The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This civil action is before the Court on defendant's Motion to Dismiss [Doc. 5]. Plaintiff has responded in opposition to defendant's motion [Doc. 8] and defendant has filed a reply [Doc. 9], thus, the motion is now ripe for determination. The Court has carefully reviewed the pending motion and responsive pleadings in light of the applicable law. For the reasons set forth herein, defendant's motion will be granted.
As the Court is required to do on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court will construe the complaint [Doc. 1] in the light most favorable to the plaintiff, accept all well-pleaded factual allegations as true, and determine whether plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003).
Plaintiff, Ronald Easter was employed by defendant, Transport Service from May 25, 1990 through August 22, 2006 as a long distance and local commercial truck driver. (Compl. ¶¶ 4, 13.) Throughout his employment with defendant, plaintiff maintained an accident-free driving record. (Compl. ¶ 13.) In approximately October 1998, plaintiff was first diagnosed with diabetes which was then controlled by medication. (Compl. ¶ 14.) Several years later, his diabetes required treatment with insulin shots. Id. From October 1998 through August 2006 plaintiff received physicals every two years from the Department of Transportation, which knew about his diabetes, and his Commercial Driver's License was always renewed. (Compl. ¶ 15.)
At some point prior to plaintiff's termination in August 2006, Mike Weaver, Transport Service's terminal manager, asked plaintiff's co-workers about plaintiff's medical condition and if they had ever seen plaintiff use a needle for insulin. (Compl. ¶ 16.) Mr. Weaver then demanded that plaintiff see the company doctor and sign a release for his medical records. (Compl. ¶ 17.) Mr. Weaver told plaintiff that defendant's safety department would not allow plaintiff to drive because of his insulin-dependent diabetes. Id. Plaintiff was also told that, because of his insulin-dependent diabetes, he was not qualified to drive according to the Department of Transportation. [Doc. 6.] Plaintiff offered to do local runs only in order to continue working. Id. Despite this offer, plaintiff was terminated on August 22, 2006. (Compl. ¶ 18.) Defendant alleges that it terminated plaintiff because he was not qualified to transport goods interstate and because he concealed his disqualification from defendant. [Doc. 6.] After his termination, plaintiff received a state waiver that permitted him to drive intrastate in Tennessee. (Compl. ¶ 19.) Plaintiff asked to return to work at Transport Service after obtaining the waiver but was not permitted to do so. (Compl. ¶¶ 19-20.)
Defendant Transport Service Co. has moved to dismiss plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) should not be granted "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). All well-pleaded allegations must be taken as true and be construed most favorably toward the non-movant. Trzebuckowski, 319 F.3d at 855. While a court may not grant a Rule 12(b)(6) motion based on disbelief of a complaint's factual allegations, Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990), the court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The Sixth Circuit has made it clear that despite the liberal system of notice pleading, "the essential elements of a plaintiff's claim must be alleged in more than vague and conclusory terms" if such a claim is to survive a Rule 12(b)(6) motion. NicSand, Inc. v. 3M Co., 457 F.3d 534, 541 (6th Cir. 2006) (internal citations removed). The issue is not whether the plaintiff will prevail, but whether he or she is entitled to offer evidence to support his or her claim. Chapman v. City of Detroit, 80 F.2d 459, 465 (6th Cir. 1986). Consequently, a complaint will not be dismissed pursuant to Rule 12(b)(6) unless there is no law to support the claims made, the facts alleged are insufficient to state a claim, or there is an insurmountable bar on the face of the complaint.
Plaintiff alleges that he was fired from his position as an interstate/intrastate truck driver by defendant, Transport Service, after defendant learned that plaintiff had insulin-dependent diabetes. Plaintiff alleges the following causes of action against defendant: disability discrimination and failure to accommodate in violation of the Americans with Disabilities Act, the Tennessee Human Rights Act, and the Tennessee Handicap Act; wrongful termination; negligence and negligent or intentional infliction of emotional distress; Use of Illegal Employment Device under section 50-6-114 of the Tennessee Code; violation of HIPAA;*fn1 and fraud. Defendant moves to dismiss each of those claims.
A. Disability Discrimination and Failure to Accommodate in Violation of the Americans with Disabilities Act
Counts I and II of plaintiff's complaint allege discrimination on the basis of a disability and failure to provide a reasonable accommodation in violation of the Americans with Disabilities Act (ADA). The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual."
42 U.S.C. § 12112(a) (2006). A plaintiff alleging a claim under the ADA must show that he (1) has a disability; (2) was qualified for the job; and (3) was denied a reasonable accommodation or suffered adverse employment action as a result of his disability. Roush v. Weastec, Inc., 96 F.3d 840, ...