Court Dismisses ADA Disability Discrimination Claim; Complaint Did Not Plausibly Allege That Plaintiff’s Medical Condition Was a “Disability” Because it Did Not “Substantially Limit” a “Major Life Activity”

In Ivankovskaya v. Metro. Transportation Auth. Bus Co., No. 15-cv-5727, 2017 WL 3328166 (E.D.N.Y. Aug. 3, 2017), the court dismissed plaintiff’s disability discrimination claim under the Americans with Disabilities Act (ADA), on the ground that plaintiff did not plausibly allege that she suffered a “disability” within the meaning of the statute.[1]The court also granted defendant’s motion to dismiss plaintiff’s hostile work environment claim, but denied its motion to dismiss her ADA retaliation claim.

Plaintiff worked as a bus operator for the MTA Bus Company. After being diagnosed with a disc herniation, she requested a “reasonable accommodation” in the form of an adjustable seat. She claims that defendant denied her accommodation request, subjected her to a hostile work environment, and retaliated against her for making the request.

In this post I will focus on the court’s evaluation of plaintiff’s ADA discrimination claim.

Here is the law, as summarized by the court:

To establish a prima facie case of discrimination under the ADA, a plaintiff must establish that: (1) the employer is subject to the ADA; (2) the plaintiff suffers from a disability within the meaning of the ADA; (3) the plaintiff was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) the plaintiff suffered an adverse employment action because of the disability. …

To substantiate a disability within the meaning of the ADA, the plaintiff must demonstrate: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such an individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(1); see also Delgado v. Triborough Bridge and Tunnel Authority, 485 F.Supp.2d 453, 459 (S.D.N.Y. Apr. 26, 2007).

Since plaintiff did not allege a “record” of impairment or that she was “regarded as having such an impairment,” the court proceeded to address the question of “whether the plaintiff has plausibly pled a physical impairment that substantially limits one or more of her major life activities.”

Under the ADA:

Major life activities are those that are “of central importance to daily life,” and have come to include, among other things, standing, sitting, and walking. See Levine v. Smithtown Cent. School Dist., 565 F.Supp.2d 407, 422 (E.D.N.Y. July 14, 2008); McDonald v. City of New York, 786 F.Supp.2d 588, 607 (E.D.N.Y. Apr. 6, 2011); Skinner v. City of Amsterdam, 824 F.Supp.2d 317, 327 (S.D.N.Y. Mar. 30, 2010). To determine whether a limitation is “substantial,” courts consider “the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long term impact of or expected long term impact of or resulting from the impairment.” 29 C.F.R. § 1630(2)(j)(2); see also Levine, 565 F.Supp.2d at 422; Casseus v. Verizon N.Y., Inc., 722 F.Supp.2d 326, 347 (E.D.N.Y. July 9, 2010).

The court concluded that plaintiff failed to meet this standard:

The only information that the plaintiff provides about her condition is that “[i]n 2006, [the plaintiff] was diagnosed with a disc herniation throughout her back which impacts her ability to sit, stand, and walk,” and that she requires adjustable seats to “limit the pain she experiences in her back.” (FAC ¶¶ 11, 12.) Although the plaintiff refers to major life activities – sitting, standing, and walking – she does not put forth any factual support to demonstrate that her alleged disability has substantially limited her ability to perform these activities. Merely declaring that these major life activities are “impact[ed]” and that adjustable seating “limit[s] the pain” says nothing about the severity, duration, or the long-term impact of the disability. See Kelly v. N.Y. State Office of Mental Health, 200 F.Supp.3d 378, 392-93 (E.D.N.Y. Aug. 9, 2016); but see Dooley v. Jetblue Airways Corp., No. 15-cv-1356, 2015 WL 9261293, at *5 (2d. Cir. 2015) (plausibly alleging disability under the ADA by stating that the plaintiff “suffered a fracture and also damage to the ulnar and median nerve distributions, resulting in temporary total disability … and, ultimately, permanent partial disability with limitations on lifting and repetitive motion”) (emphasis added). Without more, the plaintiff’s bare statement of her disability does not “nudge … the claim[ ] across the line from conceivable to plausible.” (Emphasis added.)

The court did, however, permit plaintiff to amend her Amended Complaint under Federal Rule of Civil Procedure 15(a)(2).

1 The court also granted defendant’s motion to dismiss plaintiff’s hostile work environment claim, but denied its motion to dismiss her ADA retaliation claim.
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