Singleton v. United Parcel Service, Inc.

Filing 43

ORDER granting in part and denying in part Plaintiff's 21 Motion to Amend/Correct; denying Defendant's 19 Motion to Dismiss. See the attached Memorandum of Decision. The Court GRANTS Plaintiff leave to amend her ADA c laim, but DENIES leave to amend her CFEPA claim. Plaintiff may seek further leave to re-allege her CFEPA claim if and only if the Connecticut Supreme Court rules in the case currently before it that a perceived physical disability claim is cogniz able under the CFEPA. The Plaintiff shall file her Second Amended Complaint (omitting her futile CFEPA claim) as a separate docket entry by March 19, 2014. Defendant's Motion to Dismiss the First Amended Complaint is DENIED in light of such amendment. Signed by Judge Vanessa L. Bryant on 3/11/14. (Ives, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

SELMA SINGLETON,
Plaintiff,
v.
UNITED PARCEL SERVICE, INC.,
Defendant.

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CIVIL ACTION NO.
3:13-CV-00409 (VLB)

March 11, 2014

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO FILE A SECOND AMENDED COMPLAINT [Dkt. 21] AND
DENYING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED COMPLAINT
[Dkt. 19]

I.

Procedural History
Plaintiff Selma Singleton’s original complaint was filed in the Connecticut

Superior Court and was removed to this Court on March 26, 2013 on the basis of
this Court’s diversity jurisdiction. Three days later, on March 29, 2013, the
Defendant filed a motion to dismiss Singleton’s original complaint. In response,
and pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), Singleton timely filed
her First Amended Complaint on April 8, 2013, asserting claims for perceived
disability discrimination pursuant to the Connecticut Fair Employment Practices
Act (“CFEPA”), “regarded as” disability discrimination pursuant to the Americans
with Disabilities Act (“ADA”), and retaliation for exercise of her rights under
Connecticut’s Workers’ Compensation Act. On April 19, 2013 UPS moved to
dismiss Plaintiff’s CFEPA and ADA claims pursuant to rule 12(b)(6) for failure to
state a claim. Rather than filing an opposition to the Defendant’s Motion to
1

Dismiss, Singleton has filed a Motion pursuant to Rule 15(a)(2) to amend the First
Amended Complaint in order to clarify her factual allegations as to her CFEPA
and ADA claims. The Defendant opposes such amendment.
For the reasons that follow, the Court GRANTS Plaintiff leave to amend her
ADA claim and DENIES her request to amend her CFEPA claim.
II.

Standard of Review
Federal Rule of Civil Procedure 15, which governs Amended and

Supplemental Pleadings, provides that a party may amend a pleading at this
juncture “only with the opposing party's written consent or with the court's
leave,” which should be freely given “when justice so requires.” Fed. R. Civ. P.
15(a)(2). However, “it is within the sound discretion of the district court to grant
or deny leave to amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200
(2d Cir. 2007). A court should deny leave to amend only upon a showing of
“undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, [or] futility of
amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962); Dougherty v. Town of N.
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002) (same).
“Granting leave to amend is futile if it appears that plaintiff cannot address the
deficiencies identified by the court and allege facts sufficient to support the
claim.” Panther Partners Inc. v. Ikanos Commc'ns, Inc., 347 F. App'x 617, 622 (2d
Cir. 2009). A proposed amendment is also futile if it could not withstand a motion

2

to dismiss pursuant to Rule 12(b)(6). Dougherty, 282 F.3d at 88. See also Basile
v. Connolly, 538 F. App’x 5, 8 (2d Cir. Sept. 3, 2013) (“while a district court
generally should not dismiss a pro se complaint without granting the plaintiff
leave to amend, such leave is not necessary when it would be futile.”).
III.

Analysis
a. Perceived Disability Pursuant to the ADA
UPS opposes Singleton’s bid to re-allege her discrimination claim on the

basis of perceived disability under the Americans with Disabilities Act. UPS
argues that Plaintiff, “[r]ecognizing that her ADA claim, as pled in the first
Amended Complaint, is clearly subject to dismissal under the statute’s ‘transitory
and minor’ exception, [ ] now attempts to alter the factual allegations to avoid
dismissal. The result is a facially inconsistent factual narrative that still fails to
satisfy the ADA’s requirements for a claim of ‘regarded as’ disability
discrimination.” [Dkt. 23, p. 6]. Singleton counters that she has sufficiently pled
a cognizable ADA claim in that her injury was neither transitory nor minor, and
that disposition of her ADA claim based on the Defendant’s transitory and minor
defense is inappropriate on a motion to dismiss.
The Court disagrees with both of Defendant’s contentions and finds that
Plaintiff’s ADA claim as amended is not clearly subject to dismissal under Rule
12(b)(6), nor is the amended factual narrative facially inconsistent with the First
Amended Complaint.

3

To establish a prima facie case of disability discrimination arising from an
adverse employment action, a plaintiff must show “(a) that his employer is
subject to the ADA; (b) that he is disabled within the meaning of the ADA or
perceived to be so by his employer; (c) that he was otherwise qualified to perform
the essential functions of the job with or without reasonable accommodation; and
(d) that he suffered an adverse employment action because of his disability.”
Brady v. WalMart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008).
The ADA defines “disability” as “(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) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1). “An individual meets the requirement of
‘being regarded as having such an impairment’ if the individual establishes that
he or she has been subjected to an action prohibited under this chapter because
of an actual or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.” 42 U.S.C. §
12102(3)(A).1
However, an individual does not satisfy the requirement of “being regarded
as having such an impairment” if the impairment is “transitory and minor. A
transitory impairment is an impairment with an actual or expected duration of 6

1

In 2008 Congress amended the ADA. Prior to January 1, 2009, when the ADA
Amendments Act went into effect … a plaintiff “seeking to avail himself of the
‘regarded as’ prong of the definition of ‘disability’ needed to show that he was
perceived as both ‘impaired’ and ‘substantially limited in one or more major life
activity.’” Hilton v. Wright, 673 F.3d 120, 128 (2d Cir. 2012) (discussing ADA
Amendments Act).
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months or less.” 42 U.S.C. § 12102(3)(B).2 The ADA’s implementing regulations
clarify that “[b]eing regarded as having such an impairment” means “that the
individual has been subjected to an action prohibited by the ADA as amended
because of an actual or perceived impairment that is not both ‘transitory and
minor.’” 29 C.F.R. § 1630.2(g)(iii). The regulations further classify the “transitory
and minor” exception as a defense:
It may be a defense to a charge of discrimination by an
individual claiming coverage under the ‘regarded as’ prong of
the definition of disability that the impairment is (in the case of
an actual impairment) or would be (in the case of a perceived
impairment) ‘transitory and minor.’ To establish this defense,
a covered entity must demonstrate that the impairment is both
‘transitory’ and ‘minor.’ Whether the impairment at issue is or
would be ‘transitory and minor’ is to be determined
objectively. A covered entity may not defeat ‘regarded as’
coverage of an individual simply by demonstrating that it
subjectively believed the impairment was transitory and minor;
rather, the covered entity must demonstrate that the
impairment is (in the case of an actual impairment) or would
be (in the case of a perceived impairment) both transitory and
minor. For purposes of this section, ‘transitory’ is defined as
lasting or expected to last six months or less.
29 C.F.R. § 1630.15(f).
In her First Amended Complaint (in response to which UPS filed its Motion
to Dismiss and which Singleton would like to amend), Singleton alleges that on
January 17, 2011 she “was injured in a car accident and took short term disability
leave” from her position as a pre-load supervisor; while out, she was involved in
a second car accident on March 19, 2011, injuring her “still further.” [Dkt. 18, 1st
Am. Compl. ¶12]. She was released to return light duty work on July 18, 2011, but

2

The full text of this subsection reads: “Paragraph (1)(C) shall not apply to
impairments that are transitory and minor. A transitory impairment is an
impairment with an actual or expected duration of 6 months or less.”
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UPS would not allow her to do so. [Id. at ¶¶14, 19]. She returned to work on
October 3, 2011 in a full duty capacity. [Id. at ¶20]. On November 15, 2011,
Singleton was injured on the job after moving a box weighing around 100 pounds.
[Id. at ¶21]. She visited a doctor who diagnosed her with a cervical strain and
returned to work the next day, notwithstanding her injury. [Id. at ¶¶23-24]. She
initially performed only light-duty tasks but “within two weeks, with the full
knowledge of her supervisors, she resumed all aspects of her work,” including
manual labor duties. [Id. at ¶¶26-27].
On January 10, 2012, she received a letter from UPS “advising her that its
records indicated that she was ‘unable to perform the essential functions of [her]
position’ and stating to her that, if she needed an accommodation, she should
request one.” [Id. at ¶29]. She did not request an accommodation because,
“notwithstanding her injury, not only was she fully performing her job, she was
even performing the manual labor her subordinates performed.” [Id. at ¶30]. She
informed UPS’s nurse practitioner of this reason for not requesting an
accommodation on February 8, 2012. [Id. at ¶¶31-32]. Shortly thereafter, the
nurse practitioner and a human resources representative met with Singleton and
“informed her that she was being terminated because she ‘was not getting any
better,’ noting that the [ ] doctor [treating her injury] continued to provide her with
a ten pound weight restriction.” [Id. at ¶36]. Singleton informed them that she
was “much improved and that the only reason the doctor continued the weight
restriction was because she had not yet completed her physical therapy.” [Id. at

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¶37]. Plaintiff was terminated on February 9, 2012, and less than one month later
her doctor released her for full capacity work. [Id. at ¶11, 39].
UPS has argued in its Motion to Dismiss that Plaintiff’s allegations only
demonstrated a transitory and minor impairment, thus negating any “regarded
as” disability claim under the ADA. UPS alleges that Plaintiff’s injury from the
two automobile accidents as pled in this complaint are not at issue, as she
alleges that she fully recovered from those accidents and returned to full capacity
work. [Dkt. 20, MTD p. 11]. Thus, the cervical strain suffered on November 15,
2011 was transitory because it lasted less than six months and Singleton
performed light duty tasks for only two weeks before allegedly recommencing all
functions of her job, including manual labor, and being cleared to work at full
capacity in March 2012. [Id. at pp.11-12]. The duration of the impairment was,
according to UPS, three and a half months and thus transitory. UPS also argues
that Plaintiff’s impairment was minor in that Plaintiff has alleged that she missed
no work as a result and returned to work the day after her injury. She also
declined UPS’s offer of a workplace accommodation. [Id. at p. 12].
Plaintiff’s Proposed Second Amended Complaint clarifies her factual
allegations in response to UPS’s Motion to Dismiss by adding certain details.
First, Singleton clarifies that, as a result of her two car accidents, she suffered
back and neck injuries, a detail that she omitted from the First Amended
Complaint. [Dkt. 22-1, Prop. 2nd Am. Compl. ¶13]. She further alleges that these
injuries “resulted in a leave of absence from work, with the plaintiff returning to
light duty on July 18, 2011, and to full duty on October 3, 2011,” and that “the
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November 15 injury aggravated the existing injury caused by the automobile
accidents.”3 [Id. at ¶¶14-15]. Despite returning to work the next day and despite
“her performance of her full duties, however, the plaintiff continued to experience
pain in her back and neck” and started physical therapy in January 2002. [Id. at
¶¶23-24]. Singleton has also amended her complaint to add more detail regarding
the January 10, 2012 letter from UPS, which stated
Our records reflect that you have been unable to perform the
essential functions of your part-time preload supervisor
position since January 18, 2011, and that you have been
working on residual disability pursuant to the Income
Protection Plan since November 15, 2011. While you did
return to work on October 4, 2011, you did not work 30
calendar days before you begun [sic] working residential duty
on November 18, 2011.
[Id. at ¶25]. Although Singleton did not request an accommodation as the letter
encouraged her to do, she alleges that she “continued to experience substantial
pain in her back and neck.” [Id. at ¶27].
Here, Plaintiff’s Proposed Second Amended Complaint pleads an
impairment that is not facially transitory or minor. Plaintiff suffered back and
neck injuries as a result of two car accidents in January and March 2011. She
returned to work in October 2011 after an absence of eight and one half months
and, while still experiencing back and neck pain, worked full duty for one and a
half months; she then injured her back and neck a third time while lifting a box at
work on November 15, 2011. Although she returned to work the following day

3

Singleton alleges in her First Amended Complaint that she was cleared and
attempted to return to light duty work on July 18, 2011 but UPS did not allow her
to return to work until she was cleared for full duty work, which was on October 3,
2011.
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and two weeks later resumed her full duties, Singleton alleges that she continued
to experience back pain and that UPS believed her to not be getting any better.
Further, UPS stated in a letter to Singleton on January 10, 2012 that Singleton had
been unable to perform the essential functions of her job since January 18, 2011,
or for the full year prior.
Plaintiff’s injuries from her two car accidents and the box incident are
facially consistent and Plaintiff has sufficiently alleged that UPS believed them to
be – at least for purposes of a 12(b)(6) motion – one ongoing back and neck
impairment. Plaintiff was out of work with a back and neck injury for nearly nine
months after her car accidents. She returned to work for a little more than one
month before injuring her back again, and was then terminated after being
informed that she had been unable to perform the functions of her job for the
twelve months prior. These allegations sufficiently allege an impairment lasting
more than six months. Moreover, because the transitory and minor exception to
discrimination under the regarded as disabled prong is a defense whose
applicability the Defendant must prove, because Plaintiff has facially pled a nontransitory injury, and because there is not yet a record on which this Court may
base any other decision in this case, it is inappropriate for this Court to make
factual determinations as to the actual duration or extent of Singleton’s injury at
this stage. Rather, this defense is appropriate for adjudication at the summary
judgment stage. See, e.g., Davis v. Vermont, Dep't of Corr., 868 F. Supp. 2d 313,
327 (D. Vt. 2012) (noting that dismissal of regarded as disabled claim would be

9

appropriate only “[t]o the extent that this defense is apparent from the face of the
complaint,” and denying dismissal where it was not).
UPS has also opposed Singleton’s Motion to Amend because it believes
that Singleton has artificially linked her car accident and box injuries as these
injuries were not equivalent. UPS argues that, in fact, the back and neck injuries
stemming from Singleton’s car accidents are not the same type of injury as that
stemming from her box incident, which was diagnosed as a “cervical strain.” The
Defendant apparently believes this to be the case because it is defining “cervical
strain” as an injury to a woman’s cervix. While the term “cervical” is defined as
“of or relating to a neck or cervix,” (Merriam-Webster Dictionary, available at
http://www.merriam-webster.com/dictionary/cervical) the Court notes for
purposes of clarity that a cervical strain more commonly refers to an injury of the
cervical spine and not an injury to a woman’s reproductive anatomy. See, e.g.,
Warren Magnus, DO, Cervical Strain, available at
http://emedicine.medscape.com/article/822893-overview. Thus, it is not
unreasonable to characterize a cervical strain as a back or neck injury, and
Singleton’s characterization of her injuries is neither erroneous nor inconsistent.
The Court thus cannot find that Singleton’s proposed amended ADA claim
is futile, as this Court holds that it would survive a motion under Rule 12(b)(6).
The Court further finds that the Plaintiff has not exhibited bad faith or dilatory
motive in attempting to amend her ADA claim. Nor has UPS demonstrated that
amendment of this claim would cause undue delay; three claims exist in this
action, two of which are the subject of the Defendant’s Motion to Dismiss and the
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Plaintiff’s Motion to Amend. The third – a claim for retaliation for Plaintiff’s
exercise of her rights pursuant to the Connecticut Worker’s Compensation Act –
is active and will remain so even if this Court denies Plaintiff the opportunity to
amend. Plaintiff also timely moved to amend less than three weeks after the
Defendant filed its Motion to Dismiss. Further, although this amended complaint
will be Plaintiff’s third pleading and third iteration of her ADA claim, because her
proposed amendments constitute a cognizable ADA claim this Court concludes
that she has not unduly failed to cure deficiencies by amendments previously
allowed.
Plaintiff’s Motion to amend her ADA claim is GRANTED.
a. Connecticut Fair Employment Practices Act
UPS argues that Plaintiff should not be allowed to amend her operative
complaint to re-allege her perceived physical disability claim under the
Connecticut Fair Employment Practices Act (“CFEPA”) because a perceived
disability claim is not cognizable under CFEPA and amendment would thus be
futile. While the Plaintiff has admitted that the CFEPA does not currently
recognize a cause of action for a perceived disability claim, she urges this Court
to delay ruling on this claim because the Connecticut Supreme Court has
certified an appeal on whether a perceived as disability claim is cognizable under
CFEPA.
Indeed, under Connecticut law as it currently stands and as both parties
agree, a perceived as disabled claim is not recognized under the CFEPA, as the
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Connecticut Appellate Court and the Second Circuit have both held. Desrosiers
v. Diageo N. Am., Inc., 137 Conn. App. 446, 455 (2012) (“Physically disabled is
therefore defined under the provision as any individual who has any chronic
physical handicap, infirmity or impairment. There is no language in the provision
that supports an interpretation that it includes those who may be regarded as
disabled by their employers. Rather, the use of the word ‘has’ by the legislature
evinces the intent to protect those who actually suffer from some type of
handicap, infirmity or impairment, not those whose employer may incorrectly
regard as being disabled. . . . After examination of the definition of ‘physically
disabled,’ we conclude that the text of § 46a–60 is clear and unambiguous in that
it does not cover claims of discrimination based on a perceived physical
disability.”); Beason v. United Technologies Corp., 337 F.3d 271, 279 (2d Cir.
2003) (holding that perceived as disabled claim was not cognizable under CFEPA
as § 46a-51 “makes no mention of prohibiting discrimination on the basis of an
individual's perceived physical disability” and legislative history did not support
such claim). See also Buotote v. Illinois Tool Works, Inc., 815 F. Supp. 2d 549,
556 n. 8 (D. Conn. 2011) (JBA) (“The CFEPA does not provide for a cause of
action for perceived disability discrimination”); McGee v. New Breed Logistics,
Inc., 3:09-CV-894 CFD, 2011 WL 2838135 (D. Conn. July 14, 2011) (“there is no
cause of action under the CFEPA for perceived disability discrimination”); Brown
v. City of Waterbury Bd. of Educ., 722 F. Supp. 2d 218 (D. Conn. 2010) (JCH)
(same).

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The Connecticut Supreme Court has granted certiorari of the Connecticut
Appellate Court’s rejection of perceived disability claims under CFEPA in
Desrosiers v. Diageo N. Am., Inc., 137 Conn. App. 446 (2012), cert. granted 307
Conn. 916 (Oct. 10, 2012).4 No ruling has yet been filed. Singleton argues that,
although the current weight of authority supports the Appellate Court’s holding in
Desrosiers that Connecticut law does not recognize a perceived as disabled
claim, factors “suggest that a broader interpretation [of CFEPA] may carry the
day” and thus this Court should allow her to include her CFEPA claim in her
proposed Second Amended Complaint.
Singleton cites to no legal authority for the proposition that this Court
should wait for a decision from the Connecticut Supreme Court in Desrosiers –
determination date unknown – instead of applying the law as it currently stands.
The present state of the law pursuant to the CFEPA is that a perceived as
disabled claim is not legally cognizable. This Court finds no reason to refrain
from applying the current law on this issue to the facts as presented in this case.
The Court thus DENIES Plaintiff’s request to amend her CFEPA claim as such
amendment would be futile and any such amendment would not survive a motion
pursuant to Rule 12(b)(6). Plaintiff may seek further leave to amend in order to reallege her CFEPA claim if and only if the Connecticut Supreme Court rules, in
disposition of the appeal in Desrosiers v. Diageo N. Am., Inc., 137 Conn. App. 446

4

The issue certified is as follows: “Did the Appellate Court properly affirm the
trial court’s granting of summary judgment in favor of the defendant on the basis
that Connecticut does not recognize a cause of action for discrimination based
on a perceived physical disability?” 307 Conn. at 916.
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(2012), cert. granted 307 Conn. 916 (Oct. 10, 2012), that a perceived physical
disability claim is cognizable under the CFEPA.
IV.

Conclusion
For the foregoing reasons, Plaintiff’s [Dkt. 21] Motion to file an amended

complaint is GRANTED IN PART AND DENIED IN PART and Defendant’s [Dkt. 19]
Motion to Dismiss the First Amended Complaint is DENIED in light of such
amendment. The Plaintiff shall file her Second Amended Complaint – omitting
her futile claim for perceived disability discrimination under the CFEPA – as a
separate docket entry by March 19, 2014.5

IT IS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 11, 2014

5

The Court notes that Plaintiff’s claim for retaliation under Connecticut’s
Workers’ Compensation Act is extant, as that claim was neither the subject of
Defendant’s Motion to Dismiss nor the subject of Defendant’s Opposition to
Plaintiff’s Motion to Amend.
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