EDWARDS v. MANUAL WOOD WORKERS WEAVERS, (W.D.N.C. 1999)

MAX O. COGBURN, JR., United States Magistrate Judge

THIS MATTER is before the court upon defendants' Motion to Dismiss and In the Alternative, Motion for a More Definite Statement. Having considered that motion carefully, reviewed the pleadings, and conducted a hearing, the undersigned enters the following findings, conclusions, and recommendation.

FINDINGS AND CONCLUSIONS

I. Background

Plaintiff, who is proceeding pro se, contends that defendants have violated the Americans with Disabilities Act (ADA). Specifically, she states that she developed an allergic reaction to dust while working in defendants' sanding department, defendants' provision of a respirator and other protective clothing was not a reasonable accommodation, and she should have been placed back into defendants' sewing operation. Plaintiff admitted at the hearing that she was not qualified to be a sewing operator. Defendants' primary argument in favor of dismissal is that plaintiff has failed to state a cause of action under the ADA because she has not alleged that she suffers from a disability or is a qualified individual with a disability — two essential elements of an ADA claim.

II. Discussion

Defendants have moved for dismissal pursuant to Rule 12(b), Federal Rules of Civil Procedure, contending that plaintiff has failed to state a cognizable claim. Rule 12(b) authorizes dismissal based upon a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832(1989); Hishon v. King Spalding, 467 U.S. 69, 73(1984);Conley v. Gibson, 355 U.S. 41(1957). As the Court discussed in Neitzke:

This procedure [for dismissal], operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts . . . a claim must be dismissed, without regard to whether it is based on outlandish legal theory. . . . What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations."

Id., at 1832 (citation omitted). For the limited purpose of making a recommendation as to disposition of defendants' motion, the undersigned has accepted as true the facts alleged by plaintiff in the complaint and viewed them in a light most favorable to her.

The ADA is not a panacea for all health-related issues in the workplace and only provides a remedy for qualified workers with disabilities for whom reasonable accommodations are not made. In order to state a prima facie case under the ADA, plaintiff must allege that she has a physical or mental impairment that substantially limits one or more of her major life activities, has a record of such an impairment, or is regarded as having such an impairment. 42 U.S.C. § 12102(2). Plaintiff does not and could not allege that she has a disability or that she is a qualified individual with a disability.

At the hearing, the court questioned plaintiff in detail in an attempt to discover whether she could satisfy the requirements of Section 12102(s). At most, she has developed an allergy to dust which does not interfere with any major life activity. Plaintiff reports that she is otherwise in good health, she has no record of an impairment which restricts a major life activity, and she is not perceived by others as being disabled. It would be futile, therefore, to allow amendment of the complaint, inasmuch as plaintiff could not, in good faith, make the required allegations. All she could allege is that her dust allergy interferes with her performing her sanding job. When the major life activity at issue in an ADA case is working, an employee's inability to perform a particular job cannot constitute a substantial limitation. The term "substantially limits" means that the impairment must significantly restrict an individual's ability to perform a wide range of jobs.Halperin v. Abacus Technology Corp., 128 F.3d 191, 199 (4th Cir. 1997) Finally, plaintiff seems to be under the misapprehension that defendants are required to create some job for her to do. The ADA does not require an employer to creat positions for employees who cannot perform their regular jobs. Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 633 (7th Cir. 1998). For these reasons, the undersigned will recommend that this case be dismissed with prejudice for plaintiffs failure to state a claim.

The court notes that defendants have cited the court to Mobley v. Board of Regents of the University System of Georgia, 924 F. Supp. 1179 (S.D.Ga. 1996), without notation that such decision had been vacated by that court in Mobley v. Board of Regents of University System of Georgia, 26 F. Supp.2d 1374 (S.D.Ga. 1996).

RECOMMENDATION

IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendants' Motion to Dismiss and In the Alternative, Motion for a More Definite Statement be ALLOWED and that plaintiff's complaint be DISMISSED with prejudice for failure to state a cognizable claim under the Americans with Disabilities Act.

The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140(1985), reh'g denied, 474 U.S. 1111(1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied 467 U.S. 1208(1984).

This Memorandum and Recommendation is entered in response to defendants' Motion to Dismiss and In the Alternative, Motion for a More Definite Statement (#5).