United States District Court, D. Oregon
Stephen Monfils. Pro se plaintiff.
S. Hicks, Jordan Ramis PC, Robyn L. Stein, Jordan Ramis PC.
Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
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.
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).
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
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
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).
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.
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.
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.
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.
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 ...