By Tulay Turan, J.D.
When the EEOC pursues a class pattern-or-practice claim under Section 706 and chooses to identify “additional class members” who have suffered some form of disability discrimination, the allegations must plausibly show that those “additional individuals” are protected by the ADA, a federal district court in California ruled. Thus, the court granted the employer’s motion to dismiss eight of the class claimants because the EEOC failed to allege an impairment that affects a major life activity or failed to identify essential job functions. However, three unchallenged allegations along with sufficient allegations for two other claimants can proceed (EEOC v. Prestige Care, Inc., July 17, 2018, Ishii, A.).
Prestige manages and provides senior nursing care facilities or senior assisted living facilities in several states, including California. Prestige either promulgated or implemented and followed policies that allegedly violated the ADA, including a “100% healed/100% fit for duty” return-to-work policy and a maximum leave policy. Prestige did not offer light duty as a reasonable accommodation and ignored its obligation to engage in an interactive process. The EEOC brought claims against Prestige for ADA violations regarding at least 13 individuals who were adversely affected by Prestige’s operation of its policies. Prestige filed a 12(b)(6) motion to dismiss.
Actual causes of action not challenged. Before discussing Prestige’s motion to dismiss, the court noted the case would proceed based on the actual causes of action regardless of the outcome of the motion. The EEOC’s complaint alleged three causes of action: one claim based on the 100% healed policy, one claim based on the maximum leave policy, and one claim based on the failure to hire a specific individual. Prestige did not challenge the adequacy of the EEOC’s allegations with respect to the actual causes of action. The dispute concerned the EEOC’s allegations that identify the 10 individuals who were allegedly adversely affected by the 100% healed policy and the maximum leave policy.
Pleading requirement. The court first explained that when the EEOC pursues class complaints, case law indicates that the complaint must identify at least one claimant and demonstrate the individual has experienced discriminatory conduct that falls within the purview of the ADA. Here, there were no challenges to the allegations of discrimination and the applicability of the ADA with respect to three class members.
However, with respect to the allegations concerning the 10 additional class members, neither side cited cases that have directly addressed the issue. The identification of class members who are not identified in a complaint, as well as a determination of whether the EEOC may recover for them, typically occurs at a later stage of the proceeding after discovery has occurred. But here, the EEOC is “averring that the additional members suffered discrimination, the members are protected by the ADA, a recovery is being sought for those members, and the members’ experiences are similar to other unidentified class members.”
Thus, the EEOC put directly into issue the identified class members’ circumstances and eligibility to recover under the ADA. At the pleading stage, the EEOC should know whether a class member is “disabled” and have sufficient facts to at least allege on information and belief that the class member is “qualified.” “It is unclear what discovery needs to occur before the EEOC can satisfy Rule 8 and Rule 12(b)(6) requirements regarding identified class members,” the court wrote. The court held that when the EEOC pursues a class claim under Section 706 and chooses to identify “additional class members” who have suffered some form of disability discrimination, the allegations must plausibly show that those “additional individuals” are protected by the ADA.
Insufficient allegations. The court then reviewed the allegations regarding the 10 claimants and found the EEOC had failed to allege an impairment that affects a major life activity or failed to identify essential job functions for eight of them. For some of these eight claimants, the EEOC argued that where a claimant sought a leave of absence as a reasonable accommodation, it was unnecessary to identify any essential job functions. The court rejected this argument, noting the EEOC must include allegations that indicate a class member will be able to perform the essential functions of the job upon her return.
For two of the claimants, the court found dismissal was inappropriate where the allegations were sufficient for the court to conclude the claimant was a qualified individual with a disability. One of the claimants, who was a dining room server and was HIV positive, asked for a shift change from day to evening once every three months in order to attend medical appointments. He did not request accommodation with respect to the method of performance of any essential function; for four days out of the year, he would be performing all the functions of a server, but he would be performing them during the evening shift rather than the day shift. Thus, he was a qualified individual with a disability.
The other claimant who could proceed as a class member was a cook who suffered from permanent nerve damage that makes it hard from him to sit or stand in one position for more than 10 to 15 minutes at a time. He received injections every 4 to 6 months to ease leg and back spasms and pain. He requested leave for two days after the injections. The allegations indicated he would be able to return from leave and be able to perform the essential functions of a cook, including standing for longer than 15 minutes. Therefore, the allegations were sufficient to plausibly show that he is a qualified individual with a disability.
With respect to eight class members, the court granted Prestige’s motion to dismiss without prejudice, but denied the motion with respect to the other two. The court also stated the EEOC could file an amended complaint that addresses and corrects the deficiencies with respect to the eight class members.
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