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Roth v. Canon Solutions America, Inc.

United States District Court, N.D. Texas, Dallas Division

September 23, 2019

JOHN ROTH, Plaintiff,



         Before the Court in this civil action are Canon Solutions America, Inc.'s Second Motion for Judgment on the Pleadings (ECF No. 39) and Motion to Stay Discovery (ECF No. 42). For the reasons stated, the Second Motion for Judgment on the Pleadings is granted in part and denied in part, and the Motion to Stay Discovery is denied as moot.


         Plaintiff John Roth (Roth) was 63 years old when he was terminated from his job as a National Technical Specialist for Defendant Canon Solutions America, Inc. (Canon). Am. Compl. 2, ¶ 6 (ECF No. 36). At the time he was fired, Roth had worked for Canon, or one of its predecessors, continuously for 28 years and was struggling to care for his aged mother who suffers from Alzheimer's disease and dementia. Id. at ¶¶ 5, 9. By this lawsuit, Roth alleges that in the twelve to fifteen months prior to his termination, Canon engaged in discriminatory conduct and retaliated against him in violation of the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Family Medical Leave Act (FMLA). Id. at 14-16, ¶¶ 44-67.

         In his 54-page Amended Complaint, which is the live pleading in this action, Roth alleges that, in March 2015, a manager told him that Canon was targeting Roth for dismissal based on his age. Id. at 3-4, ¶ 10. Roth also describes a “Sales Kickoff” meeting in early 2016 where Canon presented a slide show discussing employees' ages; allegedly, the presenters conveyed a plan to lower the average employee age by terminating older employees. Id. at 4, ¶ 10. Roth further alleges that the following actions constitute age discrimination: (1) multiple times Canon sent him out of town where other specialists or local technicians could have completed the work; (2) Canon required him to spend six weeks physically manning a phone support line in Boca Raton, Florida, and Dallas, Texas, when it allegedly would have been easier and more cost-effective for Roth to do so from home as other specialists were permitted to do; and (3) Canon required him to perform week-long, 24-hour, on-call duty from his home every three to four weeks from January to May 2016 (allegedly more often than other specialists). Id. at 4, ¶ 11. Then, Canon introduced a retirement package which Roth alleges was intended to encourage older employees to voluntarily retire. Id. at 5, ¶ 12. Canon allegedly terminated several employees older than 55 years old and approached other older employees-including Roth-about accepting the retirement package. Id. Roth declined. Id.

         Roth further avers that his mother was diagnosed with moderate-to-severe Alzheimer's disease and dementia in mid-2015. Id. at 5, ¶ 13. When Roth's mother first moved to Texas to live with Roth, Roth hired a full-time caregiver and was able to perform his work duties for Canon. Id. But when the caregiver took what was supposed to be a three-month absence, he had to take leave under the FMLA to care for his mother himself. Id. The caregiver, however, did not return from the absence. Id. After 10 weeks of FMLA leave, Roth returned to Canon with the hope he could work from home to care for his ailing mother. Id.

         When Roth explained to Director Nick Thorne (Thorne) that he needed additional accommodations to care for his disabled mother, Thorne allegedly suggested Roth resign. Id. at 5-6, ¶ 14. Roth insisted on remaining a Canon employee. Id. Rather than permitting Roth to work from home, Thorne insisted that Roth take an additional two weeks of FMLA leave. Id. So, Roth began additional FMLA leave on August 8, 2016. Id. While on leave, Roth emailed Human Resources (HR) expressing his belief that he was being targeted for termination because of his age and explaining that his mother suffered from Alzheimer's disease and required his care. Id. at 6, ¶ 15. Roth copied Thorne on this email. Id. Roth received no response. Id.

         Roth returned to work from his second leave on August 22, 2016, working both from the Dallas office and from home that week, as he claims was typical. Id. at 6, ¶ 16. However, Thorne purportedly instructed Roth's immediate supervisor not to permit Roth to work from home. Id. According to Roth, this was out of the ordinary as he had been allowed to work from home in the past; Roth claims that, prior to taking FMLA leave, he worked from home roughly 50 percent of the time. Id. That same week, HR contacted Roth and asked him when he planned to return to work in his full capacity. Id. at 6, ¶ 17. He explained that he already had returned to work in his full capacity; however, he further explained that he could not travel out of town because of his mother's disability. Id. Later, HR contacted Roth again and offered him unprotected leave for an additional 30 days to care for his mother. Id. In response, Roth told HR he could work save for a restriction on his travel, which, according to Roth, Canon permitted many other employees in the past. Id.

         Eventually, HR informed Roth that if he did not return to a full work schedule, then Canon would consider him to have resigned. Id. at 7, ¶ 18. Roth claims that he emphasized to Canon that he had returned to a full work schedule, and that he had not resigned. Id. Nevertheless, Roth claims Canon terminated him on August 29, 2016. Id. Roth avers that Canon sent Roth a letter informing him that he had abandoned his position, which Roth disputes. Id. at 7, ¶ 19.

         On September 26, 2016, Roth submitted an intake questionnaire (the “Original Intake Questionnaire”) to the Equal Employment Opportunity Commission (EEOC). Id. at 8, ¶¶ 21-22. On the Original Intake Questionnaire, Roth alleged he had been discriminated against on the basis of age and suffered “disability discrimination by association, mother.” Pl.'s App. 11. On the form Roth also checked Box 1, a box indicating that he wished “to talk with an EEOC employee before deciding whether to file a charge, ” and further acknowledging that he had by the Original Intake Questionnaire “not filed a charge with the EEOC.” Id. at 3. However, Roth purportedly understood completion of the Original Intake Questionnaire to satisfy his obligation to file a charge with the EEOC. Am. Compl. 8, ¶ 21; Pl.'s App. 6.

         By December 2016, the EEOC had not contacted Roth regarding his claim, so he visited the EEOC's Dallas field office to check on the status of his filing. Am. Compl. 9, ¶ 24; Pl.'s App. 6. At this visit, Roth claims he brought another copy of an intake questionnaire (the “Secondary Intake Questionnaire”) that he had rewritten because he failed to keep a copy of the Original Intake Questionnaire. See Am. Compl. 9, ¶ 24; Pl's App. 16-19. Roth pleads that in the Secondary Intake Questionnaire, he checked Box 2, a box declaring “I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I describe above.” Am. Compl. 9, ¶ 24. However, when Roth tried to submit the Secondary Intake Questionnaire in person, an EEOC employee purportedly informed him that he had already filed a charge with the EEOC, that his file was open, and that his charge was being investigated. Id. at ¶ 25. Roth claims that this EEOC employee provided a charge number-450-2016-04487-assigned to Roth's allegations of discrimination. Id. at ¶ 26; Pl.'s App 7.

         Roth attempted to follow up with the EEOC several times via email and phone. Am. Compl. 10, ¶ 28. For example, on December 14, 2016, Roth contacted his assigned EEOC investigator to check on his complaint but received no response. Id. Eventually, Roth retained counsel, and his counsel also tried to contact the EEOC regarding the status of what Roth believed to be a timely charge. Id. at ¶ 29. Later, when Roth called the EEOC, an EEOC representative reportedly explained to Roth that the EEOC was backlogged and that the individual formerly assigned to Roth's case was no longer working at the agency. Id. at ¶ 30. Instead, the Acting District Director of the EEOC, Belinda McCallister (McCallister), was now managing Roth's case. Id. On June 15, 2017, Roth's counsel at the time sent a letter to the EEOC inquiring into the status of Roth's charge. Id. at ¶ 31.

         Roth believes that the EEOC “did no work” on his case “at all” from March to June 2017, at which time Roth and McCallister spoke via telephone. Id. at 11, ¶ 32. On this call, McCallister never told Roth he had not filed a charge or that the deadline to do so was (then) less than two weeks away. Id.; Pl.'s App. 8. Indeed, Roth answered affirmatively when McCallister asked him if he still wished to pursue the charge. Am. Compl. 11, ¶ 32. McCallister then told Roth a new case worker would interview him the following week because his previous case worker had retired. Id. On the same day, the EEOC reassigned Roth's claim to EEOC Investigator Karen Heard (Heard). Id. at 11, ¶ 33.

         Heard called Roth on June 19, 2017 and told him that she had his case file and asked that Roth provide her with any relevant additional information. Id. at 11, ¶ 34. Roth avers that the EEOC, through Heard, never indicated that he had not filed a formal charge of discrimination. Id. In October 2017, the EEOC finally notified Canon of Roth's charge in which Roth had alleged both age and disability discrimination. Id. at 11, ¶ 35; Pl.'s App. 33-34. The notice acknowledges that Roth had not yet executed an EEOC Form 5, commonly referred to as the “Charge of Discrimination.” See Pl.'s App. 34. Despite this, the notice states that “a charge of employment discrimination has been filed against [Canon].” Id. (emphasis added). The same day, Heard mailed Roth a completed formal charge for his review and signature, which Roth immediately signed and returned on October 30, 2017 (the “Original Charge”). Am. Compl. 12, ¶ 38; Pl.'s App. 8; 28.

         Then, on March 20, 2018, Roth executed an amended charge of discrimination (the “Amended Charge”). Pl.'s App. 28. The EEOC accepted this amendment. See Id. On May 21, 2018, Roth requested a Notice of Right to Sue. Am. Compl. 13, ¶ 41. The EEOC issued the Notice of Right to Sue on May 23, 2018, which required Roth to file his claims in court by August 21, 2018. Id. Roth filed his original Complaint in this case on that date. Compl. (ECF No. 1). Canon timely responded, filing an Answer and its First Motion for Judgment on the Pleadings.

         Roth subsequently filed the Amended Complaint in which he pleads the following causes of action: (1) associational discrimination under ADA; (2) age discrimination under the ADEA; (3) retaliation under the ADEA; and (4) retaliation under the FMLA. Am. Compl. 14-16, ¶¶ 44-67. Canon filed an Answer (ECF No. 38) and its Second Motion for Judgment on the Pleadings. By its motion, Canon argues Roth failed to file a timely charge of discrimination with the EEOC, and therefore his ADEA and ADA claims are time-barred and fail as a matter of law. Br. Support Second Mot. J. Pleadings 8 (ECF No. 40) (Def.'s Br.). Canon also argues that Roth's ADA claim fails because the Fifth Circuit has not recognized a cause of action for associational disability discrimination under the ADA (id. at 15) and because Roth has failed to state a claim for associational disability discrimination (id. at 16). Canon further argues that Roth has failed to adequately plead a cause of action ...

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