Ramirez v. Board of Regents for the Regional University System of Oklahoma et al, No. 5:2020cv00845 - Document 16 (W.D. Okla. 2021)
Court Description: ORDER granting in part and denying in part 10 Motion to Dismiss. Plaintiff's ADA claim, FMLA self-care claim, and FMLA interference claim with regard to her husband are dismissed without prejudice. Plaintiff's Rehabilitation Act claim, FMLA retaliation claim with regard to her husband, and OADA claim shall be allowed to proceed. Signed by Honorable Charles Goodwin on 01/08/2021. (jb)
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Ramirez v. Board of Regents for the Regional University System of Oklahoma et al Doc. 16 Case 5:20-cv-00845-G Document 16 Filed 01/08/21 Page 1 of 16 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA KRISTA RAMIREZ, Plaintiff, v. STATE OF OKLAHOMA ex rel. BOARD OF REGENTS FOR THE REGIONAL UNIVERSITY SYSTEM OF OKLAHOMA, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CIV-20-845-G ORDER Plaintiff Krista Ramirez has brought this lawsuit against Defendant State of Oklahoma ex rel. Board of Regents for the Regional University System of Oklahoma and Defendant Southeastern Oklahoma State University (“SEOSU”), alleging violations of Plaintiff’s federal and state statutory rights arising from her employment. See Am. Compl. (Doc. No. 8). Now before the Court is the Motion to Dismiss (Doc. No. 10) jointly filed by Defendants. Plaintiff has responded (Doc. No. 11) and Defendants have replied (Doc. No. 12). I. Summary of the Pleadings In her Amended Complaint, Plaintiff alleges that Defendants violated her rights in connection with her employment (presumably at SEOSU, although the location is not specified). Specifically, Plaintiff asserts that she was employed by Defendants from approximately September 16, 2013, to October 10, 2019, as an instructional designer. Am. Compl. ¶¶ 7-8. According to Plaintiff, she met all requirements to perform this job and Dockets.Justia.com Case 5:20-cv-00845-G Document 16 Filed 01/08/21 Page 2 of 16 “could perform the essential functions of her position with or without reasonable accommodation.” Id. ¶ 8. Plaintiff alleges that she suffered from a bowel collapse in the Fall of 2018 and also was diagnosed with endometriosis with a subsequent hysterectomy in June 2019. See id. ¶¶ 9-10. Plaintiff states she informed Defendants of these “serious health conditions that required her to take leave from work.” Id. ¶ 10. Plaintiff states she also informed Defendants in February 2019 that her husband was diagnosed with “a terminal disease, Autosomal Dominant Polycystic Kidney Disease.” Id. Regarding Plaintiff’s bowel collapse, Plaintiff alleges that she “was required to take protected leave under the FMLA in September 2018” and that after she took this leave, she “was disciplined for her previously approved medical absences in her December 2018 performance evaluation.” Id. ¶ 11. Plaintiff “complained about this discriminatory and retaliatory treatment.” Id. With respect to her hysterectomy, Plaintiff alleges that when she requested leave for the June 2019 surgery, “Defendants informed Plaintiff that she would not be able to take leave, despite [her] actually being eligible for medical leave.” Id. ¶ 12. After Plaintiff “insist[ed] on the medical necessity,” “Defendants ultimately approved her leave for her hysterectomy.” Id. “This resulted in Plaintiff being off work for approximately five weeks until July 22, 2019.” Id. Plaintiff alleges that, despite being given “an above-average performance review” in April 2019, in August of that year she received “a counseling report recommending her termination within thirty (30) days.” Id. ¶ 13. In September 2019, Plaintiff (1) requested 2 Case 5:20-cv-00845-G Document 16 Filed 01/08/21 Page 3 of 16 accommodations for anxiety caused by her “hostile work environment”; (2) requested intermittent leave due to her husband’s terminal medical condition; and (3) “complained to Defendants of discrimination related to her disability and her husband’s disability.” Id. ¶ 14. On or about October 10, 2019, Defendants terminated Plaintiff’s employment. Id. ¶ 15. Plaintiff alleges that she has suffered wage loss and emotional distress/dignitary harm damages as a result of Defendants’ actions. See id. ¶ 16. Plaintiff alleges that Defendants subjected Plaintiff to improper discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”),1 the Rehabilitation Act,2 the Family and Medical Leave Act (“FMLA”),3 and the Oklahoma Anti-Discrimina protected activity. Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171-72 9 Case 5:20-cv-00845-G Document 16 Filed 01/08/21 Page 10 of 16 (10th Cir. 2006); accord Coleman v. Blue Cross Blue Shield of Kan., 487 F. Supp. 2d 1225, 1247-48 (D. Kan. 2007) (considering whether a causal connection existed between the plaintiff’s request of FMLA leave and her termination). Next, Plaintiff alleges that she was terminated on or about October 10, 2019. This allegation plausibly establishes the second element, as “any reasonable employee would have found termination materially adverse.” Metzler, 464 F.3d at 1171. Plaintiff’s pleading primarily sets forth conclusions, not facts, to support a “causal connection” between this protected activity and her termination. See Am. Compl. ¶¶ 19, 20. An FMLA plaintiff can establish causation, however, by showing that her termination was “‘very closely connected in time’ to her protected FMLA activity.” Metzler, 464 F.3d at 1172 (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)) (finding that the plaintiff had established a causal connection when her termination occurred at most six weeks after the defendants were aware of the plaintiff’s intent to engage in protected activity and four weeks at most from the plaintiff’s requesting leave); accord O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (noting that a one-and-a-half month time period between the protected activity and the adverse action may be enough to establish causation on retaliation claims, but that a period of three months, without additional evidence, has been found insufficient to do so). As set forth above, Plaintiff alleges that she was fired approximately ten days to five weeks after requesting leave. That allegation, accepted as true, places Plaintiff’s termination sufficiently close in time to her request for intermittent leave as to plausibly establish a causal connection between the two events. See Metzler, 464 F.3d at 1172; 10 Case 5:20-cv-00845-G Document 16 Filed 01/08/21 Page 11 of 16 Burnett, 706 F.3d at 1235. Dismissal of Plaintiff’s FMLA retaliation claim therefore is not warranted. See Fed. R. Civ. P. 12(b)(6). C. Plaintiff’s Rehabilitation Act Claim Defendants also argue, pursuant to Rule 12(b)(6), that Plaintiff fails to state a plausible claim for violation of the Rehabilitation Act. “The Rehabilitation Act prohibits discrimination against an ‘otherwise qualified individual with a disability.’” McGeshick v. Principi, 357 F.3d 1146, 1149 (10th Cir. 2004) (quoting 29 U.S.C. § 794(a))). “The statute makes available a private right of action to qualified individuals who have been subjected to discrimination . . . by a program or activity receiving federal financial assistance.” Id. To state a discrimination claim under the Rehabilitation Act, Plaintiff must plausibly allege that: (1) she is an “individual with a disability”; (2) she would be “otherwise qualified” to participate in the relevant program or activity; (3) the program or activity receives federal financial assistance; and (4) the program or activity has excluded, denied benefits to, or discriminated against Plaintiff “solely by reason of” her disability. See id. at 1150; 29 U.S.C. § 794(a), (b).6 Defendants dispute whether Plaintiff has adequately alleged that she was disabled. See Defs.’ Mot. at 12-13; Defs.’ Reply at 7-9. The ADA and the Rehabilitation Act define “disability” in “essentially the same terms.” Nielson v. Moroni Feed Co., 162 F.3d 604, In her Response, Plaintiff also refers to her allegations regarding her husband’s kidney disease as supportive of Plaintiff’s Rehabilitation Act claim. Plaintiff, however, offers no authority for the proposition that the private right of action authorized by this Act extends to discrimination against a person by reason of another’s disability or the need to care for another. 6 11 Case 5:20-cv-00845-G Document 16 Filed 01/08/21 Page 12 of 16 608 n.7 (10th Cir. 1998). And because the Rehabilitation Act incorporates the ADA’s standards, see 29 U.S.C. § 705(9)(B), the result is an expanded understanding of “disabled” under both statutes: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment . . . . McGeshick, 357 F.3d at 1150 (quoting 42 U.S.C. § 12102(1)). “To satisfy this definition, ‘a plaintiff must (1) have a recognized impairment, (2) identify one or more appropriate major life activities, and (3) show the impairment substantially limits one or more of those activities.” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011) (internal quotation marks omitted). Such an impairment includes: “[a]ny physiological disorder or condition . . . or anatomical loss affecting one or more body systems,” including “reproductive, digestive,” or “genitourinary,” or “[a]ny mental or psychological disorder, such as . . . emotional or mental illness.” 29 C.F.R. § 1630.2(h); see Carter, 662 F.3d at 1142; see also Bragdon v. Abbott, 524 U.S. 624, 632 (1998). Plaintiff alleges that she suffers from anxiety and endometriosis, that she suffered a bowel collapse, and that she underwent a hysterectomy. See Pl.’s Resp. at 5 (citing Am. Compl. ¶¶ 9, 10, 11, 14). As to anxiety disorder, Defendants argue that the anxiety described by Plaintiff is merely “situational” and therefore does not support a finding of disability. Although Defendants cite a decision in which the Tenth Circuit affirmed a finding that the anxiety a student experienced “limited to certain academic subjects” did not constitute a disability, that holding focused upon the particular student’s failure to show 12 Case 5:20-cv-00845-G Document 16 Filed 01/08/21 Page 13 of 16 that his anxiety disorder substantially limited a major life activity. See McGuinness v. Univ. of N.M. Sch. of Med., 170 F.3d 974, 977-78 (10th Cir. 1998). The McGuinness decision does not contradict the extensive authority deciding that an anxiety disorder may constitute a recognized impairment supporting a showing of disability under the Rehabilitation Act. See, e.g., Mayfield v. Target Corp., No. 5:18-cv-04036-HLT, 2019 WL 5576938, at *3 (D. Kan. Oct. 29, 2019) (noting the plaintiff’s “recognized impairment of generalized anxiety disorder”); Stuart v. Vilsack, No. 2:14-CV-416-SMJ, 2016 WL 6902347, at *6 (E.D. Wash. Nov. 23, 2016) (finding that the plaintiff’s PTSD-related anxiety was a recognized impairment for a Rehabilitation Act claim); see also E.E.O.C., EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, 1997 WL 34622315, at *2 (Mar. 25, 1997) (identifying anxiety disorders as an example of emotional or mental illness included within the ADA’s mental impairments); 28 C.F.R. § 35.108(b)(2) (prescribing that “[p]hysical or mental impairment” includes “emotional illness”). The Court reads Plaintiff’s allegations of anxiety as plausibly describing an impairment that falls within this general category and, at this point, not one excludable under the limited scope of the McGuinness decision. As to Plaintiff’s endometriosis, bowel collapse, and hysterectomy, Defendants in their Motion at least nominally question whether Plaintiff has alleged a recognized impairment. See Defs.’ Mot. at 13 (“Plaintiff points to no disability.”). Plaintiff’s reference to her endometriosis—and what appears to be the related event of a hysterectomy procedure—adequately alleges a physiological condition “affecting one or more body systems.” 29 C.F.R. § 1630.2(h); see also Bragdon, 524 U.S. at 660 (Rehnquist, C.J., 13 Case 5:20-cv-00845-G Document 16 Filed 01/08/21 Page 14 of 16 concurring in part and dissenting in part) (“There are numerous disorders of the reproductive system, such as . . . endometriosis, which are so painful that they limit a woman’s ability to engage in major life activities . . . .”); 42 U.S.C. § 12102(4)(A) (“The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.”). Accordingly, Plaintiff has adequately alleged one or more recognized impairments to establish the disability element of her Rehabilitation Act claim. Defendants also argue that Plaintiff’s allegations fail to establish causation—i.e., that Defendants discriminated against Plaintiff “solely by reason of” her disability. 29 U.S.C. § 794(a); see McGeshick, 357 F.3d at 1150; Defs.’ Mot. at 13. As to Plaintiff’s anxiety disorder, the very close temporal proximity between Plaintiff bringing that impairment to Defendants’ attention and Defendants’ termination of Plaintiff is sufficient at this pleading stage to plausibly support a causal connection between the two events. See Am. Compl. ¶¶ 14, 15 (alleging that Plaintiff requested accommodations for anxiety in September 2019 and was terminated on or about October 10, 2019); Anderson, 181 F.3d at 1179. And, while some events related to Plaintiff’s endometriosis were more distant in time from the October 2019 termination of Plaintiff, the fact that Plaintiff allegedly “complained to Defendants of discrimination related to her disability” as late as September 2019, Am. Compl. ¶ 14, is sufficient at this stage to plausibly support a causal connection between the impairment and her termination. See Arbogast v. Kan. Dep’t of Labor, No. 13-CV-4007-JAR/KMH, 2014 WL 1308915, at *6 (D. Kan. Mar. 31, 2014) (denying 14 Case 5:20-cv-00845-G Document 16 Filed 01/08/21 Page 15 of 16 dismissal of Rehabilitation Act claim where the plaintiff complained through July 2011 and was terminated in August 2011). Plaintiff therefore shall be permitted to proceed with her Rehabilitation Act discrimination claim. IV. Plaintiff’s Request to Amend As referenced above, Defendants requested dismissal of Plaintiff’s FMLA self-care claim based upon the State’s immunity to this claim. See Coleman, 566 U.S. at 37 (“[T]he [FMLA’s] self-care provision is not a valid abrogation of the States’ immunity from suit.”). Plaintiff conceded that dismissal of her FMLA self-care claim was proper, see Pl.’s Resp. at 1. In her Response, however, Plaintiff requests that the Court grant her leave to amend her pleading a second time in lieu of dismissal. See id. at 10-11. In support, Plaintiff cites Cornforth v. University of Oklahoma Board of Regents, 263 F.3d 1129 (10th Cir. 2001), in which the Tenth Circuit rejected a state employee’s argument that damages claims raised against the employee in his individual capacity were barred by the Eleventh Amendment. See id. at 1133. Plaintiff states that she wishes to amend her claim to “include individual defendants” but fails to identify any such individuals, to identify any factual allegations relevant to these individuals, or to otherwise adequately inform the Court how bringing these unknown individuals into the lawsuit would be in the interest of justice. Pl.’s Resp. at 10-11; see Fed. R. Civ. P. 15(a)(2). Accordingly, this request is denied. Cf. LCvR 15.1 (requiring that proposed pleading be submitted with motion to amend). 15 Case 5:20-cv-00845-G Document 16 Filed 01/08/21 Page 16 of 16 CONCLUSION For the reasons outlined above, Defendants’ Motion to Dismiss (Doc. No. 10) is GRANTED IN PART and DENIED IN PART. Plaintiff’s ADA claim, FMLA self-care claim, and FMLA interference claim with regard to her husband are dismissed without prejudice. Plaintiff’s Rehabilitation Act claim, FMLA retaliation claim with regard to her husband, and OADA claim shall be allowed to proceed. IT IS SO ORDERED this 8th day of January, 2021. 16
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