REPORT AND RECOMMENDATION
TO THE HONORABLE KIMBA M. WOOD, United States District Judge:
Plaintiff Anthony Marvello, acting pro se, has sued Chemical Bank and two of its employees for discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101 et seq. ("ADA"). Chemical has moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) and to stay discovery pursuant to Fed. R. Civ. P. 26(c). Chemical's basis for its motion to dismiss is that Plaintiff Marvello is judicially estopped, as a matter of law, from suing under the ADA as a recipient of Social Security Supplemental Security Income ("SSI"). For the reasons set forth below, I recommend that the Court deny Chemical's motion to dismiss because limited fact discovery is necessary before the Court can determine whether plaintiff Marvello is estopped from suing under the ADA.
For purposes of this motion to dismiss, the Courts must accept the well-pleaded allegations in the complaint as true. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). Accordingly, this opinion will summarize Marvello's amended complaint, without resorting to the phrase "plaintiff alleges."
Plaintiff Marvello has a disability, called "traumatic brain injury," which was caused by an accident. (Amended Complaint, filed 12/12/95 ["Cplt."], p. 1.) Marvello "went through a lot of cognitive rehabilitation" after the accident, and acknowledges that he "still has problems in doing things." (Id.) Marvello has received job training from the New York Institute of Finance, where he had the assistance of a job coach. (Cplt., p. 2.) Due to his disability, Marvello has not worked since 1968 and has received public assistance in the form of Medicaid, SSI, and "Social Security Disability" [benefits] in the amount of $ 564 per month. (Turner Aff. Ex. A: Marvello's In Forma Pauperis Petition, PP 3, 8.)
From September 1993 to April 1994, plaintiff Marvello applied for entry level jobs at Chemical Bank. (Cplt., pp. 2, 3.) Marvello requested on the application that he receive the assistance of a person acting as a "job coach" on a temporary basis as a "reasonable accommodation" under the ADA. (Id.) Marvello was denied assistance and told that "a person has to be selected for a job first before they make accommodations for a person." (Cplt., p. 3.) Chemical further told Marvello that they do not give out a list of job openings. (Cplt., pp. 3, 4.)
Marvello alleges that Chemical discriminated against him by not granting him an interview because of his disability. (Cplt., p. 1.) Although Chemical referred to his lack of experience and history of unemployment, these reasons were a "pretext to cover their bias." (Cplt., pp. 2, 3.) Moreover, some of the positions for which Marvello applied were entry level positions such as bank teller that did not require prior experience. (Cplt., p. 3.) Chemical discriminatorily screened out Marvello before ascertaining what abilities he had with accommodations. (Id.) Marvello maintains that he needs to have a person from the New York Institute of Finance give him temporary assistance as a job coach. (Cplt., p. 4.)
This case involves an issue of first impression in this Circuit: whether a person who is considered totally "disabled" for purposes of collecting Social Security disability benefits is entitled to protection under the ADA.
For purposes of receiving Social Security disability insurance benefits, a person is considered disabled when he or she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). That impairment must be of such severity that the person
is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.