Cook v. City of Phila.
| Decision Date | 02 March 2015 |
| Docket Number | Civil Action No. 14–5842. |
| Parties | Michael COOK v. CITY OF PHILADELPHIA. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Mark S. Scheffer, Law Offices of Mark S. Scheffer, Birchrunville, PA, for Michael Cook.
Brian J. Pierce, City of Philadelphia Law Dept, Philadelphia, PA, for City of Philadelphia.
Potential employers may not discriminate against job applicants if they regard the applicant as disabled even if he is not. Typically, those seeking a remedy must timely exhaust administrative processes before filing suit. Here, Defendant City of Philadelphia (“City”) decided to withdraw a conditional job offer to Plaintiff Michael Cook (“Cook”) to serve as a police officer two days after the City received results of psychological testing it required after making the conditional offer. Cook elected not to pursue an administrative remedy and filed this action under the Rehabilitation Act, 29 U.S.C. § 701 et seq. (“RA”) and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). The City moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Based on the ample weight of legal authority, Cook's ADA claim is barred for his admitted failure to exhaust his administrative remedies. His RA claim of “regarded as” disabled, based on the standards applied now, may proceed into discovery. The accompanying Order grants in part and denies in part the City's motion to dismiss.
Cook first applied to be a police officer in February 2012. (See Complaint at ECF Doc. No. 1, ¶ 16) He passed a multiple choice test and the City placed him in the top twenty-five percent (25%) of the candidates. (Id. ) He also passed the required preliminary tests and examinations, including agility and reading tests. (Id. at ¶ 7) After the City's September 2012 interview, the City offered Cook conditional employment subject to medical, psychological and polygraph examinations, background check, and completion of a personal data questionnaire. (Id. at ¶¶ 7–8) At some point thereafter, the City “informally” told Cook that the result of the polygraph examination was “unsuccessful,” which Cook challenged through unnamed “various channels.” (Id. at ¶¶ 9–10) It is presently unknown whether Cook took and passed the psychological examination. The City then allegedly advised Cook to reapply. (Id. at ¶ 10)
In April 2013, Cook tried again. He passed the polygraph test in April 2013. (Id. at ¶¶ 11–12) The City again gave Cook a conditional offer of employment subject to “various testing,” including a Multiple Multiphasic Personal Inventory (“MMPI”) test. (Id. at ¶ 13) Cook passed the MMPI test and then took a psychological examination in early May 2013. (Id. at ¶¶ 13–14)
Two days after taking the psychological exam, the City withdrew Cook's offer based on the psychological exam. (Id. at ¶ 15) Cook asked the City for a copy of the psychological examination, its findings and conclusions, and any other information regarding the psychological examination. (Id. at ¶ 16) The City decided not to provide Cook with a copy. (Id. )
Cook alleges that the City “regarded him as” having a psychological impairment or disability within the meaning of the RA and ADA and consequently failed to hire him as a police officer. (Id. at ¶ 17) The City moves to dismiss arguing: (1) Cook cannot plausibly show he is disabled; (2) Cook cannot show that he is qualified to be a police officer; and, (3) even assuming Cook could show that he was disabled and qualified, his ADA claim must be dismissed for failure to exhaust administrative remedies. (ECF Doc. No. 4)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim satisfies the plausibility standard when the facts alleged “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220–21 (3d Cir.2011) (citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ). While the plausibility standard is not “akin to a ‘probability requirement,’ ” there nevertheless must be more than a “sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief’ ' ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).
The Court of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion: (1) “the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim;’ ” (2) “the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth;’ ” and, (3) “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Santiago v. Warminster Township, 629 F.3d 121, 130 (3d Cir.2010) (quoting Iqbal, 556 U.S. at 675, 679, 129 S.Ct. 1937 ) (footnote omitted)1 ; see also, Burtch, 662 F.3d at 221 ; Malleus v. George, 641 F.3d 560, 563 (3d Cir.2011) ()
In Count I, Cook alleges the City “regarded him as” disabled based on the results of the May 2013 psychological examination and then withdrew its conditional offer of employment on that basis. Section 504 of the RA “bars both federal agencies and private entities that receive federal funding from discriminating on the basis of disability and is not limited to the employment context.” Freed v. Consol. Rail Corp., 201 F.3d 188, 191 (3d Cir.2000).2 The standards used to evaluate an RA claim are the same as those applied to Title I claims under the ADA. See 29 U.S.C. § 794(d) ; see also, Fowler v. UPMC Shadyside, 578 F.3d 203, 208 (3d Cir.2009) ()
Here, Plaintiff Cook must allege that he (1) is disabled within the meaning of the ADA; (2) is otherwise qualified to perform, with or without reasonable accommodations, the essential functions of his job; and (3) has suffered an adverse employment decision as a result of the discrimination. McFadden v. Biomedical Systems Corp., Civ.A. No. 13–4487, 2014 WL 80717, at *2 (E.D.Pa. Jan. 9, 2014) (citing Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir.1998) (citation omitted)).3
Plaintiff Cook is “disabled” if he (1) has “a physical or mental impairment
that substantially limits one or more major life activities of such individual;” (2) “a record of such an impairment;” or (3) is “being regarded as having such an impairment.” 42 U.S.C. § 12102(1). Under the ADA, as amended by the ADA Amendments Act of 2008 (“ADAAA”), the definition of disability “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” 42 U.S.C. § 12102(4)(A).
Here, Cook does not allege an actual disability that “substantially limits one or more major life activities” or a record of such an impairment. His only allegation is that the City “regarded him as having a mental or psychological impairment and as handicapped or disabled within the meaning of the RHA and/or ADA and discriminatorily rejected him for employment on that basis.” (ECF Doc. No. 1, ¶ 17)
The ADA, as amended by the ADAAA, defines “regarded as having such an impairment” as:
An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.
42 U.S.C. § 12102(3)(A).
The regulations implementing the ADA, as amended by ADAAA, instruct:
[A]n individual is ‘regarded as having such an impairment’ if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment
, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.
29 C.F.R. § 1630.2(l )(1) (2015).
“Thus, the plain language suggests that a [p]laintiff need only plead that [he] was discriminated against because of an impairment (either actual or perceived).” Riley v. St. Mary Med. Ctr., Civ. A. No. 13–7205, 2014 WL 2207347, at *2 ; see also Koci v. Central City Optical Co., 69 F.Supp.3d 483, 487, Civ.A. No. 14–2983, 2014 WL 6388469, at *3 (E.D.Pa. Nov. 14, 2014) (...
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