The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
James Saunders, proceeding pro se, brought this suit alleging that his employer, Galliher and Huguely Associates, Inc., ("G&H") discriminated against him due to disability in violation of the Americans with Disability Act ("ADA"), 42 U.S.C. §§ 12101 et seq. G&H filed a motion to dismiss for failure to state a claim. As explained below, the motion will be granted without prejudice because (1) Mr. Saunders has not alleged that he requested and was denied an accommodation and (2) he has not alleged that he could perform the duties of his job as a truck driver and fork lift operator even with an accommodation.
Mr. Saunders was employed as a truck driver and fork lift operator at G&H, a lumber yard. As a truck driver, Mr. Saunders was responsible for loading and unloading deliveries. Compl. [Dkt. # 1] at 6; see also id. at 25 (Plaintiff "was a driver that [was] responsible for loading and unloading his truck."). On April 16, 2007, he parked one of the G&H trucks on a hill and got in the back of it to unload. Id. at 6.*fn1 When the truck started to roll down the hill, Mr. Saunders jumped off. Id. He injured his back, left hip, right wrist, and right knee. Id. at 2. Mr. Saunders was placed on workers' compensation. Id. at 19.
Dr. Richard Meyer treated Mr. Saunders for his injuries starting on April 24, 2007. Id. at 9.*fn2 Dr. Meyer indicated that Mr. Saunders was unable to work from April 16 to April 25, and that starting April 26 he could work "light duty," driving only, without any loading/unloading. Id. On May 31, 2007, Dr. Frederic Salter evaluated Mr. Saunders. Dr. Salter indicated that Mr. Saunders was fit only for light duty with "no lifting greater than 10 lbs., frequent sitting and stretching breaks, limit stair climbing, bending and stooping, restrict walk[ing], bending, kneeling, stair climbing; prefer sedentary position." Id. at 12. On June 5, Dr. Meyer again evaluated Mr. Saunders. This time he found that Mr. Saunders was "not fit for duty" and was unable to work from April 16, 2007 to "at least" June 19, 2007. Id. at 13.
Mr. Saunders alleges that he requested a light duty position, that G&H allowed others to work light duty, and that G&H unfairly discriminated against him when it denied him such a light duty position. Id. at 2. G&H operates a lumber yard. Id. at 19. Mr. Saunders filed a claim with the District of Columbia Office of Human Rights ("OHR") alleging disability discrimination. On May 19, 2009, the OHR found "no probable cause" to believe that G&H denied Mr. Saunders a reasonable accommodation when it failed to assign him to a light duty position. Id. at 29.
Subsequently, Mr. Saunders filed this ADA claim.*fn3 G&H moves to dismiss, asserting that Mr. Saunders did not request an accommodation and that, even if he had, he has not alleged that with such an accommodation, he could perform the essential functions of his job.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Federal Rule of Civil Procedure 8(a) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). A complaint must be sufficient "to give a defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. The facts alleged "must be enough to raise a right to relief above the speculative level." Id. Rule 8(a) requires an actual showing and not just a blanket assertion of a right to relief. Id. at 555 n.3. "[A] complaint needs some information about the circumstances giving rise to the claims."
Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008) (emphasis in original).
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Twombly, 550 U.S. at 570. A court must treat the complaint's factual allegations as true, "even if doubtful in fact." Id. at 555. But a court need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950.
The ADA makes it unlawful for an employer to "discriminate 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). The definition of "discrimination" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability... unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer's] business." 42 U.S.C. § 12112(b)(5)(A). "Under the ADA's scheme, then, it is discriminatory for a covered employer to decline to take reasonable steps to accommodate an employee's disability, unless the steps in question 'would impose an undue hardship.'" Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1300 (D.C. Cir. 1998).
To establish a prima facie case of unlawful discrimination based on a failure to reasonably accommodate under the ADA, a plaintiff must show, by a preponderance of the evidence, that: (1) he is a qualified individual with a disability within the meaning of the ADA; (2) the employer had notice of his disability; (3) there was some reasonable accommodation denied to him; and (4) such accommodation would have enabled him to perform the essential functions of his job. See Duncan v. Washington Metro. Area Transit Auth., 240 F.3d 1110, 1114 (D.C. Cir. 2001). In other words, the plaintiff has the burden of showing by a preponderance of the evidence that he has a disability, but with a reasonable accommodation (which he must ...