Appeals from the United States District Court No.
8:17-cv-00977-MSS-CPT for the Middle District of Florida
JORDAN, GRANT and HULL, Circuit Judges.
consolidated appeal, the plaintiff Equal Employment
Opportunity Commission ("EEOC") and intervenor
Kimberly Lowe appeal the entry of judgment for defendant
STME, LLC, d.b.a. Massage Envy-South Tampa ("Massage
Envy"), on their employment discrimination claims
brought under the Americans with Disabilities Act of 1990
("ADA"), as amended by the ADA Amendments Act of
2009. Although the EEOC brought only disability
discrimination claims, it is undisputed that Lowe was not
actually disabled when Massage Envy terminated her
employment. The EEOC, however, alleged that Massage Envy
violated the ADA because it fired Lowe when she refused to
cancel her trip to Ghana, a country in West Africa. Massage
Envy's stated reason for the termination was its fear
that Lowe might contract and later develop Ebola due to her
Ghana travel. This case involves issues of first impression
as to the meaning of "regarded as having such an
impairment," which is a statutory phrase contained in 42
U.S.C. § 12102(1)(C).
review and oral argument, we conclude that, even construing
the statute broadly, the terms of the ADA protect persons who
experience discrimination because of a current, past, or
perceived disability-not because of a potential future
disability that a healthy person may experience later.
Accordingly, we affirm the district court's final
judgment in favor of defendant Massage Envy.
this appeal arises at the motion-to-dismiss stage, we accept
as true the facts as alleged in the EEOC's complaint.
See Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir.
Lowe's Employment at Massage Envy
Envy is a wellness franchise that offers massage and skin
care services. In January 2012, Kimberly Lowe began working
as a massage therapist at a Massage Envy located in Tampa,
Florida. At all times relevant to this case, Lowe did not
have a disability. Rather, she was both capable of performing
her job duties and did perform her job duties in a
September 2014, Lowe asked Massage Envy for time off so that
she could visit her sister in Ghana, a country located in
West Africa. Massage Envy's business manager, Roxanna
Iorio, initially approved Lowe's request. However, on
October 22, 2014, three days before her scheduled trip, one
of Massage Envy's owners, Ronald Wuchko, met with Lowe
and told her that she would be fired if she went ahead with
her travel plans.
Wuchko was concerned that Lowe would become infected with the
Ebola virus if she traveled to Ghana and would "bring it
home to Tampa and infect everyone." At that time in
2014, there was an Ebola epidemic in Guinea, Liberia, and
Sierra Leone, three other nearby countries in West Africa.
According to Wuchko, he was worried about the
"potentially catastrophic consequences that an outbreak
of Ebola could pose to America." Because Lowe refused to
cancel her trip, Wuchko terminated her employment during that
October 22 meeting and before she left.
then traveled to Ghana as planned. She did not contract Ebola
while there. In fact, as it turned out, there was no Ebola
outbreak at all in Ghana in 2014. Upon her return from West
Africa, Lowe did not work at Massage Envy and was not
otherwise permitted to keep her massage appointment bookings
at Massage Envy.
Lowe's Charge and the EEOC's Investigation
November 2014, Lowe filed a Charge of Discrimination with the
EEOC, asserting that Massage Envy terminated her employment
because owner Wuchko believed that she would come into
contact with a person having Ebola while in Ghana. Based on
that allegation, Lowe claimed that she was discriminated
against because Massage Envy "perceived [her] as
disabled or . . . as having [the] potential to become
disabled," in violation of the ADA.
EEOC investigated Lowe's charge. Almost two years later,
on September 6, 2016, the EEOC issued a Letter of
Determination finding that there was "reasonable
cause" to believe that Massage Envy terminated
Lowe's employment because it "regarded" her as
disabled, in violation of the ADA. The EEOC invited Massage
Envy to engage in conciliation efforts, but those efforts
April 26, 2017, the EEOC filed this lawsuit, alleging in the
operative amended complaint that "Ebola is a physical
impairment that substantially limits those infected in one or
more major life activity, including, but not limited to,
circulatory function and immune system function." As
such, the EEOC alleged that: (1) Massage Envy violated the
ADA, 42 U.S.C. § 12112(a), by "terminating and not
permitting Lowe to return to work upon her return from Ghana
because it regarded her as disabled"; and (2) Massage
Envy violated the ADA, 42 U.S.C. § 12112(a) &
(b)(4), "by terminating and not permitting Lowe to
return to work upon her return from Ghana based upon Massage
Envy's fears and beliefs about Ebola and based upon her
association with people in Ghana whom Massage Envy believed
to be disabled by Ebola."
in the district court proceedings, the EEOC informed the
district court that it was "not alleg[ing] that Massage
Envy 'failed to reinstate or rehire' Lowe" in
its amended complaint. Relying on that representation, the
district court considered the EEOC's claims only to the
extent they applied to Lowe's October 22 termination, not
to any later refusal to rehire her. We do the same on
20, 2017, Lowe moved to intervene in the lawsuit. In her
intervenor complaint, Lowe recounted the same facts
surrounding her termination as the EEOC set forth in its
amended complaint. Based on those allegations, Lowe claimed
that Massage Envy's firing of her violated the ADA and
the Florida Civil Rights Act of 1992 ("FCRA")
because the termination decision was based on unfounded fears
and beliefs about Ebola and Lowe's risk for the disease.
Lowe's claims were based on the same theory that the EEOC
advanced-that Massage Envy perceived her as having a
disability and fired her due to that perceived disability.
in July 2017, Massage Envy moved to dismiss the EEOC's
amended complaint for failure to state a claim and failure to
exhaust administrative remedies. See Fed.R.Civ.P.
12(b)(6). While that Rule 12(b)(6) motion was pending, in
October 2017, the EEOC moved to file a second amended
complaint, in which it sought to raise an ADA unlawful
interference claim. In that new claim, the EEOC alleged that
when owner Wuchko told Lowe that she would be fired if she
did not cancel her Ghana trip, Massage Envy coerced,
intimidated, and threatened Lowe and interfered with her
exercise and enjoyment of rights under the ADA, in violation
of 42 U.S.C. § 12203(b). The EEOC suggested that
Lowe's interfered-with ADA rights were: (1) the right to
a reasonable accommodation if Lowe actually developed Ebola;
and (2) the right to associate with disabled persons,
i.e., people in Ghana with Ebola.
February 15, 2018 order, the district court: (1) granted
Massage Envy's motion to dismiss the EEOC's amended
complaint; (2) denied the EEOC's motion to file a second
amended complaint as futile; and (3) directed the clerk to
terminate all pending motions as moot, which included
Lowe's still-pending motion to intervene. As to the
merits of the ADA claims, the district court dismissed the
EEOC's "regarded as" disabled claim because
Massage Envy did not perceive Lowe as having Ebola at the
time it fired her. In so ruling, the district court declined
to expand the ADA's "regarded as having" prong
of the disability definition to cases like this one, in which
an employer fires an employee at a time when it
"perceives [the] employee to be presently healthy with
only the potential to become disabled in the future due to
voluntary conduct." The district court also concluded
that the EEOC's association claim lacked merit because
the EEOC did not allege that Massage Envy knew that Lowe had
an existing or past association with any person disabled by
Ebola at the time it fired her.
the EEOC's proposed second amended complaint, the
district court denied the EEOC's request to bring an
unlawful interference claim because, inter alia, any
such amendment would be futile, as Lowe had no existing
rights under the ADA when she was fired because she was not
disabled and had not associated with anyone who was disabled.
Thereafter, the district court entered final judgment in
favor of Massage Envy. This appeal followed.
STANDARD OF REVIEW
review de novo a district court's order granting
a motion to dismiss for failure to state a claim. Boyle
v. City of Pell City, 866 F.3d 1280, 1286 (11th Cir.
2017). "To survive a Rule 12(b)(6) motion to dismiss, a
complaint must plead 'enough facts to state a claim to
relief that is plausible on its face.'" Ray v.
Spirit Airlines, Inc., 836 F.3d 1340, 1347-48 (11th Cir.
2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 1974 (2007)). "A claim is
facially plausible when the plaintiff pleads sufficient facts
to allow the court to draw the reasonable inference that the
defendant is liable for the alleged misconduct."
Boyle, 866 F.3d at 1286.
review de novo questions of law, such as the
construction of a statute. Albra v. Advan, Inc., 490
F.3d 826, 829 (11th Cir. 2007). We "may affirm the
district court's judgment on any ground that appears in
the record, whether or not that ground was relied upon or
even considered by the [district court]." Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.
"REGARDED AS HAVING" A DISABILITY
interpreting the ADA, we are guided by the traditional canons
of statutory construction. "Our 'starting point'
is the language of the statute itself." Harrison v.
Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206,
1212-14 (11th Cir. 2010). We "assume that Congress used
the words of the statute as they are commonly and ordinarily
understood and must construe the statute so each of its
provisions is given full effect." United States v.
McLymont, 45 F.3d 400, 401 (11th Cir. 1995). To that
end, "[w]e do not look at one word or term in isolation,
but instead we look to the entire statutory context."
Harrison, 593 F.3d at 1212 (quotations omitted). We
now set forth the statutory text at issue here.