United States District Court, D. Montana, Missoula Division
DANA L. CHRISTENSEN, Chief District Judge.
United States Magistrate Judge Jeremiah C. Lynch entered his Findings and Recommendation on September 30, 2014, recommending that Clinton Rusthoven's Complaint be dismissed with prejudice for failure to state a claim upon which relief may be granted. Rusthoven timely objected to the Findings and Recommendation and is therefore entitled to de novo review of the specified findings or recommendations to which he objects. 28 U.S.C. § 636(b)(1). For the reasons stated below, the Court adopts Judge Lynch's findings and recommendation in full.
Rusthoven, proceeding pro se, filed an original Complaint and moved to proceed in forma pauperis on May 23, 2014. Upon in forma pauperis review, Judge Lynch dismissed the Complaint without prejudice for failure to state a claim. Rusthoven was given leave to amend his Complaint. Rusthoven then filed an Amended Complaint. Judge Lynch again conducted a preliminary screening of the Amended Complaint under Title 28 U.S.C. § 1915(e)(2). Based upon this screening, Judge Lynch found that Rusthoven's claims under Title I of the Americans with Disabilities Act ("ADA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), and the Genetic Information Nondiscrimination Act of 2008 ("GINA") were legally deficient, and therefore, recommended dismissal of the Complaint for failure to state a claim. Because the Court had already afforded Rusthoven an opportunity to cure defects previously identified, Judge Lynch recommended that the dismissal be with prejudice.
Judge Lynch correctly provided Rusthoven with notice of the defects in his Complaint in order to give Rusthoven an "opportunity to amend effectively." Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). Judge Lynch's Findings and Recommendation again provided Rusthoven with notice of the defects in his Amended Complaint. In his objections, Rusthoven has included information that was not pled in either of his Complaints. Because Rusthoven is a pro se litigant, and dismissal with prejudice is a harsh remedy, the Court will construe Rusthoven's objections as being incorporated into his Complaint.
I. Americans with Disabilities Act Claim
Rusthoven alleges discrimination under Title I of the ADA. Title I prohibits discrimination "against a qualified individual on the basis of disability in regard to job application procedures...." 42 U.S.C. § 12112(a). To prevail on his Title I claim, Rusthoven "must establish a prima facie case by showing that: (1) he is a disabled person within the meaning of the statute; (2) he is a qualified individual with a disability; and (3) he suffered an adverse employment action because of his disability." Hutton v. Elf Atochem North America, Inc., 273 F.3d 884, 891 (9th Cir. 2001) (citations omitted).
Rusthoven objects to Judge Lynch's findings and recommendations that Rusthoven's Title I claim is deficient. Though not alleged in his Amended Complaint, Rusthoven states in his objections that he has a "rare genetic syndrome that gives him a meek appearance, and caused physical genetic defects." (Doc. 12 at 2.) In his objections, Rusthoven has provided unathenticated photos of his "deformed tongue that prevents him from speaking and eating as compared to the average applicant for employment, " (Doc. 12-1 at 4), and of"his deformed right hand, " (Doc. 12-1 at 5). Even after incorporating these new facts into Rusthoven's Complaint, the Court concludes that Rusthoven fails to state a claim under Title I of the ADA.
Rusthoven does not allege any facts suggesting that the deformity of his right hand renders him a disabled person within the meaning of the ADA; thus the Court will only analyze the speaking and eating claims. Under the ADA, "disability" means "a physical or mental impairment that substantially limits one or more major life activities" of an individual. 42 U.S.C. § 12102(1 )(A). "Major life activities" include eating and speaking. 42 U.S.C. § 12102(2)(A). Whether a disability "substantially limits" Rusthoven's eating and speaking "requires an individualized assessment." 29 C.F.R. § 1630.20)(1)(iv).
This assessment requires a comparison of Rusthoven's eating and speaking "to most people in the general population." 29 C.F.R. § 1630.20)(1)(ii). The "substantially limits" standard, however, is not a "demanding standard, " 29 C.F.R. § 1630.20)(1)(ii), and should not require "extensive analysis, " 29 C.F.R. § 1630.20)(1)(iii).
Because Rusthoven is proceeding pro se, the pleading is held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Based on the lenient criterion applied to pro se complaints, and the undemanding requirements of the "substantially limits" standard, the Court concludes, after incorporating facts alleged in his objections, that Rusthoven has alleged sufficient facts to support a plausible claim that he is disabled within the meaning of the ADA.
B. Qualified Individual
Under the ADA, a "qualified individual" is "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). In his objections, Rusthoven claims that he has worked for school districts in Las Vegas, Nevada and Billings, Montana, and he also attached an unauthenticated photo of a substitute teacher identification badge for Billings School District #2 in his objections "to help support that he is qualified to be a substitute teacher in the state of Montana." (Doc. 12 at 7; Doc 12-1 at 1.) After incorporating these facts alleged in his ...