IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DEAN WESSELS,

Plaintiff, No. 03:14-cv-01329-HZ

v.

MOORE EXCAVATION, INC., dba OPINION & ORDER

MEI Group, 

Defendant.

Kerry M.L. Smith

SMITH & FJELSTAD

722 N. Main Avenue

Gresham, Oregon 97030

Attorney for Plaintiff

John Spencer Stewart

Tyler J. Storti

STEWART SOKOL & LARKIN LLC

2300 S.W. First Avenue, Suite 200

Portland, Oregon 97201-5047

Attorneys for Defendant

1 - OPINION & ORDER
HERNANDEZ, District Judge:

Plaintiff Dean Wessels brings this disability discrimination action against his former

employer Defendant Moore Excavation, Inc. Plaintiff brings claims under the Americans with

Disabilities Act, 42 U.S.C.. §§ 12101-12213 (ADA), and Oregon's parallel law, Oregon Revised

Statute §§ (O.R.S.) 659A.103-659A.145. Defendant moves to dismiss for failure to state a

claim, or alternatively for a more definite statement. Because the Complaint adequately states

the claims, the motion is denied. 

BACKGROUND

The facts are taken from the Complaint. Plaintiff worked for Defendant as an employee

and always performed his job duties in a satisfactory manner. Compl. at ¶¶ 11, 12. He asserts

entitlement to protection under the ADA and Oregon statutes. Id. at ¶ 11. He further asserts that

Defendant was subject to those statutes. Id. at ¶ 12. 

Plaintiff began his employment with Defendant on or about May 3, 2013. Id. at ¶ 13. He

suffers from a serious medical condition which substantially limits him in one or more major life

activities including, but not limited to, walking and standing. Id. 

Over Memorial Day weekend in 2013, Plaintiff suffered a significant injury to his leg

which worsened the effects of his disability. Id. at ¶ 14. After the 2013 Memorial Day weekend,

Plaintiff periodically requested time off work to obtain treatment for his disability. Id. at ¶ 15. 

He communicated his need for leave and the reason for his need for leave to Defendant. Id. 

Following each treatment, he returned to work but was moved to a new job site and/or work

crew. Id. at ¶ 16. 

On or about October 21, 2013, Plaintiff needed time off to attend a medical appointment

2 - OPINION & ORDER
for his disability. Id. at ¶ 17. He arranged with Defendant to arrive at work late following his

medical treatment. Id. He attended his appointment and arrived at work at or near the time he

had previously told Defendant he would arrive. Id. at ¶ 18. Upon arrival, he was told to report

to management which then terminated him. Id. at ¶ 19.

Plaintiff further alleges that at all material times, he was a qualified individual with a

disability pursuant to the ADA, that his disability substantially limits one or more of his major

life activities, and that he was able to perform the essential functions of his job position either

with or without accommodation. Id. at ¶¶ 21, 22. Alternatively, he alleges that he had a record

of a disability or was perceived as disabled and could perform the essential functions of his

position either with or without accommodation. Id. at ¶ 23.

Plaintiff asserts that Defendant discriminated against him and terminated his employment

due to his disability and/or his need to miss work for treatment. Id. at ¶ 24.1 Further, Plaintiff

asserts that Defendant failed and refused to accommodate his disability and failed and refused to

engage in the interactive process to determine whether Defendant could accommodate his

disability. Id. at ¶¶ 25, 26. 

Plaintiff additionally alleges that Defendant treated him in a "disparate, discriminatory

and harassing manner because of his actual disability, his record of disability, and/or his

perceived disability." Id. at ¶ 27. These actions allegedly constitute unlawful employment

practices under the ADA causing Plaintiff to suffer lost wages and benefits of employment, as

well as other economic damages in an amount to be determined at trial. Id. at ¶¶ 28, 29. Plaintiff

1

 Paragraph 24 is one of a few paragraphs in the Complaint containing what appear to be

inadvertent references to Plaintiff as "her" instead of "him." The Court assumes these are

typographical errors and reads them as "him." 

3 - OPINION & ORDER
further asserts that Defendant's acts were "part of a pattern and practice of discrimination against

individuals with disabilities" and requests the Court enter a permanent injunction prohibiting

such conduct in the future. Id. at ¶ 31. Finally, he incorporates by reference his previous

allegations in support of his Oregon disability discrimination claim, contending that Defendant's

actions violated Oregon disability discrimination law. Id. at ¶¶ 33-36.

STANDARDS

I. Motion to Dismiss for Failure to State a Claim

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency

of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "All allegations of material

fact are taken as true and construed in the light most favorable to the nonmoving party." Am.

Family Ass'n, Inc. v. City & Cnty. of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). However, the

court need not accept conclusory allegations as truthful. See Warren v. Fox Family Worldwide,

Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) ("[W]e are not required to accept as true conclusory

allegations which are contradicted by documents referred to in the complaint, and we do not

necessarily assume the truth of legal conclusions merely because they are cast in the form of

factual allegations") (internal quotation marks, citation, and alterations omitted).

A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the

"grounds" of his "entitlement to relief" with nothing "more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action[.]" Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the

speculative level on the assumption that all the allegations in the complaint are true (even if

doubtful in fact)[.]" Id. (citations and footnote omitted).

4 - OPINION & ORDER
To survive a motion to dismiss, a complaint "must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face[,]" meaning "when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(internal quotation marks omitted). Additionally, "only a complaint that states a plausible claim

for relief survives a motion to dismiss." Id. at 679. A complaint must contain "well-pleaded

facts" which "permit the court to infer more than the mere possibility of misconduct[.]" Id. at

679.

II. Motion for a More Definite Statement

"A party may move for a more definite statement of a pleading to which a responsive

pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare

a response." Fed. R. Civ. P. 12(e). "The motion must be made before filing a responsive

pleading and must point out the defects complained of and the details desired." Id.

A motion for a more definite statement is generally left to the district court's discretion. 

Sheffield v. Orius Corp., 211 F.R.D. 411, 414 (D. Or. 2002). Rule 12(e) is designed to strike at

unintelligibility rather than want of detail. Maixner v. Bank of Am. Home Loans, No. CV-10-

3037-CL, 2010 WL 5918860, at *3 (D. Or. Nov. 18, 2010) (citing Bautista v. L.A. Cnty., 216

F.3d 837, 843 n.1 (9th Cir. 2000)), adopted by J. Panner (D. Or. Mar. 3, 2011). "Rule 12(e)

motions attack the intelligibility of the complaint, not the lack of detail, and are properly denied

where the complaint notifies the defendant of the substance of the claims asserted." Holdner v.

Coba, No. CV-09-979-AC, 2010 WL 678112, at *1 (D. Or. Feb. 25, 2010) (internal quotation

marks omitted). Where the detail sought is available through discovery, the motion should be

5 - OPINION & ORDER
denied. Feldman v. CIA, 797 F. Supp. 2d 29, 42 (D.D.C. 2011) ("Courts are reluctant to compel

a more definite statement pursuant to Rule 12(e)[;] to prevent Rule 12(e) from becoming a

substitute for discovery, courts will generally deny a motion for a more definite statement where

the information sought may be obtained in discovery") (internal quotation marks, brackets, and

ellipsis omitted).

DISCUSSION

Defendant moves to dismiss the Complaint because, according to Defendant, Plaintiff

fails to allege sufficient facts to state a claim.2 A fair reading of the Complaint suggests that

Plaintiff relies on multiple theories in support of his claims. He contends that he has an actual

disability, had a record of disability, or was perceived as disabled. Compl. at ¶ 21, 23. He also

contends that Defendant discriminated against him because of his actual disability, his record of

disability, or his perceived disability. Id. at ¶ 27. He brings a discrimination claim and also

relies on a separate theory based on Defendant's alleged failure to accommodate his disability. 

Id. at ¶¶ 1, 25.3

2

 Inexplicably, Defendant seeks dismissal with prejudice. Def.'s Motion at 1, 8. 

Dismissal with prejudice would be inappropriate at this stage where there have been no

amendments of the original Complaint and the basis for seeking dismissal is an alleged

insufficiency of detail which may be remedied in an amended pleading. Somers v. Apple, Inc.,

729 F.3d 953, 960 (9th Cir. 2013) (district court should grant leave to amend when dismissing a

case for failure to state a claim if the complaint can be cured by the allegations of other facts)

3

 To the extent Plaintiff's allegation that Defendant failed to engage in an interactive

process regarding an accommodation is the basis for an independent ADA claim, the Court notes

the law in this District is unsettled with decisions reaching opposite conclusions. Compare

Austin v. Wal-Mart Stores, Inc., No. 03:07-cv-01306-HA, 2008 WL 4936480, at *10 (D. Or.

Nov. 14, 2008) (finding that the failure to engage in an interactive process is a "stand-alone cause

of action" under the ADA and Oregon law); with Ambrose v. J.B. Hunt Transp., Inc., No. 03:12-

cv-01740-HU, 2014 WL 585376, at *21 n.10 (D. Or. Feb. 13, 2014) (explaining that plaintiff

"erroneously brought an independent cause of action for failure to engage in interactive

6 - OPINION & ORDER
To state a prima facie case of employment discrimination under the ADA, as well as

under Oregon law, a plaintiff must allege that he is "disabled" as defined by the ADA, that he is a

"qualified individual" as defined by the ADA, and that he suffered an adverse employment action

on the basis of his disability. Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013)

(ADA); Garcia v. Durham & Bates Agencies, Inc., No. 03:14-cv-00220-SI, 2014 WL 3746521,

at *3 (D. Or. July 29, 2014) (standards for establishing prima facie case of disability under

Oregon law are identical to those used in federal law).

As to the first element, a disability is defined under the ADA as "a physical or mental

impairment that substantially limits one or more major life activities . . . a record of such an

impairment . . . or . . . being regarded as having such an impairment." 42 U.S.C. §§ 12102(1)(A)

- (C). In Garcia, a case relied on by Defendant, Judge Simon recently dismissed an ADA claim

for failure to state a claim. There, the plaintiff alleged only that she had a disability and informed

her employer about her conditions. Garcia, 2014 WL 3746521, at *3. Notably, Judge Simon

stated, the Garcia plaintiff failed to allege that her disability met the ADA definition or what

major life activity it substantially limited. Id. Judge Simon also faulted the Garcia plaintiff for

failing to provide any information as to the nature of her physical or mental impairment. 

Garcia is distinguishable because here, Plaintiff does more than simply allege that he has

a disability. Instead, he alleges that he suffers from a serious medical condition which

substantially limits him in one or more major life activities including but not limited to walking

process"); Dean v. Safeway, No. 03:12-cv-01875-PK, Findings & Rec. at 31 (D. Or. Aug. 7,

2014) (reviewing cases and following those which have refused to find a failure to engage in the

interactive process a separate, independent claim), adopted by J. Hernandez (D. Or. Nov. 18,

2014).

7 - OPINION & ORDER
and standing. Compl. at ¶ 13. Plaintiff alleges that he has a medical condition, suggesting that

this is a physical as opposed to a mental impairment. And, the very nature of his alleged

limitations in walking and standing provide some information as to the nature of the impairment. 

Additionally, Plaintiff's allegations regarding a record of disability or a perceived

disability are sufficient to state a claim. Plaintiff alleges that beginning in late May 2013,

following Memorial Day weekend, he periodically requested time off to treat his disability,

notifying Defendant of his need for leave and the reason for the leave. Compl. at ¶ 15. He also

contends that in October 2013, he arranged with Defendant for a late arrival to work because of

his need for medical treatment. Id. at ¶ 17. These are facts which allow an inference, when

construed in a light most favorable to Plaintiff, that Plaintiff had a record of disability and

further, that Defendant was aware of his disability. See Jones v. HCA, No. 3:13cv714, 2014 WL

1603739, at *7 (E.D. Va. Apr. 21, 2014) (allegations that plaintiff requested an accommodation

and sought leave allowed the court to infer that defendant had notice of plaintiff's condition). 

Although the Complaint could contain additional facts regarding Plaintiff's disability, the

allegations regarding the "disability" element are more than a label or conclusion and are enough

to raise a plausible right to relief above the speculative level. Regardless of whether the claim is

one for actual disability, a record of disability, or perceived disability, Plaintiff sufficiently pleads

facts to state the disability element of his claims. 

Next, the ADA defines "qualified individual" as someone "who, with or without

reasonable accommodation, can perform the essential functions of the employment position that

such individual holds or desires." 42 U.S.C. § 12111(8). Defendant argues that Plaintiff fails to

sufficiently state the "qualified individual" element because he merely recites the definition in a

8 - OPINION & ORDER
conclusory fashion. Plaintiff contends that because an employee's ability to perform the essential

functions of the job is a factual issue and because he specifically alleges the ability to perform the

essential functions of his job either with or without accommodation, he has satisfied his burden

of stating this part of the claim beyond a mere conclusory recitation of the elements of the cause

of action.

I agree with Plaintiff. Relevant cases suggest that dismissal is appropriate when the

plaintiff alleges only that he or she is a "qualified individual" or a "qualified individual with a

disability" and fails to allege that the plaintiff could perform the essential functions of the job

with or without accommodation. E.g., EEOC v. Supervalu, Inc., 674 F. Supp. 2d 1007, 1011

(N.D. Ill. 2009) (an allegation that the plaintiff was a qualified individual with a disability within

the meaning of the ADA was insufficient because the plaintiff failed to assert that the employee

was qualified to perform the essential functions of the job with or without reasonable

accommodation); Madonia v. S 37 Mgmt., Inc., No. 14 C 628, 2014 WL 4057430, at *1-2 (N.D.

Ill. Aug. 14, 2014) (allegation that the plaintiff was disabled and substantially limited in specified

major life activities insufficient to state the "qualified individual" element of an ADA claim

when the plaintiff failed to allege that she could perform the essential functions of her job with

accommodation); see also Garcia, 2014 WL 3746521, at * 3 (complaint was devoid of an

allegation that plaintiff was a "qualified individual"). 

Here, Plaintiff alleges that he was able to perform the essential functions of his position

either with or without accommodation. Defendant cites no authority that pleading the alleged

essential functions is required. In fact, the relevant authority indicates the opposite. E.g.,

Blackburn v. Trs. of Guilford Technical Cmty. Coll., 822 F. Supp. 2d 539, 551 (M.D.N.C. 2011)

9 - OPINION & ORDER
(deciding that a plaintiff need not plead the "essential functions" of the job at the motion to

dismiss stage).

Third, Defendant argues that Plaintiff failed to adequately allege the element of an

adverse employment action. But, Plaintiff contends he was terminated. Compl. at ¶ 19. He also

alleges that following each treatment, he returned to work and was moved to a new job site or

work crew. Id. at ¶ 16. He specifically alleges that Defendant discriminated against him and

terminated his employment due to his disability and his need to miss work for treatment. Id. at ¶

24. Plaintiff's allegations sufficiently state this element of his claim.

Defendant argues that Plaintiff's failure to accommodate claim must be dismissed because

Plaintiff fails to allege that Defendant had knowledge of his disability or that Plaintiff requested

an accommodation. Plaintiff's allegations that he communicated his need to miss work for

medical treatment in Paragraphs 15 and 17 support an inference that Defendant knew of

Plaintiff's disability. Moreover, these same allegations, when construed in a light favorable to

Plaintiff, support the additional inference that he requested an accommodation. See Compl. at ¶¶

15-19. Given that an accommodation request need not be in writing or explicitly use the words

"reasonable accommodation," Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000),

vacated on other grounds, 535 U.S. 391 (2001), these allegations are sufficient.

Accordingly, Plaintiff's Complaint states claims for disability discrimination and failure

to accommodate under the ADA and Oregon law and is not subject to dismissal. Finally,

because the Complaint is intelligible and the additional detail sought by Defendant is available

through discovery, the alternative motion for a more definite statement is denied. 

/ / / 

10 - OPINION & ORDER
CONCLUSION

Defendant's motion to dismiss [8] or alternatively for a more definite statement, is denied.

IT IS SO ORDERED.

Dated this day of , 2014

 

Marco A. Hernandez

United States District Judge

11 - OPINION & ORDER