Disability (Cleft Lip and Palate) Discrimination Claims Dismissed; Retaliation Claims Survive Summary Judgment

In Paxton v. Fluor Enterprises, Inc., No. 15-cv-3737, 2017 WL 875856 (S.D.N.Y. Mar. 3, 2017) (J. Cote), the court granted defendant’s motion for summary judgment on plaintiff’s Americans with Disabilities Act and New York State Human Rights Law (NYSHRL) claims, as her medical condition – birth with a cleft lip and palate – was not a “disability” within the meaning of those statutes.

It denied defendant’s motion for summary judgment on plaintiff’s ADA and NYSHRL claims, however, since her discharge occurred merely three weeks of her protected activity.

The ADA defines “disability” to mean (inter alia) “a physical or mental impairment that substantially limits one or more major life activities of such individual.” Plaintiff identified “three major life activities that she contends are substantially limited by her cleft lip and palate: speaking, eating, and breathing.”

Addressing speaking and eating, the court explained:

With regard to speaking, Paxton testified at her deposition that her cleft lip and palate have not prevented her from speaking but that she “had speech lessons.” As to eating, Paxton testified at her deposition, “I have to be careful in chewing because I’ve had surgery on my pallet [sic] and I certainly don’t want anything sharp or jabbing into it or anything like that, but on a daily basis it’s not a problem.” There is nothing in her medical records concerning any impairment that she may experience in these life activities.
In order to survive summary judgment in the absence of medical evidence, the Second Circuit requires “evidence that conveys, in detail, the substantially limiting nature of [the alleged] impairment.” Rodriguez v. Village Green Realty, Inc., 788 F.3d 31, 44 (2d Cir. 2015). Paxton’s vague and undetailed testimony does not support the inference that the speaking or eating limitations, if any, imposed by her congenital cleft lip and palate are substantial. On this testimony alone, no reasonable jury could find a substantial limitation on Paxton’s ability to speak or eat.

As to breathing, plaintiff argued that her cleft lip and palate “render her more susceptible to respiratory infections and that, as a result, she must avoid cold, drafty, or dusty environments.” While there was evidence that plaintiff at times suffered from sinusitis and rhinitis, the evidence did not support an inference that these infections were caused by her cleft lip and palate.


Paxton has provided no expert testimony that these infections were caused by the surgically repaired cleft lip and palate. Although Paxton suggested to at least one of her medical providers that there was such a causal link, the medical records do not reflect that any providers made this determination. Whereas Paxton can competently testify to her experience of her symptoms, this complex issue of medical causation is not within her personal knowledge. See Fed. R. Evid. 602; cf. Barnes v. Anderson, 202 F.3d 150, 158-61 (2d Cir. 1999) (reaching the same conclusion in the personal injury context); Henry v. A/S Ocean, 512 F.2d 401, 408 (2d Cir. 1975) (same). In sum, Paxton points to no competent, admissible evidence to establish that her cleft lip and palate, or the surgical repairs to those conditions, substantially limited her ability to breathe.

The court also granted defendant’s motion for summary judgment under the New York State Human Rights Law. Although that statute defines “disability” more broadly than the ADA, it still requires “a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.”

Plaintiff conceded that her cleft lip and palate do not prevent the exercise of any “normal bodily function.”


All was (literally) not lost, however: the court denied defendant’s motion for summary judgment on plaintiff’s retaliation claims under the ADA and NYSHRL.

“To state a prima facie case of retaliation, a plaintiff “must show that: (1) he engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took some adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity.”

Plaintiff met this standard:

Fluor does not appear to contest the first three prongs of Paxton’s prima facie case: Plaintiff’s complaints to her supervisors and to human resources concerning her alleged disability were activities protected under the ADA, Fluor was aware of those activities, and Fluor discharged Paxton. In addition, Fluor has not shown that it is entitled to summary judgment on the final prong: that there was a causal connection between Paxton’s complaints and her discharge. Here, Paxton’s discharge followed within three weeks of her first complaints and was directly precipitated by a meeting with Fluor management to discuss Paxton’s complaints.

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