United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
REBECCA RUTHERFORD, U.S. MAGISTRATE JUDGE
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.
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,
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.
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.
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.
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.
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.
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.
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.
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.
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.
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;
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.
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