In Zelasko v. NYC Department of Education, No. 20-CV-5316, 2021 WL 2635121 (E.D.N.Y. June 25, 2021), the court dismissed plaintiff’s claim of disability discrimination.
From the decision:
In this case, the complaint does not allege facts suggesting that plaintiff is disabled within the meaning of the ADA or that she was perceived to be so by her employer. 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). “[T]he duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity.” 29 C.F.R. Pt. 1630, Interp. Guidance, § 1630.2(j)(1)(ix). “While a temporary impairment can be covered if it is sufficiently severe,” Veldran v. Dejoy, No. 19-CV-4010, 2020 WL 8084880, at *2 (2d Cir. Jan. 13, 2020) (summary order), “temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities.” Tongalson v. Dreyfus Serv. Corp., No. 04-CV-2308 (JSR), 2005 WL 356805, at *4 (S.D.N.Y. Feb. 14, 2005) (quoting 29 C.F.R. app. § 1630.2(j)). Indeed, the interpretive guidelines issued by the EEOC list a concussion as an example of short-term impairment that does not rise to the level of a disability. See id.
In addition, the complaint does not allege facts supporting an inference that her former employer took adverse actions against her based on her disability. To be sure, “courts in this circuit have held that the temporal proximity of an employee’s disclosure of a disability to his termination support an inference of discrimination.” Baron v. Advanced Asset & Prop. Mgmt. Sols., LLC, 15 F. Supp. 3d 274, 283 (E.D.N.Y. 2014) (citing cases). However, “cases that accept mere temporal proximity … as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). Here, plaintiff was not subjected to any adverse employment action until approximately 7 months after the concussion and was not terminated until approximately 20 months after the concussion.
In light of the plaintiff’s pro se status, the court granted her leave to file an amended complaint, instructing the plaintiff as follows:
Zelasko must set forth facts to show that she is disabled within the meaning of the ADA or perceived to be so by her employer; that she was otherwise qualified to perform the essential functions of the job with or without a reasonable accommodation; that she suffered an adverse employment action; and that the adverse action was imposed because of her disability. [Footnote:]
It is not sufficient to merely check off the box on the form complaint; plaintiff must fill in the blank space next to the box and provide facts in support of the statement of claim.