UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

_______________________________________ ) JAMES SAUNDERS, ) ) P laintif f, ) ) v. ) Civil Action No. 10-400 (RMC) ) GA LLIH ER AND HUG UELY ) ASSOCIATE S, INC., ) ) Defendan t. ) _______________________________________)

MEMORAN DUM OP INION

J ames Saunde rs, proc eeding pro se , brought this sui t alleg ing that his employ er, Galliher a nd Huguely

Associates, Inc., (“ G& H”) discriminated ag ainst him due to disabilit y in violation of the Americ ans with Disability Act (“ ADA” ), 42 U.S.C. §§ 12101 et seq . G& H filed a motion to dism iss for fa ilure to state a c laim. As expl ained be low, the motion will be gr anted without prejudice be cause (1) Mr. Saunde rs has not alleg ed that he r equeste d and wa s denied a n

acc ommodation and (2) he has not alleg ed that he c ould perfor m the duties of his job as a truc k driver a nd fork lift oper ator e ven with an a ccommodation. I. F ACTS Mr. Saunder s was employed as a truck drive r and f

ork lift opera

tor at G& H, a lumber yard. A s a truck dr iver, Mr. Saunde rs was r esponsible for loa ding a nd unloading deliverie s. Compl. [ Dkt. # 1] at 6; see also id . at 25 (Plaintiff “w as a dr iver that [was] responsible for

loadingand unloadinghis truck.”) . On April 16, 2007, he pa rked one of theG& H trucks on a hill and got in the ba ck of it to unload. Id . at 6. When the truck star ted to roll 1 down the hill, Mr. Saunders jumped of f. Id . He injure d his back, lef t hip, right wr ist, and rig ht knee. Id . at 2. Mr. Saunder s was plac ed on wor kers’ compensation. Id . at 19. Dr. Richar d Meyer tre ated Mr. Saunde rs for his injuries star ting on Apr il 24, 2007. Id . at 9. Dr. Meyer indicated that Mr. Saunder s was unable to work fr om April 16 to

2 April 25, and that star

ting Apr il 26 he could work “ light duty ,” drivingonly , without any loading/unloading. Id . On May 31, 2007, Dr. F rede ric Salter e valuated Mr . Saunders. Dr . Salter indicated that Mr. Saunde rs was f it only for lig ht duty

with “no lifting greater than 10 lbs., fre quent sitting and stre tchingbrea ks, limi t stair climbing, be nding a nd stooping, re strict walk[ing], bending , kneeling , stair climbing; pr efe r sede ntary position.” Id. at 12. On June 5, Dr. Meyer a g ain eva luated Mr. Saunde rs. This time he found that Mr. Saunde rs was “ not fit for duty ” and w as unable to work fr om April 16, 2007 to “at lea st” J une 19, 2007. Id . at 13.

Mr. Saunder s alleg es that he r equeste d a lig ht duty position, that G& H allowed others to work lig ht duty , and that G& H unfa irly discriminated ag ainst him when it denied him such a lig ht duty

position. Id . at 2. G& H oper ates a lumber yard. Id . at 19. Mr. Saunder s filed a claim with the District of Columbia Offic e of H uman Rights (“ OHR”) a lleg ing disa bility discrimination. On May

19, 2009, the OHR found “ no probable cause ” to believe that G& H denied Mr. Saunde rs a r easona ble ac commodation when it fa iled to assign him to a lig ht duty

For the purpose of

decidingDef

endant’ s motion t o dismiss , the Court relies on the f acts 1 as set for th by Mr. Saunder s in his C omplaint. The Complaint states at pag e 2 that Mr. Saunde rs was injure d on May 16, 2007. Compl. 2 at 2. That date appe ars to be in e rror , as the a ccide nt report a nd Dr. Meyer’ s repor

t indicate that the injury occur red on A pril 16, 2007. 2position. Id . at 29. Subsequently , Mr. Saunder s filed this ADA cla im. G& H moves to dismiss, 3

asser ting that Mr. Saunde rs did not reque st an ac commodation and that, eve n if he ha d, he has not alleg ed that with such a n acc ommodation, he could per form the e ssential functions of his job. II. LEGAL STANDARD A motion to dis miss pursuant to Fede ral Rule of Civil Procedure 12(b)( 6) challeng es the a dequac y

of a c omplaint on its fac e, testingwhether a plaintiff ha s proper ly

stated a cla im. Fede ral Rule of Civil Procedure8(a) require s that a complaint conta in “a short a nd plain statement of the c laim showing that the pleade r is entitled to relief.” Fe d. R. Civ. P . 8(a) . A complaint must be sufficient “ to give a def endant f air notice of what the . . . claim is and the g rounds upon which it re sts.” Bell Atl. Corp. v. Tw ombly , 550 U.S. 544, 555 (2007) (inter nal citations omitt ed). A lthough a complaint does not nee d detailed f actua l alleg ations, a plaintiff’s obligation to provide the g rounds of his entitlement to relief “re quires more than labels a nd conclusions, and a

formulaic r ecitation of the elements of a cause of ac tion will notdo.” Id. The fac ts alleg ed “must be e nough to raise a rig ht to relief a

bove the spe culative leve l.” Id . Rule 8(a) require s an ac tual showingand not just a blanket a ssertion of a r ight to re lief. Id. at 555 n.3. “[A] complaint needs someinformation about the c ircumstance s g iving r ise to the claims.”

Be cause the claim is based on the ADA, the Court ha s fede ral que stion jurisdi ction. See 3 28 U.S.C. § 1331. I n a nondiver sity case such as this one, ve nue is proper in a district (1) whe re any defe ndant re sides, if all defe ndants reside in the same state, ( 2) whe re a substantial part of the events g iving r ise to the claim occ urre d or a substantial pa rt of the pr operty

that is the subject of the ac tion is l ocate d, or (3) wher e any defe ndant may

be found if the re is no district wher e the case may otherwise be broug ht. 28 U.S.C. § 1391(b). Mr. Saunders lives in the District of Columbi a, G& H does business her e, and the acc ident occur red he re. SeeCompl. at 1, 6. Thus, venue is a ppropriate in this forum. 3Aktieselsk abet Af 21. Nov. 2001 v. Fam e Je ans, Inc. , 525 F.3d 8, 16 n.4 ( D.C. Cir. 2008) (empha sis in original).

In decidinga motion under Rule 12(b) (6), a court may

consider the fac ts alleg ed in the complaint, documents attac hed to the complaint as e x hibits or incorporate d by ref ere nce, and matter s about which the c ourt may take judicial notice

. Abhe &Svoboda, Inc . v. Chao , 508 F.3d 1052, 1059 ( D.C. Cir. 2007). To survive a motion to di smiss, a complaint must contain sufficie nt fac tual matter, a cce pted as true , to state a c laim for re lief that is “plausible on its fac e.” Twombly , 550 U.S. at 570. A cour t must t reat the complaint’s fa ctual alleg ations as true, “ even if doubtful in fact.” Id. at 555. B ut a cour t need not ac cept a s true leg al conc lusions set forth in a complaint. Ashcroft v. Iqbal , 129 S. Ct . 1937, 1949 (2009). “ Threa dbare rec itals of the eleme nts of a c ause of

action, supported by

mere conclusory

statements, do not suffice .” Id . “While leg al conclusions ca

n provide the f

rame work of a

complaint, they

must be supported by

fac tual alleg ations. When there a re w ell-plea ded fa ctual alleg ations, a cour t should assume their ver acity and then de termine whe ther they plausibly g ive rise to an e ntitlement to relief.” Id . at 1950. III. ANALYSIS The AD A makes it unlawf ul for an e mploy er to “ discriminate ag ainst a qualified individual on the basis of disability in reg ard to job application procedur es, the hiring , advanc ement, or discha

rg e of e mploy ees, e mploy ee c ompensation, job training , and other terms, conditions, and privileg es of e mploy ment.” 42 U.S.C. § 12112(a) . The de finition of “discrimination” include s “not makingrea sonable a ccommodations to the known phy sical or mental limitations of an othe rwise qua lified individual with a disability . . . unless [t he employer] can de monstrate that the a ccommodation would impose an undue hardship on the ope ration of

4the [employ er’ s] bus iness.” 42 U.S.C. § 12112(b)(5) (A). “ Under the ADA’ s scheme, the n, it is discriminatory

for a cover ed employer to de cline to take r easona ble steps to acc ommodate an employ ee’ s disability , unless the steps in question ‘would impose an undue hardship.’” Aka v

. W ashington Hosp. Ctr. , 156 F.3d 1284, 1300 ( D.C. Cir. 1998).

To establish a prima faciecase of unlawf ul discrimination based on a f ailure to

rea sonably

acc ommodate under

the ADA, a

plaintiff must show, by

a prepondera

nce of the evidenc e, that: (1) he is a qualified individual with a disability within the meaningof the AD A; (2) the e mploy er ha d notice of his disability ; (3) ther e wa s some rea sonable a ccommodation denied to him; and (4) suc h acc ommodation would have ena bled him to perfor

m the essential functions of his job. See D uncan v. W ashington Metro. Area Transit Auth. , 240 F.3d 1110, 1114 (D.C. Cir. 2001). In other wor ds, the plaintiff has the bur den of showingby a pre pondera

nce of the evidenc e that he ha s a disability , but with a rea sonable a ccommodation (which he must descr ibe), he can pe rfor

m the essential func tions of the job. Flemmings v. H oward Univ. , 198 F.3d 857, 861 ( D.C. Cir. 1999). “Essential func tions” are the fundamental duties of a position. 29 C.F.R. § 1630.2(n)( 1). Courts fre quently defe r to the employer’ s judgme nt as to what functions of a

job are essential. Kalekiristos v. CT F Hotel Mgmt. Corp. , 958 F. Supp. 641, 660 (D.D.C. 1997), aff’d , 132 F.3d 1481 ( D.C. Cir. 1997) (Table ). An individual who ca nnot perf orm the esse ntial duties of his job, even with an a ccommodation, is not “qualified” under the statute. Chinchillo v. Powell , 236 F. Supp. 2d 18, 24 (D.D .C. 2003).

An employer must re asonably acc ommodate the known limitations of an employ ee who is a qualified individual with a disability , unless the employer c an demonstrate that the ac commodation would impose an undue ha rdship on its operations. Carr v. Reno , 23

5F.3d 525, 529 ( D.C. Cir. 1994) (interpr etingthe Rehabilitation Act (“ Rehab Ac t”), 29 U.S.C.

§ 794(a) ). Acc ommodations are r easona ble if they

allow an e mploy ee to pe rfor m the essential 4 functions of the job, without imposing undue ha rdship on the employer. Chinchillo , 236 F. Supp. 2d at 23. I t is the employ ee’ s burden to identify rea sonable a ccommodations which w ould allow him to perfor

m the essential func tions of the job; the ag ency has the burde n of showing undue har dship. Id. at 23-24. The duty to acc ommodate does not re quire a n employ er to re lieve the employ ee of

any essential func tions of the job or modify the ac tual duties. Robertson v. Neuromedical Ctr. , 161 F.3d 292, 295 ( 5th Cir. 1998).

For example, in Jones v . University of the Dist. of Columbia , 505 F. Supp. 2d 78, 90 (D.D.C. 2007), the plaintiff was a secur ity office r who wa s injured in job-related incidents; she suffe red injury

to her shoulder , back, kne es, and a nkles. Id . at 82. As a r esult, she could not run or kne el and she could stand for only two hours of a

n eig ht hour shift. She argued that under the ADA she should be place d on “lig ht duty ” as a rea sonable a ccommodation bec ause she could still handle “ traff

ic detail” a

nd write “ some tickets.” Id . at 90. B ut one of the e ssential duties of her job a s a police of

fice r wa s the ability

to respond quickly

to safety conce rns, includingthe ability to run, climb, chase , and tac kle suspects. Id . at 89. The c ourt held that the plaintiff’ s capa biliti es we re ina dequate to perfor m her job as a

police off

icer and that the e mploy er w as not require d to “re structure an existi ngjob to remove some of its essential functions.” Id . at 90. Mr. Saunder s has not stated a prima facieclaim under the ADA. H e has not

Carr , 23 F.3d at 529, interprete d the Rehab A ct, 29 U.S.C. § 794(a). F or purpose s of 4 disability discrimination case s, the standar ds for liability under the Rehab Ac t and the ADA are the same; c ases inter

pretingeither a

re a pplicable in dete rmining liability

. See 29 U.S.C § 794(d); Bell v. Gonzales , 398 F. Supp. 2d 78, 86 n.9 (D.D .C. 2005). 6alleg ed that he r equeste d a re asonable acc ommodation and that G& H denied suc h a re quest.

Moreove r, Mr. Saunde rs is not “qualified” under the ADA be cause he has not indicated that he could per form the e ssential elements of his job as a truck drive r and f

ork lift operator and he has not identified any

rea sonable a ccommodation that would allow him to do so. Acc ordingto his doctors, he w as unable to work at a ll from April 16 to April 25, 2007; therea fter, he was a ble to work only

in a “lig ht duty” position, that is, a positi on that would not include any bendingor stooping or liftingof over ten pounds. Howe ver, the essential ele ments of the job of a truck driver a nd fork lift oper ator for

G& H include loadingand unloadingdeliverie s to customers. See Compl. at 6, 25. The ADA doe s not require G& H to relieve Mr. Saunder s of the esse ntial duties of his job or to modify

the duties of the truc k driver a nd fork lift oper ator position. Mr. 5 Saunders ha s not stated a cla im under the AD A and G& H’s motion to dism iss will be gr anted. IV. CONCLUSION For the re asons stated a

bove, G& H’s Motion to Dismis s [Dkt. # 6] will be g rante d and this case will be dismiss ed without prejudice . Def endant’ s motion, i n the alter native, for

a more de finite statement [Dkt. #6] will be denied a s moot. A memorializi ngOrde r ac companies this Memorandum Opinion.

Date: Oc tober 1, 2010 _____________/s/______________________ ROSEMARY M. COL LYER United States District J udg e

Mr. Saunder s also contends that he was “ never nominated for e mploy ee of the month.” 5 Pl.’s Opp’n at 1. This alleg ation is not relevant to his ADA c laim. 7