Cline v. Clinical Perfusion Sys.

Decision Date28 October 2022
Docket Number22-CV-0314-CVE-CDL
CourtUnited States District Courts. 10th Circuit. Northern District of Oklahoma


No. 22-CV-0314-CVE-CDL

United States District Court, N.D. Oklahoma

October 28, 2022



Before the Court are defendants Clinical Perfusion Systems, Inc. (CPS), Kevin Esau, and Tyler McKeon's motion to dismiss the amended complaint (Dkt. # 11), plaintiff Charles Cline's response (Dkt. # 19), and defendants' reply (Dkt. # 20). This case arises from plaintiff, a former employee of defendants, alleging in an amended complaint violations of the Rehabilitation Act (count 1), the Oklahoma Anti-Discrimination Act (count 2), the Affordable Care Act (count 3), and breach of contract (count 4) against defendant Clinical Perfusion Systems, Inc. Dkt. # 8. In addition, plaintiff alleges tortious interference (count 5) and outrageous conduct (count 6) against defendants Esau and McKeon. Id.


On July 19, 2022, plaintiff filed his original complaint (Dkt. # 2), in this Court. On July 28, 2022, plaintiff filed an amended complaint (Dkt. # 8), as a matter of right pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure. The original complaint alleged the same counts 1-6 that are recited above. The amended complaint changed only some of the facts describing plaintiff's medical


condition and treatment.[1] On August 11, 2022, defendants moved to dismiss all claims of the amended complaint pursuant to Fed R. Civ. P. 12(b)(6).[2] Dkt. # 11, at 6.

The following facts are taken from the amended complaint: plaintiff is a perfusionist (Dkt. # 8, at 3), which is a “licensed medical professional who is a member of a cardiovascular surgical team.” Dkt. # 8, at 2. Perfusionists “operate[] . . . heart-lung machine[s], and during surgery maintain[] blood flow to the patient's tissues and regulate[] levels of oxygen and carbon dioxide in the blood.” Id. Defendant CPS hired plaintiff as a perfusionist in 2017, where we worked until he was terminated on May 3, 2021. Id. at 3, 4. Defendants Esau and McKeon are perfusionists who own CPS. Id. at 3.

On March 27, 2021, plaintiff lost consciousness while driving, due to a sudden onset of hypotension. Id. at 3. Emergency medical personnel responded to the scene and performed emergency care, which included intubating plaintiff, and then transported plaintiff to Saint Francis Hospital in Tulsa. Id. at 3. The intubation caused “profound damage to [plaintiff's] throat,” which “necessitated treatment in ICU from March 27, 2021, until May 3, 2021, followed by in-patient rehabilitation at an . . . [LTAC] until June 11, 2021, when he was discharged.” Id. Due to the


necessary treatment of his damaged throat, plaintiff could breathe only with the assistance of a ventilator attached to a tracheostomy cannula for most of his stay in the ICU. Id. at 3. While in the ICU, plaintiff also used a Foley catheter and had a gastric feeding tube, and his kidneys became compromised for which he underwent dialysis for approximately six weeks. Id. Plaintiff was “heavily sedated and slept up to twenty [] hours each day.” Id. Because of the “condition of his throat, kidneys, and other organs, [plaintiff] could not speak, eat . . ., or care for himself. Id.

Defendants Esau and McKeon “observed plaintiff in [the] ICU,” spoke with plaintiff's wife, Nicole Pardini, and “formed certain opinions about his condition.” Id. at 4. On May 3, 2021, defendants Esau and McKeon informed Pardini by telephone that plaintiff was being terminated due to CPS's financial condition. Id. at 4. “When [CPS] made the decision to discharge Cline, the expected duration of the impairments was more than six (6) months.” Id. at 7. Pardini asked the defendants “whether they would agree to hold [plaintiff's] job open until he recovered,” but defendants Esau and McKeon declined her request. Id. at 4. Plaintiff “was the only employee who was terminated by [CPS] ¶ 2021.” Id. at 5. When CPS decided to terminate plaintiff, it “had recently hired or was in the process of hiring two (2) individuals as perfusionists, each of whom was far younger . . . and . . . far less qualified and far less experienced than [plaintiff.]” Id. at 11. One or both of these new hires replaced plaintiff at CPS. Id.

That same day, May 3, 2021, plaintiff was transferred to LTCA where he “received rehabilitation services and continued dialysis.” Id. at 5. While at LTCA, plaintiff continued to receive extensive services and was “unable to work or care for himself.” Id. at 5. Plaintiff was discharged from LTCA on June 11, 2021, but continued to use his “tracheostomy cannula, his gastric tube, and his catheter” “for a few weeks.” Id. at 5. On July 28, 2021, plaintiff's physician “released


[plaintiff] to return to work as a perfusionist on a full-time basis without restriction.” Id. at 5. “Shortly after” being released to work, plaintiff asked defendant McKeon for reinstatement and “even offered to work at a lesser position,” but plaintiff's request was denied. Id. at 5.

Plaintiff subsequently obtained employment as a perfusionist in California. Id. at 5. Despite ongoing difficulty and pain when speaking or swallowing, plaintiff “is able to work full-time as a perfusionist.” Id. at 5-6.


In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its face” and the factual allegations “must be enough to raise a right to relief above the speculative level.” Id. (citations omitted). “Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 562. Although decided within an antitrust context, Twombly “expounded the pleading standard for all civil actions.” Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009). For the purpose of making the dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to the claimant. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. Of Cnty. Comm'rs,


263 F.3d 1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991).


Rehabilitation Act Claim (Count One)

Plaintiff's first claim for relief (count one) is that CPS failed to accommodate his disability and that he was terminated because of his disability in violation of the Rehabilitation Act. Dkt. # 8, at 9. Defendants argue that plaintiff cannot state a plausible claim for disability discrimination under the Rehabilitation Act, because he cannot show that he was an “otherwise qualified” person with a disability. Dkt. # 11, at 7.

“Section 504 of the Rehabilitation Act provides that ‘no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.'” Cohon ex rel. Bass v. New Mexico, 646 F.3d 717, 725 (10th Cir. 2011) (quoting 29 U.S.C. § 794(a)). To state a prima facie case for discrimination under section 504, plaintiff must show (1) that he is a disabled individual under the Rehabilitation Act; (2) that he is “otherwise qualified” apart from his handicap, “i.e., with or without reasonable accommodation, [he] could perform the job's essential functions;” (3) that his employer took an adverse action on account of his disability; and (4) that the program or activity in question receives federal financial assistance. Id.; see also Cummings v. Norton, 393 F.3d 1186, 1189 (10th Cir. 2005). Cases decided under section 504 of the Rehabilitation Act are applicable to cases brought under the ADA and vice versa. Roberts v. Progressive Indep., Inc., 183 F.3d 1215, 1220 n.4 (10th Cir. 1999) (internal quotations


omitted); see also Wilkerson v. Shinseki, 606 F.3d 1256, 1262 (10th Cir. 2010) (stating “[w]e apply the standards from the American with Disabilities Act in analyzing a Rehabilitation Act claim”).

The ADA defines disability as:

(A) a physical or mental impairment that substantially limits one or more 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(1). Impairments that are “transitory and minor” may not be used to support a “regarded as” claim of disability discrimination under paragraph (1)(C), and an impairment is transitory if it has an actual or expected duration of six months or less. 42 U.S.C. § 12102(3)(B). It is plaintiff's burden to establish that he has an actual or perceived disability. Steele v. Thiokol Corp., 241 F.3d 1248, 1253 (10th Cir. 2001).

A person is disabled if he has “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A). Major life activities include, but are not limited to: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating...

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