Darby v. Childvine, Inc.

Decision Date30 June 2020
Docket NumberNo. 19-4214,19-4214
Citation964 F.3d 440
Parties Sherryl DARBY, Plaintiff-Appellant, v. CHILDVINE, INC. ; Tyler Mayhugh; Samantha Blizzard, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Brian J. Butler, MEZIBOV BUTLER, Cincinnati, Ohio, for Appellant. Robert D. Todd, THE LAW OFFICE OF ROBERT D. TODD, LLC, Springboro, Ohio, for Appellee. ON BRIEF: Brian J. Butler, Daniel J. Treadaway, MEZIBOV BUTLER, Cincinnati, Ohio, for Appellant. Robert D. Todd, THE LAW OFFICE OF ROBERT D. TODD, LLC, Springboro, Ohio, for Appellee.

Before: GRIFFIN, THAPAR, and READLER, Circuit Judges.

OPINION

CHAD A. READLER, Circuit Judge.

Sherryl Darby underwent a double mastectomy following diagnosis of the growth of abnormal pre-cancerous cells along with a genetic mutation that contributes to abnormal cell growth. Invoking the Americans with Disabilities Act and Ohio law, Darby alleges she was discriminated against when her employer terminated her employment upon learning of her condition. The district court dismissed her claims, concluding that Darby's genetic mutation had not yet manifested into a disability cognizable under the ADA. Because Darby has plausibly alleged a condition covered by the ADA, we REVERSE .

BACKGROUND

Childvine hired Darby as an administrative assistant at its day care facility in Springboro, Ohio. Not long into her tenure, Darby made a request for time off to deal with a health issue. Darby says she notified her supervisor, Tyler Mayhugh, a director at Childvine, that she had recently been diagnosed with breast cancer, and that she was scheduled for a double mastectomy later that month. According to Darby, Mayhugh balked at the idea, expressing doubt about whether Childvine would allow Darby to remain employed when her surgery date fell within her 90-day probationary period. Mayhugh asked Darby to delay the surgery. Afraid of losing her job, Darby agreed to move the procedure to the day after her probationary period expired.

Doing so apparently did not satisfy Mayhugh or Samantha Doczy, Childvine's co-owner. When told of the new date, the two allegedly "harassed" Darby about the length of her leave request. Doczy later approved Darby's request to use her vacation and sick time to recover from the procedure. When Darby contacted Mayhugh in late October, following her surgery, about returning to work in early November, Darby was told to bring a medical release.

Yet when Darby returned to work, release in hand, Mayhugh explained that Childvine had already sent Darby a letter informing her of her termination. The letter, which Darby received days later, stated that her employment was terminated effective October 24th, the last day of her probationary period. The reasons listed for Darby's termination included an "unpleasant" attitude, dress code violations, and "being unable to work."

Darby filed suit alleging that Childvine violated her rights under the ADA, and that the company along with Mayhugh and Doczy (collectively, "Childvine") violated her rights under Ohio law. In her complaint, Darby alleged that the reasons given for her termination were pretextual, noting that she was never disciplined for behavior issues during her tenure at Childvine.

While addressing Childvine's various motions to dismiss, the district court allowed discovery to proceed. Early discovery proved revealing. In reviewing Darby's medical records, Childvine learned that Darby was never diagnosed with cancer. Childvine in turn informed the court that Darby's records revealed at most a family history of cancer and a genetic mutation known as a BRCA1 mutation. The district court ordered Childvine to resubmit its motion to dismiss with the new details. Responding to that renewed motion, Darby faulted Childvine for relying upon information outside the complaint. But at the same time, "in an effort to resolve [the] issue," Darby expressed a willingness to admit that her impairment was "a pre-cancerous genetic mutation, not advanced breast cancer." Darby thus requested leave to amend her complaint "specifically" to reflect eight admissions:

[T]he evidence produced in discovery establishes that (1) Ms. Darby attended a routine appointment with her OBGYN; (2) the OBGYN found an epithelial cell abnormality ; (3) the doctor referred her for genetic testing; (4) the genetic testing resulted in a positive match for the BRCA1 gene; (5) the BRCA1 gene is an impairment that substantially limits normal cell growth; (6) because of the positive match, Ms. Darby's doctors urged her to undergo a double mastectomy ; (7) Ms. Darby elected to follow the medical advice and underwent the surgery; and (8) Childvine terminated Ms. Darby's employment very shortly after undergoing her surgery.

In reply, Childvine stipulated to Darby's proposed amendment.

Without formally granting leave for Darby's amendment, the district court proceeded to the merits of Childvine's motion "on the premise that the operative complaint incorporates [Darby's eight admissions]." Taking up the motion, the district court concluded that Darby had "offered no statutory, regulatory, or caselaw support for her [argument] that the BRCA1 gene, like cancer itself, is a physical impairment that substantially limits normal cell growth." Nor, the court noted, had its own research revealed evidence that the mutation substantially limited normal cell growth. Viewing Darby's genetic mutation as akin to "the absence of cancer," and noting that "the definition of physical impairment" does not "include a condition that might lead to [breast cancer ] in the future," the district court granted Childvine's motion, and dismissed the case. Darby filed a timely appeal.

ANALYSIS

I. Before considering the merits of Darby's ADA claim, we first address three threshold issues, each of which relates to the odd manner in which Darby litigated the matter below, which created understandable challenges for the district court. One, contrary to Darby's suggestion, the district court was not required to convert Childvine's motion to dismiss into one for summary judgment under Federal Rule of Civil Procedure 12(d). The district court, with Childvine's blessing, deemed Darby's stipulation to be part of her operative complaint, meaning it did not consider matters outside the pleadings. Fed. R. Civ. P. 15(a). Any confusion over the matter seemingly was the result of Darby erroneously stating in her initial complaint that she had breast cancer.

Two, Darby asserts that her stipulation was only a "short summary" of her proposed amendment, suggesting that she was unable to fully present the issue to the district court. But Darby has not identified any further allegations she would have added through a more formal amendment. And as she offered her stipulation, in her own words, in an effort to "resolve" the tension between her medical records and her complaint, the district court's resolution of that issue was done at her invitation, not over her objection. See United States v. Demmler , 655 F.3d 451, 458–59 (6th Cir. 2011) (noting that "courts prevent a party from inducing an erroneous ruling and later seeking to profit from the legal consequences of having the ruling set aside") (quoting Harvis v. Roadway Exp. Inc. , 923 F.2d 59, 61 (6th Cir. 1991) ).

Three, it is perhaps unclear whether Darby pled a failure to accommodate claim separate from her wrongful termination claim at the heart of her complaint. With respect to an accommodation due to her surgery, Darby's complaint alleges that Childvine granted her request for time off. And when questioned at oral argument, Darby seemed to disavow any accommodation claim separate from her termination. We leave it to the district court to sort out the matter on remand, should the parties disagree on the nature of Darby's claims going forward.

Now on to the merits.

II. We review de novo a district court's grant of a motion to dismiss for failure to state a claim. Johnson v. Morales , 946 F.3d 911, 917 (6th Cir. 2020). At this stage, we consider whether the complaint states a claim for relief that is plausible, when measured against the elements of an ADA claim. Binno v. Am. Bar Ass'n , 826 F.3d 338, 345–46 (6th Cir. 2016). To survive a motion to dismiss, in other words, Darby must make sufficient factual allegations that, taken as true, raise the likelihood of a legal claim that is more than possible, but indeed plausible. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

1. Title I of the ADA prohibits employers from discriminating against a qualified individual because of a disability. 42 U.S.C. § 12112(a) ; 29 C.F.R. § 1630.2(b), (e). To state a claim of discrimination under the ADA, Darby must plead facts that make plausible the inference that (1) she is disabled, (2) she is qualified to perform her job requirements with or without reasonable accommodation, and (3) she would not have been discharged but for the disability. Lewis v. Humboldt Acquisition Corp. , 681 F.3d 312, 321 (6th Cir. 2012) (en banc); Donald v. Sybra, Inc. , 667 F.3d 757, 763 (6th Cir. 2012) ; Frengler v. Gen. Motors , 482 F. App'x 975, 976 (6th Cir. 2012). The key point of contention between the parties is whether Darby has met the first prong—that is, whether Darby's genetic mutation constitutes a disability under the ADA. Darby argues her condition so qualifies because it is "a physical or mental impairment that substantially limits one or more [of her] major life activities." 42 U.S.C. § 12102(1)(A). To our knowledge, this is an issue of first impression at the circuit level.

Section 12102(1)(A) and its supporting regulations broadly define the term "disability" for purposes of the ADA. Consider the three major aspects of that definition: "physical or mental impairment," "substantially limits," and "major life activities."

"Physical or mental...

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