Failure to Accommodate Disability Claim Survives Dismissal [Valentine v. Brain & Spine Surgeons of New York, P.C.]

In Valentine v. Brain & Spine Surgeons of New York, P.C., 17-cv-2275, 2018 WL 1871175 (S.D.N.Y. April 16, 2018), the court denied in part defendants’ motion to dismiss plaintiff’s failure-to-accommodate claim under the Americans with Disabilities Act (ADA).

Plaintiff alleged, in sum, that defendant violated the ADA by firing her several days after she returned from work after missing work for a colonoscopy and endoscopy.

From the decision:

Defendant’s motion to dismiss the failure to accommodate claim is denied. Plaintiff’s allegation that she requested time off for a colonoscopy and endoscopy is a plausibly reasonable accommodation under the ADA. 42 U.S.C. § 12111(9)(B) (noting that a reasonable accommodation may include “modified work schedules”). Defendants argue, however, that they never denied this request and that Plaintiff does not allege any facts to that effect. In so arguing, Defendants ignore that they need not engage in an overt or direct act to deny an accommodation. For example, a Defendant’s disregard of a request for an accommodation can constitute a denial of the same. … Terminating an employee soon after a request for an accommodation could certainly amount to a denial of that request. Finding otherwise would allow employers to circumvent their responsibilities under the ADA by simply terminating employees who make requests for accommodations.

The court concluded that “Defendant’s motion to dismiss the failure to accommodate claim must be denied because Plaintiff requested a plausibly reasonable accommodation, and Defendant’s termination plausibly amounts to a denial of Plaintiff’s request[.]