Memo in Support of Motion to Dismiss, SJ - On Point News

Case 4:07-cv-01233-CEJ Document 5-22 Filed 08/03/2007 Page 1 of 7 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MISSOURI 

EASTERN DIVISION 

TOMMIE ROBINSON, ) 

) 

Plaintiff, ) 

) 

vs. ) Cause No. 4:07cv1233 

) 

NORMANDY SCHOOL DISTRICT, ) 

) 

Defendant. ) 

MEMORANDUM IN SUPPORT OF DEFENDANT’S 

MOTION TO DISMISS AND FOR SUMMARY JUDGMENT 

Introduction 

Plaintiff’s complaint does not plead facts which could establish a prima facie case 

under 42 U.S.C. §12112 (2) of the Americans With Disabilities Act (ADA) in that it fails 

to describe any “disability” to which plaintiff is subject. In order to establish a prima 

facie case of discrimination in violation of the ADA, plaintiff must prove that (1) he has a 

disability; (2) he is a qualified individual; and (3) he was subject to unlawful 

discrimination. Moriskey v. Broward County, 80 F 3d 445, 447 (11 th Cir. 1996); Taylor v. 

Nimock’s Oil Co., 214 F. 3d 957, 959 (8 th Cir. 2000). The term “disability” is defined as 

(A) a physical or mental impairment that substantially limits one or more of the major life 

activities of such individual; (B) a record of such impairment; or (C) being regarded as 

having such impairment.” 42 U.S.C. § 12102 (2) (A)-(C) (italics added). The only 

references in plaintiff’s complaint to his disability are contained in Count I 1 : 

17. Robinson is “disabled” within the meaning 

of the Americans Disabilities Act (sic), 42 U.S.C. § 12102 

1 Although Count II paragraph 25 mentions “Dyslexia and Dysgraphia,” there is no allegation that plaintiff 

suffers from these conditions. 

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(2), because he has a impairment that substantially 

limits one or more of this major life activities in that he 

is unable to read at a first grade level. 

18. Based on the District’s conclusion that 

Robinson could not read at a first grade level, the 

District regarded Robinson as being disabled. 

(1) Paragraph 17 does not describe a disability, nor does it necessarily 

describe a symptom of a disability 2 . The fact that “he is unable to read at a first grade 

level” by itself is not a legally recognized disability. Paragraph 18 is a conclusion that 

the District knew plaintiff was illiterate and therefore it “regarded him as being disabled.” 

That conclusion is not supported by case law. (2) As a factual matter, the District did 

not have actual or constructive knowledge that plaintiff had an impairment or claimed to 

be disabled. 

I. 

Illiteracy is not a “disability” unless 

it is a result of a physical or mental impairment. 

To constitute an actual disability (as opposed to a “perceived” disability), a 

claimant must exhibit (1) “a physical or mental impairment,” which (2) “substantially 

limits one or more of the major life activities of such individual.” 42 U.S.C. 12102 (2) 

(A)-(C). Numerous cases have determined that, without a medical cause, illiteracy is 

not a “physical or mental impairment” and therefore is not a disability. 3 

A seminal case in the determination that illiteracy is not, by itself, a disability is 

Moriskey v. Broward County, 80 F. 3d 445 (11 th Cir. 1996). In that case, a job applicant 

notified a prospective employer she had taken special education courses and could not 

2 See discussion of “symptoms” in Part II and footnote 4. 

3 The case of Willis v. Barnes-Jewish Hospital, 2007 U.S. Dist. LEXIS 1669 recognizes that illiteracy can be 

a disability only if caused by a “physical or mental” impairment and that if a disability exists the employee 

must have been terminated “because of” his disability. 

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read or write. Based upon her illiteracy, she was denied the job. Citing Jones v. 

Bowen, 660 F. Supp. 1115, 1121 (C.D. Ill 1989) the Court said: “While illiteracy is a 

serious problem, it does not always follow that someone who is illiterate is necessarily 

suffering from a physical or mental impairment.” 80 F. 3d at page 448. 

This oft cited case derives from a line of cases dealing with disabilities which are 

not visible or apparent to an employer. To establish a violation of the ADA, the claimant 

must show that the employer knew (or should have known) of the disability. 

II. 

A physical or mental impairment must be known 

by an employer in order to trigger ADA liability. 

In addition to the rule that illiteracy have an underlying cause to be actionable 

under the ADA, there is an essential requirement that such impairment be known by the 

employer. In Hedberg v. Indiana Bell Tel. Co. 47 F 3d 928, 931-34 (7 th Cir. 1995), the 

court reviewed termination of an employee whose “symptoms” were known by the 

employer. 4 

In Hedberg, the employee contended that the employer should have known 

about his disability because the employer was aware of his symptoms. 

Hedberg, despite the foregoing, argues that his employer’s 

actual knowledge of the disability is irrelevant in his case. 

He maintains that firing someone “because of” the symptoms 

of his disability is the same as firing him “because of” the 

disability itself. Under this theory, even if the employer knew 

nothing about the disability, if he knew of the symptoms and 

fired the employee because of them, the ADA binds him… 

Hedberg claims that Indiana Bell’s firing him because of 

symptoms of his disability is exactly the same as firing him 

because of his disability. 47 F. 3d at page 933. 

The court rejected the employee’s contention as follows: 

An employer cannot be liable under ADA for firing an 

employee when it indisputably had no knowledge of the 

4 In our case, if a genuine disability existed, illiteracy would, at most, be a “symptom” of the disability. 


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disability… At the most basic level, it is intuitively clear when 

viewing the ADA’s language in a straightforward manner that 

an employer cannot fire an employee “because of” a 

disability unless it knows of the disability. If it does not know 

of the disability, the employer is firing the employee 

“because of” some other reason. (emphasis added) 47 F. 3d 

at page 

The Hedberg analysis has been recognized and adopted by the Eighth Circuit in 

Miller v. National Casualty, 61 F. 3d 627, 629 (8 th Cir. 1995) as follows: 

Before an employer must make accommodation for the 

physical or mental limitation of an employee, the employer 

must have knowledge that such a limitation exists. The 

Interpretive Guidance of Title I of the ADA states that “an 

employer [is not] expected to accommodate disabilities of 

which it is unaware.” 29 C.F.R. app. §1630.9 (1994). The 

logic of this proposition is overwhelming and has been 

affirmed repeatedly by other courts construing both the ADA 

and the Rehabilitation Act of 973. In general, “it is the 

responsibility of the individual with a disability to inform the 

employer that an accommodation is needed.” (Citations 

omitted.) 

Citing Hedberg, the Court in Miller said “the ADA does not require 

clairvoyance…” on the part of an employer. The fact that an employer did not know of a 

disability until after the employment was terminated makes it “impossible for the 

company to have made the disability the basis for the termination.” 61 F 3d at page 630. 

states: 

III. 

Count II fails to state a cause of action 

in that it does not describe a disability applicable 

to plaintiff or to any other employee of defendant. 

a. “Basic literacy requirement.” 

The basis of plaintiff’s claim under Count II is set forth in paragraph 25 which 


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25. The District’s “basic literacy skills requirement” 

has a disparate impact on individuals with learning 

disabilities such as Dyslexia and Dysgraphia, in that the 

District’s “basic literacy skills requirement” disqualifies 

individuals with learning disabilities at a higher rate than 

individuals without learning disabilities. 

That this paragraph contains only conclusions will be addressed in part b of this 

section III. Before that discussion, defendant notes that the cause of action purported 

by Count II is not recognizable in law. The premise of Count II is that a “basic literacy 

requirement” for employees of a school district is discriminatory because it fails to 

provide persons with disabilities equal protection. The logic of Count II would invalidate 

any literacy requirement imposed by any employer upon employees or perspective 

employees. The ADA provides relief from employment requirements which are burdens 

for persons with recognizable disabilities. It does not invalidate reasonable job 

requirements. As stated in part I of this memorandum, illiteracy is not per se a disability. 

Paragraph 25 describes the “basic literacy skills requirement” of the Normandy 

School District from the view of a hypothetical employee who has “Dyslexia or 

Dysgraphia.” There is no allegation or indication that plaintiff suffers from either of 

these impairments or that any employee or prospective employee of the school district 

is so disabled. To state a cause of action under the ADA, plaintiff must allege that “he is 

disabled” or that he was so regarded by his employer. Willis v. Barnes-Jewish Hospital, 

2007 U.S. Dist. LEXIS 1669. 

b. Mere conclusions will not state a claim. 

To survive a summary judgment, plaintiff must plead and prove specific facts. 

Conclusory allegations will not suffice. Scheerer v. Potter, 443 F. 3d 916, 919 (7 th Cir. 

2006), Martin v. Discount Smoke Shop, 443 F. Supp 2d 981 (CD Ill. 2006). Mere 


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allegations which are not supported by specific facts are not enough to withstand a 

motion for summary judgment. Baucom v. Holiday Cos., 428 F. 3d 764, 768 (8 th Cir 

2005). 

Even if plaintiff’s conclusions were supported by facts, Count II presents a non 

sequitur with regard to the Americans With Disabilities Act. The “basic literacy skills 

requirement” by definition screens out people who are illiterate. Recognized studies are 

in agreement that many causes exist for illiteracy, a good portion of which have nothing 

to do with “physical or mental impairment.” 5 

Persons having dyslexia and dysgraphia may have disabilities 6 but Count II does 

not identify any such individuals nor does it allege that defendant has taken any adverse 

action toward them. The ADA does not prevent an employer from requiring job 

qualifications; it merely provides protection for disabled individuals who may not meet 

the qualifications but can otherwise do the job. 

Conclusion 

In accordance with the standards of Celotex Corp. v. Catrett, 477 U.S. 317, 312, 

106 S. Ct. 2552, 91 A. Ed. 2d 265 (1986), defendant is entitled to summary judgment. 

5 See, National Center for Education Statistics, National Assessment of Adult Literacy (NAAL) report “A 

First Look at the Literacy of American Adults in the 21 st Century.” U.S. Department of Education and ADA 

Title III Technical Assistance Manual, III-2.0000 regulatory reference 28 CFR 36.104 “…disadvantages 

attributable to environmental, cultural, or economic factors are not the type of impairments covered by 

Title III.” 

6 Such conditions must meet the “substantiality limits” test of 42 U.S.C. 12102(2) and 29 CFR 

§1602(j)(I)(i) to be defined as a “disability.” 


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Respectfully submitted, 

Crotzer, Ford & Ormsby 

__Darold E. Crotzer Jr. 

Darold E. Crotzer, Jr. (Fed. Bar 2902) 

Charles L. Ford (Fed. Bar 3123) 

222 S. Central Avenue Suite 500 

Clayton, MO 63105 

Phone (314) 726-3040 

Fax (314) 726-5120 


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Memo in Support of Motion to Dismiss, SJ - On Point News

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