Rico v. Xcel Energy, Inc.

• Citation: 893 F.Supp.2d 1165
• Decision Date: 25 September 2012
• Docket Number: Civ. No. 12–00038 MV/WPL.
• Parties: Eric RICO, Plaintiff, v. XCEL ENERGY, INC., and Southwestern Public Service Company, Defendants.
• Court: U.S. District Court — District of New Mexico

893 F.Supp.2d 1165

Eric RICO, Plaintiff,

v.XCEL ENERGY, INC., and Southwestern Public Service Company, Defendants.

Civ. No. 12–00038 MV/WPL.

United States District Court,

D. New Mexico.

Sept. 25, 2012.

Byron L. Treaster, Tony F. Ortiz, Scheuer, Yost & Patterson, P.C., Santa Fe, NM, for Plaintiff.

Adam E. Lyons, Eric R. Burris, Harold D. Stratton, Jr., Brownstein, Hyatt, Farber, Schreck, PC, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, District Judge.

THIS MATTER comes before the Court on Defendants' Motion to Dismiss First Amended Complaint [Doc. 6]. The Court, having considered the motion, briefs, relevant law and being otherwise fully informed, finds that the Motion is well-taken in part and will be GRANTED IN PART and DENIED IN PART.

BACKGROUND

For purposes of this motion, the Court accepts as true the facts as alleged in the First Amended Complaint (the “Complaint”). Plaintiff has been an employee of Southwestern Public Service Company (“Southwestern”) since 1999. Doc. 4, ¶ 7. In or about January of 2009, he suffered a work injury, which required him to undergo back surgery. Id. at ¶ 8. After his surgery, in or about February or March of 2010, his physician released him to resume employment with “modest lifting restrictions” and “no utility pole climbing.” Id. at ¶ 8. At that time, he was working as a “third year apprentice lineman.” Id. at ¶ 7.

In or about March or April of 2010, Plaintiff requested a transfer to a job for which he was qualified, and for which he would not be required to climb utility poles or lift more than sixty pounds. Id. at ¶ 11. Defendants refused this request, and instead recommended that Plaintiff apply for long-term disability benefits, terminated his employment, and required him to apply for an open position, in competition with other job applicants. Id. at ¶¶ 12–13. Plaintiff notified his union of Southwestern's actions; the union declined to initiate a grievance procedure. Id. at ¶ 26.

Thereafter, Southwestern offered Plaintiff a job as a “substation electrician,” at a lower rate of pay than he had been earning in his previous position. Id. at ¶ 14. Southwestern also eliminated Plaintiff's three years of seniority as a third year apprentice lineman. Id. Plaintiff accepted the employment offer, and has held the substation electrician position since June 1, 2011. Id.

On January 19, 2012, Plaintiff filed his First Amended Complaint for Damages Arising from Violation of Americans with Disabilities Act against Southwestern and Xcel Energy, Inc. (“Xcel”). Doc. 4. The Complaint alleges a claim under the Americans with Disabilities Act (“ADA”) (Count I), a claim under the New Mexico Human Rights Act (“NMHRA”) (Count II), and a breach of contract claim (Count III). On February 15, 2012, Defendants filed the instant motion to dismiss Defendant Xcel from this lawsuit, and to dismiss all three counts of the Complaint as to both Defendants. Doc. 6. Plaintiff filed a response on February 29, 2012. Doc. 12. In his response, Plaintiff agrees to dismissal of Xcel as a defendant in this lawsuit, but opposes Defendants' motion to dismiss his claims against Southwestern. Defendants' reply followed on March 16, 2012. Doc. 15.

LEGAL STANDARD ON RULE 12(B)(6) MOTION TO DISMISS

Under Rule 12(b)(6), a Court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). When considering a 12(b)(6) motion, the Court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. Smith v. United States, 561 F.3d 1090, 1097 (10th Cir.2009), cert. denied,558 U.S. 1148, 130 S.Ct. 1142, 175 L.Ed.2d 973 (2010).

“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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A complaint “that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Accordingly, while the Court must take all of the factual allegations in the complaint as true, “a plaintiff armed with nothing more than conclusions” cannot survive a motion to dismiss. Iqbal, 129 S.Ct. at 1950.

DISCUSSION

I. ADA Claim

The ADA prohibits employment discrimination against “a qualified individual on the basis of disability” with regard to “the hiring, advancement, or discharge of employees ... and other terms, conditions, and privileges of employment” on the basis of such disability. 42 U.S.C. § 12112(a). The term “discriminate” includes the failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” unless the employer demonstrates that such accommodations would impose an “undue hardship” on the operation of their business. 42 U.S.C. § 12112(b)(5)(A).

To establish a prima facie case of discrimination under the ADA, the plaintiff must allege that: “(1) he is a ‘disabled’ person as defined by the ADA; (2) he is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) the employer discriminated against him because of the disability.” Taylor v. Pepsi–Cola Co., 196 F.3d 1106, 1109 (10th Cir.1999). In Count I of the Complaint, Plaintiff alleges that Defendants' refusal to reasonably accommodate his disability by allowing him to transfer to a position that does not require heavy lifting constitutes a violation of the ADA. Defendants argue that Count I fails to state a claim under the ADA because it is devoid of facts that, if proven, would establish that Plaintiff is disabled.

For purposes of the ADA, an individual is disabled if he: (1) has “a physical or mental impairment that substantially limits one or more major life activities of such individual;” (2) has “a record of such an impairment;” or (3) is “regarded as having such an impairment.” 42 U.S.C. § 12102(1). Plaintiff argues that his back injury is an impairment that substantially limits his ability to lift, and that he thus has adequately alleged a disability under the ADA. Defendants counter that the allegations of Plaintiff's impairment are insufficient to allege a disability under the ADA, because limitations on heavy lifting and climbing are not, as a matter of law, “substantial limitations” of major life activities.

“Ultimately, whether an individual is substantially limited as to a major life activity is a question of fact.” Mills v. Temple Univ., 869 F.Supp.2d 609, 621 (E.D.Pa.2012). Before Congress amended the ADA in 2008, courts construed the Act strictly, finding that an individual was “substantially limited” only if he had “an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 185, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). In another leading ADA case, the Supreme Court held that the degree of limitation caused by an individual's impairment should be determined with reference to the ameliorative effects of mitigating measures. Sutton v. United Air Lines, Inc., 527 U.S. 471, 499, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).

On January 1, 2009, however, Congress passed the ADA Amendments Act of 2008 (“ADAAA”), rejecting Toyota and Sutton.Pub. L. No. 110–325, § 2(b)(1)–(6), 122 Stat. 3553 (2008). With the ADAAA, Congress explicitly lowered the standard for “substantially limits,” noting that “lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities.” Pub. L. No. 110–325, § 2(a)(6), 122 Stat. at 3553. Congress declared that “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations,” and that “the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.” Pub. L. No. 110–325, § 2(b)(5), 122 Stat. at 3554. Notably, the ADA, as amended, explicitly defines “major life activities” to include lifting. 42 U.S.C. § 12102(2)(A).

The post-ADAAA regulations promulgated by the EEOC similarly caution that the term “substantially limits”: is “not meant to be a demanding standard”; shall be construed broadly in favor of expansive coverage, to the “maximum extent permitted by the ADA”; and shall “be applied to require a degree of functional limitation that is lower than the standard for ‘substantially limits' applied prior to the ADAAA.” 29 C.F.R. § 1630.2(j)(i), (iv). While noting that “not every impairment will constitute a disability within the meaning of [the ADA],” the regulations make clear that “[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(ii). Rather, the relevant inquiry is whether a disability “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” Id. While this inquiry “usually will not require scientific, medical, or statistical analysis,” such evidence may be presented in order “to make...