Case 1:21-cv-00224-GZS Document 13 Filed 12/29/21 Page 1 of 8 PageID #: 47
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MAINE
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`CALVIN LEWIS, JR.,
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`Plaintiff
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`T-MOBILE USA, INC.,
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`Defendant
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`1:21-cv-00224-GZS
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`RECOMMENDED DECISION ON MOTION TO DISMISS
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`Plaintiff alleges Defendant, Plaintiff’s former employer, discriminated against him
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`based on age and disability. (Complaint, ECF No. 1.) Defendant contends Plaintiff has
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`failed to state an actionable claim and moves to dismiss the matter. (Motion, ECF No. 8.)
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`Following a review of the pleadings and after consideration of the parties’
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`arguments, I recommend the Court grant in part and deny in part Defendant’s motion.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`The following facts are drawn from Plaintiff’s complaint and Plaintiff’s subsequent
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`submissions. See Waterman v. White Interior Sols., No. 2:19-cv-00032-JDL, 2019 WL
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`5764661, at *2 (D. Me. Nov. 5, 2019) (stating that a court may “consider other filings by
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`a self-represented plaintiff, ‘including [the] response to the motion to dismiss, to
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`understand the nature and basis of [his] claims’” (quoting Wall v. Dion, 257 F. Supp. 2d
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`316, 318 (D. Me. 2003)). A plaintiff’s factual allegations are generally deemed true when
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`evaluating a motion to dismiss. See McKee v. Cosby, 874 F.3d 54, 59 (1st Cir. 2017)
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`Case 1:21-cv-00224-GZS Document 13 Filed 12/29/21 Page 2 of 8 PageID #: 48
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`(considering a motion to dismiss pursuant to Rule 12(b)(6)); Merlonghi v. United States,
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`620 F.3d 50, 54 (1st Cir. 2010) (considering a motion to dismiss pursuant to Rule 12(b)(1)).
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`Plaintiff, a former employee of Defendant, worked in Defendant’s Oakland, Maine
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`call center. (Plaintiff’s Response to Motion to Dismiss at 1, ECF No. 10.) Plaintiff, who
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`was born in 1954, began his employment with Defendant in 2005. (Complaint Exhibit 1
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`at 1-2, ECF No. 1-1.) In 2007, he was promoted to the position of Coach of Defendant’s
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`Customer Care. (Plaintiff’s Response at 1.) He was promoted to Coach, Team of Experts
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`(TEX) in 2018, and his duties included managing a team of ten other employees and the
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`team’s Key Performance Index (KPI). (Id.)
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`Plaintiff has been diagnosed with post-traumatic stress disorder (PTSD), depressive
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`disorder, generalized anxiety disorder, and panic disorder, for which, beginning in 2012,
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`he requested several leaves of absence from work. (Complaint Exhibit 2 at 1, ECF No. 1-
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`2; Plaintiff’s Response at 2.) Defendant and Broadspire, Defendant’s employee benefits
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`provider, approved Plaintiff’s requests for leave. (Complaint at 1.) In August 2019,
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`Defendant and Broadspire denied Plaintiff’s request for short-term benefit pay for a period
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`of leave. (Complaint Exhibit 2 at 1; Plaintiff’s Response at 2.)
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`In June 2020, Plaintiff’s TEX team’s KPI made Plaintiff the highest-ranking coach
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`in the company. (Complaint Exhibit 1 at 2; Plaintiff’s Sur-reply at 2.) On June 29, 2020,
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`Plaintiff’s position was eliminated. (Id.) He was the oldest of six TEX coach employees
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`eliminated at the Oakland call center. (Plaintiff’s Response at 1.) Plaintiff’s supervisor
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`informed Plaintiff that his position was eliminated because of Defendant’s merger with
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`Sprint earlier that year. (Plaintiff’s Response at 3.)
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`2
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`Plaintiff filed a discrimination charge with the Equal Employment Opportunity
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`Commission (EEOC) in January 2020. The EEOC issued a Notice of Suit Rights dated
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`May 10, 2021.1 (Complaint Exhibit No. 2.)
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`DISCUSSION
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`A. Motion to Dismiss Standard
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`A complaint fails to state a claim upon which relief can be granted if it does not
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`plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
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`Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The relevant question ... in assessing
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`plausibility is not whether the complaint makes any particular factual allegations but,
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`rather, whether ‘the complaint warrant[s] dismissal because it failed in toto to render
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`plaintiffs’ entitlement to relief plausible.’” Rodríguez–Reyes v. Molina–Rodríguez, 711
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`F.3d 49, 55 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 569 n. 14). In an employment
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`discrimination case such as Plaintiff’s, the plausibility standard is met when a complaint
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`pleads facts that meet the prima facie standard. Rodríguez–Reyes, 711 F.3d at 54.
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`B. ADEA Claim
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`To state a prima facie claim for age discrimination under the Age Discrimination in
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`Employment Act (ADEA), 29 U.S.C. §§ 621-634, Plaintiff must establish that “(1) he was
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`at least forty years old; (2) his work was sufficient to meet his employer’s legitimate
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`expectations; (3) his employer took adverse employment action against him; and … (4)
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`1 Plaintiff also filed a charge with the Maine Human Rights Commission (MHRC). (Complaint Exhibit 1.)
`According to Defendant, the MRHC dismissed the charge on February 10, 2021, and notified the parties
`that it found no reasonable grounds to believe that unlawful discrimination had occurred. (Motion at 2.)
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`3
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`his employer refilled the position, thus demonstrating a continuing need for [his] services
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`and skill.” Robinson v. Town of Marshfield, 950 F.3d 21, 25 (1st Cir. 2020); see also
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`Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 662 (1st Cir. 2010) (same).
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`Plaintiff has alleged that (1) he was sixty-six years old when his employment ended,
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`(2) he was qualified for his position as reflected by his position of and performance as a
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`TEX team coach, and (3) his employment was terminated. Because his position was
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`eliminated, however, Plaintiff cannot practically allege that his position was filled by a
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`person with approximately the same job qualifications. Where there is a reduction in the
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`work force, a plaintiff “need not show replacement by someone with equivalent job
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`qualifications. Instead, to satisfy element (4), the plaintiff may demonstrate either that the
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`employer did not treat age neutrally or that younger persons were retained in the same
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`position.” Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 333 (1st Cir.
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`1997) (internal quotation marks and citations omitted). Here, Plaintiff has alleged no facts
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`that would support a finding that age was a factor in the elimination of his position. Rather,
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`Plaintiff essentially concedes the lack of facts to support his age discrimination claim when
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`he attempts to rely on the failure of Defendant to identify the criteria used to eliminate
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`positions “to rule out age discrimination.” (Plaintiff’s Response at 1.) In sum, Plaintiff
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`has not alleged a plausible age discrimination claim against Defendant.
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`C. ADA Claim
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`The Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12112-12117, prohibits
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`discrimination against a “qualified individual on the basis of disability in regard to … [the]
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`terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). At the motion
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`4
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`to dismiss stage, a plaintiff must allege a plausible prima facie case of discrimination: “that
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`(1) he suffers from a disability or handicap, as defined by the ADA …, and that (2) he was
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`nevertheless able to perform the essential functions of his job, either with or without
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`reasonable accommodation, and that (3) [the defendant] took an adverse employment
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`action against him because of, in whole or in part, his protected disability.” Tobin v. Liberty
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`Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir. 2005). "Adverse employment action" often
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`comes in the form of "not making reasonable accommodations," upon the employee's
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`request. Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999).
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`Defendant argues that Plaintiff has failed to plead sufficiently that he is disabled.
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`Under the ADA, an individual is disabled “if he (1) has a physical or mental impairment
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`that substantially limits one or more major life activities; (2) has a record of such an
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`impairment; or (3) is regarded as having such an impairment.” Roman-Oliveras v. P. R.
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`Elec. Power Auth., 655 F.3d 43, 48 (1st Cir. 2011). A plaintiff must allege “an actual
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`present or past disability substantially impacting a major life activity.” Young v. Town of
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`Bar Harbor, No. 1:14-cv-00146-GZS, 2015 WL 2337868, at *8 (D. Me. Apr. 23, 2015)
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`(aff’d, May 13, 2015).
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`Plaintiff alleges that he has PTSD, depressive disorder, generalized anxiety disorder,
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`and panic disorder, which conditions have caused Plaintiff to request several leaves of
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`absence from his work with Defendant. Defendant asserts that Plaintiff has failed to
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`identify a major life activity impacted by his claimed disability. “Working can be
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`considered a major life activity.” Ramos-Echevarria v. Pichis, Inc., 659 F.3d 182, 188 (1st
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`Cir. 2011). To be “substantially limited in the major life activity of working,” a plaintiff
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`“must be precluded from more than a particular job.” Santiago Clemente v. Executive
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`Airlines, Inc., 213 F.3d 25, 33 (1st Cir. 2000). Plaintiff asserts in part that on his therapist’s
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`recommendation, he requested an accommodation to work from home. Plaintiff’s
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`assertions can reasonably be construed that to work with his alleged disability, Plaintiff
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`must work from home. If Plaintiff must work from home because of his disability, Plaintiff
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`would be precluded from a variety of jobs and not just his job with Defendant. Plaintiff,
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`therefore, has sufficiently pled the first element of a disability discrimination claim.
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`Defendant also contends that Plaintiff has not identified the essential functions of
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`the job nor alleged facts to support the conclusion that he can perform the essential
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`functions of his job with or without accommodation. See Richardson v. Friendly Ice
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`Cream Corp., 594 F.3d 69, 75 (1st Cir. 2010). Plaintiff has alleged that despite the stress
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`he experienced and with his leaves of absence, the TEX team he managed performed at a
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`high level, allegations from which one could reasonably infer that he could perform the
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`essential functions of the job.2
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`Defendant also maintains that Plaintiff has not identified the accommodation it
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`failed to provide, noting that Plaintiff admits that Defendant did not deny Plaintiff’s
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`requests for leaves of absence. (Reply at 4.) Plaintiff has alleged that Defendant denied
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`2 Defendant suggests that Plaintiff’s statements in response to the motion to dismiss “support a conclusion
`that he was not able to perform the essential functions” of his job. (Reply at 4, ECF No. 11.) Plaintiff
`described the stress caused to him by the impact on his team’s KPI numbers of the underperformance of
`several agents assigned to his team, which led to his request for a leave of absence. (Plaintiff’s Response
`at 2.) While one inference from Plaintiff’s allegations could be that he could not perform his job’s essential
`functions, an assessment of Defendant’s motion includes consideration of all reasonable inferences from
`Plaintiff’s allegations. At a minimum, Plaintiff’s allegations could support the determination that with the
`accommodation of leaves of absence to address the consequences of his disability and/or an accommodation
`to work from home, Plaintiff could perform the essential functions of the job.
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`his request to work from home as an accommodation. Plaintiff’s allegations are sufficient
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`to support a disability discrimination claim based on an alleged failure to accommodate.
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`Finally, Defendant contends that Plaintiff’s disability discrimination claim under
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`the ADA against Defendant is instead a claim against it and/or Broadspire under the
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`Employment Retirement Income Security Act (ERISA), 29 U.S.C. § 1140, which should
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`be dismissed because he has failed to assert facts required to support such a claim. (Reply
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`at 2-3.) Defendant argues Plaintiff’s claim for disability discrimination is premised on the
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`denial of short-term disability pay, which would appear to be an allegation that “ʻemployer
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`action was taken with the specific intent of interfering with the employee’s ERISA
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`benefits,’” citing Lampron v. Group Life Ins. & Disability Plan of United Tech. Corp., No.
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`2:12-cv-197-GZS, 2013 WL 2237851, at *3 (D. Me. May 21, 2013) (quoting Barbour v.
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`Dynamics Res. Corp., 63 F.3d 32, 37 (1st Cir. 1995). Regardless of the merits of
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`Defendant’s contention regarding Plaintiff’s ability to recover short-term disability pay,
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`Plaintiff’s disability discrimination claim is not limited to Defendant’s alleged failure to
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`pay short-term disability benefits. Dismissal of Plaintiff’s disability discrimination claim,
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`therefore, is not warranted based on Defendant’s ERISA argument.3
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`3 Defendant also argues that Plaintiff’s complaint appeared untimely, because Plaintiff filed the complaint
`92 days from the date the EEOC issued Plaintiff a Notice of Suit Rights (the time between date of issuance
`- May 10, 2021 - and date of filing – August 9, 2021 – is actually 91 days). See Loubriel v. Fondo del
`Seguro del Estado, 694 F.3d 139, 141 (1st Cir. 2012) (a claimant must exhaust his administrative remedies
`before filing suit, and the complaint must be filed within 90 days of receiving a right-to-sue letter). With
`no proof of the date of actual receipt, Plaintiff is allowed three additional days to account for delivery by
`mail. Richardson v. Downing, 220 F. Supp. 2d 59, 60 (D. Mass. 2002). With the three days included,
`Plaintiff filed the complaint within the statute of limitations. Furthermore, Federal Rule of Civil Procedure
`6 provides that unless a statute specifies a different method for calculating time, if the last day of the relevant
`time period falls on a weekend day, the time runs to the next day that is not a weekend day. Defendant
`does not argue that a statute provides for a different method for calculating the 90-day period. The 90th day
`(August 8, 2021) was a Sunday. The last day of the 90-day period, therefore, was August 9, 2021.
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`CONCLUSION
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`Based on the foregoing analysis, I recommend the Court grant Defendant’s motion
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`to dismiss as to Plaintiff’s age discrimination claim, and the Court deny Defendant’s
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`motion as to Plaintiff’s disability discrimination claim.
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`NOTICE
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`A party may file objections to those specified portions of a magistrate
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`judge’s report or proposed findings or recommended decisions entered
`pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
`court is sought, together with a supporting memorandum, within fourteen
`(14) days of being served with a copy thereof. A responsive memorandum
`shall be filed within fourteen (14) days after the filing of the objection.
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`Failure to file a timely objection shall constitute a waiver of the right
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`to de novo review by the district court and to appeal the district court's order.
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`/s/ John C. Nivison
`U.S. Magistrate Judge
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`Dated this 29th day of December, 2021.
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`8
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