Case 1:21-cv-00224-GZS Document 14 Filed 01/12/22 Page 1 of 11 PageID #: 55
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MAINE
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`CALVIN LEWIS, JR.,
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`Plaintiff
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`v.
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`Docket No: 1:21-CV-00224-GZS
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`T-MOBILE USA, Inc.
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`Defendant.
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`DEFENDANT’S OBJECTION TO RECOMMENDATION AND MEMORANDUM IN
`SUPPORT OF OBJECTION
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`Defendant T-Mobile USA, Inc. (“T-Mobile” or “Defendant”), by and through its
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`undersigned counsel and pursuant to Fed. R. Civ. P. 72(b)(2), hereby files its objections to the
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`Magistrate Judge’s Recommended Decision on Defendant’s Motion to Dismiss (the
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`“Recommendation”). The grounds upon which Defendant’s objections are based are set forth in
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`the following Supporting Memorandum of Law.
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`A. Defendant Does Not Object to the Recommendation’s Findings as to Plaintiff’s
`Age Discrimination in Employment Act (ADEA) Claim.
`T-Mobile does not object to the Recommendation’s findings as to Plaintiff’s claims under
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`ADEA and respectfully requests that the Court adopt the Recommendation’s findings that
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`Plaintiff has failed to present sufficient facts and information to support a finding of violation of
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`the ADEA.
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`B. Defendant Objects to the Recommendation’s Findings as to Plaintiff’s
`Americans with Disabilities Act (ADA) Claim(s).
`As set forth in detail below, the Recommendation includes errors of law and fact as it
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`relates to the Court’s findings related to Plaintiff’s claims under the Americans with Disabilities
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`Act.
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`Case 1:21-cv-00224-GZS Document 14 Filed 01/12/22 Page 2 of 11 PageID #: 56
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`i. The Plausibility Inquiry Under Iqbal/Twombly Requires the Court to
`Review Only the Factual Allegations, not the Legal Conclusions, Set
`Forth in Plaintiff’s Pleadings.
`As set forth in detail below, Defendant respectfully submits that the Recommendation
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`improperly includes facts outside of the pleading to support the Recommendation and the facts
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`set forth in the Complaint and accompanying documents does not plausibly support a violation of
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`the Americans with Disabilities Act. In Stile v. Somerset Cty., No. 1:13-CV-00248, 2015 WL
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`667814, at *2 (D. Me. Feb. 17, 2015), this Court noted:
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`The motion to dismiss challenges the legal sufficiency of the allegations in a
`complaint and a court must determine “whether, construing the well-pleaded facts
`of the complaint in the light most favorable to the plaintiff[ ], the complaint states
`a claim for which relief can be granted.” The law allows the Court to consider a
`limited set of documents in ruling on a motion to dismiss, including documents
`attached to the complaint or any other documents “integral to or explicitly relied
`upon
`in
`the complaint, even
`though not attached
`to
`the complaint.”
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`Id. (citations omitted). The Recommendation relies upon Waterman v. White Interior Sols., No.
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`2:19-cv-00032, 2019 WL 5764661, at *2 (D. Me. Nov. 5, 2019), for the proposition that a Court
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`can rely upon the response to a motion to dismiss to understand the nature and basis of a pro se
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`litigants claims. In Waterman, the documents cited in support of the factual findings were
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`limited to the documents accompanying the Complaint. This Court has also described its
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`obligations with reference to First Circuit case law noting:
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`The First Circuit explained that “[t]he plausibility inquiry necessitates a two-step
`pavane.” García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013)
`(citing Rodríguez–Reyes v. Molina–Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013)).
`“First, the court must distinguish ‘the complaint's factual allegations (which must
`be accepted as true) from its conclusory legal allegations (which need not be
`credited).’ ” Id. (quoting Morales–Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st
`Cir. 2012)). “Second, the court must determine whether the factual allegations are
`sufficient to support ‘the reasonable inference that the defendant is liable for the
`misconduct alleged.’ ” Id. (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st
`Cir. 2011)
`(quoting Iqbal, 556 U.S.
`at 678, 129 S.Ct. 1937)).
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`Cutting v. Down E. Orthopedic Assocs., P.A., 278 F. Supp. 3d 485, 491 (D. Me. 2017).
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`Case 1:21-cv-00224-GZS Document 14 Filed 01/12/22 Page 3 of 11 PageID #: 57
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`Here, the only allegations that are included in Plaintiff’s pleadings related to his ADA
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`claim are as follows:
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`1) T-Mobile discriminated against me by allowing Broadspire their agent for leave of
`absence to deny me short-term benefits because of my disability of PTSD. (Complaint at
`4.)
`2) T-Mobile also discriminated when my request for an accommodation on 1/23/2020 was
`not approved. (Complaint at 5.)
`3) I am disabled. (CMECF Doc. 1-2, at 1.)
`4) I am currently employed as a coach at T-Mobile USA, Inc. (“Respondent”). (CMECF
`Doc. 1-2, at 1.)
`5) Respondent is aware of my disability because I have had approved intermittent leave for
`my ________________ since 2012. (CMECF Doc. 1-2, at 1.)
`6) On or around June/17/19 I applied for short term disability related to my disability.
`(CMECF Doc. 1-2, at 1.)
`7) On or around August/22/19 my request for short term disability was denied because I did
`not meet the definition of disability as outlined in their disability Program. (CMECF Doc.
`1-2, at 1.)
`8) I believe that the reason for the denial was because of my disability. I was denied
`because of how my therapist notes were [interpreted] when describing my symptoms.
`(CMECF Doc. 1-2, at 1.)
`9) I believe Respondent discriminated against me based on my disability. (CMECF Doc. 1-
`2, at 1.)
`10) The Respondent delayed my return to work after getting a certification to return to work
`from my therapist as another form of discrimination based on my disability. (CMECF
`Doc. 1-2, at 1.)
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`There are factual allegations included in Plaintiff’s Intake Questionnaire (CMECF Doc. 1-1),
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`which was attached to Plaintiff’s Complaint, however none of the allegations included in that
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`document relate to Plaintiff’s ADA claim. Pursuant to this Court’s precedent, see Cutting, 278
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`F. Supp. 3d at 491, if we remove conclusory legal allegations we are left with the following:
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`1) T-Mobile [allowed] Broadspire their agent for leave of absence to deny me short-term
`benefits. (Complaint at 4.)
`2) I have a PTSD. (Complaint at 4.)
`3) T-Mobile did not approve my request for an accommodation on 1/23/2020. (Complaint at
`5.)
`4) I am currently employed as a coach at T-Mobile USA, Inc. (“Respondent”). (CMECF
`Doc. 1-2, at 1.)
`5) Respondent is aware I have had approved intermittent leave since 2012. (CMECF Doc. 1-
`2, at 1.)
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`6) On or around June/17/19 I applied for short term disability. (CMECF Doc. 1-2, at 1.)
`7) On or around August/22/19 my request for short term disability was denied because I did
`not meet the definition of disability as outlined in their disability Program. (CMECF Doc.
`1-2, at 1.)
`8) I was denied because of how my therapist notes were [interpreted] when describing my
`symptoms. (CMECF Doc. 1-2, at 1.)
`9) The Respondent delayed my return to work after getting a certification to return to work
`from my therapist. (CMECF Doc. 1-2, at 1.)
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`With these factual allegations, the determination must be made as to whether the behavior
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`alleged amounts to disability discrimination under the ADA—T-Mobile contends it does not for
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`the reasons set forth in previous briefing and as described in further detail below.
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`ii. The Recommendation Improperly Relies Upon Facts Outside of the
`Record in Support of Its Findings.
`The Recommendation improperly relies upon facts outside of the pleadings to support its
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`conclusion that Plaintiff suffers from a disability as defined by the ADA. In order to maintain a
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`claim under the ADA, for disability discrimination, “Plaintiff must demonstrate: (1) that he has
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`an impairment that qualifies as a ‘disability’ under the applicable statutory definition; (2) that he
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`could perform the essential functions of the job, with or without reasonable accommodation; and
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`(3) that Defendant took adverse action against him, in whole or in part, because of his disability.”
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`Young v. City of Bar Harbor, 2015 WL 2337868, at *8 (D. Me. Apr. 23, 2015).
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`The Maine Law Court in Grief v. Independent Fabrication, Inc., 215 A.3d 1289, 1291,
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`2019 ME 142,¶ 4 (Me. 2019), stated, “the application of the law to facts outside of the pleadings
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`is not allowed on a motion to dismiss,” and “[a]lthough the parties may stipulate to facts relevant
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`to the court’s consideration of a motion to dismiss, including facts outside of the pleadings, in the
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`absence of the parties’ clear agreement to present such stipulated facts, a court may not consider
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`matters outside the pleadings on a motion to dismiss, except in limited circumstances.” As in
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`Grief, none of the limited circumstances are present in this matter.1 This standard was similarly
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`set forth by this Court in Stile v. Somerset Cty., 2015 WL 667814, at *2.
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`In Waterman v. White Interior Sols., No. 2:19-cv-00032, 2019 WL 5764661, at *2 (D.
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`Me. Nov. 5, 2019), cited in support of the Recommendation findings, the Court indicated that
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`responses to motions to dismiss can be used to understand the nature and basis of a claim.
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`Waterman, however, does not go so far as it provide a court with the ability to rely upon factual
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`allegations outside of the pleadings. This finding is further set forth—but not expanded—in the
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`decisions issued in Wall v. Dion, 257 F. Supp. 2d 316, 318 (D. Me. 2003), and Sirois v. United
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`States, 2018 WL 2142980, *1 (D. Me. May 9, 2018).
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`In the current matter, the Recommendation indicates that “Plaintiff alleges that he has
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`PTSD, depressive disorder, generalized anxiety disorder, and panic disorder, which conditions
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`have caused Plaintiff to request several leaves of absence from his work with Defendant.”
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`(Recommendation, at 5.) In support of this conclusion, the Court cites to Complaint Exhibit 2 at
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`1; none of this information is however included in this document and the conclusion that any of
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`this information (aside from having PTSD) is set forth in the Complaint or accompanying
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`documents, is not supported by Plaintiff’s Complaint.
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`Page 4 of Plaintiff’s Complaint identifies PTSD as the disability in question (but as
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`discussed below, determining that the PTSD is a disability is a legal conclusion). On that same
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`page of the Complaint, Plaintiff states, “T-Mobile discriminated against me by allowing
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`Broadspire their agent for leave of absence to deny me short-term benefits because of my
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`1 As set forth in Grief, the narrow exceptions previously identified are “official public documents, documents that
`are central to the plaintiff’s claim, and documents referred to in the complaint may be properly considered on a
`motion to dismiss without converting the motion to one for a summary judgment when the authenticity of such
`documents is not challenged.” 215 A.3d 1289, 2019 ME 142, n.2.
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`Case 1:21-cv-00224-GZS Document 14 Filed 01/12/22 Page 6 of 11 PageID #: 60
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`disability of PTSD.” (Complaint, at 4.) On page 5 of the Complaint, Plaintiff alleges, “T-Mobile
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`also discriminated when my request for an accommodation on 1/23/2020 was not approved.” (Id.
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`at 5.) Plaintiff is not alleging that his discharge was connected to any alleged disability
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`(Complaint, Exhibit 1, at pg. 2), only the denial of benefits and an accommodation.
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`On page 1 of Plaintiff’s MHRC Intake Questionnaire, which is outside of the scope of the
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`pleadings, but was provided to the Court in ECF Doc. 1-1, Plaintiff again only identifies PTSD
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`as his disability. Further, while Defendant maintains this document is not part of the pleadings,
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`Plaintiff does not allege that his termination was in any way related to his disability and instead
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`argues claims of age, race and whistleblower discrimination alleging: “I believe my performance
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`in June 2020, number one coach in the company shows that I do my job better than most coaches
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`in T-Mobile, but because I am Black, 66 years old, and have a complaint of discrimination
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`against the Oakland call center of T-Mobile, my position with T-Mobile was eliminated by the
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`Oakland call center leadership.”
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`The MHRC Complaint of Discrimination submitted by Plaintiff as Exhibit 2 to his
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`Complaint, does not identify any disability (all such information is redacted) and thus cannot be
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`used to support the Recommendation’s factual determinations.
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`The Recommendation instead relies upon Plaintiff’s Response to the Motion to Dismiss
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`which alleges that Plaintiff has “a service-connected disability which is, acquired psychiatric
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`disorder to include depressive disorder, generalized anxiety disorder and panic disorder.” (ECF
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`Doc. 10, at 2.) The Response to the Motion to Dismiss, however, is outside the pleadings and
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`such facts should not have been included in determining the legitimacy of Plaintiff’s ADA claim.
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`See Grief, 2019 ME 142, n.2; Stile v. Somerset Cty., 2015 WL 667814, at *2.
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`If such information were to be included in the Court’s determination, with Plaintiff’s
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`Response to the Motion to Dismiss treated as an affidavit (despite lacking language in the
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`pleading concerning the veracity of the statements), Defendant submits that Plaintiff has turned
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`the matter into one for summary judgment and has not met his burden of proof in maintaining
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`such a claim. As a result, Defendant submits that only Plaintiff’s statement that he has PTSD is
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`set forth in his pleadings to support a finding that he suffers from a disability.
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`iii. The Recommendation Improperly Infers that Plaintiff’s Alleged PTSD
`Substantial Affects the Major Life Activity of Working when no Such
`Limitations can be Plausibly Determined on the Face of Plaintiff’s
`Complaint under the Iqbal/Twombly Standard.
`In order to maintain an ADA cause of action, Plaintiff must demonstrate first that he has
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`an impairment that qualifies as a ‘disability’ under the applicable statutory definition.” Young v.
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`City of Bar Harbor, 2015 WL 2337868, at *8 (D. Me. Apr. 23, 2015). In determining that
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`Plaintiff met this definition, the Court relied upon facts outside of the Complaint and improperly
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`inferred that substantial life activities were effected by Plaintiff’s PTSD. Specifically, the
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`Recommendation concludes:
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`Plaintiff asserts in part that on his therapist’s recommendation, he requested an
`accommodation to work from home. Plaintiff’s assertions can reasonably be
`construed that to work with his alleged disability, Plaintiff must work from home.
`If Plaintiff must work from home because of his disability, Plaintiff would be
`precluded from a variety of jobs and not just his job with Defendant. Plaintiff,
`would be precluded from a variety of jobs and not just his job with Defendant.
`Plaintiff, therefore, has sufficiently pled the first element of a disability
`discrimination claim.
`As set forth below, however, none of these facts are set forth in Plaintiff’s Complaint and
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`accordingly should not be considered in determining the sufficiency of Plaintiff’s Complaint.
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`A court considering a motion to dismiss may begin by identifying allegations that,
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`because they are mere conclusions, are not entitled to the assumption of truth. While legal
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`conclusions can provide the complaint's framework, they must be supported by factual
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`allegations. Ashcroft v. Iqbal, 556 U.S. 662, 664, 129 S. Ct. 1937, 1940, 173 L. Ed. 2d 868
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`(2009). In Bailey v. Georgia-Pac. Corp., 306 F.3d 1162, 1168 (1st Cir. 2002), the First Circuit
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`notes that “[i]n order to prove that his impairment substantially interferes with the major life
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`activity of working, Bailey must make a weighty showing.” The court went on to state, “[p]roof
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`that an individual cannot ‘perform a single, particular job does not constitute [proof of] a
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`substantial limitation in the major life activity of working’” but instead a Plaintiff, “must prove
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`that he is ‘significantly restricted in the ability to perform either a class of jobs or a broad range
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`of jobs in various classes as compared to the average person having comparable training, skills
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`and abilities.’” In Ramos-Echevarris v. Pichis, Inc., 659 F.3d 182, 187 (1st Cir. 2011), cited in
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`the Recommendation, the court indicated that after a plaintiff establishes they suffer from a
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`disability, they “must demonstrate that it affects life activities that are ‘major,’” and finally, that
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`“the impairment ‘substantially limits’ the identified major life activity.” The court in Ramos-
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`Echevarris, went on to note that “Evidence of a medical diagnosis of impairment, standing alone,
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`is insufficient to prove a disability.” Id. Instead, a plaintiff is required “to specify the major life
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`activity in which he claims to be substantially limited.” Id. at 188.
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`Considering this standard, Plaintiff’s Complaint insufficiently alleges he is unable to
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`work. As set forth above, under Grief, Plaintiff’s Opposition is outside of the record and should
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`not be considered. As a result, this leaves the following allegations directly related to Plaintiff’s
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`alleged disability:
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`1) I have a PTSD. (Complaint at 4.)
`2) On or around June/17/19 I applied for short term disability. (CMECF Doc. 1-2, at 1.)
`3) On or around August/22/19 my request for short term disability was denied because I did
`not meet the definition of disability as outlined in their disability Program. (CMECF Doc.
`1-2, at 1.)
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`The remaining allegations are all identification of steps or activities allegedly taken by T-Mobile
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`or its alleged agent in response to Mr. Lewis’ request for an accommodation. As a result,
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`Plaintiff’s Complaint and the documents submitted with his Complaint fail to show that his
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`PTSD substantially limits one or more major life activities. See Roman-Oliveras v. P.R. Elec.
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`Power Auth., 655 F.3d 43, 48 (1st Cir. 2011).
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`Even if the facts set forth by Plaintiff were not outside the pleadings, Plaintiff’s
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`Opposition does not support a conclusion that he was substantially limited in his ability to work.
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`First, Plaintiff does not allege he can only work from home. Second, the Opposition indicates a
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`leave of absence and work from home accommodations were requested and that a leave was
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`granted. Third, even if the Court were to find that Plaintiff has alleged he requested a work from
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`home arrangement and that T-Mobile denied this request, Plaintiff has not identified what class
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`or classes of jobs he is unable to perform as required under Bailey v. Georgia-Pac. Corp.
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`Finally, Plaintiff does not identify the major life activity impacted by his disability and therefore
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`fails to meet the showing under Ramos-Echevarris. See 659 F.3d at 188 (Plaintiff must “specify
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`the major life activity in which he claims to be substantially limited.”). As a result, Plaintiff has
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`failed to appropriately allege he is disabled as he has not set forth (despite multiple attempts) a
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`major life activity that is substantially limited by his PTSD. As a result, his ADA claim(s) should
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`be denied.
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`iv. The Recommendation Improperly Relies on Plaintiff’s Sur-Reply to
`Assess Plaintiff’s Ability to Perform the Essential Functions of His
`Position.
`In considering the parties positions at this stage in the process, the Court is unable to rely
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`on Plaintiff’s Sur-Reply to Defendant’s motion to dismiss. As the Court held in Waterman, “I do
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`not consider the contents of the Sur-Reply in analyzing the motion to dismiss because [n]either
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`the Federal Rules [of Civil Procedure] nor the Local Rules permits a party to file a Sur-Reply to
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`the moving party's reply.” Waterman v. Paul G. White Interior Sols., No. 2:19-CV-00032-JDL,
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`2019 WL 5764661, at *6 (D. Me. Nov. 5, 2019) (internal quotes omitted). The Court’s
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`Recommendation relies on this Sur-Reply on Page 6 of the Recommendation saying “Plaintiff
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`has alleged that despite the stress he experienced and with his leaves of absence, the TEX team
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`he managed performed at a high level, allegations from which one could reasonably infer that he
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`could perform the essential functions of his job”. This information is taken from the Sur-Reply,
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`where Plaintiff states “My performance before and during this time until I was terminated should
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`demonstrate my ability to do the job. I led my team to the #1 spot for Team of Experts in the
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`month of June 2020.” Sur-Reply 2. The Court cannot rely on the Plaintiff’s Sur-Reply to make
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`this assessment. As a result, Plaintiff continues to fail to substantiate that he was able to perform
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`the essential functions of his job with or without a reasonable accommodation. Accordingly,
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`Plaintiff cannot make a prima facie showing of the second element of an ADA claim, see Young,
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`2015 WL 2337868, at *8, and his claims under the ADA should be dismissed.
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`CONCLUSION
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`For all of the above-stated reasons, and for those set forth in Defendant’s Motion to
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`Dismiss. Defendant respectfully requests that the Recommendation as to Plaintiff’s ADEA
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`Claim be adopted, but that the Recommendation as to Plaintiff’s ADA claim be rejected and the
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`Court dismiss Plaintiff’s Complaint with prejudice.
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`DATED January 12, 2022
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`/s/Tawny L. Alvarez
`Tawny L. Alvarez, Bar No. 005173
`Attorney for Defendant
`Verrill Dana, LLP
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`One Portland Square
`Portland, ME 04101
`207-774-4000
`talvarez@verrill-law.com
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`CERTIFICATE OF SERVICE
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`I certify that on January 12, 2022, I electronically filed Defendant’s Reply to Plaintiff’s
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`Opposition to Defendant’s Motion to Dismiss with the Clerk of Court using the CM/ECF system.
`I have further sent the Reply to Plaintiff at the below address:
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`Calvin Lewis, Jr.
`6 Hill Street
`Oakland, ME 04963
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`/s/Tawny L. Alvarez
`Tawny L. Alvarez, Bar No. 005173
`Attorney for Defendant
`Verrill Dana, LLP
`One Portland Square
`Portland, ME 04101
`207-774-4000
`talvarez@verrill-law.com
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`15627416_1
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