USCA11 Case: 20-12039 Date Filed: 07/21/2021 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12039
Non-Argument Calendar
________________________
D.C. Docket No. 4:19-cv-00653-CLM
NICOLE COLTON,
Plaintiff-Appellant,
versus
FEHRER AUTOMOTIVE, NORTH AMERICA, LLC,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(July 21, 2021)
Before JORDAN, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
USCA11 Case: 20-12039 Date Filed: 07/21/2021 Page: 2 of 9
The Americans with Disabilities Act, as the name implies, protects only
those with disabilities. The district court dismissed Nicole Colton’s ADA lawsuit
because of one fatal flaw: she failed to sufficiently allege that she was a person
with a disability. Colton alleged that she was short (just 4’6”) but, the court said,
she did not tie that physical characteristic to a physical impairment. So the court
dismissed her claims for discrimination and retaliation. Because we agree that
Colton failed to sufficiently allege that she was disabled, we affirm.
I.
When reviewing a motion to dismiss, we “accept the allegations in the
complaint as true and construe them in the light most favorable to the plaintiff.”
Henderson v. McMurray, 987 F.3d 997, 1001 (11th Cir. 2021). But Nicole
Colton’s complaint doesn’t give us much to work with. We know that in April
2018, she was assigned, through a temp agency, to work for FEHRER Automotive,
an automobile interior manufacturing facility. She had worked there a few years
earlier without incident. But this time, there was a problem: they assigned her to
work at a table that was too tall for her 4’6” stature. When she asked the
individuals training her for a shorter table or a step stool, they declined.
Undeterred, Colton complained to FEHRER’s human resource
representative. But she was brushed off. Instead, a few days later, FEHRER
terminated her employment and marked her personnel file as ineligible for rehire.
2
USCA11 Case: 20-12039 Date Filed: 07/21/2021 Page: 3 of 9
The company said that she was “not a good fit” for FEHRER, but the training
coordinator confided that she was labeled as a “red flag” because she “asked too
many questions.”
Colton responded by filing a timely charge of discrimination and retaliation
with the Equal Employment Opportunity Commission and received a right-to-sue
letter. She then filed a complaint in federal court. The district court, though,
dismissed Colton’s complaint without prejudice, after determining that she failed
to state a claim of discrimination or retaliation. This appeal followed.
II.
We review de novo a dismissal for failure to state a claim upon which relief
may be granted. Henderson, 987 F.3d at 1001.
III.
A.
We start with Colton’s discrimination claim. The ADA prohibits
employment discrimination against a qualified individual on the basis of disability.
42 U.S.C. § 12112(a). To state a claim of discrimination in violation of the ADA,
a plaintiff must allege sufficient facts to plausibly suggest that (1) she suffers from
a disability, (2) she is a qualified individual, and (3) that a “covered entity”
discriminated against her on account of her disability. Surtain v. Hamlin Terrace
3
USCA11 Case: 20-12039 Date Filed: 07/21/2021 Page: 4 of 9
Found., 789 F.3d 1239, 1246 (11th Cir. 2015). Colton’s claim falters on that first
prong.
Under the ADA, individuals have a “disability” if they have (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) are “regarded as
having such an impairment.” 42 U.S.C. § 12102(1). Here, Colton claims her
“short stature” is her physical impairment, and that her height substantially limits
her “activities of daily living such as reaching.” Colton, though, cannot cram her
short stature into the definition of “disability” with such conclusory allegations.
The ADA does not define the word “impairment.” But the EEOC, pursuant
to its statutory authority to issue regulations implementing the ADA, has provided
a reasonable definition for us: “Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body systems . . . . ” 29
C.F.R. § 1630.2(h)(1) (emphasis added); 42 U.S.C. § 12205a; see also Harrison v.
Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1214 (11th Cir. 2010) (noting
that while administrative interpretations of an act by its enforcing agency are not
controlling, we will look to them for guidance). It has also offered further
interpretive guidance, recognizing that the word “impairment” does “not include
physical characteristics such as eye color, hair color, left-handedness, or height,
4
USCA11 Case: 20-12039 Date Filed: 07/21/2021 Page: 5 of 9
weight, or muscle tone that are within ‘normal’ range and are not the result of a
physiological disorder.” 29 C.F.R. pt. 1630, App’x § 1630.2(h) (emphasis added).
Given these definitions, the facts pleaded in Colton’s complaint establish
only that her height was a physical characteristic. She pleads no facts whatsoever
suggesting that her height was due to a “physiological disorder or condition.” See
Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1109 (8th Cir. 2016) (holding that for
obesity to “qualify as a physical impairment—and thus a disability—under the
ADA, it must result from an underlying physiological disorder or condition”) 1;
EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 443 (6th Cir. 2006) (“consistent
with the EEOC’s own definition, we hold that to constitute an ADA impairment, a
person’s obesity, even morbid obesity, must be the result of a physiological
condition”).
Moreover, we must view height as a physical characteristic, not an
“impairment,” under guidance from the Supreme Court. In Sutton v. United Air
Lines, the Court noted when reviewing an ADA claim that employers are “free to
decide that physical characteristics or medical conditions that do not rise to the
1
FEHRER erroneously stated that in a previous opinion our “Court agreed [with Morriss] that
‘the ADA does not prohibit discrimination based on a perception [of] a physical characteristic.’”
This is a mischaracterization. We quoted this language from Morriss in a parenthetical to
support the point that “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.” EEOC v. STME, LLC,
938 F.3d 1305, 1316 (11th Cir. 2019). But we never adopted this rule as binding precedent.
5
USCA11 Case: 20-12039 Date Filed: 07/21/2021 Page: 6 of 9
level of an impairment—such as one’s height, build, or singing voice—are
preferable to others.” 527 U.S. 471, 490 (1999) (emphasis added). 2 Though these
examples may, arguably, be considered dicta, we have often repeated that “there is
dicta, and then there is Supreme Court dicta.” Schwab v. Crosby, 451 F.3d 1308,
1325 (11th Cir. 2006). We do not “lightly cast aside” this guidance from the
Supreme Court—particularly when it aligns with the ADA’s text and the EEOC’s
regulations and interpretive guidance. Id. (quotation omitted). Claiming to be
short without alleging any underlying physiological disorder is simply not enough
to allege a disability under the ADA.
Apparently realizing the weakness of her argument, Colton pivots and tries
to argue that even if her height is not an impairment, FEHRER regarded her as
having a disability, which is sufficient under the ADA. See 42 U.S.C.
§ 12102(1)(C). But again, Colton’s claim suffers from poor pleading. A person is
disabled under the “regarded as” clause of the ADA if her “employer perceives her
as having an ADA-qualifying disability, even if there is no factual basis for that
perception.” Carruthers v. BSA Advert., Inc., 357 F.3d 1213, 1216 (11th Cir.
2004). So Colton would at the very least have to allege that FEHRER regarded her
2
Colton urges that Sutton was abrogated by later amendments to the ADA. But those
amendments did nothing to alter the ADA’s definition of “disability” as an “impairment,” and
therefore this remains good law. See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 322 (2012) (“[i]f a statute uses words or phrases that have already
received authoritative construction by the jurisdiction’s court of last resort . . . they are to be
understood according to that construction”).
6
USCA11 Case: 20-12039 Date Filed: 07/21/2021 Page: 7 of 9
as having a physiological disorder, even if she did not. EEOC v. STME, LLC, 938
F.3d 1305, 1318 (11th Cir. 2019) (dismissing a “regarded as” disabled claim
because the plaintiff did not allege that the employer perceived an employee as
having “an existing impairment at the time it terminated her employment”).
Though she alleged facts showing that FEHRER thought of her as “short,” nothing
in her complaint or attached exhibits even hint at FEHRER considering this to be
the result of a physiological disorder or condition.
Because Colton neither pleaded a physical impairment, nor facts suggesting
that FEHRER regarded her as having a physiological disorder or condition, we
agree with the district court that she failed to adequately plead that she had a
“disability” under the ADA.
B.
We next turn to Colton’s second claim: that FEHRER retaliated against her
for “opposing and reporting discrimination in employment.” As Colton tells it,
after she asked for a reasonable accommodation, FEHRER terminated her
employment and decided to “red flag” her personnel file—adding a note that she
“will not be eligible for rehire.” This, she argues, constituted retaliation under 42
U.S.C. § 12203(a).
The ADA prohibits employers from “discriminat[ing] against any individual
because such individual has [1] opposed any act or practice made unlawful by this
7
USCA11 Case: 20-12039 Date Filed: 07/21/2021 Page: 8 of 9
chapter or because [2] such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
chapter.” 42 U.S.C. § 12203(a). Our Court has adopted Title VII’s framework for
ADA retaliation claims. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117
F.3d 1278, 1287 (11th Cir. 1997). That is, the plaintiff must allege sufficient facts
to plausibly suggest that there was “(1) statutorily protected expression; (2) adverse
employment action; and (3) a causal link between the protected expression and the
adverse action.” Id.; Surtain, 789 F.3d at 1246.
To state a claim that FEHRER retaliated against her, Colton needs to allege
enough facts to suggest that she engaged in statutorily protected expression, either
because she “made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing” under the ADA, or “opposed any act or
practice made unlawful” by the ADA. 42 U.S.C. § 12203(a). That first option is
easily dealt with. We have interpreted this “participation clause” to require a
plaintiff to allege facts suggesting that her employer retaliated against her for
participating in “proceedings and activities which occur in conjunction with or
after the filing of a formal charge with the EEOC,” not for “participating in an
employer’s internal, in-house investigation, conducted apart from a formal charge
with the EEOC.” EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir.
8
USCA11 Case: 20-12039 Date Filed: 07/21/2021 Page: 9 of 9
2000). Colton alleges that she was terminated and “flagged” before ever filing an
EEOC charge, so this option cannot apply here.
Her other option is to allege that FEHRER retaliated against her for
“oppos[ing] any act or practice made unlawful by” the ADA. 42 U.S.C.
§ 12203(a). Though the act she opposed did not have to actually be unlawful, she
needed to allege facts suggesting that she had a good faith, objective belief that the
employer’s conduct was unlawful. Howard v. Walgreen Co., 605 F.3d 1239, 1244
(11th Cir. 2010). She has not.
Colton says she was retaliated against because she opposed “discrimination
in employment”—in other words, FEHRER’s refusal to accommodate her.
Though Colton may have subjectively thought that FEHRER was discriminating
against a person with a disability by failing to accommodate her short height, the
district court correctly observed that “any such belief was not objectively
reasonable given existing law.” The Supreme Court’s opinion in Sutton and the
EEOC’s interpretive guidance have clearly stated that height is only a physical
characteristic, not a disability. See Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d
1295, 1311 (11th Cir. 2016). Because Colton did not allege facts suggesting that
she opposed unlawful conduct or that she reasonably believed that she was
opposing unlawful discrimination, she did not state a plausible retaliation claim.
AFFIRMED.
9