Sam-Sekur v. The Whitmore Group, Ltd.
Filing
18
ORDER granting 12 Motion to Dismiss. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that defendant's motion to dismiss plaintiff's complaint is granted. However, in an abundance of caution, the Cour t grants plaintiff leave to replead her termination claim to address how, for example, her chronic cholecystitis was linked to her pregnancy, and the duration of the illness. Furthermore, the Court grants plaintiff leave to replead her termination cl aim under the Pregnancy Discrimination Act, which amended Title VII of the Civil Rights Act of 1964. Plaintiff may file an amended complaint within thirty days of the issuance of this Order. Failure to file an amended complaint will result in dismissal of the complaint with prejudice. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/15/2012. (Weber, Rebecca)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-cv-4938 (JFB) (GRB)
_____________________
DENISE SAM-SEKUR,
Plaintiff,
VERSUS
THE WHITMORE GROUP, LTD.,
Defendant.
___________________
MEMORANDUM AND ORDER
June 15, 2012
___________________
JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Denise Sam-Sekur
(“plaintiff” or “Sam-Sekur”) brings this
action against the Whitmore Group, Ltd.
(“defendant” or “Whitmore”) alleging
violations of Title I of the Americans with
Disabilities Act (“ADA”), 42 U.S.C.
§ 12112, as well as state law claims for
defamation, wrongful termination, and
breach of contract. In particular, plaintiff
alleges that defendant failed to promote her,
failed to provide her with a salary increase,
and terminated her because she was
pregnant and suffered from illnesses
following her pregnancy.
For the reasons set forth below, the
Court dismisses plaintiff’s claims under the
ADA. The Court finds that plaintiff failed to
timely exhaust her administrative remedies
with respect to her claims that defendant
failed to promote her or to give her a raise,
though plaintiff’s claims concerning her
termination were timely exhausted. In any
event, the Court finds that plaintiff’s
complaint does not sufficiently allege that
she was “disabled” within the meaning of
the ADA. In an abundance of caution,
however, the Court grants plaintiff leave to
replead her termination claim so that she
may set forth allegations regarding how, for
example, her chronic cholecystitis was
linked to her pregnancy, and the duration of
the illness. Furthermore, the Court grants
plaintiff leave to replead her termination
claim under the Pregnancy Discrimination
Act, which amended Title VII of the Civil
Rights Act of 1964 to prohibit
discrimination “on the basis of pregnancy,
childbirth, or related medical conditions.” 42
U.S.C. § 2000e(k).
I. BACKGROUND
pregnant, but feared that “once they knew,”
she would never get a raise. (Id.)
A. Factual Background
In January 2009, plaintiff told Peterson
she was pregnant. (Id.) Peterson “literally
screamed at me voicing her displeasure that
I was pregnant, blaming me that her new
position now has to be detained.” (Id.)
Plaintiff alleges that Custance told her not to
tell anyone she was pregnant until after he
advised the owner. (Id.) Plaintiff later
informed the owner, Jim Metzger
(“Metzger”), that she was pregnant,
explaining that she had not said anything
sooner because of an earlier miscarriage and
because of “the raise [she] was expecting.”
(Id.) She did not receive the raise or the
promotion. (Id.)
The following facts are taken from the
Complaint filed on October 6, 2011,
(“Compl.”), and are not findings of fact by
the Court. Instead, the Court will assume the
facts in the complaint to be true and, for
purposes of the pending 12(b)(6) motion to
dismiss, will construe them in a light most
favorable to plaintiff, the non-moving party.
Plaintiff began working for Whitmore on
December 8, 2007. (Letter from Plaintiff to
the Equal Employment Opportunity
Commission (“Letter to the EEOC”) (June
14, 2011). 1) She worked in the Funeral
Department
for
Roseanne
Manger
(“Manger”) until she was transferred in
March 2008 to the General Business
Department, where she was Darcy
Peterson’s (“Peterson”) assistant. (Id.)
Plaintiff alleges that she was promised a
raise after six months of employment,
provided that she had a good review. (Id.)
Although plaintiff received a “great verbal
review,” she received no salary increase.
(Id.) Plaintiff continued to “play[] the raise
game” with George Custance (“Custance”),
the manager of the General Business
Department. (Id.) He claimed there was a
freeze on raises due to the economy, but
plaintiff alleges that the defendant
nonetheless embarked on a costly renovation
and gave select employees raises. (Id.)
Later,
plaintiff
assumed
Peterson’s
responsibilities when Peterson was given a
different position. (Id.) She was again
promised a raise, which she never received.
(Id.) At that point, plaintiff knew she was
Plaintiff alleges that she was treated
differently than three other pregnant women
in the office. (Id.) They were all given baby
showers, but plaintiff was not given a baby
shower, and, while in the hospital, plaintiff
received no card, flowers, or phone calls.
(Id.) When she returned to work, plaintiff
was treated like the “office pariah.” (Id.)
Peterson allegedly told “her friends in
management” that plaintiff was “married
having another man’s baby.” (Id.) One
employee in the Funeral Department told
plaintiff that Manger had said plaintiff was
married and having another man’s baby.
(Id.) Plaintiff notes that this employee is
willing to testify that she was promised a
raise six months after employment, and
“actually received it.” (Id.)
Defendant subsequently gave plaintiff’s
promotion to a new hire named Diana
Bertoni (“Bertoni”) at a salary of $80,000
per year. (Id.) When plaintiff returned from
leave, Bertoni became her supervisor. (Id.)
After returning from leave, plaintiff had
many medical problems. (Id.) In August
2010, Bertoni told plaintiff that if she was
“out sick again,” she could not “guarantee”
1
Plaintiff’s complaint is very brief. Most of the
allegations are contained in the Letter to the
EEOC, which plaintiff annexed to her
complaint.
2
that plaintiff would be able to keep her job.
(Id.; Equal Employment Opportunity
Commission Intake Questionnaire (“EEOC
charge”), June 14, 2011 (attached to Compl.
at 10 2).) As a result, plaintiff emailed
Metzger to provide the exact details for why
she was out of the office. (Letter to the
EEOC.) According to the email to Metzger,
which plaintiff attaches to her complaint,
plaintiff experienced the following: a breast
cancer scare on December 31, 2009; an
appendectomy in March 2010; an infection
from an IUD, which was removed on July
14, 2010; and an infected oral implant,
which was removed on August 2, 2010.
(Email from Plaintiff to James Metzger
(Aug. 9, 2010).)
these matters,” but was afraid to contact the
EEOC because of fears of retaliation and/or
losing her job. (Letter to the EEOC.) The
EEOC charge asserts a claim for
discrimination pursuant to disability and
pregnancy arising from “pregnancy and
illness post pregnancy.” On July 11, 2011,
the EEOC sent plaintiff a Dismissal and
Notice of Rights (“Right to Sue Letter”). In
the Right to Sue Letter, the EEOC explained
that it was closing plaintiff’s file because it
was unable to conclude that defendant
violated any statute under its jurisdiction.
Plaintiff was given 90 days to file a lawsuit
based on the EEOC charge. She filed this
lawsuit within 90 days.
B. Procedural Background
On June 16, 2010, plaintiff emailed
Custance, again asking for a raise. (Id.) She
received a small increase that was not
retroactive. (Id.) On August 23, 2010,
Peterson forced plaintiff to stay late in order
to rewrite two canceled policies. (Letter to
the EEOC.) Plaintiff had to stay until 5:30
p.m. to handle the rewrite for Peterson’s
customer. (Id.)
Plaintiff filed the complaint in this action
on October 6, 2011. Defendant moved to
dismiss on January 9, 2012. Plaintiff filed an
affirmation in opposition on February 13,
2012. Defendant replied on February 24,
2012. The Court has fully considered the
arguments and submissions of the parties.
II. STANDARD OF REVIEW
On October 28, 2010, two days after
returning from being out sick, plaintiff was
terminated. (EEOC charge.) Custance and
the CFO, Geraldine Schnatz, told plaintiff
that her termination was due to downsizing.
(Id.) Plaintiff alleges, however, that at least
three new hires were permitted to keep their
jobs. (Id.) Plaintiff alleges that the basis for
the adverse actions was “pregnancy and
illness post pregnancy.” (Id.)
When a Court reviews a motion to
dismiss for failure to state a claim for which
relief can be granted, it must accept the
factual allegations set forth in the complaint
as true and draw all reasonable inferences in
favor of the plaintiff. See Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir.
2006); Nechis v. Oxford Health Plans, Inc.,
421 F.3d 96, 100 (2d Cir. 2005). “In order
to survive a motion to dismiss under Rule
12(b)(6), a complaint must allege a plausible
set of facts sufficient ‘to raise a right to
relief above the speculative level.’”
Operating Local 649 Annuity Trust Fund v.
Smith Barney Fund Mgmt. LLC, 595 F.3d
86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
Prior to commencing this lawsuit,
plaintiff completed and filed an EEOC
charge, dated June 14, 2011. Plaintiff noted
in her Letter to the EEOC that she was
aware that there were time constraints “on
2
Page references indicate the page numbers
assigned by the ECF docketing system.
3
F.2d 42, 48 (2d Cir. 1991) (“[T]he district
court . . . could have viewed [the
documents] on the motion to dismiss
because there was undisputed notice to
plaintiffs of their contents and they were
integral to plaintiffs’ claim.”); Brodeur v.
City of New York, No. 04 Civ. 1859 (JG),
2005 U.S. Dist. LEXIS 10865, at *9-10
(E.D.N.Y. May 13, 2005) (court could
consider documents within the public
domain on a Rule 12(b)(6) motion to
dismiss).
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570.
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662, 129 S. Ct. 1937 (2009). The
Court instructed district courts to first
“identify[ ] pleadings that, because they are
no more than conclusions, are not entitled to
the assumption of truth.” 129 S.Ct. at 1950.
Though “legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.” Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id.
III. DISCUSSION
A.
Failure to Exhaust Administrative
Remedies
As a threshold matter, defendant
contends that plaintiff failed to file a timely
EEOC charge because she “knew or had
reason to know of the injury serving as the
basis for” some of her claims at least as
early as June 2009, yet she did not file her
EEOC charge within the requisite 300 days.
See Harris v. City of New York, 186 F.3d
243, 247 (2d Cir. 1999). The Court agrees
that plaintiff’s claims that she was passed
over for a promotion and a raise accrued, at
the latest, when she returned from maternity
leave, are not subject to equitable tolling,
and do not fall within the “continuing
violation” exception. Accordingly, the raise
and promotion claims are time-barred.
Plaintiff’s claim that she was terminated on
the basis of disability is, however, timely.
The Court notes that in adjudicating a
Rule 12(b)(6) motion, it is entitled to
consider: “(1) facts alleged in the complaint
and documents attached to it or incorporated
in it by reference, (2) documents ‘integral’
to the complaint and relied upon in it, even
if not attached or incorporated by reference,
(3) documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356-57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part and reversed in part on other
grounds sub nom., Lentell v. Merrill Lynch
& Co., 396 F.3d 161 (2d Cir. 2005), cert.
denied, 546 U.S. 935 (2005); see also
Cortec Indus., Inc. v. Sum Holding L.P., 949
1.
Applicable Law
Under 42 U.S.C. § 2000e-5, which is
incorporated by reference into the ADA by
42 U.S.C. § 12117(a), a plaintiff in New
York has 300 days from the date of accrual
to file an ADA charge with the EEOC. See
Harris, 186 F.3d at 247-48. A claim under
the ADA accrues when the plaintiff “knew
4
to what “is at best a garden variety claim of
excusable neglect” (citation and quotation
marks omitted)). The “burden of
demonstrating the appropriateness of
equitable tolling . . . lies with the plaintiff.”
Boos v. Runyon, 201 F.3d 178, 185 (2d Cir.
2000); see also Smith v. Chase Manhattan
Bank, No. 97 Civ. 4507 (LMM), 1998 U.S.
Dist. LEXIS 14711, at *10 (S.D.N.Y. Sept.
18, 1998) (“[A] court must consider the
equities of the excuse offered to explain the
delay and may extend the limitations period
if warranted.”).
or had reason to know of the injury serving
as the basis for his claim.” Id. at 247.
“Termination, failure to promote, and
refusal to hire are considered ‘discrete acts’
which are ‘easy to identify’ and claims
based on each are barred if not timely filed.”
Valtchev v. City of New York, 400 F. App’x
586, 588, (2d Cir. 2010). There is an
exception, however, for discriminatory acts
that are “part of a continuing policy and
practice of prohibited discrimination.” Id.
Under this “continuing violation” exception
to the limitations period, if a plaintiff “files
an EEOC charge that is timely as to any
incident of discrimination in furtherance of
an ongoing policy of discrimination, all
claims of acts of discrimination under that
policy will be timely even if they would be
untimely standing alone.” Lambert v.
Genesee Hosp., 10 F.3d 46, 53 (2d Cir.
1993), overruled in part on other grounds by
Kasten v. Saint-Gobain Performance
Plastics Corp., 131 S. Ct. 1325 (2011). The
continuing violation exception applies “to
cases involving specific discriminatory
policies or mechanisms,” but does not apply
to “multiple incidents of discrimination,
even similar ones, that are not the result of a
discriminatory policy or mechanism.” Id.
2.
Application
Defendant argues that plaintiff failed to
exhaust her administrative remedies by
filing an EEOC charge within 300 days of
the accrual of her claim, since she knew that
she had been passed over for a promotion
and raise when she returned from maternity
leave in June 2009, 3 yet she did not file an
3
Plaintiff’s complaint does not provide the exact
date of her leave pursuant to the Family and
Medical Leave Act (“FMLA”). Defendant
attaches a letter to its motion to dismiss
indicating that plaintiff was granted FLMA
leave from March 23, 2009 through June 12,
2009. (Letter from Geraldine Schnatz, Office
Manager, to Plaintiff (Mar. 27, 2009).) The
Court may consider this letter in adjudicating a
Rule 12(b)(6) motion because “plaintiff ha[d]
knowledge or possession of the material and
relied on it in framing the complaint.” See In re
Merrill Lynch & Co., 273 F. Supp. 2d at 356-57.
Moreover, as noted supra, plaintiff referred to
her leave in her complaint without exact dates,
and did not dispute the dates contained in the
motion to dismiss. In any event, it is clear from
the email attached to plaintiff’s complaint that
she had returned to work before August 9, 2010
and any claim alleging that defendant failed to
promote or failed to provide a raise to plaintiff
on the basis of discrimination due to pregnancy
would have accrued as of her return from leave
and would be barred by the 300-day requirement
even if she returned as late as August 9, 2010.
“When determining whether equitable
tolling is applicable, a district court must
consider whether the person seeking
application of the equitable tolling doctrine
(1) has ‘acted with reasonable diligence
during the time period she seeks to have
tolled,’ and (2) has ‘proved that the
circumstances are so extraordinary that the
doctrine should apply.’” Zerilli-Edelglass v.
N.Y. City Transit Auth., 333 F.3d 74, 80-81
(2d Cir. 2003) (quoting Chapman v.
ChoiceCare Long Island Term Disability
Plan, 288 F.3d 506, 512 (2d Cir. 2002)); see
also South v. Saab Cars USA, Inc., 28 F.3d
9, 12 (2d Cir. 1994) (noting that the
principles of equitable tolling do not extend
5
EEOC charge until June 14, 2011. The
Court agrees that plaintiff’s claims that she
was discriminated against on the basis of
pregnancy when she was passed over for a
raise and a promotion accrued, at the latest,
when she returned from maternity leave,
since “she knew or had reason to know of
the injury serving as the basis for [her]
claim.” See Harris, 186 F.3d at 247.
2010, and filed her EEOC charge within 300
days of her termination.
B.
Failure to State a Claim Under the
ADA
1. Applicable Law
The ADA was enacted by Congress to
“provide a clear and comprehensive national
mandate
for
the
elimination
of
discrimination against individuals with
disabilities[.]” 42 U.S.C. § 12101(b)(1).
Title I of the ADA prohibits employment
discrimination. 42 U.S.C. § 12111 et seq.
Title II prohibits disability discrimination by
public entities in connection with access to
public services. 42 U.S.C. § 12131 et seq.
Title III prohibits disability discrimination
by people who own, lease, or operate places
of “public accommodation,” such as hotels,
theaters, grocery stories, and transportation
centers. 42 U.S.C. § 12181 et seq.
In an addendum to her complaint,
plaintiff explains that, although she is
“aware that there are time constraints on
these matters,” she “wish[es] she would
have known earlier,” because she “would
have contacted the EEOC sooner.” (Letter to
the EEOC.) Plaintiff further states,
“However, I still would have been afraid of
retaliation and/or losing my job.” (Id.)
Plaintiff’s conclusory statement that she
would have been afraid of retaliation had
she filed an EEOC charge is insufficient to
serve as the basis for equitable tolling.
Moreover, no other basis for equitable
tolling has been asserted in this case. Nor
does the “continuing violation” exception
apply. There is no evidence that any of the
isolated acts complained of by plaintiff
related to any specific discriminatory policy.
Under Title I, the provision at issue,
employers
are
prohibited
from
discriminating “on the basis of disability in
regard to job application procedures, the
hiring, advancement, or discharge of
employees, employee compensation, job
training, and other terms, conditions, and
privileges of employment.” 42 U.S.C.
§ 12112(a).
Employers
must
make
“reasonable accommodations” for qualified
individuals with a disability, unless the
employer can show that such an
accommodation would impose an “undue
hardship.” 42 U.S.C. § 12112(b)(5)(A).
Accordingly, because plaintiff did not
file an EEOC charge until June 14, 2011,
plaintiff failed to timely exhaust her
administrative remedies with respect to her
claims that defendant failed to promote her
or to give her a raise prior to her pregnancy,
during her pregnancy, or when she returned
from leave after giving birth. However,
plaintiff’s claim that she was terminated on
the basis of her pregnancy and postpregnancy illnesses was timely exhausted.
Plaintiff was terminated on October 28,
To establish a prima facie case under the
ADA, a plaintiff must show that:
(1) his employer is subject to the
ADA; (2) he was disabled within the
meaning of the ADA; (3) he was
otherwise qualified to perform the
essential functions of his job, with or
The only alleged denial of promotion of which
plaintiff complains was immediately known to
her upon her return when Bertoni was her new
boss.
6
in Sutton v. United Air Lines, Inc.,
527 U.S. 471, 119 S. Ct. 2139, 144
L. Ed. 2d 450 (1999), and Toyota
Motor Manufacturing, Kentucky, Inc.
v. Williams, 534 U.S. 184, 122 S. Ct.
681, 151 L. Ed. 2d 615 (2002), and
thereby expands the class of
individuals who are entitled to
protection under the ADA.
without reasonable accommodation;
and (4) he suffered adverse
employment action because of his
disability.
Giordano v. City of New York, 274 F.3d
740, 747 (2d Cir. 2001).
The ADA defines a 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 (as described
in paragraph (3)).” 42 U.S.C. § 12102(1).
With respect to an individual who is
“regarded as having an impairment” under
42 U.S.C. § 12102(1)(C), the individual
must establish “that he or she has been
subjected to an action prohibited under this
Act 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). However, 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.”
42 U.S.C. § 12102(3)(B).
Rohr v. Salt River Project Agric.
Improvement & Power Dist., 555 F.3d 850,
853 (9th Cir. 2009) (citations omitted).
Following the amendments, major life
activities no longer need to be of “central
importance,” and may include “caring for
oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C.
§ 12102(2)(A).
2. Analysis
Plaintiff
alleges
that
she
was
discriminated against on the basis of
“pregnancy and post pregnancy illness.”
(Compl. at 3.) Plaintiff details these postpregnancy illnesses in an email attached to
her complaint, which she sent to Metzger on
August 9, 2010. They include: a breast
cancer scare on December 31, 2009; an
appendectomy in March 2010; an infection
from an IUD, which was removed on July
14, 2010; and an infected oral implant,
which was removed on August 2, 2010.
(Email from Plaintiff to James Metzger
(Aug. 9, 2010).) In her opposition, plaintiff
describes an additional illness. (Pl.’s Opp.,
Feb. 13, 2012, ECF No. 13.) She explains
that she began to experience “a swelling
under my right rib,” for which she visited a
“gastro doctor” in June 2010 and September
2010. (Id.) After she was terminated on
October 28, 2010, the swelling “became
very painful and the fevers were constant.”
Congress enacted the ADA Amendments
Act of 2008 (“ADAAA”), effective January
1, 2009, which expanded the class of
individuals entitled to protection under the
ADA. As the Ninth Circuit has explained:
In
the
ADAAA,
Congress
emphasizes that when it enacted the
ADA in 1990, it “intended that the
Act
‘provide
a
clear
and
comprehensive national mandate for
the elimination of discrimination
against individuals with disabilities’
and provide broad coverage.” The
ADAAA rejects the Supreme Court’s
interpretation of the term “disability”
7
action prohibited under this Act 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).
However, 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.” 42 U.S.C. § 12102(3)(B).
Plaintiff’s breast cancer care, appendectomy,
infection from an IUD, and infected oral
implant were each “transitory and minor.”
See White v. Interstate Distrib. Co., 438 F.
App’x 415, 420 (6th Cir. 2011) (plaintiff
could not establish a “regarded as disabled”
claim because he suffered a transitory
impairment with a duration of one or two
months); Dugay v. Complete Skycap Servs.,
Inc., CV 10-2404 (PHX) (GMS), 2011 U.S.
Dist. LEXIS 81829, at *12 (D. Ariz. July 26,
2011) (three month-long disability resulting
from car accident was “transitory and
minor,” and therefore did not qualify the
plaintiff as disabled).
(Id.) She saw a series of doctors and was
ultimately
diagnosed
with
chronic
cholecystitis, and had her gallbladder
removed on May 23, 2011. (Id.) Plaintiff
notes that the Mayo Clinic website states
that “women who were post pregnancy
could have this illness.” (Id.) Defendant
argues that plaintiff has failed to
demonstrate that her “pregnancy and post
pregnancy illness” constituted a disability
within the meaning of the ADA.
a.
Other Illnesses
As an initial matter, it is clear that
plaintiff fails to allege a plausible disability
claim based upon her breast cancer care,
appendectomy, infection from an IUD, and
infected oral implant. Each of these illnesses
is a temporary, short-term impairment that is
not “substantially limiting” and does not,
therefore, render a person “disabled” under
42 U.S.C. § 12102(1)(A). See Adams v.
Citizens Advice Bureau, 187 F.3d 315, 31617 (2d Cir. 1999) (per curiam) (temporary
neck, back, and knee injury lasting three and
one-half months not a disability); Colwell v.
Suffolk Cnty. Police Dep’t, 158 F.3d 635,
646 (2d Cir. 1998) (seven-month temporary
impairment was not substantially limiting);
McNamara v. Tourneau, Inc., 496 F. Supp.
2d 366, 376 (S.D.N.Y. 2007), aff’d 326 F.
App’x 68 (2d Cir. 2009) (back and leg
injury lasting only eight weeks was not
substantially limiting); Williams v. Salvation
Army, 108 F. Supp. 2d 303, 313 (S.D.N.Y.
2000) (temporary effects as a result of blunt
head trauma did not give rise to a disability
within the meaning of the ADA).
For these reasons, plaintiff fails to
qualify as disabled under the ADA as a
consequence of her breast cancer scare,
appendectomy, infection from an IUD, or
infected oral implant. 4
4
Under 42 U.S.C. § 12102(1)(B), a person
qualifies as disabled if he has “a record of such
an impairment.” The EEOC regulations further
explain that “[a]n individual has a record of a
disability if the individual has a history of, or
has been misclassified as having, a mental or
physical impairment that substantially limits one
or more major life activities.” 29 C.F.R.
§ 1630.2(k); see Colwell, 158 F.3d at 645
(“Even without a showing of substantial
limitation of a major life activity, the ADA’s
definition of ‘disability’ can be satisfied by ‘a
record’ of an impairment that substantially limits
one or more major life activities.”) Because this
Court concludes that plaintiff does not
Nor do these illnesses qualify as
disabilities under 42 U.S.C. § 12102(1)(C).
As discussed above, to qualify as an
individual who is “regarded as having an
impairment”
under
42
U.S.C.
§ 12102(1)(C), the individual must establish
“that he or she has been subjected to an
8
b.
i.
Pregnancy
Only in extremely rare cases have courts
found that conditions that arise out of
pregnancy qualify as a disability. In these
cases, “it is the physiological impairment
that results from complications that renders
the person disabled.” Conley, 88 F. Supp. 2d
at 20. For example, in Hernandez v. City of
Hartford, 959 F. Supp. 125, 130-31 (D.
Conn. 1997), the premature onset of labor
that could only be controlled by medication
constituted a physical impairment, though
there were genuine issues of material fact as
to whether the impairment substantially
limited plaintiff’s ability to work. In
Patterson by Patterson v. Xerox Corp., 901
F. Supp. 274, 278 (N.D. Ill. 1995), the court
held that the plaintiff sufficiently alleged a
disability where she suffered severe back
pain from pregnancy, in part because the
pregnancy aggravated a prior back injury.
Applicable Law
Pregnancy does not typically constitute a
disability under the ADA. See Leahy v. Gap,
Inc., Civ. 07-2008, 2008 U.S. Dist. LEXIS
58812, at *14 (E.D.N.Y. July 29, 2008)
(“‘Every court to consider the question of
whether pregnancy in and of itself is a
‘disability’ within the meaning of the ADA
has concluded that it is not.’” (quoting
Green v. New York City Health and Hosp.
Corp., 04 Civ. 5144 (PAC), 2008 U.S. Dist.
LEXIS 2832, at *14-15 (S.D.N.Y. Jan. 15,
2008), aff’d 343 F. App’x 712 (2d Cir.
2009)); see also Dantuono v. Davis Vision,
Inc., No. 07-CV-2234 (TCP)(ETB), 2009
U.S. Dist. LEXIS 122119, at *12 (E.D.N.Y.
Dec. 29, 2009) (inability to lift more than
ten pounds as a result of pregnancy was
temporary, and therefore not a disability).
ii. Application
Moreover, courts generally hold that
complications arising from pregnancy do not
qualify as disabilities under the ADA. See
Conley v. United Parcel Serv., 88 F. Supp.
2d 16, 19 (E.D.N.Y. 2000). For example, in
LaCoparra v. Pergament Home Ctrs., Inc.,
982 F. Supp. 213, 228 (S.D.N.Y. 1997), a
woman who was granted a nine-month leave
of absence for complications stemming from
her pregnancy was not considered disabled.
In Tsetseranos v. Tech Prototype Inc., 893
F. Supp. 109, 119 (D.N.H. 1995), a pregnant
plaintiff who missed several days of work
because of ovarian cysts was not disabled.
The complaint as it is currently drafted
is insufficient to state a plausible claim
under the ADA based upon pregnancy or
pregnancy-related illness, given the lack of
specificity as to whether plaintiff suffered
illnesses that were linked to her pregnancy,
and the duration of those illnesses.
In particular, plaintiff has not alleged
how her pregnancy substantially limited a
major life activity. Moreover, as discussed
supra, temporary impairments, pregnancies,
and complications arising from pregnancy
are not typically considered disabilities.
Plaintiff has not sufficiently alleged any
physiological impairments as a consequence
of her pregnancy that have rendered her
disabled. Accordingly, based upon the
current allegations in the complaint,
plaintiff’s pregnancy does not render her
disabled under 42 U.S.C. § 12102(1)(A).
sufficiently allege an impairment that
substantially limited a major life activity under
42 U.S.C. § 12102(1)(A), and plaintiff does not
allege that there were records relied on by her
employer indicating a greater degree of
limitation than she alleged in her complaint,
plaintiff fails to qualify as disabled under 42
U.S.C. § 12102(1)(B) with respect to all of her
claims. See Colwell, 158 F.3d at 645.
Nor does plaintiff’s pregnancy render
her disabled under 42 U.S.C. § 12102(1)(C)
9
because she has not sufficiently alleged that
she was regarded as having such an
impairment. Although an individual need
not demonstrate that her impairment was
perceived by others to limit a major life
activity, an individual must still demonstrate
that she has an impairment. Pregnancy by
itself, however, is not generally considered
an impairment. See Marchioli v. Garland
Co., Inc., 5:11–cv–124 (MAD/ATB), 2011
U.S. Dist. LEXIS 54227, at *19-20
(N.D.N.Y. May 20, 2011); Serednyj v.
Beverly Healthcare LLC, 2:08–CV–4, 2010
U.S. Dist. LEXIS 38221, *39 (N.D. Ind.
Apr. 16, 2010), aff’d 656 F.3d 540 (7th Cir.
2011). Moreover, as discussed supra,
plaintiff has not alleged any physiological
impairment as a result of her pregnancy that
could conceivably fall within one of the
extremely rare cases in which courts have
found that conditions that arise out of
pregnancy qualify as a disability.
this illness was linked to her pregnancy and
the duration of the illness. Thus, the Court
grants plaintiff leave to replead her
termination claim so that she may set forth
allegations regarding how, for example, her
chronic cholecystitis was linked to her
pregnancy, and the duration of the illness.
See Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000). Furthermore, the Court
grants plaintiff leave to replead her claims
under the Pregnancy Discrimination Act,
which amended Title VII of the Civil Rights
Act of 1964 to prohibit discrimination “on
the basis of pregnancy, childbirth, or related
medical conditions.” 42 U.S.C. § 2000e(k).
IV. LEAVE TO REPLEAD
The Second Circuit has emphasized that
A pro se complaint is to be read
liberally. Certainly the court should
not dismiss without granting leave
to amend at least once when a
liberal reading of the complaint
gives any indication that a valid
claim might be stated.
Accordingly,
the
Court
grants
defendant’s motion to dismiss plaintiff’s
claim of discrimination under the ADA on
the basis of her “pregnancy and illness post
pregnancy.” However, in an abundance of
caution, the Court grants plaintiff leave to
replead to provide the plaintiff the
opportunity to set forth allegations regarding
how, for example, her chronic cholecystitis
was linked to her pregnancy, and the
duration of the illness. In her opposition,
plaintiff asserts that she suffered from
chronic cholecystitis, and that the Mayo
Clinic website states that “women who were
post pregnancy could have this illness.”
(Pl.’s Opp., Feb. 13, 2012, ECF No. 13.)
However, plaintiff did not make these
allegations in her complaint, 5 and her
opposition does not sufficiently state how
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (quotations and citations
omitted). Under Rule 15(a) of the Federal
Rules of Civil Procedure, the “court should
freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a). However,
leave to replead can be denied where it is
clear that no amendments can cure the
pleading deficiencies and any attempt to
replead would be futile. See Cuoco, 222
F.3d at 112 (“The problem with [plaintiff’s]
cause[] of action is substantive; better
pleading will not cure it. Repleading would
thus be futile. Such a futile request to
replead should be denied.”); see also
Hayden v. Cnty. of Nassau, 180 F.3d 42, 53
(2d Cir. 1999) (holding that if a plaintiff
cannot demonstrate he is able to amend his
complaint “in a manner which would
5
The Court notes that plaintiff checked “I do not
have a disability now but I did have one” in her
EEOC charge dated June 14, 2011, annexed to
her complaint.
10
survive dismissal, opportunity to replead is
rightfully denied”).
The Court certifies, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from
this order would not be taken in good faith;
therefore, in forma pauperis status is denied
for purposes of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
As discussed supra, the Court grants
plaintiff leave to replead her termination
claim so that she may set forth allegations
regarding how, for example, her chronic
cholecystitis was linked to her pregnancy,
and the duration of the illness. Furthermore,
the Court grants plaintiff leave to replead
her termination claim under the Pregnancy
Discrimination Act, which amended Title
VII of the Civil Rights Act of 1964 to
prohibit discrimination “on the basis of
pregnancy, childbirth, or related medical
conditions.” 42 U.S.C. § 2000e(k).
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: June 15, 2012
Central Islip, NY
V. CONCLUSION
For the foregoing reasons, defendant’s
motion to dismiss plaintiff’s complaint,
pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, is granted.
However, in an abundance of caution, the
Court grants plaintiff leave to replead her
termination claim to address how, for
example, her chronic cholecystitis was
linked to her pregnancy, and the duration of
the illness. Furthermore, the Court grants
plaintiff leave to replead her termination
claim under the Pregnancy Discrimination
Act, which amended Title VII of the Civil
Rights Act of 1964 to prohibit
discrimination “on the basis of pregnancy,
childbirth, or related medical conditions.” 42
U.S.C. § 2000e(k). 6 Plaintiff may file an
amended complaint within thirty days of the
issuance of this Order. Failure to file an
amended complaint will result in dismissal
of the complaint with prejudice.
***
Plaintiff is proceeding pro se, 122 Rocklyn
Ave., Lynbrook, NY 11563. Defendant is
represented by Felicia S. Ennis, Jonathan W.
Rich, and Ronald B. Goodman, Robinson,
Brog, Leinwand, Greene, Genovese &
Gluck,
PC,
875
Third
Avenue
9th Floor, New York, NY 10022 and 1345
Ave. of the Americas, 31st Floor, New
York, NY 10105.
6
Because it is still unclear whether any federal
claim can survive a motion to dismiss, the Court
declines at this juncture to exercise jurisdiction
over any of plaintiff’s state law claims.
11
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