Latham v. Robinson

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LORI A. LATHAM,
Plaintiff,
vs.
BRETT/ROBINSON GULF
CORPORATION,
Defendant.
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CASE NO.: 1:24-CV-000213-KD-C
REPORT AND RECOMMENDATION
This matter has been referred for the entry of a Report and Recommendation, pursuant to
28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen. LR 72(a)(2)(S), on the Defendant Brett/Robinson
Gulf Corporation’s (“Brett/Robinson”) pending Motion to Dismiss Plaintiff Lori A. Latham’s
(“Latham”) Amended Complaint that was filed on October 7, 2024. [Doc. 10]. Latham filed her
Response to the Motion to Dismiss on January 3, 2025. [Doc. 17]. Brett/Robinson filed its Reply
to Latham’s Response on January 27, 2025. [Doc. 21]. After the parties were given the
opportunity to fully brief the issues raised in the motion to dismiss, oral arguments were presented
in open court on February 18, 2025, by counsel for both parties. After consideration of the parties’
briefs and oral arguments, it is determined that the Amended Complaint fails to state a claim under
the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”) or the Family and
Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”) and that all claims alleged in the
Amended Complaint should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.
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It is RECOMMENDED that Brett/Robinson’s Motion to Dismiss be GRANTED and that
Latham’s claims presented against Brett/Robinson in the Amended Complaint be DISMISSED
WITH PREJUDICE.
I. Findings of Facts.
This action was instituted on June 27, 2024 by Latham’s filing of a Complaint, pro se,
alleging claims under the ADA and the FMLA. [Doc 1]. On August 1, 2024, Latham, by and
through her counsel, filed an Amended Complaint restating these claims with additional facts and
particularity. [Doc. 6.] In her Amended Complaint, the allegations of which must be accepted as
true at this stage, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), Latham alleges the following:
1. Brett/Robinson is a corporate entity located in and doing business in the State of
Alabama and Baldwin County, Alabama that hired Latham in May 2020 as a housekeeper. [Doc.
6, PageID.16 at ¶¶ 5&7]. Her responsibility as a housekeeper was to clean “guest rooms assigned
to her, which included stripping linens, sweeping, vacuuming, and performing general cleaning of
each assigned unit.” [Id.].
2. On August 1, 2021, Latham “was hospitalized for a serious medical condition” and
“informed Brett/Robinson that she was sick and that her mother was taking her to the emergency
room.” [Id. at PageID.17, ¶ 8]. The following day, Latham “again contacted Brett/Robinson and
informed her employer that she had been admitted to the hospital on the prior day with a urinary
tract infection/kidney infection.” [Id. at ¶ 9]. “Because of her medical condition, Ms. Latham did
not report to work between August 3, 2021 and August 6, 2021.” [Id. at PageID.17, ¶ 10].
3. On August 6, 2021, Latham’s mother notified Brett/Robinson’s Office Manager
that Latham “had undergone surgery on August 5 and would require at least four to six weeks for
recovery” and that “Latham had tested positive for COVID and had been diagnosed with sepsis.”
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[Id.]. On August 12, 2021, while she remained hospitalized, she was contacted by
Brett/Robinson’s Room Operations Lead and “informed that she was terminated from her position
and that she could reapply in the future.” [Id. at ¶ 11].
4. Brett/Robinson “prevented [Latham] from taking leave under the FMLA for her
recovery” even though “she had worked over 1,250 hours in the twelve (12) month period
immediately before her hospitalization.” [Id. at PageID.18, ¶¶ 16-17].
5. Latham alleges that, “[b]ased on the foregoing, [she] was subject to illegal
discrimination and denied a reasonable accommodation, in violation of the ADA, when she was
terminated from her employment at Brett/Robinson.” [Id. at ¶ 12].
6. The Amended Complaint further alleges that Brett/Robinson “interfered with Ms.
Latham’s “right to take leave under the FMLA when it knew of her medical condition and need
for leave, but willfully and intentionally failed to provide her with the same.” [Id. at PageID.20, ¶
29].
Based on these alleged events, Latham alleges claims for disability discrimination in
violation of the ADA (Count 1), denial of a reasonable accommodation under the ADA (Count 2),
and interference with Latham’s alleged rights under the FMLA (Count 3).
II. Legal Standard for Rule 12(b)(6) Motion to Dismiss.
“To survive a motion to dismiss [for failure to state a claim], a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In other
words, the complaint must contain ‘factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Hi-Tech Pharms., Inc. v. HBS
Int’l Corp., 910 F.3d 1186, 1196 (11th Cir. 2018) (quoting Iqbal, 556 U.S. at 678).
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As the Supreme Court has explained, “[u]nder Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled
to relief.’” Iqbal, 556 U.S. at 677–78. And although this standard under Rule 8 “does not require
‘detailed factual allegations,’” it “demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do. Nor does a complaint suffice if it tenders ‘naked
assertions’ devoid of ‘further factual enhancement.’” Id. at 678 (quoting Twombly, 550 U.S. at
557). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that
are ‘merely consistent with’ a defendant’s liability, it stops short of the line between possibility
and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557). In other words,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show [n]’—‘that the pleader is entitled to
relief.’” Iqbal, 550 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
Generally, “the essential elements of a claim remain constant through the life of a lawsuit.
What a plaintiff must do to satisfy those elements may increase as a case progresses from complaint
to trial, but the legal elements themselves do not change. So, to determine what the plaintiff must
plausibly allege at the outset of a lawsuit, we usually ask what the plaintiff must prove in the trial
at its end.” Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 589 U.S. 327, 332
(2020). Moreover, “‘the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.’” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283,
1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S at 678). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
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The Supreme Court has “suggested that courts considering motions to dismiss adopt a ‘two-
pronged approach’ in applying these principles: 1) eliminate any allegations in the complaint that
are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.’” Cigna
Corp., 605 F.3d at 1290 (quoting Iqbal, 556 U.S. at 679). “Importantly, . . . courts may infer from
the factual allegations in the complaint ‘obvious alternative explanation[s],’ which suggest lawful
conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Id. (quoting
Iqbal, 556 U.S. at 682).
III. Analysis and Conclusions of Law.
A. Latham’s ADA Claims.
Brett/Robinson has moved to dismiss Counts 1 and 2 of the Amended Complaint on the
grounds that Latham fails to allege a disability under the ADA. “To state a claim under Title II of
the ADA, a plaintiff must allege . . . that [s]he is a ‘qualified individual with a disability[,]’” Shotz
v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001), which the ADA defines to mean:
(A) a physical or mental impairment that substantially limits one or more major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment...
42 U.S.C. § 12102(1). “‘Accordingly, to fall within this definition one must have an actual
disability (subsection (A)), have a record of a disability (subsection (B)), or be regarded as having
one (subsection (C)).’” EEOC v. STME, LLC, 938 F.3d 1305, 1314 (11th Cir. 2019) (quoting
Sutton v. United Air Lines, Inc., 527 U.S. 471, 478 (1999), abrogated on other grounds by the ADA
Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008)).
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Here, Latham contends in Counts 1 and 2 of the Amended Complaint that her urinary tract
infection/kidney infection was an actual disability.1 [Doc. 6, PageID.17 at ¶¶ 9–10, 22]. To
constitute an actual disability, Latham’s urinary tract infection/kidney infection must thus satisfy
the statutory requirement stated above of being “a physical or mental impairment that substantially
limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A).
Brett/Robinson argues that Latham’s temporary inability to work while recovering from
surgery from a urinary tract/kidney infection does not constitute a disability as a matter of law
under Sutton v. Lader, 185 F.3d 1203 (11th Cir. 1999). In Sutton, the plaintiff Robert Sutton
suffered two heart attacks and underwent multiple surgeries, resulting in him being unable to work
for two months and losing a job offer from the Small Business Administration. 185 F.3d at 1206–
08. Sutton sued the SBA for disability discrimination under the Rehabilitation Act—a federal
statute that “prohibits federal agencies from discriminating in employment against individuals with
disabilities,” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005), and the judicial construction
of which is precedential for the construction of the ADA. See Cash v. Smith, 231 F.3d 1301, 1305
n.2 (11th Cir. 2000) (“Cases decided under the Rehabilitation Act are precedent for cases under
the ADA, and vice-versa.”). Sutton prevailed at trial and the SBA appealed the trial court’s denial
of its motion for judgment as a matter of law. The Eleventh Circuit reversed the trial court’s
decision and remanded the case for entry of judgment in favor of the SBA, concluding Sutton
1 Latham alleges her “medical condition was the motivating factor in Defendant’s decision to
terminate her from her employment,” [Doc. 6, PageID.19 at ¶ 22], which is interpreted as a theory
that Latham was actually disabled. With this in mind, and given the absence of any suggestion in
the Amended Complaint, Latham’s briefing, or at oral argument that Latham had a record of
disability or was regarded as disabled, it is determined that Latham pursues only a theory of actual
disability. Cf. Williamson v. Clarke County Dep’t. of Human Res., 834 F. Supp. 2d 1310, 1322
n.17 (S.D. Ala. 2011) (limiting consideration of plaintiff’s ADA claims to theory of actual
disability where plaintiff’s complaint and briefing did not “fram[e] his claims under a ‘record of
impairment’ or ‘regarded as’ theory . . . ”).
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failed to establish he was disabled and explaining “[a] temporary inability to work while
recuperating from surgery is not [] a permanent or long-term impairment and does not constitute
evidence of a disability covered by the Act.” 185 F.3d at 1209.
In her Response, Latham argues “the ADA Amendments Act of 2008 (ADAAA) broadened
the interpretation of the term ‘disability’ and emphasizes that the threshold issue should not require
extensive analysis.” [Doc. 17, PageID.50 (citing 29 C.F.R. § 1630.2(j)(1)(i)]. Latham further
argues that, “[a]lthough ‘temporary impairments are not commonly regarded as disabilities,’
Reynolds v. Ocean Bio Chem/Kinpak, Inc., No. 2:12-CV-1101-MEF-TFM, 2014 WL 495354, at
*6 (M.D. Ala. Feb. 5, 2014), Courts in the 11th Circuit have found that the ADAAA does
encompass such temporary conditions,” citing to Nails v. Spirit Airlines, Inc., No. 17-62172-CIV-
COOKE, 2018 WL 1863623, 2018 WL 1863623 (S.D. Fla. Feb. 15, 2018), report and
recommendation adopted, No. 17-62172-CIV, 2018 WL 1859309 (S.D. Fla. Mar. 8, 2018), and
Moore v. Jackson County Bd. of Educ., 979 F. Supp. 2d 1251, 1261 (N.D. Ala. 2013). [Id.]
Applied here, Sutton would preclude Latham’s claims under the ADA as a matter of law
and is binding on this Court unless it has been expressly overruled by the Court of Appeals,
implicitly overruled by a subsequent decision of the Court of Appeals sitting en banc, or undercut
by the text of the ADAAA. See Nelson v. United States, Nos. 04-560-CB-M, 04-561-CB-M, 04-
562-CB-M, 04-563-CB-M, 2005 U.S. Dist. LEXIS 45661, at *10-11 (S.D. Ala. Dec. 13, 2005)
(explaining “a district court is bound to follow the holding of a prior decision of the Court of
Appeals for the circuit in which the district court is located until that binding precedent is expressly
overruled” with the exception of “rare instances in which a subsequent decision of the Court of
Appeals sitting en banc implicitly overrules a prior precedent, making it clear that the reasoning
and decision of the Court of Appeals would have been different under the new precedent,” in which
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case “a lower court may be forced to treat the precedent from the Court of Appeals as having been
overruled.”); Felix v. Key Largo Mgmt. Corp., No. 21-10381, 2021 WL 5037570, at *2 (11th Cir.
Oct. 29, 2021) (noting “a court must always assess whether the ADAAA undercuts” a pre-ADAAA
case “before relying on it.”). Sutton has been neither expressly overruled by the Eleventh Circuit
nor implicitly overruled by a subsequent en banc opinion. Accordingly, the question before this
Court is whether Sutton’s holding has been undercut by the ADAAA.
As Brett/Robinson acknowledges, it is beyond debate that, through the ADAAA, Congress
sought to “reinstat[e] a broad scope of protection to be available under the ADA.” ADA
Amendments Act of 2008, Public Law 110-325, 122 Stat 3553 (2008) § 2(b)(1) (codified at 42
U.S.C. 12101 et seq.) Notwithstanding the breadth of this pronouncement, a statutory analysis of
the actual scope of that breadth does not reveal any undercutting of Sutton’s core holding that a
temporary inability to work while recuperating from surgery is not a disability as a matter of law.
This conclusion is supported first by the specific scope of the ADAAA’s expressed purpose
in rejecting certain constructions of the ADA by the Supreme Court in Sutton v. United Air Lines,
Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing v. Williams, 534 U.S 184 (2002) and
thereby “carry out the ADA’s objectives of providing ‘a clear and comprehensive national mandate
for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable standards
addressing discrimination’ by reinstating a broad scope of protection to be available under the
ADA.” ADA Amendments Act of 2008, Public Law 110-325,122 Stat 3553 (2008) § 2(b)(1)
(codified at 42 U.S.C. 12101 et seq.). The ADAAA’s renunciation of the Supreme Court’s Sutton
decision (which concerned the effect of mitigating measures on disabilities and the scope of the
“regarded as” definition of disability) is not relevant to the issues in this case, but the scope of
Congress’s consideration of Toyota does not suggest an intention within the ADAAA to consider
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temporary, short-term impairments (such as a temporary inability to work while recovering from
surgery) disabilities.
Looking to the actual holdings in Toyota, the Supreme Court held there that: (i) the ADA’s
statutory “terms need to be interpreted strictly,” (ii) that “to be substantially limited in performing
manual tasks, an individual must have an impairment that prevents or severely restricts the
individual from doing activities that are of central importance to most people’s daily lives,” and
(iii) that “[t]he impairment’s impact must also be permanent or long-term.” Toyota, 534 U.S. at
198. The scope of the ADAAA’s rejection of the Toyota holdings is explicitly stated in the
following Congressional purpose:
to reject the standards enunciated by the Supreme Court in [Toyota] that the terms
‘‘substantially’’ and ‘‘major’’ in the definition of disability under the ADA ‘‘need
to be interpreted strictly to create a demanding standard for qualifying as disabled,’’
and that to be substantially limited in performing a major life activity under the
ADA ‘‘an individual must have an impairment that prevents or severely restricts
the individual from doing activities that are of central importance to most people’s
daily lives.”
ADA Amendments Act of 2008, Public Law 110-325, 122 Stat 3553 (2008), at § 2(b)(2)–(4).
Within the ADAAA’s substantive provisions, the Act accomplished this rejection of Toyota by
expressing a rule of construction in § 3(4)(A) of the Act that “[t]he definition of disability in this
Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum
extent permitted by the terms of this Act,” and by incorporating rules of construction with respect
to the definition of “substantially limits” in § 3(4)(B)–(E) of the Act broader than Toyota’s
narrower conception of “prevents or severely restricts,” Toyota, 534 U.S. at 198.
But nowhere in the ADAAA’s stated purpose nor its substantive provisions did Congress
express that it sought to reject Toyota’s third holding noted above: that “[t]he impairment’s impact
must also be permanent or long-term.” Toyota, 534 U.S. at 198 (emphasis added). As outlined
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above, the holdings of Toyota that Congress rejected were the “strict[] interpretation” and
“prevents or severely restricts” concepts contained in the sentences immediately before the
“permanent or long-term” requirement, but did not include a renunciation of this permanency or
long-term requirement itself. Congress, certainly, was aware of this permanency/long-term
requirement in Toyota given its proximity to the preceding sentences that the ADAAA explicitly
rejects. As a result, Congress’s silence in the ADAAA concerning this additional holding of
Toyota can be interpreted as an intention that the ADAAA carry with it the Toyota “permanent or
long-term” prior construction of “disability” under the ADA and not renounce it with the other
Toyota holdings the ADAAA explicitly rejected. See Midlantic Nat. Bank v. New Jersey Dept. of
Environmental Protection, 474 U.S. 494, 501 (1986) (“The normal rule of statutory construction
is that if Congress intends for legislation to change the interpretation of a judicially created
concept, it makes that intent specific.”); Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 322 (2012) (“The clearest application of the prior-construction canon
occurs with reenactments: If a word or phrase has been authoritatively interpreted by the highest
court in a jurisdiction . . . a later version of that act perpetuating the wording is presumed to carry
forward with it that interpretation.”). See also Loughrin v. United States, 573 U.S. 351, 360 (2014)
(noting there is “no reason to doubt that in enacting” a statute, “Congress said what it meant and
meant what it said . . . ”).
This understanding is also consistent with the reality that, prior to and around the time of
the ADA’s passage, courts widely held that temporary impairments (including temporary
impairments resulting from surgery, like Latham’s) were not disabilities under the Rehabilitation
Act. E.g., Evans v. Dallas, 861 F.2d 846, 852–53 (5th Cir. 1988) (affirming dismissal of
Rehabilitation Act claim due to “the transitory nature of the injury” to plaintiff’s knee and resulting
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surgery based on district court’s conclusion that, although the “injury may have limited Plaintiff’s
life activities during his recuperation, Plaintiff does not allege that it continues to do so . . . ”);
McDonald v. Com. of Pa., Dept. of Public Welfare, Polk Center, 62 F.3d 92, 96 (3d Cir. 1995)
(collecting authorities pre-dating the ADA recognizing temporary impairments are not disabilities
under the Rehabilitation Act and holding, “[a]gainst this background of applicable law, it is clear
that the plaintiff in the case before us cannot qualify for relief under the Disabilities Act or the
Rehabilitation Act. As the complaint reveals, her inability to work caused by the surgery was of
limited duration.”); Paegle v. DOI, 813 F. Supp. 61, 64 (D.D.C. 1993) (collecting authorities pre-
dating the ADA and concluding “[i]t is well established that the [Rehabilitation] Act was never
intended to extend to persons suffering from temporary conditions or injuries.”); Visarraga v.
Garrett, NO. C-88-2828 FMS (CW), NO. C-90-0984 JPV (CW), 1992 U.S. Dist. LEXIS 9164, at
*12-13 (N.D. Cal. June 12, 1992) (“In general, a temporary condition is not considered a handicap
under the Rehabilitation Act.”) (collecting cases); Stevens v. Stubbs, 576 F. Supp. 1409, 1414
(N.D. Ga. 1983) (“Whatever the precise delineations of the term ‘impairment,’ the court is
unconvinced that it encompasses transitory illnesses which have no permanent effect on the
person’s health.”).
This widespread recognition that the Rehabilitation Act’s definition of “disability” did not
include short-term conditions (specifically including temporary surgical recoveries) is of particular
relevance to framing Congress’s intent under the ADAAA because both the ADA and ADAAA
were drafted with the explicit goal of sharing “the same definition” of disability as that in the
Rehabilitation Act.2 154 Cong. Rec. S8347 (Statement of the Managers to Accompany S. 3406,
2 As expressed in the legislative history of the ADAA, “The Rehabilitation Act of 1973 preceded
the ADA in providing civil rights protections to individuals with disabilities, and in drafting the
definition of disability in the ADA, the authors relied on the statute and implementing regulations
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The Americans with Disabilities Act Amendments Act of 2008). Because the Court may “fairly
credit the” Congresses that enacted the ADA and ADAAA “with knowing the interpretation
federal courts had given the words [an] earlier Congress[] had used” in the Rehabilitation Act, and
because in both the ADA and ADAAA Congress “used the same words, [this Court] can only
assume that it intended them to have the same meaning that courts had already given them.”
Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 268 (1992) (applying prior-
construction canon in the context of two other federal statutes).
Beyond this application of the prior construction canon, the ADAAA’s legislative record
offers further evidence that Congress did not intend that short-term, temporary impairments of the
kind at issue in the Eleventh Circuit’s Sutton decision be considered disabilities. The ADAAA
included an exception to the “regarded as” disabled definition that excludes any “impairments that
are transitory and minor. A transitory impairment is an impairment with an actual or expected
duration of 6 months or less.” ADA Amendments Act of 2008, Public Law 110-325, at § 3(3)(B).
Given the absence of any such “transitory” exception to the actual-disability definition, one might
assume this omission suggests Congress intended actual disabilities to include temporary
impairments. However, in the Statement of the Managers to Accompany S. 3406, The Americans
with Disabilities Act Amendments Act of 2008, adopted by the Senate immediately following its
passage of the ADAAA, Congress noted:
The bill contains an exception that clarifies that coverage for individuals under the
“regarded as” prong is not available where an individual's impairment is both
transitory (six months or less) and minor. Providing this exception responds to
concerns raised by employer organizations and is reasonable under the “regarded
as” prong of the definition because individuals seeking coverage under this prong
of the Rehabilitation Act.” 154 Cong. Rec. S8347 (Statement of the Managers to Accompany S.
3406, The Americans with Disabilities Act Amendments Act of 2008). The ADAAA sought to
re-instill this harmony by “ensure[ing] that the definition of disability in Section 7 of the
Rehabilitation Act of 1973, which shares the same definition, is consistent with the ADA.” Id.
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need not meet the functional limitation requirement contained in the first two
prongs of the definition. A similar exception for the first two prongs of the definition
is unnecessary as the functional limitation requirement already excludes claims by
individuals with ailments that are minor and short term.
154 Cong. Rec. S8346 (emphasis added). It is apparent from this legislative history that Congress
did not intend transitory, temporary impairments be covered under any of the three definitions of
disability under the ADAAA.
At oral argument, Latham offered no alternative construction or application of this
legislative history except to argue that, in the Nails and Moore opinions noted above as being cited
in Latham’s Response, the Southern District of Florida and Northern District of Alabama
concluded that the temporary impairments can be considered disabilities under the ADAAA.
However, as Latham acknowledged at oral argument, Nails and Moore represent a minority
position among District Courts in the Eleventh Circuit. See Richardson v. Koch Foods of Ala.,
LLC, No. 2:16-cv-00828-SRW, 2019 U.S. Dist. LEXIS 54893, at *17 (M.D. Ala. Mar. 29, 2019)
(“A limitation that is short term and temporary, even if severe, is not evidence of a disability.”);
Wood v. Gilman Bldg. Prods., No. 4:17-cv-63-WS-CAS, 2018 U.S. Dist. LEXIS 236077, at *9
(N.D. Fla. March 19, 2018) (recognizing that “[i]n cases decided post-ADAAA, a number of courts
have concluded that non-severe, temporary impairments do not render a person disabled under the
ADA,” and dismissing ADA claim on grounds that plaintiff failed to allege disability based on
ankle injury that “caused [plaintiff] to be out of work for thirteen weeks . . . .” ); Reynolds v. Ocean
Bio Chem/Kinpak, Inc., No. 2:12-cv-1101-MEF-TFM 2014, 2014 U.S. Dist. LEXIS 14927, at
*14–15 (M.D. Ala. Jan. 9, 2014) (“[T]emporary impairments are not commonly regarded as
disabilities.”), report and recommendation adopted, 2014 U.S. Dist. LEXIS 14538 (M.D. Ala.,
Feb. 5, 2014); Fuller v. Broward County Mass Transit, 2009 U.S. Dist. LEXIS 3155, at *7 (S.D.
Fla. Jan. 16, 2009) (dismissing ADA claim with prejudice where plaintiff alleged he “underwent
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surgery to remove an appendix” and complaint did “not allege that the appendectomy resulted in
any long-term impairments that substantially limited Plaintiff’s ability to work.”).
Beyond the Eleventh Circuit, other district courts have similarly concluded that temporary,
short-term impairments are not disabilities even under the ADAAA. Mastrio v. Eurest Servs., No.
3:13-cv-00564-VLP, 2014 U.S. Dist. LEXIS 27050, at *11–12 (D. Conn. March 4, 2014)
(dismissing ADA claim where plaintiff alleged he “was required to miss work for approximately
one month while he underwent treatment for his kidney stones” and, “as far as the allegations in
the Complaint are concerned, never again experienced problems related to his kidney stones.”);
Brodzik v. Contrs. Steel, Inc., 48 F. Supp. 3d 1183, 1189 (N.D. Ind. 2014) (recommending
dismissal of ADA claim premised on plaintiff’s hernia and “six-week recovery” from hernia
surgery because “there is nothing in Plaintiff’s Complaint to suggest that Plaintiff’s hernia and
resulting surgery was anything more than a one-time occurrence.”) (internal quotes and citation
omitted), report and recommendation adopted, 48 F. Supp. 3d 1183, 1184; McKenzie-Nevolas v.
Deaconess Holdings LLC, No. 12-cv-570-D, 2014 U.S. Dist. LEXIS 15545, at *6 (W.D. Okla.
Feb. 7, 2014) (“[C]ase law recognizes that temporary, short-term or non-severe conditions do not
satisfy the definition of disability under the ‘actual’ prong.”); Wanamaker v. Westport Bd. of Educ.,
899 F. Supp. 2d 193, 211 (D. Conn. 2012) (“It appears that even under the ADAAA’s broadened
definition of disability short term impairments would still not render a person disabled within the
meaning of the statute.”).
An examination of the courts’ analyses in Nails and Moore also does not persuasively
support Latham’s position. In Nails, the Southern District of Florida made no meaningful
independent substantive analysis of the issue at hand beyond citing to the Northern District of
Alabama’s opinion in Moore, explaining “although ‘temporary impairments are not commonly
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regarded as disabilities,’ Reynolds v. Ocean Bio Chem/Kinpak, Inc., No. 2:12-CV-1101-MEF-
TFM, 2014 U.S. Dist. LEXIS 14927, 2014 WL 495354, at *6 (M.D. Ala. Feb. 5, 2014), at least
one District Court in the Eleventh Circuit has found that the ADAAA does encompass such
temporary conditions,” referring to Moore. 2018 U.S. Dist. LEXIS 25900, at *2. The Court in
Moore, in turn, concluded that “Congress no longer intends for temporary impairments to be
excluded from the definition of ‘disability’” for two reasons: (i) “the stated purpose of the ADAAA
to broaden coverage of the ADA (and, thus, the Rehabilitation Act), and especially the definition
of the phrase ‘substantially limits,’” and (ii) the EEOC’s “persuasive regulatory provisions
interpreting the ADAAA.” 979 F. Supp. 2d at 1261. Upon careful consideration of these two
bases articulated in Moore, neither plausibly support a construction of the ADAAA in the manner
Moore advances.
First, Moore is correct in recognizing that the general “purpose of the ADAAA [was] to
broaden coverage of the ADA (and, thus, the Rehabilitation Act), and especially the definition of
the phrase ‘substantially limits.’” Id. And superficially, application of the ADAAA in a manner
that denies any individual the ability to claim a disability could seem in tension with the general
concept of broadening coverage of the ADA. However, it is the Court’s “job [] to follow the text
even if doing so will supposedly undercut a basic objective of the statute.” Villarreal v. R.J.
Reynolds Tobacco Co., 839 F.3d 958, 969-70 (11th Cir. 2016) (quoting Baker Botts L.L.P. v.
ASARCO LLC, 135 S. Ct. 2158, 2169 (2015) (Breyer, J., dissenting)). Accordingly, while the
ADAAA’s general purpose was indeed to “broaden coverage of the ADA,” Moore, 979 F. Supp.
2d at 1261, “[e]levating general notions of purpose over the plain meaning of the text is
inconsistent with our judicial duty to interpret the law as written.” Villarreal, 839 F.3d at 970.
“And as the Supreme Court has reminded us, to the extent a statute’s purpose is relevant, ‘[t]he
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best evidence of that purpose is the statutory text adopted by both Houses of Congress and
submitted to the President.’” United States v. Pate, 84 F.4th 1196, 1206 (11th Cir. 2023) (quoting
West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991)).
Looking, then, to the text of the ADAAA, what it actually instructs on the subject of “broad
coverage” is that “[t]he definition of disability in this Act shall be construed in favor of broad
coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.”
[ADA Amendments Act of 2008, Public Law 110-325, 122 Stat 3553, at § 3(4)(A) (emphasis
added).] There are no terms within the ADAAA itself (and Moore identifies none) that would
permit recognition of a short-term, temporary impairment as a disability. Simply put, the general
purpose of the ADAAA affords no court license to extend federal law to an area that is not provided
for within the text of the law itself. Further, the general purpose of the ADAAA in broadening the
ADA’s coverage cannot overcome the statutory analysis outlined supra that supports a
construction of the ADAAA in a manner that does not extend ADA coverage to temporary, short-
term impairments.
Next is Moore’s reliance on the EEOC’s “persuasive regulatory provisions interpreting the
ADAAA.” 979 F. Supp. 2d at 1261. Specifically, Moore cites to the following language from the
EEOC’s regulations implementing the ADAAA:
The six-month “transitory” part of the “transitory and minor” exception to
“regarded as” coverage in § 1630.15(f) does not apply to the definition of
“disability” under paragraphs (g)(1)(i) (the “actual disability” prong) or (g)(1)(ii)
(the “record of” prong) of this section. The effects of an impairment lasting or
expected to last fewer than six months can be substantially limiting within the
meaning of this section.
Id. (quoting 29 C.F.R. § 1630.2(j)(ix)) (emphasis in Moore). This interpretive language in
§ 1630.2(j)(ix) appears to be based on the EEOC’s assumption that, because the transitory and
minor exception in the ADAAA applies only to “regarded as” coverage and not to the “actual
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disability” prong, an impairment can still constitute an actual disability even if it is transitory and
minor. But this assumption is irreconcilable with the legislative history outlined supra which
reflects Congress’s view that codifying the transitory and minor exception for the “actual
disability” prong “is unnecessary as the functional limitation requirement already excludes claims
by individuals with ailments that are minor and short term.” 154 Cong. Rec. S8346 (emphasis
added). Beyond this assumption, it does not appear that the EEOC’s guidance allowing “actual
disability” recognition for temporary, short-term impairments has any additional basis within the
text of the ADAAA itself. Accordingly, the EEOC’s interpretive guidance in 29 C.F.R. §
1630.2(j)(ix) is not persuasive and does not support an interpretation of the ADAAA in the manner
applied in Moore and sought to be applied by Latham here. Cf. Loper Bright Enters. v. Raimondo,
603 U.S. 369, 373, 144 S. Ct. 2244, 2251 (2024) (noting “agencies have no special competence in
resolving statutory ambiguities. Courts do.”).
In sum, based on consideration of the ADAAA’s plain language and legislative history and
applying appropriate rules of statutory construction, it does not appear that Congress intended that
the ADAAA disrupt the Eleventh Circuit’s recognition in Sutton that “[a] temporary inability to
work while recuperating from surgery is not [] a permanent or long-term impairment and does not
constitute evidence of a disability . . . .” 185 F.3d at 1209. Sutton thus remains the binding law of
this Circuit on the issue of whether Latham’s temporary impairment during a period of surgical
recovery is considered a disability under the ADA. And because a temporary inability to work
while recuperating from a surgery is all that Latham alleges in her Amended Complaint, her ADA
claims should be dismissed.
While Counts 1 and 2 are subject to dismissal for the reasons outlined above,
Brett/Robinson also argues in the alternative that, even if the ADAAA did intend to expand ADA
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coverage to temporary impairments (as Latham contends), the Amended Complaint nonetheless
fails to allege a substantial limitation on any major life activities to plausibly support the existence
of an actual disability. The Court agrees.
At this stage, Latham is required to plead facts in her complaint that plausibly allege the
impairment in question substantially limited one or more of her major life activities. See Chapman
v. U.S. Postal Service, 442 Fed. Appx. 480, 485 (11th Cir. 2011) (affirming dismissal of ADA
claim where plaintiff “did not specify whether she had a physical or mental disability, what the
disability was, or how it impaired a major life activity.”); Flood v. City of Jacksonville, 263 F.
Supp. 3d 1213, 1227 (N.D. Ala. 2017) (dismissing ADA claim because plaintiff failed to “allege
facts plausibly establishing that [he] had, or was regarded as having, any specific mental
impairment. Similarly, no facts are pled which plausibly allege that his ‘mental problems’
substantially limited one or more of his major life activities.”) (emphasis in original); Garcia v.
Goodwill Indus. of S. Fla. Inc., No. 18-25042-CIV, 2019 U.S. Dist. LEXIS 198676, at *4 (S.D.
Fla. Nov. 15, 2019) (“[A] complaint must allege factual matter explaining how the alleged ailment
substantially limits a major life activity.”).
Here, Latham alleges she was hospitalized between August 1, 2021, and August 12, 2021,
and that she underwent surgery on August 5, 2021 (which her mother allegedly told Brett/Robinson
employees “would require at least four to six weeks for recovery”). [Doc. 6, PageID.17 at ¶¶ 8–
10]. These allegations are analogous to those at issue in Brodzik v. Contractors Steel, 48 F. Supp.
3d 1183 (N.D. Ind. 2014), report and recommendation adopted, No. 13-438, 2014 U.S. Dist.
LEXIS 132299 (N.D. Ind. Sep. 22, 2014). There, the plaintiff had hernia surgery that required
him to miss work for a six-week recovery period, after which he did not allege any lasting physical
or mental restrictions. Id. at 1185. Upon returning to work, the employer demoted the plaintiff.
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Id. at 1185-86. The court dismissed the plaintiff’s claims because there was no allegation of
“anything more than a one-time occurrence.” Id. at 1189. At least one other court within the
Eleventh Circuit has favorably applied the Northern District of Indiana’s holding in Brodzik. In
Lugones v. Ranger Construction, the Southern District of Florida, applying the ADAAA,
dismissed a claim in which the plaintiff alleged a toe injury prohibited him from working for a
three-day period. Case No. 23-81174, 2023 U.S. Dist. LEXIS 222826, at *5-6 (S.D. Fla. Dec. 14,
2023), report and recommendation adopted, 2024 U.S. Dist. LEXIS 4332 (S.D. Fla. Jan. 8, 2024).
Like the plaintiff in Brodzik, Latham has not sufficiently pleaded the ways in which her
alleged disability substantially limited any major life activity, and she has not sufficiently set forth
the severity required for an impairment of limited duration to qualify for coverage by the ADA
even under the construction of the ADAAA that she advances in her Response. Accepting the
allegations of the Amended Complaint as true, Latham experienced, at most, a six-week
impairment, and the Amended Complaint is devoid of any details as to how that impairment
substantially limited Latham’s ability to engage in any major life activity.
B. Latham’s FMLA Claim.
Brett/Robinson has moved to dismiss Latham’s FMLA claim (Count 3) on grounds that it
is barred by the statute of limitations. “As a general rule, a two-year statute of limitations applies
to an FMLA claim.” Chaney v. Mobile Cty., No. 21-cv-0220-CG-M, 2021 U.S. Dist. LEXIS
207120, at *3-4 (S.D. Ala. Oct. 26, 2021) (citing Munoz v. Selig Enters., Inc., 981 F.3d 1265, 1275
n.2 (11th Cir. 2020) (citing 29 U.S.C. § 2617(c)(1)). “However, if a plaintiff shows her employer
willfully violated her FMLA rights, the FMLA provides for an extended, three-year statute of
limitations.” Id. at 4. (citing Munoz, 981 F.3d at 1275 n.2). “The limitations period begins to run
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from the date of the employer’s last alleged FMLA violation.” Id. (citing 29 U.S.C. § 2617(c)(1),
(2)).
Latham alleges Brett/Robinson violated the FMLA when it failed to provide her a leave of
absence following her hospitalization before allegedly terminating her on August 12, 2021. [See
Doc. 6, PageID.18 at ¶ 17]. Latham, however, did not file her original Complaint until June 27,
2024—well after the two-year statute of limitations expired. Accordingly, Latham’s FMLA claim
is barred by the statute of limitations unless she has alleged facts3 plausibly demonstrating that
Brett/Robinson “willfully violated her FMLA rights” such that the three-year statute of limitations
applies. Chaney, 2021 U.S. Dist. LEXIS 207120, at *4.
In Chaney, this District Court noted the “Eleventh Circuit ‘has not articulated a standard
for what constitutes a willful violation of the FMLA.’” Id. (quoting Munoz, 981 F.3d at 1275 n.2).
However, the Court explained “other Circuits have applied the willfulness standard used in Fair
Labor Standards Act (FLSA) cases to claims brought under the FMLA” and proceeded to do so as
well, concluding that “[f]or § 2617(c)(2)’s three-year statute of limitations to apply, a plaintiff
must demonstrate that her employer ‘knew or showed reckless disregard’ for whether its conduct
was prohibited by the FMLA.” Id. (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133
(1988)). This standard presents a notably high bar. “Willful” means not “merely negligent,” but
“voluntary, deliberate, and intentional.” McLaughlin, 486 U.S. at 133. And as alluded to in
3 Latham’s factual allegations must plausibly allege a willful violation of the FMLA to avoid
dismissal under the two-year statute of limitations. See, e.g., Crugher v. Prelesnik, 761 F.3d 610,
617 (6th Cir. 2014) (affirming district court’s dismissal of FMLA claim as barred by statute of
limitations where plaintiff’s complaint was “devoid of any allegations supporting a finding of
willfulness” and there were “no factual allegations” that the defendant “acted intentionally or
recklessly to violate [plaintiff’s] rights under the FMLA.”); Bailey v. Dekalb Cnty., No. 1:18-cv-
4488-LMM-CCB, 2019 U.S. Dist. LEXIS 250343, at *27 (N.D. Ga. July 16, 2019) (dismissing
FMLA claim as barred by statute of limitations where plaintiff failed to sufficiently allege facts
supporting a showing of willfulness).
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Chaney, it is not enough for an employer to know that the FMLA “was in the picture.”4 Smith v.
St. Joseph’s/Candler Health System, Inc., 770 Fed. Appx. 523 (2019) (quoting McLaughlin, 486
U.S. at 133).
Here, Latham alleges Brett/Robinson “knew of her medical condition and need for leave,
but willfully and intentionally failed to provide her with the same.” [Doc. 6, PageID.20 at ¶ 29].
While Latham employs the buzzword “willfully” (buttressed by “intentionally”), “language such
as . . . ‘acted willfully, wantonly, intentionally and in reckless and callous disregard’” are “classic
examples of ‘legal conclusions masquerading as facts’ that the Eleventh Circuit deemed
insufficient to state a claim in Jackson v. [BellSouth Telecomms], 372 F.3d [1250,] 1262-63 [(11th
Cir. 2004).]” Bailey, 2019 U.S. Dist. LEXIS 250343, at *27 (finding such allegations failed to
plead willful violation of FMLA). See also Crugher, 761 F.3d at 617 (“A plaintiff must do more
than make the conclusory assertion that a defendant acted willfully. Indeed, as we have explained
in a non-FMLA context, although conditions of a person's mind may be alleged generally, the
plaintiff still must plead facts about the defendant’s mental state, which, accepted as true, make
the state-of-mind allegation plausible on its face.”) (cleaned up and citations omitted).5 Latham’s
bare allegations that Brett/Robinson acted “willfully” and “intentionally” are, therefore,
insufficient to support application of a three-year statute of limitations to Count 3. Id.; Bailey,
4 Chaney, 2021 U.S. Dist. LEXIS 207120, at *4 (“‘McLaughlin expressly rejected the Fifth
Circuit’s test that had required the employer to know only that the FLSA “was in the picture” for
the violation to be considered “willful.”’”) (quoting Sampra v. United States Dep’t of
Transportation, 888 F.3d 330, 333 (7th Cir. 2018) (quoting McLaughlin, 486 U.S. at 132–34).
5 Accord CCI-LAP I, L.P. v. Honeywell Int’l, Inc., No. 1:19-cv-1518-ACA, 2019 U.S. Dist. LEXIS
186072, at *6 (N.D. Ala. Oct. 28, 2019) (finding plaintiff’s allegation that defendant “acted with
‘willful indifference’” insufficient to support wantonness claim and declining to “accept this legal
conclusion as true.”); Cook v. Corizon, LLC, No. 2:17-CV-178-SMD, 2019 U.S. Dist. LEXIS
79009, at *14 (M.D. Ala. May 10, 2019) (concluding allegation that defendant acted in “willful”
manner for purposes of defeating qualified immunity defense to be a “naked legal conclusion that
cannot support a claim.”).
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2019 U.S. Dist. LEXIS 250343, at *27. Cf. Franklin v. Curry, 738 F.3d 1246, 1248 n.1 (11th Cir.
2013) (‘We afford no presumption of truth to legal conclusions and recitations of the basic
elements of a cause of action.”).
Even taking Latham’s allegations of “willful” and “intentional” conduct as true, all Latham
has alleged is that Brett/Robinson “knew of her medical condition and need for leave” and willfully
“failed to provide her with the same.” [Doc. 6, PageID.20 at ¶ 29 (emphasis added)]. But as
Latham herself acknowledges, willfulness is determined “‘not by the willfulness of the adverse
employment action, but by the willfulness of the violation itself.’” [Doc. 17, PageID.53 (quoting
Smith v. St. Joseph’s Candler Health Sys., No. 417-116, 2018 U.S. Dist. LEXIS 71313, at *4 (S.D.
Ga. Mar. 21, 2018))]. Nowhere, in other words, does Latham allege any facts that plausibly
suggest Brett/Robinson “knew or showed reckless disregard for whether its conduct was prohibited
by the FMLA.” Chaney, 2021 U.S. Dist. LEXIS 207120, at *4.
The authority Latham primarily relied upon at oral argument and in her Response, Smith v.
St. Joseph’s Candler Health Sys., 2018 U.S. Dist. LEXIS 71313, is facially distinguishable from
the facts alleged here. In Smith, the Southern District of Georgia denied a motion to dismiss an
FMLA claim finding that the plaintiff had sufficiently alleged a willful violation of the statute.
2018 U.S. Dist. LEXIS 71313, at *4–5. There, the plaintiff alleged that she was terminated while
on company-approved FMLA leave before she had exhausted the approved leave time. Id. at *5.
As a result, the court held that she had plausibly alleged a claim for a willful violation.
“Termination of an employee for absence, while they are on an approved FMLA leave, is sufficient
to imply a willful violation.” Id. (emphasis added).
But unlike the plaintiff in Smith, Latham alleges no facts suggesting Brett/Robinson had
knowledge that her leave qualified for protection under the FMLA. This is a critical distinction;
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as the Smith court noted, for the three-year statute of limitations to be invoked “an employer must
take an action despite recognizing that it violates the FMLA or with reckless disregard for whether
it does.” Id. at *4 (emphasis in original). “If an employer is merely negligent (by miscalculating
an employee’s remaining statutorily required leave, for example) the shorter limitations period
applies.” Id.
In sum, Latham’s Amended Complaint pleads no factual allegations to plausibly show
willfulness on the part of Brett/Robinson to violate her FMLA rights. As a result, Latham’s FMLA
claim in Count 3 is barred by the FMLA’s two-year statute of limitations.
IV. Conclusion
For the reasons set forth herein, Latham has failed to state a claim in her Amended
Complaint under the ADA or FMLA. Because Latham has not requested leave to amend her
Amended Complaint and because, in any event, the Amended Complaint could not be more
carefully drafted to state a valid claim under the ADA or FMLA based on the theories presented,
it is recommended that all claims against Brett/Robinson in the Amended Complaint be
DISMISSED WITH PREJUDICE pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure due to Latham’s failure to state a claim. Ounjian v. Globoforce, Inc., 89 F.4th 852, 862
(11th Cir. 2023) (“A district court may dismiss a complaint with prejudice where the plaintiff fails
to request leave to amend, or where the complaint could not be more carefully drafted to state a
valid claim.”); Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002)
(en banc) (“A district court is not required to grant a plaintiff leave to amend his complaint sua
sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor
requested leave to amend before the district court.”).
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NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the manner
provided by law. Any party who objects to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document, file specific written objections with the
Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala. Gen. LR. 72(c).
The parties should note that under Eleventh Circuit Rule 3-1, “[a] party failing to object to a
magistrate judge's findings or recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal
the district court’s order based on unobjected-to factual and legal conclusions if the party was
informed of the time period for objecting and the consequences on appeal for failing to object. In
the absence of a proper objection, however, the court may review on appeal for plain error if
necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection must
identify the specific finding or recommendation to which objection is made, state the basis for the
objection, and specify the place in the Magistrate Judge’s report and recommendation where the
disputed determination is found. An objection that merely incorporates by reference or refers to
the briefing before the Magistrate Judge is not specific.
DONE this the 31th day of March, 2025.
/s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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