Morey v. Windsong Radiology Group, P.C. et al

Filing 17

DECISION AND ORDER GRANTING the Defendants' 6 Motion to Dismiss; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 1/18/2019. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANDREA MOREY,
Plaintiff,
v.

DECISION AND ORDER
17-CV-968S

WINDSONG RADIOLOGY GROUP, P.C.,
KAREN BLATTO,
Defendants.

I.

INTRODUCTION

Plaintiff Andrea Morey filed this action against Windsong Radiology Group, P.C.
(“WRG”) and Karen Blatto (collectively, “Defendants”) alleging violations under the
Americans with Disability Act of 1990 (“ADA”), 42 U.S.C. § 12201 et seq., and the New
York State Human Rights Law, Executive Law § 296 et seq.

Plaintiff alleges that she

suffers a disability due to her height, that Defendants failed to provide a reasonable
accommodation for her alleged disability, and that she was terminated because of her
request for a reasonable accommodation.
Presently before this Court is Defendants’ motion to dismiss Morey’s complaint in
its entirety for failure to state a claim upon which relief can be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Docket No. 6). With briefing fully completed and oral
argument deemed unnecessary, the Court will grant Defendants’ motion.
II.

BACKGROUND

The facts alleged in the complaint are assumed to be true. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 572, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007) (“[A] judge ruling
on a defendant's motion to dismiss a complaint must accept as true all of the factual

allegations contained in the complaint.” (internal quotation marks omitted)).
In her Complaint, Morey alleges that she is four feet five inches tall (4’5”), “well
outside of the normal range of height for adults” in the United States and in the Western
District of New York. (Complaint, Docket No. 1, ¶ 9).

She further alleges that her

“height is a physiological, musculoskeletal condition which substantially limits one or more
of her major life activities.” (Id. ¶ 10). Plaintiff began her employment with WRG in
January of 2003 at its West Seneca location.
Blatto.

(Id. ¶ 14).

(Id. ¶ 12). Her supervisor was Karen

After a brief leave of absence for unrelated medical purposes, Morey

returned to work at WRG’s Williamsville location around August of 2014.

(Id. ¶ 21).

There, she began working on fluoroscope exams, and continued to do so at that location
on a regular basis. (Id. ¶¶ 20, 23).

Morey’s height required her to use a step-stool

affixed to a platform, which Defendants provided for her. (Id. ¶ 24). Morey did not ask
“for any other accommodation.” (Id. ¶ 25). But she was still “not physically able to see
the controls of the machine over the handle.” (Id. ¶ 26).
Her inability to see the controls was never a problem, until Morey began working
on hysterosalpingogram exams for women with fertility issues at WRG’s Williamsville
location.

(Id. ¶ 27). At some point “in or around January or February 2015,” Morey

asked WRG for “a reasonable accommodation of assistance in operating the fluoroscope
because of her height limitations.” (Id. ¶ 30). Morey “was told to perform the exams of
which she was capable and leave the [hysterosalpingogram] exams to the other
technicians,” an instruction with which Morey complied.

(Id. ¶¶ 33, 35).

Shortly

thereafter, Morey “started to receive negative job action in the form of abuse and bullying
by the other technicians at [WGR].” (Id. ¶ 36). “Among other things, [Morey] was told

that she needed to ‘invest in some stilts and longer scrubs’ so that she would be able to
do her work.”

(Id. ¶ 37).

Morey spoke to Blatto about these comments “numerous

times” and “was eventually pulled into a meeting during which [Morey] was blamed for the
bullying.”

(Id. ¶ 38). In April of 2015, Morey received a notice of termination, and in it,

was “accused” “of refusing to perform the [hysterosalpingogram] exams and of not being
a ‘team player.’” (Id. ¶ 39).
After filing a charge with the EEOC on June 8, 2015, Morey instituted this action
on September 28, 2017, by filing a complaint in the United States District Court for the
Western District of New York. (Docket No. 1).
dismiss on December 5, 2017.
January 19, 2018.

Defendants filed the instant motion to

(Docket No. 6).

(Docket No. 13).

Morey responded in opposition on

Defendants filed a reply on February 2, 2018.

(Docket No. 16).
III.
A.

DISCUSSION

Rule 12 (b)(6) Standard
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 show that the
pleader is entitled to relief.” Twombly, 550 U.S. at 557.
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.

See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.Ed.2d
3

868 (2009).

Legal conclusions, however, are not afforded the same presumption of

truthfulness.

Id.

(the tenet that a court must accept as true all factual 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

Labels, conclusions, or “a formulaic recitation of the

Twombly, 550 U.S. at 570).

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, 556 U.S. at 678. The plausibility standard is not,

however, a probability requirement: the pleading must show, not merely allege, that the
pleader is entitled to relief.

Twombly, 550 U.S. at 556; Fed. R. Civ. P. 8 (a)(2). Well-

pleaded allegations in the complaint must nudge the claim “across the line from
conceivable to plausible.” Id. at 570.
B. Analysis
1. Statute of Limitations
At the outset, the Court notes that all of Morey’s claims fall within the applicable
statute of limitations. See 42 U.S.C. § 12117(a). Morey filed her charge with the EEOC
on June 8, 2015, rendering actionable any allegations occurring after August 12, 2014.
See Zerilli–Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (affirming
dismissal of plaintiff's ADA claim as time-barred for failure to file EEOC complaint within
300–day limitations period). The discriminatory actions that Morey alleges to have taken
place occurred, at earliest, in January of 2015. (Compl. ¶ 29). Consequently, and
4

notwithstanding Defendants’ assertion to the contrary (Docket No. 6-11 at 5), none of
Morey’s claims are time barred.
2. ADA Claim
The ADA provides that “[n]o covered entity shall discriminate against a qualified
individual with a disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of his
employment.” 42 U.S.C. § 12112(a).
“Discrimination in violation of the ADA includes, inter alia, ‘not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability.’” McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d
92, 96 (2d Cir. 2009) (quoting 42 U.S.C. § 12112(b)(5)(A)).

Moreover, a “qualified

individual” under the ADA is “an individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position that such
individual holds or desires.”

42 U.S.C. § 12111(8); see McBride, 583 F.3d at 96.

Accordingly, to plead a prima facie claim of discrimination based on a disability, a Plaintiff
must plausibly allege the following elements:
(1) plaintiff 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.
McMillan v. City of New York, 711 F.3d 120, 125–26 (2d Cir. 2013) (citing McBride, 583
F.3d at 97). “Once a plaintiff has established a prima facie case, the burden shifts to the
5

defendant to show ‘(1) that making a reasonable accommodation would cause it hardship,
and (2) that the hardship would be undue.’” Anderson v. Nat'l Grid, PLC, 93 F. Supp. 3d
120, 131 (E.D.N.Y. 2015) (quoting Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d
1, 6 (2d Cir. 1999)).
Defendants move to dismiss Morey’s ADA claim on the ground that Morey has
failed to allege that she suffers from, or is regarded as suffering from, a disability. (Defs.
Br., Docket No. 6-11 at 6-10).

Plaintiff, in turn, responds that her “height is a

physiological, musculoskeletal condition” which qualifies as a disability that “substantially
limits one or more of her major life activities,” which she similarly pleads in her Complaint.
(Compl. ¶¶ 10, 41-42; Pl. Resp., Docket No. 15-5 at 3). Resolution of this issue requires
a brief examination of the language of the statute and regulations, as well as the
legislative history of the ADA.
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.
42 U.S.C. § 12102(1). In determining whether a plaintiff has a disability that is protected
by the ADA, courts “consider: (1) ‘whether the plaintiff suffered from a physical or mental
impairment,’ (2) whether the life activity upon which the plaintiff relied constitutes a major
life activity under the ADA,’ and (3) whether ‘the plaintiff's impairment substantially limited
the major life activity identified.’” Jacques v. DiMarzio, Inc., 386 F.3d 192, 201 (2d Cir.

6

2004) (quoting Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 646 (2d Cir. 1998))
(alterations omitted).
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court held
that “to be substantially limited in performing manual tasks, an individual must have an
impairment that prevents or severely restricts the individual from doing activities that are
of central importance to most people's daily lives.”

534 U.S. 184, 198, 122 S.

Ct. 681, 151 L.Ed.2d 615 (2002). The Supreme Court also held that “the impairment’s
impact must also be permanent or long term.” Id. In 2008, finding that the Supreme
Court’s holding in Toyota “interpreted the term ‘substantially limits’ to require a greater
degree of limitation than was intended by Congress” and that “as a result . . . lower courts
have

incorrectly

found

in

individual

cases

that

people

with

a

range

of substantially limiting impairments are not people with disabilities,” Pub. L. 110–325,
§ 2(a)(7), Sept. 25, 2008, 122 Stat. 3553, Congress amended the ADA effective January
1, 2009. Id. § 8. The purpose of the amendment was, among other things, “to reject the
standards

enunciated

by

the

Supreme

Court

in

[Toyota ] . . . that

to

be substantially limited in performing a major life activity under the ADA ‘an individual
must have an impairment that prevents or severely restricts the individual from doing
activities that are of central importance to most people’s daily lives’ . . . .” Id. § 2(b)(5).
As amended, the statute provides that “major 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)(A).
7

The amended

statute further provides that “[t]he term ‘substantially limits’ shall be interpreted
consistently with the findings” mentioned above. Id. § 12102(4)(B).

Moreover, the

ADAAA directs courts to construe the term disability “in favor of broad coverage of
individuals under [the ADA], to the maximum extent permitted by the terms of [ADA].” Id.
§ 12102(4)(A). Given that Congress clearly expressed its intent to overturn the Supreme
Court’s holding in Toyota that “the impairment's impact must also be permanent or long
term,” 534 U.S. at 198, Defendants’ reliance on decisions prior to the 2008 amendments
is misplaced.
Morey now has a relatively light burden. See 29 C.F.R. § 1630.2(j)(1)(iii) (noting
that the substantial limitation prong “should not demand extensive analysis”). PostADAAA

regulations

require

her

to

show

only

that

the

impairment

“substantially limits”— but not necessarily “prevent[s], or significantly or severely
restrict[s]”—the “ability . . . to perform” at least one “major life activity as compared to
most people in the general population.”

Id. §§ 1630.2(j)(1)(ii), 1630.2(j)(1)(viii).

Relatively few cases in this Circuit have applied the ADAAA and its regulations to claims
based upon conduct occurring after the statute became effective in 2009. See Ragusa
v. Malverne Union Free Sch. Dist., 381 F. App’x 85, 87 n.2 (2d Cir. 2010) (summary order)
(noting that federal courts must apply “the version of [ADA] in effect during the time period
at issue”). Notwithstanding the recent amendments to the ADA that altered the definition
of “major life activities” and “substantially limits,” the EEOC maintains its position that
“[t]he definition of the term ‘impairment’ does not include physical characteristics such as
eye color, hair color, left-handedness, or height, weight, or muscle tone that are within
8

‘normal’ range and are not the result of a physiological disorder.” 29 C.F.R. § Pt. 1630,
App; Sacks v. Gandhi Eng’g Inc., No. 11 CIV. 5778 DAB DF, 2013 WL 8282955, at *12
(S.D.N.Y. Aug. 23, 2013).
Still, even under the new ADA regime, the Court finds that Morey fails as a matter
of law to plausibly allege that she suffers from an actual disability under the ADA. The
extent to which Morey alleges an actual disability in her Complaint is as follows: her
“height” is “well outside of the normal range for adults”; is of a physiological,
musculoskeletal condition which substantially limits one or more of her major life
activities”; and that she “suffers from a disability within the meaning of the ADA” which
“substantially

limits

[her]

major

life

activities.”

(Compl.

¶¶

9-10,

41-42).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” “to state a claim to relief that is plausible on its face.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 555, 570).
Notably, nowhere in her Complaint does Morey identify which “major life activity”
is limited by her alleged disability. To the extent Morey means to allege that her height
limits her ability to work, that allegation also fails as a matter of law. In determining
whether a person is substantially limited in the major life activity of working, a plaintiff
must show that she is “substantially limited in [her] ability to perform either a class of jobs
or a broad range of jobs in various classes as compared to the average person having
comparable training, skills and abilities.” Anderson, 93 F. Supp. at 137; see also Stevens
v. Rite Aid Corp., No. 13 CV 783, 2015 WL 5602949, at *7-8 (N.D.N.Y. Sept. 23,
2015), aff’d in part, rev’d in part on other grounds, 851 F.3d 224, 231 (2d Cir. 2017)
9

(discussing the relevant post-ADAAA standard and holding that the test for determining
whether a person’s ability to work was substantially impaired by their condition has not
changed).
Morey’s Complaint does not allege that she cannot “perform either a class of jobs
or a broad range of jobs in various classes,” Anderson, 93 F. Supp. 3d at 137; rather, she
alleges only that she could not “see or reach the controls or maneuver the equipment
safely” when “operating [a] fluoroscope” when performing one particular type of exam, at
one particular location of her employer—hysterosalpingogram exams, for women with
fertility issues, at WRG’s Williamsville location.

(Compl. ¶¶ 24, 26-27, 30-31).

Cf. Krachenfels v. N. Shore Long Island Jewish Health Sys., No. 13-CV-243 (JFB), 2014
WL 3867560, at *14 (E.D.N.Y. July 29, 2014) (noting that, when the major life activity is
work, the employee must be substantially limited from performing “a class of jobs or a
broad range of jobs”);1 see also Telemaque v. Marriott Int’l, Inc., No. 14 CIV. 6336 (ER),

1 The EEOC regulations used to provide explicitly that a substantial impairment in the major life activity of
working meant that the individual was “‘significantly restricted in the ability to perform either a class of jobs
or a broad range of jobs,’ and that ‘[t]he inability to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working.’” Cameron v. Community Aid for Retarded
Children, Inc., 335 F.3d 60, 65-66 (2d Cir. 2003) (quoting 29 C.F.R. § 1630.2(j)(3)(i)). However, the EEOC
“has removed from the text of the regulations a discussion of the major life activity of working” because “no
other major life activity receives special attention in the regulation,” and “in light of the expanded definition
of disability established by the [ADAAA], this major life activity will be used in only very targeted
situations.” Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Pt. 1630, App.
§ 1630.2(j) (“EEOC Interpretive Guidance”). Nonetheless, the EEOC Interpretive Guidance, which the
Second Circuit has treated as authoritative, see, e.g., Norville v. Staten Island Univ. Hosp., 196 F.3d 89,
99 (2d Cir. 1999), states that “[i]n the rare cases where an individual has a need to demonstrate that an
impairment substantially limits him or her in working, the individual can do so by showing that the impairment
substantially limits his or her ability to perform a class of jobs or broad range of jobs in various classes as
compared to most people having comparable training, skills, and abilities.” EEOC Interpretive
Guidance. Moreover, “[d]emonstrating a substantial limitation in performing the unique aspects of a single
specific job is not sufficient to establish that a person is substantially limited in the major life activity of
working.” Id. Accordingly, the test for determining whether a person’s ability to work was substantially
impaired has not changed.

10

2016 WL 406384, at *7 (S.D.N.Y. Feb. 2, 2016) (“Plaintiff alleges that his arthritis imposes
one work-related limitation, namely that he ‘cannot run or move fast throughout the hotel
when responding to a non-emergency call.’ Compl. ¶ 22.

This single allegation,

however, does not support a plausible inference of a substantial work limitation, as it
affects at most one function of one particular job.”) (emphasis in original). Accordingly,
Morey fails to meet her burden of plausibly making a prima facie showing of a substantially
limiting impairment.
Even liberally construing Plaintiff’s Complaint as alleging that Defendants regarded
her as having an impairment, 42 U.S.C. § 12102(1)(C), which the Court is not required to
do given that Morey is represented by counsel, Harris v. Miller, 818 F.3d 49, 56 (2d Cir.
2016) (requiring courts to “liberally construe” pro se submissions “to raise the strongest
arguments they suggest”) (internal citation and quotation marks omitted), the Complaint
falls short of plausibly alleging a cause of action under that provision of the ADA as well.
Prior to the ADAAA, the Supreme Court had held that plaintiffs pursuing a “regarded as”
theory did need to show that their perceived disability limited a major life activity.
See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489-91, 119 S. Ct. 2139, 144 L.Ed.2d
450 (1999), superseded by statute, 42 U.S.C. § 12102(3)(A) (2008).
The ADAAA overturned this holding. Now:
An individual meets the requirements 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 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.

11

42 U.S.C. § 12102(1)(C) (2008) (emphasis added). The Committee Report for the new
section confirmed the intent of the new language:
[The Supreme Court’s] restrictive rulings [including Sutton] conflict with the
Court's earlier recognition . . . that the negative reactions of others are just
as disabling as the actual impact of an impairment, a conclusion endorsed
by Congress when it adopted the “regarded as” prong.
The Committee therefore restores Congress's original intent by making
clear that an individual meets the requirement of “being regarded as having
such an impairment” if the individual shows that an action (e.g.
disqualification from a job, program, or service) was taken because of an
actual or perceived impairment, whether or not that impairment actually
limits or is believed to limit a major life activity.
H.R. Rep. No. 110-730, pt. 1, at 14 (2008) (emphasis added).
The Second Circuit has addressed this new statutory language in only one
published case, Hilton v. Wright, 673 F.3d 120, 129 (2d Cir. 2012), where it held that the
plaintiff “was not required to present evidence of how or to what degree [the defendants]
believe the impairment affected him.” 673 F.3d at 129. Instead, the plaintiff “was only
required to raise a genuine issue of material fact about whether [defendants] regarded
him as having a mental or physical impairment.” Id. “Although Hilton dealt with a motion
for summary judgment, and this case is only at the pleading stage, the analysis of law is
the same. The only difference is that plaintiffs are only required to allege, rather than
prove, that defendants regarded them as disabled.” Lawton v. Success Acad. Charter
Sch., Inc., 323 F. Supp. 3d 353, 365 (E.D.N.Y. 2018).
Morey has not done so. The Complaint contains no allegations that Defendants
regarded Morey as having an impairment. The sole factual allegation in the Complaint
from which any such inference could be drawn is that Morey “was told that she needed
12

to ‘invest in some stilts and longer scrubs’ so that she would be able to do her work.”
(Compl. ¶ 37). This sole factual allegation that her coworkers allegedly made falls short
of plausibly alleging that Defendants (i.e., her employers) regarded Morey as having an
impairment. “The question of whether a plaintiff is ‘regarded as’ having a disability turns
on the perception of the employer.” Stolpner v. New York Univ. Lutheran Med. Ctr., No.
16-CV-997(KAM), 2018 WL 4697279, at *22 (E.D.N.Y. Sept. 29, 2018) (quoting Francis
v. City of Meriden, 129 F.3d 281, 284 (2d Cir. 1997)); see also Lawton, 323 F. Supp. 3d
at 365 (finding that Plaintiff plausibly alleged “defendants regarded them as disabled” by
alleging “that defendants regarded them as having a ‘learning and/or behavioral
disability’”) (quoting the complaint). Here, Morey fails to allege that that WRG or Karen
Blatto, the named Defendants in this action, regarded her as having an impairment;
rather, the Complaint attributes the above comments to “other technicians at [WRG].”
(Compl. ¶¶ 36-37). Cf. Stolpner, 2018 WL 4697279, at *22 (“’[T]he plaintiff must allege
that the employer believed, however erroneously, that the plaintiff suffered from an
‘impairment’ that, if it truly existed, would be covered under the statutes and that the
employer discriminated against the plaintiff on that basis.’”) (quoting Francis, 129 F.3d at
283) (emphasis added); Kelly v. Kingston City Sch. Dist., Inc., No. 116CV00764MADDJS,
2017 WL 976943, at *5 (N.D.N.Y. Mar. 13, 2017) (“Although Plaintiff claims that he is
regarded as having a disability within the community, the complaint and proposed
amended complaint fail to plausibly allege that Defendant had any such knowledge or
perceived Plaintiff as having a disability.”); Rodriguez v. Verizon Telecom, No. 13-CV6969 PKC DCF, 2014 WL 6807834, at *5 (S.D.N.Y. Dec. 3, 2014) (“Here, plaintiff alleges
13

that his manager falsely concluded that he was under the influence based on the
manager's perception that plaintiff has a history with addiction. This allegation plausibly
establishes that defendant regarded plaintiff as having a mental or physical impairment.”).
Because Morey fails to allege facts from which it is plausible to infer that she
possesses a physical or mental impairment that substantially limits her in one or more
major life activity, or that she was regarded by her employer as having such an
impairment, Defendants’ motion to dismiss the ADA claim is GRANTED.
3. Retaliation
Even assuming Morey adequately alleged that she suffered from a disability within
the meaning of the ADA, she has failed to plausibly allege a claim for retaliation under the
ADA. “In order to establish a prima facie case of retaliation, [Morey] must show that:
(1) [s]he engaged in an activity protected by the ADA; (2) the employer was aware of this
activity; (3) the employer took adverse employment action against [her]; and (4) a causal
connection exists between the alleged adverse action and the protected activity.” Treglia
v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). Morey’s claim of retaliation is
inadequate for two reasons.
First, Morey has failed to plausibly allege that she was engaged in protected
activity under the ADA. It is true that requests for reasonable accommodation constitute
protected activity under the ADA. See, e.g., Weixel v. Bd. of Educ. of City of N.Y., 287
F.3d 138, 149 (2d Cir. 2002) (requests for accommodation are protected activity); Vale v.
Great Neck Water Pollution Control Dist., 80 F. Supp. 3d 426, 439 (E.D.N.Y. 2015)
(“[M]aking requests for reasonable accommodations for a disability is a protected activity
14

within the contemplation of the statue.”) (internal citation, quotation marks, and alterations
omitted).

Morey’s Complaint, however, alleges that she “requested a reasonable

accommodation” in the form of asking for “assistance in operating the fluoroscope.”
(Compl. ¶ 30). In other words, Morey’s “reasonable accommodation request” “merely
asked for ‘help’ in completing [a] task[]. [Morey] has offered no further identification of
an accommodation that was then available and not provided to her.”

Snowden v.

Trustees of Columbia Univ., No. 12 CIV. 3095 GBD, 2014 WL 1274514, at *5 (S.D.N.Y.
Mar. 26, 2014), aff’d, 612 F. App’x 7 (2d Cir. 2015) (summary order).
Indeed, Morey’s Complaint specifically makes clear that Defendants had
previously provided her with an accommodation: using a step-stool affixed to a platform
so that she could use the fluoroscope machine, which she “never complained about” “nor
did she ask for any other accommodation.”

(Compl. ¶¶ 24-25) (emphasis added).

Accordingly, Morey’s suggestion that requesting assistance from another coworker to
help her operate the fluoroscope at the Williamsville location while performing exams for
women with fertility issues was a request for a reasonable accommodation cannot, as a
matter of law, be true. See Gilbert v. Frank, 949 F.2d 637, 644 (2d Cir. 1991) (“The
suggestion that coworkers might perform this part of [plaintiff’s] job . . . likewise sought
the elimination, for [plaintiff], of essential functions of the job.”); Shannon v. NYC Transit
Auth., 332 F.3d 95, 100 (2d Cir. 2003) (“A reasonable accommodation can never involve
the elimination of an essential function of a job.”).
Second, even assuming Morey requested a reasonable accommodation, the
Complaint does not plausibly allege that she suffered any such adverse action “because
15

of” that request. To satisfy that standard, the complaint “must allege facts leading to the
plausible inference that retaliation was a ‘but-for’ cause of the employer’s adverse
action.” Lewis v. Roosevelt Island Operating Corp., 246 F. Supp. 3d 979, 990 (S.D.N. Y.
2017) (citing Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015)).
A complaint may raise such an inference by alleging either direct evidence of retaliatory
animus, such as statements from supervisors, or indirect evidence, such as a “very close”
temporal link between the protected activity and the adverse action. Giles v. NBC
Universal, Inc., No. 10-cv-7461 (DAB), 2011 WL 4376469, at *4 (S.D.N.Y. Sept. 20,
2011).
Plaintiff’s Complaint fails to allege direct evidence of retaliatory animus. But her
Complaint does allege that she was terminated in April of 2015, which is around three to
four months after she allegedly requested a reasonable accommodation (“around January
or February 2015,” according to her Complaint). (Compl. ¶¶ 29, 39). “To the extent she
relies on the temporal proximity between these two events as circumstantial evidence of
causation, that, standing alone, is insufficient.” Dixon v. Int’l Fed’n of Accountants, 416
F. App’x 107, 111 (2d Cir. 2011) (summary order) (citing Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L.Ed.2d 509 (2001) (noting that the
two events must be “very close,” and that a proximity of three months or more is
insufficient)). Although there is no bright-line rule for what amount of time makes a link
“very close,” courts in the Second Circuit generally hold that “the passage of two to three
months between the protected activity and the adverse employment action does not allow
for an inference of causation.” Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d
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257, 275 (S.D.N.Y. 2007); see also McManamon v. Shinseki, No. 11 CIV. 7610 PAE,
2013 WL 3466863, at *12 (S.D.N.Y. July 10, 2013) (finding temporal gap of three-and-ahalf months insufficient at motion-to-dismiss stage); Nadel v. Shinseki, 57 F. Supp. 3d
288, 299 (S.D.N.Y. 2014) (same); McDowell v. N. Shore-Long Island Jewish Health
Sys., 788 F. Supp. 2d 78, 82 (E.D.N.Y. 2011) (“[P]ursuant to the Second Circuit's
authority, the Court finds that [a] greater than three month gap, unsupported by any other
allegations showing plausible retaliation, is insufficient to raise an inference of retaliation
[and thereby defeat a Rule 12(b)(6) motion to dismiss]”). Accordingly, Morey has failed
to state a claim for retaliation.
4. State Law Claim
Finally, Morey’s Complaint also alleged violations of New York State Executive
Law § 296 et seq. “Having determined that the federal claims against defendants do not
survive” the motion to dismiss, “the Court concludes that retaining jurisdiction over any
state law claims is unwarranted.” Anderson, 93 F. Supp. 3d at 147 (citing 28 U.S.C.
§ 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130,
16 L.Ed.2d 218 (1966)). “In the interest of comity, the Second Circuit instructs that
‘absent exceptional circumstances,’ where federal claims can be disposed of pursuant to
Rule 12(b)(6) or summary judgment grounds, courts should ‘abstain from exercising
pendent jurisdiction.’” Birch v. Pioneer Credit Recovery, Inc., No. 06–CV–6497T, 2007
WL 1703914, at *5 (W.D.N.Y. June 8, 2007) (quoting Walker v. Time Life Films, Inc., 784
F.2d 44, 53 (2d Cir. 1986)).
In the instant case, the Court, in its discretion, “‘decline[s] to exercise supplemental
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jurisdiction’” over Morey’s state law claims because “it ‘has dismissed all claims over
which it has original jurisdiction.’” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122
(2d Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3)). Accordingly, pursuant to 28 U.S.C.
§ 1367(c)(3), the Court declines to retain jurisdiction over the remaining state law claims
given the absence of any federal claims that survive the motion to dismiss.
IV.

CONCLUSION

Based on the foregoing, this Court finds that Plaintiff has failed to state claims for
discrimination and retaliation under the ADA, and declines to exercise supplemental
jurisdiction over Plaintiff’s claim arising under New York law.
V.

ORDERS

IT HEREBY IS ORDERED, that Defendants’ Motion to Dismiss (Docket No. 6) is
GRANTED.
FURTHER, that the Clerk of Court is directed to close this case.

SO ORDERED.

Dated:

January 18, 2019
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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