Kirsch v. Lei Floor & Window Coverings, Inc.

• Decision Date: 09 January 2017
• Docket Number: Civ. No. 16-00284 ACK-RLP
• Parties: THOMAS P. KIRSCH, Plaintiff, v. LEI FLOOR AND WINDOW COVERINGS, INC., Defendant.
• Court: U.S. District Court — District of Hawaii

THOMAS P. KIRSCH, Plaintiff, v. LEI FLOOR AND WINDOW

COVERINGS, INC., Defendant.

Civ. No. 16-00284 ACK-RLP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

January 9, 2017

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIFF THOMAS P. KIRSCH'S COMPLAINT AGAINST LEI FLOOR AND WINDOW COVERINGS, INC.

For the reasons set forth below, the Court GRANTS in part and DENIES in part Defendant's Motion to Dismiss Plaintiff Thomas P. Kirsch's Complaint Against LEI Floor and Window Coverings, Inc. ("Motion to Dismiss"), ECF No. 8.

FACTUAL BACKGROUND

Plaintiff Thomas P. Kirsch ("Plaintiff") was hired by Defendant LEI Floor and Window Coverings, Inc. ("LEI" or "Defendant") in July 2014 as "a Warehouse Personnel." Compl. ¶ 7, ECF No. 1. On June 24, 2015, Plaintiff suffered a work-related injury, which resulted in his physical disabilities. Id. ¶ 8. The same day he was injured, Plaintiff was informed by John Burkett ("Burkett"), the owner of LEI, that he was terminated from his employment. Id. ¶ 9. Burkett refused to give any reasons for Plaintiff's discharge, despite Plaintiff's request for clarification. Id. ¶ 10.

Plaintiff was qualified for the position for which he was terminated and was capable of performing his job duties. Id. ¶¶ 11-12. Plaintiff was terminated because of his disability. Id. ¶ 13.

PROCEDURAL BACKGROUND

Plaintiff filed his Complaint against Defendant on June 2, 2016. Plaintiff raises one claim against Defendant for disability discrimination pursuant to the American with Disabilities Act of 1990, based on his allegations that he was terminated on account of his disability. Compl. ¶¶ 14-20.

Defendant filed a Motion to Dismiss Plaintiff's Complaint on September 15, 2016. ECF No. 8. Plaintiff filed his Opposition on December 19, 2016. ECF No. 11. Defendant filed its Reply on December 26, 2016. ECF No. 13. The Court held a hearing on the Motion to Dismiss on January 9, 2017.

STANDARD

I. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1), a party may move to dismiss based on a lack of subject matter jurisdiction. "[T]he party asserting subject matter jurisdiction has the burden of proving its existence." Robinsonv. United States, 586 F.3d 683, 685 (9th Cir. 2009) (citation omitted).

Challenges to the Court's subject matter jurisdiction can be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. "By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id.

II. Motion to Dismiss for Failure to State a Claim

Rule 12(b)(6) authorizes the Court to dismiss a complaint that fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Court may dismiss a complaint either because it lacks a cognizable legal theory or because it lacks sufficient factual allegations to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

In resolving a Rule 12(b)(6) motion, the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations astrue. Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th Cir. 2012). The 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "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).

When the Court dismisses a complaint pursuant to Rule 12(b)(6) it should grant leave to amend unless the pleading cannot be cured by new factual allegations. OSU Student All. v. Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).

DISCUSSION

I. Jurisdictional Issues and Failure to Plead that Defendant Was a "Covered Employer"

Defendant first claims that Plaintiff failed to properly allege jurisdiction because the Complaint claims the Court has jurisdiction pursuant to the American with Disabilities Act of 1990 ("ADA") as opposed to the American with Disabilities Act Amendments Act of 2008 ("ADAA"). Memorandum inSupport of Motion to Dismiss ("Mem."), at 6. The Court rejects this argument.

The ADAAA was passed by Congress in 2008 and amended the ADA. The purpose of the ADAAA was "[t]o restore the intent and protections of the [ADA] of 1990." Rohr v. Salt River Project Agric. Improvement & Power Dist., 555 F.3d 850, 853 (9th Cir. 2009) (alteration in original) (quoting Pub. L. No. 110-325, 122 Stat. 3553 (2008)). The ADAAA rejected several United States Supreme Court cases that provided a narrow definition of the term "disability." Id. at 861. Although the ADAAA applies to Plaintiff's case, the Court does not find Plaintiff's failure to plead jurisdiction under the ADAAA as destructive to his claims. Defendant has not cited any support to the contrary.

Defendant further claims that the Court lacks subject matter jurisdiction over Plaintiff's claim because Defendant is not a covered employer as defined under the ADAAA. Mem., at 6. On this basis, Defendant argues that the Complaint should be dismissed pursuant to Rule 12(b)(1).

The ADAAA prohibits a "covered entity" from "discriminat[ing] against a qualified individual on the basis of disability 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). A covered entity is definedas "an employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. § 12111(2). In turn, "[t]he term 'employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person." 42 U.S.C. § 12111(5)(A).

Defendant argues that it does not meet the definition of a covered employer under the statute because it "never employed" the requisite number of employees. Mem., at 7. In support of its claim, Defendant attached to its Motion to Dismiss a Declaration from John Burkett, Defendant's owner, stating that at the time Plaintiff was terminated, LEI "did not have 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." Burkett Decl. ¶ 3, ECF No. 8-2. In turn, in his Opposition, Plaintiff attached Burkett's Hawaii Civil Rights Commission ("HCRC") "Response to a Complaint of Discrimination" in which he appears to have indicated that LEI employs 15 individuals. Brower Decl., Ex. 1, ECF No. 11-2. In its Reply, Defendant asserts that the latter statement from Burkett indicated the "total number of different employees employed [by] LEI Floor during the year" but that LEI never had "a total of 15 or more[employees] at any one given time." Reply, at 3 (emphasis omitted) (quoting Burkett Decl. ¶¶ 4-5, ECF No. 13-1).

The Court must first consider whether the employee numerosity requirement in the ADA as amended by the ADAAA is jurisdictional. Defendant has not cited to any authority to support its claim that the requirement is jurisdictional and that Plaintiff's Complaint should be dismissed for lack of jurisdiction. Several courts that have considered this question, however, have determined that the ADA's employee numerosity requirement is nonjurisdictional and is instead a substantive element of a plaintiff's claim. These decisions are based on the United States Supreme Court's decision in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006).

In Arbaugh, the Court was faced with the question of whether the numerosity requirement in Title VII was jurisdictional. Id. at 503. As with the ADA, Title VII "limit[s] the definition of "'employer' to include only those having 'fifteen or more employees.'" Id. (quoting 42 U.S.C. § 2000e(b)). The Court recognized the dangers in "conflat[ing]" the question of "[s]ubject matter jurisdiction in federal-question cases" with a "merits-related determination" and cautioned against "drive-by jurisdictional rulings." Id. at 511 (citations omitted). Noting that nothing in the text of Title VII indicated that the employee numerosity requirement was meantto be jurisdictional, the Court held that "when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character." Id. at 516. Accordingly, the Court concluded that "the threshold number of employees for application of Title VII is an element of a plaintiff's claim for relief, not a jurisdictional issue." Id.

The reasoning of Arbaugh applies to the ADA and the instant case. As with Title VII, there is no indication in the ADA that the employee numerosity requirement is jurisdictional. Moreover, it has been recognized that "courts often look to Title VII—which defines 'employer' in essentially the same way as the ADA—for guidance on ADA issues." Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 155 (4th Cir. 2012); see also Pac. Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 1158 n.19 (9th Cir. 2013) (noting that standards of proof under Title VII apply to ADA claims).

Based on Arbaugh,...