United States District Court, W.D. Arkansas, Fayetteville Division
JERRY COOK, on behalf of himself and all others similarly situated PLAINTIFF
GEORGE'S, INC. DEFENDANT
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
pending before the Court are a Motion to Dismiss (Doc. 9) and
Brief in Support (Doc. 10) filed by Defendant George's,
Inc. ("George's"), Plaintiff Jerry Cook's
Response in Opposition (Doc. 19) and Brief in Support (Doc.
20), and George's Reply (Doc. 25); and Cook's First
Motion for Leave to Amend Complaint (Doc. 27) and
George's Response in Opposition (Doc. 29). For the
reasons explained herein, Defendant's Motion to Dismiss
is GRANTED, and Plaintiff's Motion for
Leave to Amend is DENIED.
original Complaint (Doc. 1) was filed in this Court on June
28, 2018. It alleges that Cook and members of a putative
class were discriminated against by George's due to a
disability or perceived disability. In the Complaint, Cook
maintains that he "has a mental impairment that
substantially impairs his ability to think, communicate,
concentrate, work, and interact with others, as well as a
physical impairment that substantially impairs his ability to
lift." Id. at 2. He contends he applied for a
job with George's, but he fails to disclose in the
Complaint either the name of the job he applied for or the
nature of the duties associated with the job. He focuses
instead on his allegation that on "[t]he first day the
George's Employment Center opened," someone at
George's had already placed the code "333" next
to Cook's name in the company's applicant database.
George's supposedly placed the "333" code next
to an applicant's name when it was determined that the
applicant had a "medical problem which precluded any
consideration whatsoever." Id.
admits he was offered an interview "almost two weeks
after his original application [was submitted]. . . ."
Id. at 3. He also admits that he "missed the
interview." Id. He claims he traveled to
George's Employment Center the day after he missed the
interview and asked to reschedule it, but his request was
denied-even though George's supposedly "let other
applicants interview after a no-show interview, very
often." Id. at 4.
Complaint, Cook asserts a cause of action for illegal
discrimination under the Americans with Disabilities Act
("ADA") and the Arkansas Civil Rights Act
("ACRA"), as well as a cause of action for
retaliation under both the ADA and ACRA. The retaliation
claim merely states that George's "retaliated
against Plaintiff for opposing discriminatory activities and
engaging in a protected activity," id. at 6,
but fails to disclose any facts that would explain: (1) how
Cook "oppos[ed] discriminatory activities" prior to
or during the job application process, or (2) what sort of
protected activities Cook engaged in that allegedly provoked
George's to retaliate against him.
August 15, 2018, George's moved to dismiss the Complaint,
arguing that Cook failed to allege facts to support that he
is disabled under the ADA and ACRA, that there is a link
between his alleged disability and the adverse employment
action he suffered, or that he engaged in statutorily
protected conduct that would form the basis for a claim of
retaliation. Cook responded that an ADA-qualifying disability
"need not [be] identified by name, its effects need not
be identified specifically, the accommodation need not be
identified specifically, and the harassment need not be
identified specifically, nor must the facts underlying intent
be named specifically." (Doc. 20, p. 5). And as for the
retaliation claim, Cook responded:
On this, Plaintiff had to complete the forms in order to be
interviewed. Those forms would have revealed his health
issues and need for accommodation because they request that
information. If he is not hired because he filled out a form
indicating a need for retaliation, that is class retaliation.
Id. at 9.
September 28, 2018, apparently in reaction to George's
Motion to Dismiss, Cook filed a Motion for Leave to Amend the
Complaint (Doc. 27). The proposed amended complaint (Doc.
27-1) is identical to the original except for the addition of
a few new facts and one new legal argument. The new facts
appear in paragraph 6 of the proposed amended complaint, in
which Cook explains in some detail how he came to suffer the
alleged mental and physical disabilities he now claims. The
new legal argument appears at the tail end of paragraph 17.
He contends that because George's performed an
"illegal medical inquiry" in the course of the job
application process, Cook will not be required to establish
that he has an actual or perceived disability in order to
state a valid legal claim for disability discrimination under
the ADA. (Doc. 27-1, pp. 4-5). For its part, George's
opposes Cook's Motion for Leave to Amend and contends
that the proposed amended pleading fails to cure the
deficiencies in the original Complaint. Below, the Court will
consider, first, the Motion to Dismiss the original
Complaint, and second, the Motion for Leave to Amend.
survive a motion to dismiss, a pleading must contain "a
short and plain statement of the claim showing that the
pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
The purpose of this requirement is to "give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests." Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell AH.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court
must accept all of a complaint's factual allegations as
true, and construe them in the light most favorable to the
plaintiff, drawing all reasonable inferences in the
plaintiff's favor. See Ashley Cnty., Ark. v. Pfizer,
Inc., 552 F.3d 659, 665 (8th Cir. 2009).
the complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. "A
pleading that offers 'labels and conclusions' or
'a formulaic recitation of the elements of a cause of
action will not do.' Nor does a complaint suffice if it
tenders 'naked assertion[s]' devoid of 'further
factual enhancement.'" Id. In other words,
while "the pleading standard that Rule 8 announces does
not require 'detailed factual allegations,' ... it
demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation." Id.