KINCAID v. CITY OF OMAHA, (D.Neb. 2002)

JOSEPH F. BATAILLON, United States District Court Judge.

Before me is the defendant City of Omaha's motion, Filing No. 7, to dismiss Count I of the plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The defendant contends that the plaintiff's allegations under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., fail to state a claim upon which relief can be granted because the plaintiff cannot establish that she is legally disabled. See 42 U.S.C. § 12102(2)(A). Both parties have submitted briefs.

In reviewing a motion to dismiss, I must accept as true the allegations contained in the complaint, United States v. Gaubert, 499 U.S. 315, 327 (1991); Doe v. Norwest Bank Minnesota, 107 F.3d 1297, 1304 (8th Cir. 1997) (citing Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994)), and must make all reasonable inferences in favor of the nonmoving party. McCormack v. Citibank, N.A., 979 F.2d 643, 646 (8th Cir. 1992). Dismissal is the exception rather than the rule; it should not occur "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir. 1997) (citing Fusco v. Xerox Corp., 676 F.2d 332 (8th Cir. 1982)), such as a missing allegation about an element necessary to obtain relief or an affirmative defense or other bar. See Doe v. Hartz, 134 F.3d 1339, 1341 (8th Cir. 1998). The court does not determine whether the plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to present evidence in support of her claim. Swartzbaugh v. State Farm Ins. Cos., 924 F. Supp. 932 (E.D.Mo. 1995).

In support of its motion, the defendant cites Toyota Motor Inc. v. Williams, 122 S.Ct. 681 (2002), in which the court held that an employee's injuries were not substantial enough to meet the definition of "disabled" under section 12102(2)(A). The court held that in order "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." Id. at 691. Since limitations affecting only specific work-related activities were not sufficient to meet the definition, the employee was not "disabled" for purposes of the ADA. She was impaired as to some specific movements and capabilities, but she "could still brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do laundry, and pick up around the house." Id. at 694.

The Toyota decision relates only to the definition of an actual disability under § 12102(2)(A). A plaintiff may allege, however, that she qualifies as disabled under 42 U.S.C. § 12102(2)(C). That section provides that an individual is also disabled if he or she is regarded as having a physical or mental impairment that substantially limits one or more of the individual's life activities. Here, the plaintiff's complaint specifically cites only to 42 U.S.C. § 12102(2)(A). Filing No. 1, Complaint at ¶ 7. The plaintiff also alleges, however, that she was "discriminated against by reason of her disability or because she was perceived as disabled," id. at ¶ 17, thus impliedly also qualifying her under section 12102(2)(C). Therefore, when read in the light most favorable to the plaintiff, the complaint states, however inartfully, a claim upon which relief may be granted. The plaintiff is, of course, free — and even encouraged — to amend the complaint to more clearly state the basis of her ADA claim.

IT IS THEREFORE ORDERED that the defendant's motion to dismiss, Filing No. 7, is denied.