In Steinberg v. Vidal, No. 22-CV-04971 (JMA) (AYS), 2022 WL 16744932 (E.D.N.Y. Nov. 7, 2022), the court denied plaintiff’s motion to amend his complaint to assert a claim against the defendant – the Director of the United States Patent and Trademark Office – under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
In reaching its decision, the court held that plaintiff’s proposed ADA claim “suffers from a simple, but fatal, flaw: the ADA does not apply to federal government agencies like USPTO.” This comes directly from the statute itself, 42 U.S.C. § 12111(5)(B)(i), which expressly excludes the United States from the definition of “covered” employers.
As the Second Circuit has explained, a former federal government employee “has no remedy for employment discrimination under the ADA. His sole claim for discrimination on the basis of disability is under the Rehabilitation Act, if anywhere.” Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998) (internal citation omitted). See also Henry v. McDonald, 531 F. Supp. 3d 573, 588 (E.D.N.Y. 2021) (construing pro se plaintiff’s disability discrimination claim against federal government agency to be made pursuant to Section 504 of the Rehabilitation Act rather than ADA); Babin v. Dep’t of the Treasury, No. 20-CV-2702 (JMA) (SIL), 2021 WL 5860595, at *13 (E.D.N.Y. Dec. 9, 2021) (“Plaintiff’s ADA claim cannot survive because Title I of the ADA does not apply to employees of federal agencies.”), report and recommendation adopted, 2022 WL 79814 (E.D.N.Y. Jan. 7, 2022).
Based on this, the court held that plaintiff’s proposed ADA claim “could not withstand a motion to dismiss” and was therefore futile.