Case: 18-11121 Date Filed: 09/12/2019 Page: 1 of 33
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
Nos. 18-11121, No. 18-12277 ________________________
D.C. Docket No. 8:17-cv-00977-MSS-CPT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
KIMBERLY LOWE,
Intervenor-Appellant,
versus
STME, LLC, d.b.a. Massage Envy-South Tampa,
Defendant-Appellee.
________________________
Appeals from the United States District Court for the Middle District of Florida ________________________
(September 12, 2019) Case: 18-11121 Date Filed: 09/12/2019 Page: 2 of 33
Before JORDAN, GRANT and HULL, Circuit Judges.
HULL, Circuit Judge:
In this 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).
After 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
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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.
I. FACTUAL BACKGROUND
Because 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. 2016).
A. Lowe’s Employment at Massage Envy
Massage 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 satisfactory manner.
In 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.
Owner 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
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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.
Lowe 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. 1 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.
B. Lowe’s Charge and the EEOC’s Investigation
In 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
1 While the West Africa Ebola epidemic spread to other parts of Africa, Europe, and the United States, the epicenter of the outbreak was in the countries of Guinea, Sierra Leone, and Liberia in West Africa. 2014-2016 Ebola Outbreak Distribution in West Africa, Centers for Disease Control and Prevention, https://www.cdc.gov/vhf/ebola/history/2014-2016- outbreak/index.html (last visited on Sept. 12, 2019). Owner Wuchko’s fear was unfounded. Although Ghana is nearby and also in West Africa, there were no confirmed cases of Ebola in Ghana during the 2014 outbreak. 4 Case: 18-11121 Date Filed: 09/12/2019 Page: 5 of 33
because Massage Envy “perceived [her] as disabled or . . . as having [the] potential
to become disabled,” in violation of the ADA.
The 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
failed.
II. PROCEDURAL HISTORY
On 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.”
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Later, 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 appeal.2
On June 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.
Thereafter, 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
2 On appeal, the EEOC argues that the district court erred in cabining its claims to Lowe’s termination. We will not consider this argument because whatever error, if any, the district court committed by not considering the EEOC’s claims as to Massage Envy’s failure to reinstate or rehire Lowe was invited by the EEOC. See United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998) (The doctrine of invited error precludes appellate review “when a party induces or invites the district court into making an error.”). 6 Case: 18-11121 Date Filed: 09/12/2019 Page: 7 of 33
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.
In a 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
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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.
As to 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.
III. STANDARD OF REVIEW
We 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.
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We also 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. 2007).
IV. “REGARDED AS HAVING” A DISABILITY
In 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.
A. Statutory Text
Under § 12112(a) of the ADA, an employer is generally prohibited from
“discriminat[ing] against a qualified individual on the basis of disability in regard
to job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges
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of employment.” 42 U.S.C. § 12112(a). To state a disability discrimination claim,
a claimant must allege that she was a “qualified individual” who suffered an
adverse employment action because of her “disability” as those terms are defined
by the ADA. Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1267–68
(11th Cir. 2014).
In § 12102(1), the ADA defines the statutory term “disability,” with respect
to an individual, to mean:
(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in paragraph (3)).
42 U.S.C. § 12102(1) (emphasis added). “Accordingly, to fall within this
definition one must have an actual disability (subsection (A)), have a record of a
disability (subsection (B)), or be regarded as having one (subsection (C)).” Sutton
v. United Air Lines, Inc., 527 U.S. 471, 478, 119 S. Ct. 2139, 2144 (1999),
abrogated on other grounds by the ADA Amendments Act of 2008, Pub. L. No.
110-325, 122 Stat. 3553 (2008).
In turn, paragraph 3 in § 12102(3)(A), describes “regarded as having such an
impairment,” for purposes of § 12102(1)(C), as follows:
For purposes of paragraph (1)(C): . . . An individual meets the requirement of “being regarded as having such an impairment” if the
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individual establishes that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
42 U.S.C. § 12102(3)(A) (emphasis added). This provision does not apply to
“impairments that are transitory and minor.” Id. § 12102(3)(B). Taking these
definitions together, an employee has a “disability” under the ADA when that
employee actually has, or is perceived as having, an impairment that is not
transitory and minor.
The relevant time period for assessing the existence of a disability, so as to
trigger the ADA’s protections, is the time of the alleged discriminatory act. See
Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306, 1312 (11th Cir.
2007) (assessing parallel provision of the Rehabilitation Act); 3 Cash v. Smith, 231
F.3d 1301, 1306 n.5 (11th Cir. 2000) (“The employment action that Cash is
complaining of occurred in late April and early May of 1998, and we evaluate her
disability as manifested at that time.”); EEOC v. Chevron Phillips Chem. Co., 570
F.3d 606, 618 (5th Cir. 2009) (“In an ADA case, the relevant time for assessing the
existence of a disability is the time of the adverse employment action.”).
3 The Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. applies the same standards and follows the same analysis as claims under the ADA. Sutton v. Lader, 185 F.3d 1203, 1207 n.5 (11th Cir. 1999).
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B. Analysis of “Regarded As Having” a Disability
There is no dispute that Lowe was a qualified individual and she suffered an
adverse employment action. Rather, the main question is whether Lowe was
“disabled” within the meaning of the ADA at the time of Massage Envy’s
termination of her employment, that is, before her trip to Ghana. Lowe
undisputedly did not have an actual existing disability or a record of disability
when she was fired. Thus, the issue here becomes solely whether she was
“regarded as having” a disability when fired.
The EEOC contends that Lowe meets the “regarded as” prong of the
disability definition because Massage Envy regarded her (or perceived her) as
having a disability due to its belief that she would contract Ebola in the future
while traveling in Ghana. In reply, Massage Envy stresses that owner Wuchko did
not perceive Lowe as having Ebola; rather he perceived her as having the potential
or possibility of becoming infected in the future if she traveled to Ghana (i.e.,
becoming disabled in the future).
For several reasons, we must conclude that the disability definition in the
ADA does not cover this case where an employer perceives a person to be
presently healthy with only a potential to become ill and disabled in the future due
to the voluntary conduct of overseas travel. The EEOC’s claim does not fall within
the scope of the “regarded as having” prong of the ADA’s disability definition.
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First, we do not read the “regarded as having” prong in § 12102(1)(C), as
described in § 12102(3)(A), in isolation. Rather, the ADA’s definition of
“disability” in § 12102(1) provides that a disability is a present “physical or mental
impairment,” “a record of such an impairment,” or “being regarded as having such
an impairment.” See id. § 12102(1)(A)–(C) (emphasis added). It is well settled
that “impairment” in the first “actual disability” prong, § 12102(1)(A), is limited to
impairments that exist at the time of the adverse employment action and does not
include impairments that manifest after the alleged discrimination. See Mazzeo,
746 F.3d at 1268 (explaining that, for ADA discrimination claims, a plaintiff must
show that she had a disability “at the time of the adverse employment action.”
(emphasis added)); Chevron Phillips Chem., 570 F.3d at 618 (“In an ADA case,
the relevant time for assessing the existence of a disability is the time of the
adverse employment action.”); Cash, 231 F.3d at 1306 n.5 (providing that a later
manifesting impairment was irrelevant to an ADA claim because courts evaluate
an employee’s disability as manifested at the time of the discriminatory
employment action).
It follows that “impairment” in the “regarded as” statutory prong,
§ 12102(1)(C), has the same meaning as “impairment” in the actual disability
prong, § 12102(1)(A). See Ratzlaf v. United States, 510 U.S. 135, 143, 114 S. Ct.
655-660 (1994) (“A term appearing in several places in a statutory text is generally
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read the same way each time it appears.”); Sullivan v. Stroop, 496 U.S. 478, 484,
110 S. Ct. 2499, 2504 (1990) (reciting the well-established proposition that
“identical words used in different parts of the same act are intended to have the
same meaning” (internal quotation marks omitted)). This is especially true here
where § 12102(1)(C) refers to “such an impairment,” which necessarily refers back
to § 12102(1)(A). 42 U.S.C. § 12102(1)(A), (C) (emphasis added). In “regarded
as” cases, a plaintiff must show that the employer knew that the employee had an
actual impairment or perceived the employee to have such an impairment at the
time of the adverse employment action. 42 U.S.C. § 12102(3)(A). Further, the
impairment must not be “transitory and minor.” Id. § 12102(3)(B).
Second and similarly, when § 12102(3)(A) is read most naturally, an
individual meets the requirement of being regarded as disabled only if she was
subject to termination “because of an actual or perceived physical or mental
impairment.” See 42 U.S.C. § 12102(3)(A). An employer does not fire or
otherwise discriminate against an employee “because of” a perceived physical
impairment unless the employer actually perceives that the employee has the
impairment. Section 12102(3)(A) does not, by its terms, extend to an employer’s
belief that an employee might contract or develop an impairment in the future. See
EEOC v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 2018) (agreeing that, under
§ 12102(3)(A), for an employer to regard an individual as having a disability, the
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employer “must have regarded him as having a current impairment”); Adair v. City
of Muskogee, 823 F.3d 1297, 1306 (10th Cir. 2016) (providing in a § 12102(3)(A)
case, “for a plaintiff alleging disability discrimination to show that the employer
regarded h[er] as having an impairment, the plaintiff must show that (1) [s]he has
an actual or perceived impairment, (2) that impairment is neither transitory nor
minor, and (3) the employer was aware of and therefore perceived the impairment
at the time of the alleged discriminatory action.”); Morriss v. BNSF Ry. Co., 817
F.3d 1104, 1113 (8th Cir. 2016) (stating for a § 12102(3)(A) claim, “[t]he ADA
does not prohibit discrimination based on a perception that a physical
characteristic—as opposed to a physical impairment—may eventually lead to a
physical impairment as defined under the Act. Instead, the plain language of the
ADA prohibits actions based on an existing impairment or the perception of an
existing impairment.”).
Third, we recognize that the ADA directs that “[t]he definition of
disability . . . shall be construed in favor of broad coverage of individuals.” See
id. § 12102(4)(A). But that is only “to the maximum extent permitted by the terms
of this chapter.” Id. Even construing the disability definition broadly in favor of
coverage, we still conclude that the terms of the ADA protect anyone who
experiences discrimination because of a current, past, or perceived disability—not
a potential future disability. Id. §§ 12102(1), 12102(3)(A).
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Fourth, our conclusion is consistent with the EEOC’s own interpretive
guidance, which states that a predisposition to developing an illness or disease is
not a physical impairment. See Harrison, 593 F.3d at 1214 (“[A]lthough
administrative interpretations of an Act by its enforcing agency are not controlling,
they do constitute a body of experience and informed judgment to which
[we] . . . may properly resort for guidance.” (internal quotation marks omitted)). In
its regulations, the EEOC counsels that “[i]t is important to distinguish between
conditions that are impairments and physical, psychological, environmental,
cultural, and economic characteristics that are not impairments.” 29 C.F.R. Pt.
1630, App. § 1630.2(h). Those regulations further state that “characteristic
predisposition to illness or disease” does not constitute a physical impairment
under the ADA. Id. If a predisposition to developing a disease in the future is not
a physical impairment, by analogy, we do not see how Lowe’s heightened risk of
developing the disease Ebola in the future due to her visit to Ghana constitutes a
physical impairment either. As a result, under the facts of this case, Massage Envy
did not perceive Lowe as having a physical impairment within the meaning of the
ADA when it terminated her employment.
The EEOC disagrees, urging instead that the ADA is broad enough to
prohibit an employer from firing an employee because the employer perceives that
the employee will imminently contract a disease in the near future. The EEOC
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reaches this conclusion by focusing on the present tense of the verbs in the
“regarded as” prong of the disability definition in § 12102(1)(C)—“being regarded
as having such an impairment”—and the Dictionary Act, which instructs: “[i]n
determining the meaning of any Act of Congress, unless the context indicates
otherwise . . . words used in the present tense include the future as well as the
present.” 1 U.S.C. § 1. With the Dictionary Act in hand, the EEOC asserts that we
should read the “regarded as” prong in § 12102(1)(C) to include “being regarded as
will be having such an impairment.” Despite the extraordinarily awkward prose
that results, it is that interpretation, so says the EEOC, that catches the facts of this
case.4 We are not persuaded.
While it is true that the phrase “being regarded as having such an
impairment” contains present tense verbs, the ADA’s plain language and context
indicates that the Dictionary Act does not apply here as the EEOC suggests. See
Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194,
199, 113 S. Ct. 716, 720 (1993) (“‘Context’ [in the Dictionary Act] means the text
4 At oral argument, the EEOC also suggested that we should read the “regarded as” disabled prong as “being regarded as having an imminent impairment.” Although that phrase reads better than the other alternative offered by the EEOC, the Dictionary Act does not authorize us to add the word “imminent” to a statute wherever we see fit. See Carr v. United States, 560 U.S. 438, 448, 130 S. Ct. 2229, 2236 (2010) (explaining that section 1 of the Dictionary Act “ascribes significance to verb tense” (emphasis added)); Catskill Dev., LLC v. Park Place Entm’t Corp., 547 F.3d 115, 126 (2d Cir. 2008) (relying on the Dictionary Act to read the verb “is” as “will be” in a provision of the Indian Gaming Regulatory Act, 25 U.S.C. § 2703(4)). 17 Case: 18-11121 Date Filed: 09/12/2019 Page: 18 of 33
of the Act of Congress surrounding the word at issue, or the texts of other related
congressional Acts, and this is simply an instance of the word’s ordinary
meaning.”).
As noted earlier, § 12102(3)(A) provides the express, specialized definition
of “regarded as having such an impairment” for purposes of the ADA. To meet the
requirements of “being regarded” as disabled under § 12102(3)(A), an individual
must establish, in relevant part, that “she has been subjected to an action prohibited
under this chapter because of an actual or perceived physical or mental
impairment.” 42 U.S.C. § 12102(3)(A). Notably, that statutory phrase in
§ 12102(3)(A) contains no present tense verb for the Dictionary Act to carry into
the future. Rather, by its terms, for an employee to qualify as “being regarded as”
disabled, the employer must have perceived the employee as having a current
existing impairment at the time of the alleged discrimination.
We reject the EEOC’s reading of § 12102(1)(C), as it ignores altogether the
ADA’s direction in § 12102(3)(A). See Corley v. United States, 556 U.S. 303,
314, 129 S. Ct. 1558, 1566 (2009) (noting that it is “one of the most basic” canons
of statutory interpretation that “a statute should be construed so that effect is given
to all its provisions” (internal quotation marks and citations omitted)). “‘It is the
duty of the court to give effect, if possible, to every clause and word of a statute.’”
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In re Failla, 838 F.3d 1170, 1175 (11th Cir. 2016) (quoting Inhabitants of
Montclair Twp. v. Ramsdell, 107 U.S. 147, 152, 2 S. Ct. 391, 395 (1883)).
And to come full circle, in reading the ADA most naturally, we would
expect “regarded as having such an impairment” in § 12102(1)(C)—the paragraph
relied upon by the EEOC—to retain the same meaning as that phrase is explicitly
given by its definition in § 12102(3)(A). To be sure, “[i]n all but the most unusual
situations, a single use of a statutory phrase must have a fixed meaning.” Cochise
Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S. __, __, 139 S. Ct. 1507,
1512 (2019). This is especially so because the two paragraphs cross-reference one
another. Compare 42 U.S.C. § 12102(1)(C) (“being regarded as having such an
impairment (as described in paragraph (3) (emphasis added)), with id.
§ 12102(3)(A) (“For purposes of paragraph (1)(C): (A) An individual meets the
requirement of ‘being regarded as having such an impairment’ if the individual
establishes . . . .” (emphasis added)).
With these principles in mind, we conclude that the EEOC failed to state a
“regarded as” disabled claim because it did not allege that Massage Envy
perceived that Lowe had an existing impairment at the time it terminated her
employment. The district court did not err in dismissing the EEOC’s “regarded as”
claim.
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V. ASSOCIATION DISCRIMINATION
Next, we turn to the EEOC’s claim of association discrimination under the
ADA. See 42 U.S.C. § 12112(b)(4). In this claim, the EEOC alleged that Massage
Envy violated the ADA by firing Lowe based on “her association with people in
Ghana whom Massage Envy believed to be disabled by Ebola.”
Under § 12112(b)(4), the ADA defines “discriminate” to include “excluding
or otherwise denying equal jobs or benefits to a qualified individual because of the
known disability of an individual with whom the qualified individual is known to
have a relationship or association.” 42 U.S.C. § 12112(b)(4).
This association discrimination provision “was intended to protect qualified
individuals from adverse job actions based on ‘unfounded stereotypes and
assumptions’ arising from the employees’ relationships with particular disabled
persons.” Oliveras–Sifre v. Puerto Rico Dep’t of Health, 214 F.3d 23, 26 (1st Cir.
2000). Indeed, the provision “was apparently inspired in part by testimony before
House and Senate Subcommittees pertaining to a woman who was fired from her
long-held job because her employer found out that the woman’s son, who had
become ill with AIDS, had moved into her house so she could care for him.” Den
Hartog v. Wasatch Acad., 129 F.3d 1076, 1082 (10th Cir. 1997).
To state a prima facie claim for association discrimination, the plaintiff must
show: “(1) that she was subjected to an adverse employment action; (2) that she
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was qualified for the job at that time; (3) that her employer knew at that time that
she had a relative [or associate] with a disability; and (4) that the adverse
employment action occurred under circumstances which raised a reasonable
inference that the disability of the relative [or associate] was a determining factor
in the employer’s decision.” Wascura v. City of S. Miami, 257 F.3d 1238, 1242
(11th Cir. 2001) (internal quotation marks and alteration omitted). As to the third
prong, while the nature of the relationship in question need not be familial, see 29
C.F.R. § 1630.8, a plaintiff must show an association or relationship with a specific
disabled person or persons. See 42 U.S.C. § 12112(b)(4).
Like the district court, we conclude that the EEOC failed to state an
association discrimination claim under the ADA because it did not plausibly allege
that Massage Envy knew that Lowe had an association with a specific disabled
individual in Ghana when it terminated her employment. As a matter of fact, the
only specific person that Massage Envy knew that Lowe would associate with in
Ghana was her sister. But the EEOC never alleged that Lowe’s sister had Ebola or
that Massage Envy thought that her sister had Ebola. 5
Instead, the EEOC contended, in essence, that Massage Envy believed Lowe
might come into contact with certain unknown individuals while traveling in
Ghana whom Massage Envy thought might have Ebola. This is too attenuated to
5 Lowe’s intervenor complaint does not allege that either. 21 Case: 18-11121 Date Filed: 09/12/2019 Page: 22 of 33
state an association discrimination claim under § 12112(b)(4) of the ADA, which
requires both a known association and a known disability. See 42 U.S.C.
§ 12112(b)(4) (prohibiting employment discrimination “because of the known
disability of an individual with whom the qualified individual is known to have a
relationship or association” (emphasis added)).
Moreover, the EEOC failed to plausibly allege a sufficient association or
relationship with said unknown individuals with Ebola in any event. Lowe
certainly was not traveling to Ghana to assist with the Ebola epidemic. See, e.g.,
29 C.F.R. Pt. 1630, App. § 1630.8 (suggesting that an employee doing volunteer
work with people with AIDS might be the type of “association” contemplated by
§ 12112(b)(4) of the ADA). And, of course, there was no Ebola outbreak in Ghana
in the first place. But even if some people in Ghana did have the disease, the
EEOC has merely alleged that Lowe might come into contact with those
individuals while traveling in the country. That is too loose of an association for
purposes of a claim under § 12112(b)(4).
In so concluding, we are persuaded by the Fourth Circuit’s decision in
Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002). In
Freilich, the defendant hospital terminated the plaintiff physician. Id. at 209. In
her complaint, the physician raised, inter alia, a claim for association
discrimination under the ADA, alleging that she was discriminated against because
22 Case: 18-11121 Date Filed: 09/12/2019 Page: 23 of 33
she refused to end her advocacy on behalf of her dialysis patients and was denied
various privileges because of her “association with and her relationship to patients
with disabilities.” Id. at 216 (internal quotation marks omitted). The Fourth
Circuit disagreed, concluding that the physician’s complaint did not state an
association discrimination claim because she alleged only “a loose association with
disabled patients.” Id. The Fourth Circuit reasoned that “such generalized
references to association with disabled persons or to advocacy for a group of
disabled persons are not sufficient to state a claim for association[] discrimination
under the ADA.” Id. As “[e]very hospital employee can allege at least a loose
association with disabled patients,” allowing the plaintiff physician “to proceed on
such a basis would arm every hospital employee with a potential ADA complaint.”
Id. “A step of that magnitude is for Congress, not this court, to take.” Id.
In this case, the EEOC has alleged an association even “looser” than the
physician and patient relationship in Freilich. Here, the EEOC’s entire claim is
based on Massage Envy’s concern that Lowe might come across some unknown
person with Ebola while traveling in Ghana. But the EEOC has not cited to, nor
are we aware of, a single case involving an association discrimination claim
premised on an employer’s belief about an employee’s potential casual association
with unknown disabled people.
23 Case: 18-11121 Date Filed: 09/12/2019 Page: 24 of 33
At the end of the day, we need not, and do not, weigh in on whether it was
unfair or misguided for Massage Envy to fire Lowe after she refused to cancel her
trip to Ghana. As we have repeatedly and emphatically held, “[a]n employer may
fire an employee for a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not for a discriminatory reason”
contrary to federal law. Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1262
(11th Cir. 2001) (internal quotation marks omitted). Our sole concern is whether
Massage Envy violated the ADA. On that score, the answer is no. The district
court correctly dismissed this claim.
VI. UNLAWFUL INTERFERENCE
On appeal, the EEOC does not raise any arguments as to its claim that
Massage Envy interfered with Lowe’s exercise and enjoyment of her rights under
the ADA. However, Lowe does, arguing that the district court wrongly concluded
that it would be futile to allow the EEOC to amend its complaint to add this
interference claim. 6 We disagree.
Under the Federal Rules of Civil Procedure, a district court “should freely
give leave [to amend a complaint] when justice so requires.” Fed. R. Civ. P.
6 We review for abuse of discretion a district court’s refusal to grant leave to file an amended complaint, although we review de novo the “legal conclusion of whether a particular amendment to the complaint would be futile.” Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir. 1999). 24 Case: 18-11121 Date Filed: 09/12/2019 Page: 25 of 33
15(a)(2). But a district court may deny a motion for leave to amend as futile
“when the complaint as amended would still be properly dismissed.” Cockrell v.
Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007).
The district court properly denied the EEOC’s motion to file a second
amended complaint because its interference claim would have been subject to
dismissal as a matter of law for failure to state a claim. 7 Under the ADA’s anti-
interference provision, it is “unlawful to coerce, intimidate, threaten, or interfere
with any individual in the exercise or enjoyment of, or on account of his or her
having exercised or enjoyed, or on account of his or her having aided or
encouraged any other individual in the exercise or enjoyment of, any right granted
or protected by [the ADA].” 42 U.S.C. § 12203(b). And the EEOC’s interference
claim tracked that language, alleging 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 problem with the EEOC’s interference claim, however, is that, when
Massage Envy fired Lowe, she had no existing rights under the ADA. Of course,
7 The district court concluded, alternatively, that the interference claim was also due to be dismissed for failure to exhaust administrative remedies. On appeal, the EEOC submits that it is not required to exhaust administrative remedies before filing suit, citing EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005). Because we agree with the district court that the interference claim fails to state a claim upon which relief can be granted, we need not address the court’s alternative basis for dismissing it based on failure to exhaust administrative remedies. 25 Case: 18-11121 Date Filed: 09/12/2019 Page: 26 of 33
Lowe was not actually disabled by Ebola and thus had no right to a reasonable
accommodation under the ADA. She had not associated with, or even planned to
associate with, any known person disabled by Ebola either. Because Lowe had no
rights under the ADA, Massage Envy could not and did not interfere with her
exercise or enjoyment of those rights. Consequently, the EEOC could not have
stated a plausible interference claim, and any amendment seeking to add such a
claim to the complaint would have been futile.
VII. LOWE’S INTERVENOR COMPLAINT
On appeal, Lowe also argues that the district court erred in not allowing her
to intervene in this lawsuit.8 Lowe contends that, although she timely moved to
intervene, the district court did not rule on the merits of her motion. Rather, after
determining that the EEOC’s claims were due to be dismissed with prejudice, it
directed the clerk to terminate all pending motions as moot and close the case.
Lowe’s motion to intervene was among those terminated motions. We agree with
Lowe that the district court should have addressed the merits of her motion to
intervene, rather than terminating it as moot.
Although district courts enjoy broad discretion in deciding how best to
manage the cases before them, that discretion is not unfettered. Chudasama v.
8 We review the denial of a motion to intervene as of right de novo. Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir. 1996).
26 Case: 18-11121 Date Filed: 09/12/2019 Page: 27 of 33
Mazda Motor Corp., 123 F.3d 1353, 1366–67 (11th Cir. 1997). “When a litigant’s
rights are materially prejudiced by the district court’s mismanagement of a case,
we must redress the [error].” Id. at 1367. As we have explained, “[f]ailure to
consider and rule on significant pretrial motions before issuing dispositive orders
can be an abuse of discretion” or constitute legal error. Id.
Federal Rule of Civil Procedure 24(a)(1) states that “[o]n timely motion, the
court must permit anyone to intervene who . . . is given an unconditional right to
intervene by a federal statute.” Fed. R. Civ. P. 24(a). Under Title VII, 42 U.S.C.
§ 2000e-5(f), as the aggrieved employee, Lowe had a right to intervene in this
action brought by the EEOC. See 42 U.S.C. § 2000e-5(f)(1). The language of
§ 2000e-5(f)(1) unambiguously gives employees an unconditional right to
intervene in EEOC enforcement actions. Id. (“The person or persons aggrieved
shall have the right to intervene in a civil action brought by the
Commission . . . .”). In fact, once the EEOC files suit on its own, “the employee
has no independent cause of action.” EEOC v. Waffle House, Inc., 534 U.S. 279,
291, 122 S. Ct. 754, 763 (2002). The employee’s only option is to intervene in the
EEOC’s suit. Id.
Here, Lowe timely filed her motion to intervene and she had an
unconditional statutory right to intervene in this lawsuit. The district court thus
had no discretion to deny her intervention under Rule 24(a). By failing to consider
27 Case: 18-11121 Date Filed: 09/12/2019 Page: 28 of 33
and rule on the merits of Lowe’s motion before dismissing the EEOC’s complaint,
the district court effectively circumvented the mandates of both Rule 24(a) and
§ 2000e-5(f). That was error. The district court should have considered the merits
of Lowe’s motion to intervene.
Nevertheless, because we have affirmed the district court’s dismissal of each
of the EEOC’s claims, any error by the district court in declining to rule on Lowe’s
motion to intervene was harmless. The standard for harmless error is whether the
complaining party’s substantial rights were infringed upon. United States v. Mar.
Life Caribbean Ltd., 913 F.3d 1027, 1033 (11th Cir. 2019); Haney v. Mizell Mem’l
Hosp., 744 F.2d 1467, 1475 (11th Cir. 1984). The error by the district court
prejudiced Lowe only if there is a “reasonable likelihood that the outcome would
have been different” if the district court had permitted Lowe to intervene in the
lawsuit before proceeding to decide the merits of the EEOC’s claims. See Mar.
Life Caribbean Ltd., 913 F.3d at 1033 (internal quotation marks omitted).
Lowe was not prejudiced because there is no reasonable likelihood that the
outcome of this proceeding would have been different had she intervened. In her
intervenor complaint, Lowe advanced the exact same factual allegations, claims,
and arguments that the EEOC had already made itself in the lawsuit. Just like the
EEOC, Lowe claimed that Massage Envy perceived her as having a disability
(Ebola) and fired her due to that perceived disability (Ebola), in violation of the
28 Case: 18-11121 Date Filed: 09/12/2019 Page: 29 of 33
ADA. Although Lowe brought that “regarded as” disabled claim under both the
ADA and the FCRA, “disability-discrimination claims under the FCRA are
analyzed using the same framework as ADA claims.” Holly v. Clairson Indus.,
LLC, 492 F.3d 1247, 1255 (11th Cir. 2007). Therefore, if the district court had
allowed Lowe to intervene, the court would have ultimately dismissed Lowe’s
“regarded as” disabled claim for the same reasons that it dismissed the EEOC’s
“regarded as” disabled claim. The outcome of the proceeding would not have
differed.
In turn, we have affirmed on appeal the district court’s dismissal of the
EEOC’s “regarded as” disabled claim, as well as its association discrimination and
interference claims. And in so ruling, we have considered every issue that Lowe
raised in her briefing, including her vigorous arguments that the district court erred
in dismissing all three of the EEOC’s ADA claims. For all of these reasons, Lowe
suffered no prejudice by the district court not allowing her to intervene in this
proceeding. In light of these factual circumstances, we affirm the district court’s
dismissal of Lowe’s motion to intervene because any error the court committed by
failing to address the merits of her motion was harmless.
VIII. CONCLUSION
29 Case: 18-11121 Date Filed: 09/12/2019 Page: 30 of 33
For the foregoing reasons, we must affirm the district court’s final judgment
in favor of Massage Envy.
AFFIRMED.
30 Case: 18-11121 Date Filed: 09/12/2019 Page: 31 of 33
JORDAN, Circuit Judge, concurring.
If we assume the facts alleged in the complaint are true, Mr. Wuchko engaged
in the sort of stereotyping that the ADA was meant to prevent when he fired Ms.
Lowe because she refused to cancel her trip to Ghana to visit her sister. See, e.g.,
Ross v. Campbell Soup Co., 237 F.3d 701, 707 (6th Cir. 2001) (“The ADA was
enacted, in part, to eliminate the sort of stereotyping that allowed employers to see
their employees primarily as their disabilities and not as persons differently abled
from themselves.”); Lex Larson, 9 Employment Discrimination §153.09[3] (2d ed.
2019) (explaining that the ADA, among other things, was meant to target
“ignorance-based employment discrimination”). From a policy perspective, then,
the position of the EEOC and Ms. Lowe on the “regarded as having” language in 42
U.S.C. §§ 12102(1)(C) & 12102(3)(A)—that the phrase encompasses a decision
made by an employer based on its perception that an employee is going to suffer or
experience a disability in the future—makes a lot of sense. A couple of district
courts, in fact, have recently agreed with the reading of the statutory language
advocated by the EEOC and Ms. Lowe. See Shell v. Burlington N. Santa Fe Ry. Co.,
2018 WL 1156249, *4–*5 (N.D. Ill. Mar. 5, 2018); EEOC v. Amsted Rail Co., Inc.,
280 F. Supp. 3d 1141, 1150–51 (S.D. Ill. 2017). See also EEOC v. Rockwell Int’l
Corp., 243 F.3d 1012, 1018 (7th Cir. 2001) (Wood, J., dissenting) (dicta).
31 Case: 18-11121 Date Filed: 09/12/2019 Page: 32 of 33
But in my view the court correctly concludes that the “regarding as having”
language is best read to cover only an employer’s perception that an employee has
an existing (i.e., current) disability. Under the circumstances, an appeal to one of
the ADA’s motivating purposes “fail[s] to overcome the clear statutory language.”
Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018). See also Mertens v. Hewitt Assocs,
508 U.S. 248, 261 (1993) (“[V]ague notions of a statute’s ‘basic purpose’ are
nonetheless inadequate to overcome the words of its text regarding the specific issue
under consideration.”) (emphasis deleted). I therefore join Parts I–V of the court’s
opinion.
With respect to Part VI, which addresses the EEOC’s motion for leave to
amend to assert an unlawful interference claim, I agree with everything except
footnote 7. Unlike the court, I would decide the important question of whether the
EEOC is required to exhaust administrative remedies (and satisfy all that the
exhaustion doctrine entails) before filing suit. And I would hold, like the Seventh
Circuit, that when the EEOC is the plaintiff, it can assert any claims it believes are
warranted, and the doctrine of exhaustion of administrative remedies does not apply:
[E]xhaustion of administrative remedies is an issue when the suit is brought by a private party but not when the Commission is the plaintiff. Were the private party permitted to add claims that had not been presented in the administrative charge filed with the EEOC, the Commission’s informal procedures for resolving discrimination charges . . . would be by-passed, in derogation of the statutory scheme. That is not an issue 32 Case: 18-11121 Date Filed: 09/12/2019 Page: 33 of 33
when the EEOC itself is the plaintiff, which is why a suit by the EEOC is not confined ‘to claims typified by those of the charging party[.]’
EEOC v. Caterpillar, Inc., 409 F.3d 831, 832–33 (7th Cir. 2005) (citations
omitted) (quoting General Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980)).