... (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." Id. § 12102(2) (emphasis added).

In asserting his claim against Dugan under the ADA, Atkins first alleges that he actually "suffered from a `disability' within the meaning of 42 U.S.C. § 12102(2)(A)." (Am.Compl. ¶ 38.) He further alleges that Dugan "perceived" him as having a disability, within the meaning of 42 U.S.C. § 12102(2)(C). (Id. at ¶ 39.) Since Dugan challenges each of these two distinct allegations, the Court will discuss them separately.

1. Disability as Defined by 42 U.S.C. § 12102(2)(A)

As noted above, Atkins first contends that he actually suffered from a disability. (Id. at ¶ 38.) Specifically, the following allegation is set forth in his Amended Complaint:

Atkins, beginning in December ... 1996, was diagnosed as suffering from coronary artery disease, in addition to diabetes and hypertension. The disease affected one or more of his major life activities. For example, ... Atkins experienced extreme shortness of breath after any exertion or effort, such as simply walking from the parking lot to a building or walking to his mailbox. He would also experience a burning sensation and pain in his legs after walking relatively short distances. In addition, following his surgery in December ... 1996, ... Atkins was very tired and had difficulty eating, sleeping, and concentrating. He would at times become light headed and dizzy when standing. As a result, ... Atkins was substantially limited in his ability to breathe, walk, concentrate, work, and perform manual tasks....

(Id.) In support of its motion, Dugan primarily argues that the above allegation is insufficient because "the impairment alleged by [Atkins] ... was non-permanent." (Mem. in Supp. of its Mot. to Dismiss Pl.'s Am.Compl. at 3.) In addition, Dugan asserts that Atkins has failed to properly allege that his impairments substantially limit one or more of the major life activities. (Id. at 4-5.) As to whether Atkins has properly alleged that he is disabled as that term is defined by 42 U.S.C. § 12102(2)(A), this Court finds that there is merit to Dugan's contentions.

Pursuant to the ADA, a person will be considered disabled if that individual has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A). Thus, in order to establish the existence of a disability under this definition, a plaintiff must show that (1) the ailment cited is a "physical or mental impairment." (2) the activity limited by that impairment is a "major life activity," and (3) the impairment "substantially limits" that major life activity. See Halperin v. Abacus Tech. Corp., 128 F.3d 191, 198 (4th Cir.1997); see also Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 2201, 141 L.Ed.2d 540, 553 (1998) ("[C]onsideration of subsection (A) of the definition proceeds in three steps.").

A review of Atkins's Amended Complaint reveals that he has adequately alleged a "physical or mental impairment" and a "major life activity," as those terms are defined by regulations promulgated in connection with the ADA. Physical or mental impairments include

[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:...