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Monfils v. Weston Investment Co., LLC

United States District Court, D. Oregon

March 30, 2018


          Casey Stephen Monfils. Pro se plaintiff.

          Peter S. Hicks, Jordan Ramis PC, Robyn L. Stein, Jordan Ramis PC. Of Attorneys for Defendant.


          Michael H. Simon United States District Judge.

         Plaintiff Casey Monfils, pro se, brings this lawsuit against Defendant Weston Investment Company LLC, dba American Property Management. In his amended complaint, Plaintiff alleges disability discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), and Or. Rev. Stat. (“O.R.S.”) § 659A.112(2)(e). ECF 1-1 at pages 33-46. Defendant has moved to dismiss for failure to state a claim under Rule 12 of the Federal Rules of Civil Procedure. ECF 9. Plaintiff responded and, among other things, sought to add a claim for failure to accommodate and additional facts not set forth in his amended complaint. ECF 10. Defendant objected. ECF 11. Plaintiff filed a sur-reply (ECF 14) and moved for leave to amend his response (ECF 15), which the Court construes as a motion for leave to file a second amended complaint. Because Plaintiff's claim, as alleged in his amended complaint, survives Defendant's motion to dismiss even without the additional allegations that Plaintiff proposes, this Opinion and Order does not consider Plaintiff's proposed additional allegations or Defendant's objections to them. For the reasons discussed below, Defendant's motion to dismiss is DENIED. In addition, Plaintiff has leave to file a second amended complaint within 14 days from the date of this Opinion and Order, if Plaintiff so chooses.


         A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

         A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “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.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

         A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “‘Unless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.'” Garity v. APWU Nat'l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original) (quoting Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under Federal Rule of Civil Procedure 8(a)(2), however, every complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” This standard “does not require ‘detailed factual allegations, '” but does demand “more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).


         For purposes of this motion, the Court takes as true the following facts alleged in the amended complaint. Plaintiff has a permanent injury in his neck and right thigh. Plaintiff underwent surgery in 1989, which resulted in two fused discs in his neck and again in 2005 for an additional three discs for a total of five fused discs in his neck. This causes Plaintiff sharp pain and a limited range of motion. Additionally, Plaintiff developed nerve damage that resulted in a permanent injury to his right thigh. He experiences weakness when walking and standing. Plaintiff was accepted into the Oregon Preferred Worker Program (“OPWP”) for permanently disabled workers. OWPW provides various subsidies and benefits for employers of disabled workers and their disabled employees.

         Defendant hired Plaintiff on May 15, 2007, as a “residential manager, ” managing apartment units at Defendant's Meadow Park Apartment Complex. During his interview with Larry Bricker (“Bricker”), Plaintiff disclosed his Preferred Worker status and his workplace restrictions. Plaintiff provided Bricker with a note from Plaintiff's doctor, Linda Beale, M.D., documenting his vocational restrictions of lifting less than 10 pounds and limiting standing and walking to what was tolerable. When asked on a questionnaire whether Plaintiff was aware of any condition that could impair his ability to perform the duties of the job, Plaintiff answered “no.” The description that Plaintiff had been given did not include anything that was outside his physical work capacity.

         OPWP provided Plaintiff with a special ergonomic desk and chair to address his neck disability, and Bricker provided Plaintiff with a light hand-truck instead of a heavy hand-truck to address Plaintiff's lifting restrictions. Bricker also accommodated Plaintiff by providing a Bluetooth wireless headset to address Plaintiff's neck injuries.

         In October 2007, Bricker assigned Plaintiff the task of installing smoke alarms in approximately 2, 400 apartments. To accomplish this, Plaintiff was provided with a backpack in which to carry the smoke alarms, a 25-pound drill, a belt and holster to carry the drill, and a lightweight stepladder. Plaintiff told Bricker that this project would be difficult for Plaintiff in light of his neck and right thigh conditions. Bricker told Plaintiff that Defendant's owner, Joe Weston, would be “awfully upset” if Plaintiff did not perform this work. Plaintiff performed the work beyond Plaintiff's documented restrictions, despite his initial reservations.

         During the summer of 2008, Plaintiff received a new project requiring him regularly to clean a swimming pool. This required Plaintiff to lift 50-pound chemical containers and use a pool skimmer. In July 2008, Plaintiff received a new work restriction of no more than eight-hour days. It is unclear whether Plaintiff provided Defendant with notice of the updated work restriction before Plaintiff was assigned the project to clean the pool, and if so, whether the additional hours imposed by the pool assignment were beyond Plaintiff's limitations. Regardless, at some point after the project was underway, Plaintiff told Bricker that the work was beyond ...

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