Opinion
C. A. 4:21-729-SAL-KDW
08-16-2021
Amie Brown, Plaintiff, v. Florence One Schools and Compass Group USA, Inc., d/b/a Chartwells, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
Plaintiff Amie Brown (“Plaintiff” or “Brown”) sues Defendants Florence One Schools (“Florence One”) and Compass Group USA, Inc., d/b/a Chartwells (“Chartwells”) (sometimes referred to collectively as “Defendants”), alleging violation of Title I and Title II of the Americans with Disabilities Act (“ADA”), 29 U.S.C. § 12112(a) et seq. and § 12181 et seq.; and violation of Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794 et seq. Compl., ECF No. 1. This matter is before the court on Defendant Chartwells' Motion to Dismiss or for a More Definite Statement, ECF No. 11, to which Plaintiff responded, ECF No. 13, and Chartwells replied, ECF No. 16. Defendant Chartwells seeks Rule 12(b)(6) dismissal of all three claims. Alternatively, Chartwells seeks the court's order requiring that Plaintiff specify whether all three causes of action are directed toward both Defendants. Having considered the parties' filings and applicable law, the undersigned submits this Report recommending Defendant Chartwells' Motion be granted in part and denied in part as discussed within.
Florence One Schools filed an answer to the Complaint. ECF No. 14. A Scheduling Order has been issued. ECF No. 17.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.). Because the Motion to Dismiss is dispositive, this Report and Recommendation is entered for the district judge's consideration.
This brief background sets out facts in the light most favorable to Plaintiff, the nonmoving party. Additional allegations are set forth herein to the extent they inform the court's legal analysis.
Employed with Defendant Florence One, Plaintiff brought this action to “remedy discrimination on the basis of disability and/or perceived disability and to remedy retaliation, in the terms, conditions and privileges of employment.” Compl. ¶ 1. Plaintiff alleges Chartwells is a Delaware corporation “operating Chartwells K12 in partnership with [Florence One] as stated on FSD1 [Florence School District 1/Florence One] web page, to provide meal options to FSD1 students and staff.” Id. ¶ 4. Plaintiff alleges Florence One has given Chartwells management and supervisory authority over Florence One food service employees and that both Florence One and Chartwells exercise control over Plaintiff and are Plaintiff's joint employers for purposes of the ADA. See Id. ¶¶ 5, 6, 10. Plaintiff began working as a food service employee with Florence One in September 2013; in July 2019 Florence One and Chartwells entered a contract under which Chartwells began to supervise the food service workers. Id. ¶¶ 10, 11. Plaintiff alleges discrimination, failure to accommodate, and retaliation. See Id. ¶ 12.
II. Standard of Review
A motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support her claim and would entitle her to relief. Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The Supreme Court considered the issue of well-pleaded allegations, explaining the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level [].550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.” (citing Twombly, 550 U.S. at 556)). When ruling on a motion to dismiss, the court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, the court need not accept as true “unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
III. Analysis
As an initial matter, the undersigned notes that, in her opposition to the Motion to Dismiss or Motion for a More Definite Statement, Plaintiff has clarified that she is bringing all three causes of action against both Defendants. Pl. Mem. 3. Although what counsel states in a legal memorandum does not amend a pleading, in this instance the court accepts Plaintiff's clarification of the scrivener's error in using “Defendant” in places and “Defendants” in others. As Chartwells did in its Motion the court will consider Plaintiff's Complaint as raising all three claims-brought pursuant to Section 504 of the Rehabilitation Act and Titles I and II of the ADA-against both Defendants. This alleviates any need for a more definite statement by Plaintiff.
The court also notes that, without making a motion to amend, Plaintiff submitted a proposed amended complaint as an attachment to her opposition brief. ECF No. 13-1. The court need not discuss the procedurally improper proposed pleading at this time. In any event, the undersigned is of the opinion that, even if considered a motion to amend, the amended pleading is not necessary or would be futile for the reasons discussed herein.
A. Rehabilitation Act claim against Chartwells
In her third cause of action Plaintiff alleges Florence One and Chartwells violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq., in various employment-related ways. Compl. ¶¶ 31-37. Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
Chartwells argues it is entitled to dismissal of Plaintiff's Rehabilitation Act claim because Plaintiff has not alleged facts that plausibly demonstrate that it “received Federal financial assistance” within the meaning of the Rehabilitation Act, and it is not a covered entity under that statute. Def. Mem. 4-5 (citing cases). Defendant cites several cases for the proposition that a private corporation having a contract with a government entity does not satisfy the “receiving Federal financial assistance” definition. Rather, “[c]ourts interpreting [section] 504 of the Rehabilitation Act have consistently construed ‘Federal financial assistance' to mean the federal government's provision of a subsidy to an entity, not the federal government's compensation of an entity for services provided.” Lee v. Corr. Corp. of Am./Corr. Treatment Facility, 61 F.Supp.3d 139, 144 (D.D.C. 2014) (citing Nolley v. Cnty. of Erie, 776 F.Supp. 715, 742-43 (W.D. N.Y. 1991)); Muller v. Hotsy Corp., 917 F.Supp. 1389, 1417-18 (N.D. Iowa 1996) (holding that a private corporation does not receive Federal financial assistance unless it “receives a subsidy.”). In AbdusSabur v. Hope Village, Inc., 221 F.Supp.3d 3, 10 (D.D.C. 2016), the court granted a motion to dismiss a Rehabilitation Act claim against a private contractor, finding it did not receive Federal financial assistance within the meaning of the Rehabilitation Act. “[A]lthough [the contractor] receive[d] federal funds to incarcerate BOP and [United States Marshals Service] inmates at [a Correctional Treatment Facility] through its contracts with these agencies, ” the funds were to compensate for services, not to subsidize the contractor. Id. As noted by Chartwells, Plaintiff does not allege it receives government subsidies. Rather, the Complaint alleges Chartwells is a covered entity under Section 504 “because it operates a program or activity receiving federal funds.” Compl. ¶ 33; see also Id. ¶ 10 (noting Chartwells entered a contract with Florence One).
Plaintiff's response to this portion of Chartwells' argument is scant, at best. She merely asserts she has placed Chartwells “on sufficient notice” of claims and has “alleged a partnership” between Defendants, “who clearly operate a federally funded food service program.” Pl. Mem. 7. Plaintiff does not address the various cases cited by Chartwells, nor does she offer any legal analysis of this issue.
The undersigned recommends granting Chartwells' Motion to Dismiss the Rehabilitation Act claim brought against it. Plaintiff has not set out a plausible claim that could subject Chartwells, a private entity in contract with Florence One, to Rehabilitation Act liability. See King v. PEM Properties, No. 2:16-CV-09876, 2019 WL 6210937, at *4 (S.D. W.Va. Sept. 17, 2019) (recommending motion to dismiss Rehabilitation Act claim against private entity be granted when plaintiff did not allege entity received federal subsidy), report and recommendation adopted, No. 2:16-CV-09876, 2019 WL 6194639 (S.D. W.Va. Nov. 20, 2019).
Further, to the extent it is considered, nothing in Plaintiff's proposed amended complaint would remedy this flaw. Amendment as to this legal issue would be futile.
B. ADA Claims
As the Fourth Circuit has explained, in terms of structure, “Congress divided the ADA's prohibitions on discrimination against individuals with disabilities into three parts, each with its own heading: Title I for employment, Title II for public services, and Title III for public accommodations.” Reyazuddin v. Montgomery Cnty., Md., 789 F.3d 407, 420 (4th Cir. 2015) (citations omitted). Plaintiff's Complaint includes claims under both Title I and Title II of the ADA. Chartwells seeks dismissal of each.
1. Title II ADA claim
Title II of the ADA prohibits “public entities” from excluding “qualified” disabled persons from programs, activities, or services, or otherwise discriminating against disabled persons. See 42 U.S.C. § 12132. Relevant here, a “public entity” is defined in part as “any State or local government” and “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. §§ 12131(1)(A) and (B). Plaintiff's Complaint notes that Title II “applies to State and local government entities” and submits that “Defendants provide food services and employ[] Plaintiff and other employees to carry out food service programs provided by Federal[, ] State or local government entities.” Compl. ¶¶ 25, 26. Plaintiff submits that Defendants' “actions and practices-refusing to allow Plaintiff to work or accommodate Plaintiff and of punishing Plaintiff for a medical leave of absence” violates Title II of the ADA. Id. ¶ 27.
Chartwells seeks dismissal, claiming it is not a covered “public entity” as to whom Title II of the ADA applies. Def. Mem. 6-7 (citing cases). For example, in Maday v. Dooley, No. 4:17- CV-04168-KES, 2018 WL 4334071, at *4 (D.S.D. May 30, 2018), report and recommendation adopted, No. 4:17-CV-04168-KES, 2018 WL 4047116 (D.S.D. Aug. 24, 2018), it was noted that “[n]o court has interpreted the ADA definition of “public entity” to encompass private companies who contract with governmental units to provide goods or services.” The Maday court dismissed Title II claims against a food service company that had contracted with the South Dakota Department of Corrections to provide meal and commissary services.
Plaintiff offers almost no counter-argument other than to argue that she has “alleged the Defendants are in partnership in the operation of the federally funded food service programs and therefore subject to Title II and Section 504.” Pl. Mem. 7. Plaintiff makes no legal argument nor does she address the cases cited by Chartwells.
Plaintiff has not set out a plausible Title II claim against Chartwells. This portion of its Motion to Dismiss should be granted.
Amendment of the Title II ADA claim would be futile.
To the extent Plaintiff is bringing employment-related claims against Chartwells as if it were a public employer, the undersigned notes the Fourth Circuit's recent reiteration of its holding in Reyazuddin, 789 F.3d at 420-21, that “‘Title II [of the ADA] unambiguously does not provide a vehicle for public employment discrimination claims.'” Boone v. Bd. of Governors of Univ. of N.C. , No. 19-1758, 2021 WL 2396228, at *1 (4th Cir. June 11, 2021) (quoting Reyazuddin and affirming the dismissal of plaintiff's Title II ADA claim regarding employment matters); see also Bolds v. S.C. Dep't of Mental Health, No. 220CV01653RMGMHC, 2021 WL 1413324, at *2 (D.S.C. Feb. 11, 2021), report and recommendation adopted, No. 2:20-CV-01653-RMG, 2021 WL 960506 (D.S.C. Mar. 15, 2021) (granting Rule 12(c) dismissal of plaintiff's Title II claim of employment discrimination).
2. Title I ADA Claim
Chartwells also seeks Rule 12(b)(6) dismissal of Plaintiff's claim brought pursuant to Title I of the ADA. Def. Mem. 7-8. Title I applies to discrimination by “covered entities, ” including employers, employment agencies, labor organizations, or joint labor-management committees. 42 U.S.C. § 12111(2). Chartwells notes that Plaintiff seeks to proceed against Florence One and Chartwells as joint employers. Def. Mem. 7, Compl. ¶¶ 6, 7. Although Chartwells denies its joint-employer status it does not contest it for purposes of the instant motion. Rather, Chartwells argues that “even if the Court finds Plaintiff has adequately alleged that Chartwells is a joint employer, which Chartwells denies, this claim still must be dismissed because [Plaintiff] has not adequately alleged Chartwells' knowledge of Plaintiff's disability or involvement in any alleged disability discrimination.” Def. Mem. 7.
Construed in the light most favorable to her, Plaintiff's allegations include the following: that she “was suffering from a medical condition in which she would need to be accommodated with sitting occasionally”; that Chartwells removed all chairs from cashier's stations and did not “afford [her] the accommodation of sitting”; that Plaintiff provided a medical excuse to her supervisor, Chartwells employee Mia Buck; that after providing the medical excuse to Buck, Buck assigned Plaintiff to a different school “without explanation”; that Plaintiff's reassigned position was made without clarification as to the reassigned role; that after Plaintiff attempted to complain about her treatment by Buck Plaintiff was disciplined regarding absences; and that she continued to be treated in a “retaliatory manner” and was reassigned to an apparently undesirable position. Compl. ¶12a-p. Plaintiff claims she was discriminated and retaliated against by both Florence One and Chartwells. Id. ¶ 16. In her claim for “Title I ADA Violation/Retaliation, ” Plaintiff alleges she was “working with a need for accommodation due to disabling condition, and was subjected to a hostile work environment” as the result of her “status as a disabled worker in need of an accommodation.” Id. ¶ 18. Plaintiff avers Defendants perceived her need for a “modified work assignment or accommodation of sitting or leave as a disability.” Id. ¶ 19.
Citing no case law to support its position, Chartwells argues that, even if its employee, Buck, was aware of Plaintiff's medical excuse, Plaintiff has not adequately “establish[ed] that Chartwells had knowledge of Plaintiff's disability.” Def. Mem. 7. Chartwells claims Plaintiff has not provided enough evidence of her disability or that she was perceived as having a disability. Id. at 7-8.
At this pleadings stage, however, the undersigned agrees with Plaintiff that she has provided enough to set out a plausible claim of discrimination and retaliation under Title I of the ADA. A disabled individual under the ADA is someone who has “(A) a physical or mental impairment that substantially limits one or more . . . major life activities; (B) a record of such an impairment; or (C) [is] regarded as having such an impairment.” 42 U.S.C. § 12102(2). Although Plaintiff's allegations concerning her disability-perceived or otherwise-are few, she has alleged enough to survive this Rule 12 challenge. See, e.g., Polk v. Mecklenburg Cnty., No. 320CV00483FDWDCK, 2021 WL 1601089, at *4 (W.D. N.C. Apr. 23, 2021) (denying motion to dismiss and finding plaintiff's allegations that she had been “‘been diagnosed with PTSD, migraines, and other serious health conditions' which have limited her in [unspecified] ‘major life activities'” sufficient to state a plausible claim of disability under the ADA). To be sure, Plaintiff must provide far more to survive any challenge at the summary judgment stage. At this juncture, though, Chartwells' Motion to Dismiss the Title I ADA claim should be denied and this claim should go forward as to Chartwells.
IV. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Defendant Chartwells' Motion to Dismiss or for a More Definite Statement, ECF No. 11, be granted in part and denied in part. Plaintiffs Second and Third Causes of Action (Rehabilitation Act and Title II of the ADA) should be dismissed as to Chartwells; Plaintiffs cause of action brought pursuant to Title I of the ADA should go forward. The case proceeds as to all claims brought against co-Defendant Florence One.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”