United States District Court, E.D. Virginia, Norfolk Division
Rebecca Beach Smith United States District Judge.
matter comes before the court on the Defendant's Motion
to Dismiss Second Amended Complaint, ECF No. 16, and
accompanying Brief in Support, ECF No. 17. The Plaintiff
filed a Memorandum of Law in Opposition ("Memorandum in
Opposition"), ECF No. 18, and the Defendant filed a
Reply, ECF No. 19. The Motion to Dismiss Second Amended
Complaint has been fully briefed and is now ripe for
Matthew Sturgill ("Sturgill") filed his Complaint
in this court on October 24, 2018, ECF No. 1, and filed an
Amended Complaint ("First Amended Complaint") on
November 15, 2018, ECF No. 6. On March 6, 2019, the court
issued a Memorandum Opinion and Order granting
Defendant's first Motion to Dismiss, ECF No. 7, without
prejudice and with leave to amend. ECF No. 14. On March 22,
2019, Sturgill filed a Second Amended Complaint. ECF No. 15.
The facts set forth herein are taken from Plaintiff Matthew
Sturgill's ("Sturgill") Second Amended
Complaint and are accepted as true for the purpose of
deciding Defendant's current Motion to Dismiss. See,
e.g., Ashcroft v. Iqbal, 556 U.S. 662, 679
April 16, 2018, Sturgill applied for a conductor position
with Defendant Norfolk Southern Railway Co.
(''Norfolk Southern") . Second Am. Compl. ¶
6. Norfolk Southern offered Sturgill the position on May 30,
2018. Id. ¶ 7. Following a pre-employment
physical, Norfolk Southern withdrew the offer. Id.
¶ 8. In the letter notifying Sturgill of the withdrawal,
Norfolk Southern cited Sturgill's body mass index
("BMI") as the sole reason for the withdrawal.
Id. In that letter, Norfolk Southern further stated
that "during [his] examination, [Sturgill] indicated
that [he] did not have an underlying physiological condition
that could cause obesity." Id. ¶ 10
(alterations in original). Sturgill alleges he "made no
such claim." Id.
has "primary male hypogonadism, which is an underlying
physiclogical [sic] condition that not only causes his
obesity but also substantially limits his ability to enjoy
and live a fulfilled life, if left untreated."
Id. ¶ 11. Specifically, primary male
hypogonadism causes Sturgill "to suffer from a high body
mass index, muscle weakness, and fatigue." Id.
¶ 13. Additionally, "Sturgill's body mass
index, in and of itself, substantially limits his ability to
enjoy and live a fulfilled life," by causing "him
to be in pain, have difficulty performing physical functions,
and be self-consious [sic]." Id. ¶¶
14, 16. "Neither his primary male hypogonadism, his high
body mass index, nor the effects of those disabilities,
however, prevent Sturgill from performing any of the
essential functions of a conductor." Id. ¶
17. Further, "Sturgill can perform each of a
conductor's essential functions without any
accommodation." Id. ¶ 18.
alleges that "Norfolk Southern knows that a high body
mass index is almost always causally related to a disability
or disabilities." Id. ¶ 21. "While
Norfolk Southern may not have know [sic] that Sturgill
sufferd [sic] from primary male hypogonadism, it therefore
knew that he suffered from some disability and was
discriminating against him on that basis." Id.
¶ 22. Therefore, Sturgill claims that when Norfolk
Southern withdrew the job offer because of Sturgill's
BMI, Norfolk Southern discriminated against Sturgill on the
basis of his disability, in violation of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 1210
et seq., as amended. Id. ¶¶ 1, 8,
also alleges that "[s]uch discrimination is pursuant to
a policy of not hiring employees with a high body mass
index." Id. ¶ 20. This policy arises from
two concerns. Id. ¶¶ 23-24. First, the
policy "arises from a concern that [employees with] high
body mass indexes are not good emplyees [sic]."
Id. ¶ 23. Second, the policy "arises from
a concern that employees with a high body mass index suffer
from sleep apnea, diabetes, and/or heart disease, which
Norfolk Southern believes could caused [sic] them to become
incapacitated." Id. ¶ 24. The conditions
of sleep apnea, diabetes, and heart disease impact the
individuals suffering from those conditions in a variety of
ways. Id. ¶¶ 25-27. Sleep apnea causes its
sufferes [sic] to be tired, have headaches, and/or be
depressed." Id. ¶ 25. "Diabetes can
kill its sufferers, cause them to have blurry vision, and
cause them to be fatigued." Id. ¶ 26.
"Heart disease can kill its sufferes [sic], cause them
to be in pain and/or cause them to be nauseaus [sic]."
Id. ¶ 27.
Sturgill claims that "[p]ursuant to its policy, Norfolk
Southern regarded Sturgill as having sleep apnea, diabetes,
and/or heart disease, and withdrew its offer because it was
concerned those disabilities would incapacitate him."
Id. ¶ 28. And, therefore, "Norfolk
Southern also discriminated against Sturgill on the basis of
a perceived disability." Id. ¶ 29.
Sturgill further claims that "Norfolk Southern has
engaged in a pattern and practice of violating the ADA."
Id. ¶ 30 (citing EEOC v. Norfolk Southern
Corp., No. 2:17-cv-1251 (W.D. Penn.)).
Sturgill alleges violations of the ADA for the withdrawal of
the job offer, and he requests a finding that Norfolk
Southern acted in direct violation of the ADA. Id.
¶¶ 31-40. As remedies for these violations,
Sturgill requests that he be reinstated and awarded
compensatory and punitive damages. Id. ¶ 41.
STANDARD OF REVIEW
to Rule 12(b) (6), a complaint must be dismissed when a
plaintiff's allegations "fail to state a claim
upon which relief can be granted." Fed.R.Civ.P.
12(b)(6). "A motion to dismiss under Rule 12(b)(6) tests
the sufficiency of a complaint; importantly, it does not
resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses." Republican
Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) .”To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Iqbal, 556 U.S. at 678 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Facial plausibility means that a "plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. (citing
Twombly, 550 U.S. at 556). It is, therefore, not
enough for a plaintiff to allege facts demonstrating a
"sheer possibility" or "mere
consist[ency]" with unlawful conduct. Id.
(citing Twombly, 550 U.S. at 557).
Supreme Court, in Twombly and Iqbal,
offered guidance to courts evaluating a motion to dismiss:
In keeping with these principles a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported
by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
Id. at 67 9. That is, the court accepts facts
alleged in the complaint as true and views those facts in the
light most favorable to the plaintiff. See, e.g.,
Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420
(4th Cir. 2005). After doing so, the court should grant the
defendant's motion if the plaintiff's
"well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct," because
"the complaint has alleged- but it has not
'show[n]'- 'that the pleader is entitled to
relief.'" Iqbal, 556 U.S. at 679
(alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)).
to 42 U.S.C. § 12112(a), "No covered entity shall
discriminate against a qualified individual on the basis of
disability in regard to job application procedures, the
hiring ... or discharge of employees, . . . and other terms,
conditions, and privileges of employment." Id.
To establish a prima facie case of employment discrimination
on a theory of disparate treatment under the ADA, a plaintiff
must prove (1) he has a "disability," (2) he is a
"qualified individual, " and (3) his employer took an
adverse employment action against him because of his
disability. Martinson v. Kinney Shoe Corp., 104 F.3d
683, 686 (4th Cir. 1997).
defines "disability" in three ways. See 42
U.S.C. § 12102(1) . First, an individual has a
disability if he or she has "a physical or mental
impairment that substantially limits one or more major life
activities of such individual." Id. §
12102(1)(A). Second, an individual has a disability if he or
she has "a record of such an impairment."
Id. § 12102(1) (B) . Third, an individual has a
disability if he or she is "regarded as having such an
impairment." Id. § 12102(1)(C).
Sturgill claims he has a disability under the ADA'S first
and third definitions of "disability." Second Am.
Compl. ¶¶ 1, 11, 13-14, 16, 19-29. Specifically,
Sturgill alleges his condition, primary male hypogonadism, is
a physical impairment that "substantially limits his
ability to enjoy and live a fulfilled life, if left
untreated," by causing "him to suffer from a high
body mass index, muscle weakness, and fatigue."
Id. ¶¶ 11, 13. Sturgill also alleges his
BMI is a physical impairment that "substantially limits
his ability to enjoy and live a fulfilled life," by
causing "him to be in pain, have difficulty performing
physical functions, and be self-consious [sic]."
Id. ¶¶ 14, 16. Sturgill further alleges
that "Norfolk Southern regarded Sturgill as having sleep
apnea, diabetes, and/or heart disease." Id.
Body Mass. Index Disability Claim
individual has a disability if that individual has "a
physical or mental impairment that substantially limits one
or more major life activities of such individual." 42
U.S.C. § 12102(1) (A). Major life activities are defined
to "include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating,
and working." Id. § 12102(2) (A). Major
life activities are further defined to "include the
operation of a major bodily function, including but not
limited to, functions of the immune system, normal cell
growth, digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and reproductive
functions." Id. § 12102 (2) (B) . To
adequately plead that his BMI alone is a disability, Sturgill
must plead facts to show that his BMI alone is (1) a physical
impairment that (2) substantially limits one or more major
life activities. Id. § 12102 (1) (A) .
Southern argues that "Sturgill's BMI is not and
cannot be a stand-alone disability." Br. Supp. at 9. To
the extent Sturgill asserts his high BMI itself is a
disability, Mem. Opp'n at 7-10, the court agrees with
Norfolk Southern that it is not. The court's March 6,
2019 Memorandum Order and Opinion previously held that
"Sturgill's BMI alone, without his underlying
condition, is not a physical impairment." Mem. Op. &
Order at 16 (citing Morriss v. BNSF Ry. Co., 817
F.3d 1104, 1108 (8th Cir. 2016)); see id. at 8 n.4
("Sturgill's allegations regarding his underlying
physiological condition, primary male hypogonadism, only
enable him to plausibly allege that his high BMI or obesity,
as caused by his primary male hypogonadism, is a
physical impairment." (citing Morri ...