United States District Court, W.D. Virginia, Roanoke Division
ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE.
Plaintiff Zane Caldwell, proceeding pro se, sues his former employer, defendant United Parcel Service, Inc. (UPS). The court dismissed Caldwell’s original complaint on UPS’s motion, but granted him leave to amend. In his amended complaint, Caldwell asserts claims for failure to accommodate and wrongful discharge under the Americans with Disabilities Act (ADA or Act), 42 U.S.C. § 12101 et seq.
UPS now moves again to dismiss. It argues that Caldwell’s amended complaint fails to state a claim upon which relief can be granted, and so it must be dismissed under Federal Rule of Civil Procedure 12(b)(6). The court agrees. It will thus grant UPS’s motion and dismiss Caldwell’s amended complaint.
In December 2013, Caldwell was working at UPS. (Compl. ¶¶ A, H(3), Dkt. No. 2.)Despite a knee injury, he was assigned to load trucks. (Id. ¶¶ H(3)-(6).) Because of the injury and other health problems, including the flu, Caldwell missed work from December 8 through December 12. (Id. ¶ H(3); EEOC Charge of Discrimination 3, Dkt. No. 9-1.) On each day, he texted his supervisor, Cody, telling him that he was going to be out. (Id. ¶ H(3); EEOC Charge 3; Am. Compl. ¶ 4, Dkt. No. 27; Am. Compl. Ex. B, Dkt. No. 27-3.) But Cody apparently did not relay the messages to management. UPS discharged Caldwell on December 16 for failure to notify the company of his absences. (Compl. ¶ H(3); Am. Compl. ¶ 9; EEOC Charge 3.)
Roughly four months later, on April 30, 2014, Caldwell filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission. (EEOC Charge 1.) In his charge, he claimed that UPS had denied him a reasonable accommodation and discharged him in violation of the ADA. (Id.) He alleged as follows:
I began employment on July 23, 1993, as a Sorter. In 2006, I sustained a work related injury. Thereafter, I asked my employer to provide reasonable accommodation. My multiple requests went unanswered for years. I even asked whether I could use a walking cane, but that was also denied. From December 8 thru 12, 2013, I was out of work due to multiple health problems, including the flu. On December 8, 9, 10, 11, and 12, 2013, I sent text messages to Cody, Supervisor[, ] but he did not respond. I also sent a text to Gary Evans, Manager. My Supervisor, Cody failed to pass on the messages to management. I provided a copy of telephone records outlining the text messages sent and received from my number. On December 16, 2013, I was discharged.
I believe I was denied reasonable accommodation and discharged, in violation of the Americans with Disabilities Act of 1990, as amended.
(Id. at 3.)
After the EEOC took no action on his charge and issued a notice of right to sue, Caldwell filed this action against UPS on June 30, 2015. (Compl. ¶ D.) On his civil cover sheet, he checked the Family and Medical Leave Act (FMLA) box in the “Nature of Suit” section, but he also wrote that he was bringing the action under the “Equal Employment Opportunities Act, 42 USC 2000e et seq” in the “Cause of Action” section. (Civil Cover Sheet 1, Dkt. No. 2-1.) For his original complaint, he used a preprinted form titled “Form to Be Used by Plaintiffs in Filing a Complaint Under the Equal Employment Opportunities Act, 42 USC 2000e et seq.” In answer to the form’s questions, he stated that he was unlawfully discharged from his employment on December 16, 2013, that the EEOC took no action on his charge, and that he was filing the action within 90 days of receiving a right-to-sue notice from the Commission. (Id. ¶¶ A, C-H.)
In response to the question about the reason UPS gave for his discharge, Caldwell stated: “No call[.] No show[.] [T]hey said failure to notify. [I] have . . . records for the dates they said [I] failed to notify[, ] but [sent] Cody Supervisor phone text where I notified him provided by U.S. Cellular records.” (Id. ¶ H(3).) According to Caldwell, however, UPS really fired him “because [he] got hurt during [the] busy season [and] was going to be out for [a] few days up to [a] week[, ] and they had [him] loading trucks.” (Id.)
Caldwell also stated in answer to the form’s questions that UPS has a grievance procedure and that he filed a grievance with the company over his discharge. (Id. ¶¶ H(4)-(5).) The grievance was denied. (Id.) Caldwell further stated that he has worked since his discharge. (Id. ¶ H(7).) He got a job working for FedEx doing a “400 piece pull for trucks to be loaded by drivers.” (Id.)
On UPS’s motion, the court dismissed Caldwell’s original complaint, concluding (among other things) that it failed to state a claim upon which relief could be granted. (Mem. Op. 10-11, Dkt. No. 25.) The court, however, granted Caldwell leave to file an amended complaint alleging any FMLA or ADA claim. (Order ¶¶ 6-7, Dkt. No. 26.) He has filed an amended complaint asserting two ADA claims-failure to accommodate and wrongful discharge. (Am. Compl. ¶¶ 9, 12.)
As to his failure-to-accommodate claim, Caldwell alleges that after tearing the meniscus in one of his knees, he asked for and received FMLA leave from UPS in April 2010. (Id. ¶ 11.) He further asserts that he “went to human resources and ask[ed] if [he] could bring a cane in and the answer was no.” (Id. ¶ 5) He also claims that he “asked to be moved to other work areas numerous . . . times, ” but “was denied while lesser sen[i]ority people got the opportunity.” (Id. ¶ ...