Disability Discrimination Claim Asserted by Plaintiff With Tourette’s Syndrome, Survives Dismissal

In Tohidi v. City of Reading Police Department, No. 5:24-cv-0591, 2024 WL 3015514 (E.D.Pa. June 13, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of disability discrimination asserted under the Americans with Disabilities Act (ADA).

From the decision:

The City asserts that Counts I and V (disability discrimination) should be dismissed for failure to state a claim because Tohidi fails to show pretext under the McDonnell Douglas framework. See Mot. 16-17, 19-20. The City further contends that Tohidi voluntarily resigned and has produced no evidence of the City’s knowledge of Tohidi’s alleged disability. See id. (relying on the PHRC’s investigative findings). However, these arguments are not appropriate at the motion to dismiss stage. See Connelly, 809 F.3d at 791 (holding that at the motion to dismiss stage the plaintiff is not required to show pretext, establish a prima facie case, or to engage in the sort of burden-shifting rebuttal that McDonnell Douglas requires later in the proceedings, but need only “plead facts that, construed in her favor, state a claim of discrimination that is ‘plausible on its face’ ” (quoting Twombly, 550 U.S. at 570)); Real-Loomis v. The Bryn Mawr Tr. Co., No. 20-0441, 2021 U.S. Dist. LEXIS 90234, at *10 n.5 (E.D. Pa. May 12, 2021) (stating that “for purposes of the instant 12(b)(6) analysis, [Plaintiff] need not establish by a preponderance of evidence that Defendant’s purported reason for terminating Plaintiff’s employment was a pretext for discriminatory conduct”); Diallo v. Commonwealth Support Servs., No. 18-1517, 2019 U.S. Dist. LEXIS 656, at *11 (E.D. Pa. Jan. 3, 2019) (“The issue of whether Plaintiff was constructively discharged is a ‘fact-intensive question’ that is inappropriate for a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6).”); Sever v. Henderson, 381 F. Supp. 2d 405, 419 (M.D. Pa. 2005) (Vanaskie, J.) (addressing the plaintiff’s evidence showing that the defendant knew of his disability at the motion for summary judgment stage).

The Amended Complaint alleges that Tohidi has Tourette’s syndrome, which causes him to make involuntary movements and/or sounds, and that because of his Tourette’s, the City’s agents perceived Tohidi as disabled and called him “retarded.” See Am. Compl. ¶¶ 9-11, 17. The allegations are sufficient to plausibly infer that the City’s agents perceived Tohidi as disabled. See Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995) (concluding that “some symptoms are so obviously manifestations of an underlying disability that it would be reasonable to infer that an employer actually knew of the disability”); Bentler v. Nederostek, No. 3:22-1107, 2023 U.S. Dist. LEXIS 86788, at *30 n.4 (M.D. Pa. May 17, 2023) (concluding that the plaintiff’s allegation that the defendants knew he suffered from a mental health condition by virtue of his panicked 911 call was sufficient at the motion to dismiss stage to plausibly infer the defendants knew the plaintiff suffered from a mental disability so as to state an ADA claim). Tohidi’s allegations that as a result of the name calling and discriminatory treatment he experienced, he was constructively discharged, see Am. Compl. ¶ 123, are also sufficient at the motion to dismiss stage to plead adverse action. See Turner v. Pennsylvania, No. 07-273 Erie, 2009 U.S. Dist. LEXIS 62621, at *13 (W.D. Pa. June 29, 2009) (concluding that the plaintiff’s allegations that the defendants were aware of her diabetes, that her diabetes constitutes a disability under the ADA, and that she was demoted because of her disability, was sufficient to survive a motion to dismiss).

The court concluded that these allegations, combined with plaintiff’s allegation that he was disabled but capable of performing his job duties, are sufficient to state a claim for disability discrimination.

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