Cullen v. Verizon Communications
Filing
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DECISION AND ORDER GRANTING the Defendant's 14 Second Motion to Dismiss; DISMISSING the Amended Complaint; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Court on 7/24/2015. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAVID CULLEN,
Plaintiffs
v.
DECISION AND ORDER
14-CV-464S
VERIZON COMMUNICATIONS, 1
Defendants.
INTRODUCTION
In this action, filed on June 16, 2014, Plaintiff alleges that his former employer
failed to accommodate his disability and terminated his employment in violation of the
Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101 et seq. (“ADA”),
and the New York Human Rights Law, N.Y. EXEC. LAW §§ 290 et seq. Presently before
this Court is Defendant’s Motion to Dismiss the Amended Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
This Court previously granted
Defendant’s motion to dismiss Plaintiff’s initial complaint for failure to state a claim,
without prejudice to Plaintiff filing an amended pleading. That Amended Complaint was
filed on December 19, 2014.
The Court finds that the motion is fully briefed and oral argument is unnecessary.
For the reasons stated, the motion is granted.
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Defendant states it is properly referred to as Verizon New York, Inc.
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DISCUSSION
Rule 12 (b)(6) allows dismissal of a complaint for "failure to state a claim upon
which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal pleading standards are
generally not stringent: Rule 8 requires only a short and plain statement of a claim. Fed.
R. Civ. P. 8(a)(2). But the plain statement must “possess enough heft to ‘sho[w] that the
pleader is entitled to relief.’ ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007) (quoting Fed. R. Civ. P. 8(a)(2)).
When determining whether a complaint states a claim, the court must construe it
liberally, accept all factual allegations as true, and draw all reasonable inferences in the
plaintiff's favor. Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008), cert denied, 554 U.S.
930 (2008); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
Legal conclusions, however, are not afforded the same presumption of truthfulness. See
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (“the tenet
that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions”).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting
Twombly, 550 U.S. at 570). Labels, conclusions, or “a formulaic recitation of the elements
of a cause of action will not do.” Twombly, 550 U.S. at 555. Facial plausibility exists when
the facts alleged allow for a reasonable inference that the defendant is liable for the
misconduct charged. Iqbal, 446 U.S. at 678. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has
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acted unlawfully.” Id. at 678. Well-pleaded allegations in the complaint must nudge the
claim "across the line from conceivable to plausible." Twombly, 550 U.S. at 570.
The ADA 2 prohibits discrimination against a “qualified individual on the basis of
disability” in the “terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
Here, Plaintiff alleges Defendant discriminated against him in two ways: by failing to
accommodate him and by terminating his employment.
To state a claim for discrimination based on a failure to accommodate, a plaintiff
must allege that: “(1) [he] is a person with a disability under the meaning of the ADA; (2)
an employer covered by the statute had notice of his disability; (3) with reasonable
accommodation, plaintiff could perform the essential functions of the job at issue; and (4)
the employer has refused to make such accommodations.” Graves v. Finch Pruyn & Co.,
Inc., 457 F.3d 181, 184 (2d Cir. 2006) (quotation marks and citation omitted). To state a
claim based on an adverse action, a plaintiff must allege that: “(1) the defendant is
covered by the ADA; (2) plaintiff suffers from or is regarded as suffering from a disability
within the meaning of the ADA; (3) plaintiff was qualified to perform the essential functions
of the job, with or without reasonable accommodation; and (4) plaintiff suffered an
adverse employment action because of disability or perceived disability." Capobianco v.
City of N.Y., 422 F.3d 47, 56 (2d Cir. 2005).
An essential element common to both claims is that Plaintiff must sufficiently allege
that he is disabled within the meaning of the ADA. Under the ADA, the term “disability”
means "(A) a physical or mental impairment that substantially limits one or more major life
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A claim of disability discrimination under New York State Human Rights Law is governed by the same
standards as those governing ADA claims. Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 n. 3 (2d Cir.
2006).
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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).
In Plaintiff’s initial Complaint, he alleged that: (1) he suffered from a disability,
specifically alcoholism; (2) Defendant, a covered employer, was notified of Plaintiff’s
disability when Plaintiff lost his driver’s license; (3) from August 2012 through January 31,
2013, Defendant provided Plaintiff with the reasonable accommodation of not assigning
him “on the road” duties; and (4) Defendant unlawfully ceased accommodating Plaintiff
and terminated him on January 31, 2013. (Compl ¶¶ 8-15.)
As stated in this Court’s decision on Defendant’s first motion to dismiss, although
alcohol addiction is recognized as an “impairment” under the ADA, it is not a per se
disability. Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46
(2d Cir. 2002), superseded by statute on other grounds, ADA Amendments of 2008,
Pub.L. No. 110–325, 122 Stat. 3553. Accordingly, a plaintiff must show not only that he
was addicted to alcohol in the past, but that the addiction substantially limits one or more
major life activities. Id. at 47 (citing Buckley v. Consolidated Edison Co. of New York, 127
F.3d 270, 273 (2d Cir. 1997)). “[M]ajor life activities include, but are not limited to, 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). In light of this standard, this Court
previously granted dismissal of the original Complaint because Plaintiff had failed to
plead any facts indicating that his alleged alcoholism limited one or more of his major life
activities. That dismissal was without prejudice, and Plaintiff timely filed an Amended
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Complaint in accordance with this Court’s Decision and Order.
The Amended Complaint, however, adds only the allegation that Plaintiff’s
“alcoholism has affected his cognitive abilities, the ability to care for himself, his ability to
drive and his ability to work.” (Am Compl ¶¶ 20, 28.) As Defendant argues, this vague
assertion that Plaintiff’s alcoholism merely “affected” certain abilities is unsupported by
any specific facts which would plausibly support a conclusion that one or more major life
activities were significantly limited by the alleged impairment. See Dancause v. Maount
Morris Cent. Sch. Dist., 590 F. App’x 27, 28 (2d Cir. 2014) (allegations that periodontal
disease caused “anxiety and depression” and prevented the plaintiff from “adequately
communicating, sleeping, eating, reading, thinking, concentrating and interacting with
others” failed to provide a plausible factual basis that the alleged impairment substantially
limited any major life activity (emphasis added)).
Plaintiff argues that he has sufficiently alleged that his alcoholism substantially
limited a major life activity, specifically his ability to work, because “Defendant terminated
[Plaintiff], because he lost his driver’s license, because he was arrested for DWI, because
he drank and drove, because of his alcoholism.” (Pl’s Mem in Opp’n at 4 (emphasis
removed).) Initially, this reasoning is circular, and fails to support a conclusion that, prior
to his termination, Plaintiff suffered from a qualifying disability for ADA purposes.
Further, as Defendant notes in its reply (Def’s Reply Mem at 3), even the case on which
Plaintiff relies highlights the fallacy of this argument. In Despears v. Milwaukee County,
the plaintiff argued that:
alcoholism caused him to drive under the influence of alcohol; driving under
the influence of alcohol caused him to lose his driver's license; losing his
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driver's license caused him to be demoted; therefore alcoholism was the
cause of his being demoted; therefore he was discriminated against by his
employer on account of a disability, in violation of the statutes.
63 F.3d 635, 636 (7th Cir. 1995) (Posner, J.) (cited in Pl’s Mem in Opp’n at 5). While
recognizing that “an alcoholic is more likely than a nonalcoholic to lose his license
because of drunk driving,” the Seventh Circuit also found that “a cause is not a
compulsion (or sole cause).” Despears, 63 F.3d at 636. As such:
[W]e think the latter is necessary to form the bridge that [the plaintiff] seeks
to construct between his alcoholism and his demotion. If being an alcoholic
he could not have avoided becoming a drunk driver, then his alcoholism
was the only cause of his being demoted, and it would be as if the
employer's regulation had said not that you must have a valid driver's
license to be a maintenance worker but that you must not be an alcoholic.
But [the plaintiff’s] alcoholism was not the only cause of his being convicted
of drunk driving. Another cause was his decision to drive while drunk.
Id. Similarly, here, the brief allegation that Plaintiff was arrested once for driving while
intoxicated and lost his driver’s license is insufficient to plausibly allege that he suffered
from an ongoing impairment that significantly – and involuntarily – limited his ability to
work. Dismissal is therefore warranted.
CONCLUSION
For the reasons stated, Defendant’s motion to dismiss the Amended Complaint is
granted. Further, because leave to replead has already been granted once, the Court
finds that dismissal with prejudice is warranted.
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ORDERS
IT HEREBY IS ORDERED that Defendant Verizon’s Second Motion to Dismiss for
Failure to State a Claim (Docket No. 14) is GRANTED and the Amended Complaint is
dismissed;
FURTHER that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated:
July 24, 2015
Buffalo, New York
/s/William M.Skretny
WILLIAM M. SKRETNY
United States District Judge
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