United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE
matter comes before the Court, without a hearing, on the
Motion to Dismiss (Doc. 9) filed by the Defendant, the City
of Ormond Beach (“the City”), and the Response in
Opposition (Doc. 12) filed by the Plaintiff, Christopher New.
to the facts alleged in the Complaint (Doc. 1), which for the
purposes of resolving this motion are taken as true, New
began working for the City as a maintenance worker in
November 2008. On November 11, 2014, the City fired New
citing his nonperformance of job-related duties-a reason New
claims is false. (Id. ¶¶ 14, 15.) New
alleges he was able to perform his job adequately, but admits
that it would take him longer to perform his job due to
“issues with [his] weight.” (Id. ¶
19.) New further alleges that the City “was aware of
issues with [his] weight” and that at one point a
supervisor asked him to “pick up [his] pace at
work.” (Id. ¶¶ 17, 18.) New claims
that he “was an individual who was disabled and/or
perceived as being disabled” when he “was
terminated from employment, due to issues with [his]
weight.” (Id. ¶ 16.) Thus, New concludes
that he was terminated based on his “disability and/or
perceived disability” in violation of the Americans
with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12101-12213, and the Florida Civil Rights Act
(“FCRA”), Fla. Stat. §§ 760.01-11.
(Doc. 1 ¶¶ 20, 31.)
Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) motion to dismiss
for failure to state a claim tests the sufficiency of the
complaint; it does not reach the merits of the case.
Milburn v. United States, 734 F.2d 762, 765 (11th
Cir.1984). In ruling on a motion to dismiss, the Court
accepts factual allegations as true and construes the
complaint in the light most favorable to the plaintiff.
SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th
Cir.1988). The Court limits its consideration to the
pleadings and any exhibits attached thereto. Fed.R.Civ.P.
10(c); see also GSW, Inc. v. Long Cty., Ga., 999
F.2d 1508, 1510 (11th Cir. 1993).
Rule of Civil Procedure 8(a)(2) mandates that pleadings
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, ” so as
to give the defendant fair notice of what the claim is and
the grounds upon which it rests. Conley v. Gibson,
35 U.S. 41, 47 (1957), overruled on other grounds,
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
The plaintiff must allege facts that raise a right to relief
above the speculative level and indicate the presence of the
required elements. Twombly, 550 U.S. at 555;
Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1302
(11th Cir. 2007). Conclusory allegations, unwarranted factual
deductions, or legal conclusions masquerading as facts will
not prevent dismissal. Davila v. Delta Air Lines,
Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
Ashcroft v. Iqbal, the Supreme Court explained that
a complaint need not contain detailed factual allegations,
“but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. 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.'” 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 555, 557) (internal
citations omitted). “[W]here the well-pleaded facts do
not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged-but it has not
‘show[n]'-‘that the plaintiff is entitled to
relief.'” Id. at 679 (quoting Fed.R.Civ.P.
Discrimination in Violation of the ADA and FCRA
provides that “no [employer] shall discriminate against
a qualified individual with a disability because of the
disability of such individual.” 42 U.S.C. §
12112(a). “In order to establish a prima facie case of
discrimination under the ADA, [a plaintiff] must demonstrate
that [he] (1) is disabled, (2) is a qualified individual, and
(3) was subjected to unlawful discrimination because of [his]
disability.” Greenberg v. BellSouth Telecomms.,
Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting
Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir.
2000)). Claims raised under the FCRA “are analyzed
under the same framework as the ADA.” Id. at
1263-64 (citing Chanda v. Engelhard/ICC, 234 F.3d
1219, 1221 (11th Cir. 2000)).
the first element of an ADA or FCRA claim, a plaintiff is
considered disabled if he has “(A) a physical or mental
impairment that substantially limits one or more of the major
life activities . . .; (B) a record of such an impairment; or
(C) [is] regarded as having such an impairment.” 42
U.S.C. § 12102(2). Major life activities are
“functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.” 29 C.F.R. § 1630.2(i);
Cash, 231 F.3d at 1305.
New has failed to allege sufficient facts to establish that
he is disabled. The only facts related to any alleged
disability are that New had “issues with weight”
(Doc. 1 ¶ 16); that the City “was aware of issues
with [his] weight” (Id. ¶ 17); and that
it would take New longer to perform his job duties because of
his weight (Id. ¶ 19). Thus, New's alleged,
yet unnamed, disability stems from his amorphous
“issues with weight.” Certainly, obesity can be a
disability in certain circumstances. Greenberg, 498
F.3d at 1264; see also Cordero v. Fla. Dep't
Env't Prot., 200 Fed. App'x 679, 680 (11th Cir.
2008) (finding that the plaintiff failed to establish a prima
facie case based on his morbid obesity when he
failed to establish a causal link with his termination);
Coleman v. Ga. Power Co., 81 F.Supp.2d 1365, 1369
(N.D.Ga. 2000) (“obesity, except in special cases where
the obesity relates to a physiological disorder, is not
‘physical impairment' within the meaning of the
[ADA]”). But here, New has not alleged that he suffers
from obesity-much less any other disability. New has also
failed to allege any facts showing that he either had a
record of a physical or mental impairment or that City
regarded him as having any such impairment.
Defendant's Motion to Dismiss (Doc. 9) is GRANTED and
Plaintiffs Complaint (Doc. 1) is DISMISSED without prejudice.
If Plaintiff wishes to file an amended ...