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CERRATO v. DURHAM

September 13, 1996

MARIA CERRATO, Plaintiff, against CAROL DURHAM, CATHY HESLIN, and EXECUTIVE HEALTH GROUP NATIONAL HEALTH SERVICES, Defendants.


The opinion of the court was delivered by: PRESKA

 LORETTA A. PRESKA, United States District Judge:

 This is an action alleging employment discrimination on the basis of pregnancy. Plaintiff alleged that defendant Executive Health Group National Health Services ("EHG") through its agents, defendant Carol Durham ("Durham") and defendant Cathy Heslin ("Heslin"), terminated her employment on the basis of her sex and pregnancy-related disabilities in violation of the following statutes: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000(e) et seq. (1995) ("Title VII"), the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (1995) ("ADA"), the New York State Human Rights Law, N.Y. Exec. Law, §§ 290 et seq. (McKinney 1993) ("State HRL"), and the New York City Human Rights Law, New York City Administrative Code, Title 8, §§ 8-101 et seq. ("City HRL"). Defendants, pursuant to Federal Rule of Civil Procedure 12(b)(6), *fn1" moved to dismiss certain of plaintiff's causes of action, including (1) the second cause of action arising under § 12112(a) of the ADA; (2) the fourth and seventh causes of action arising under § 296 of the State HRL and § 8-107 of the City HRL; (3) the first through fifth causes of action as against the individual defendants Durham and Heslin; and (4) the fifth cause of action as against defendant EHG, for failure to state a claim upon which relief can be granted. *fn2" Plaintiff opposed the motion. Upon review of the motion papers and the complaint, for the reasons discussed below, the motion is denied in part and granted in part.

 BACKGROUND

 Defendant EHG is a corporation that provides health services to individual and corporate clients. EHG employed plaintiff Maria Cerrato as a health service coordinator from August 1993 until October 1993 and as a secretary from October 1993 until she was terminated on March 16, 1994. (Amended Complaint, P 11). During the period of plaintiff's employment at EHG, defendants Durham and Heslin were also employees of the company. Durham served as a group manager and was plaintiff's direct supervisor, while Heslin served as acting vice president. (Amended Complaint, PP 6, 7).

 Plaintiff worked at EHG from August of 1993 until January 1994 when a pregnancy test administered by EHG revealed that she was pregnant. (Amended Complaint, P 13). Plaintiff immediately shared the news of her pregnancy with a number of co-workers and management personnel at EHG, including defendant Durham. (Amended Complaint, P 2).

 A few weeks later, plaintiff began to experience some complications, including instances of spotting, leaking, dizziness, and nausea. (Amended Complaint, PP 15, 17, 21, 22). On the basis of these symptoms, her obstetrician referred her to a doctor who specialized in high risk pregnancies. Because the specialist did not conduct evening or weekend office hours, plaintiff requested time off in order to schedule an appointment during working hours. Defendant Durham approved the request, and plaintiff visited the specialist on February 14, 1994; she was paid for her absence as a vacation day. (Amended Complaint, P 15).

 Approximately one week later, on February 21, 1994, plaintiff experienced further leaking. She reported her emergency situation to an EHG manager and received permission to take another vacation day in order to see her doctor. (Amended Complaint, P 17).

 On March 3, 1994, plaintiff, who had been originally scheduled to take a school-related day off, obtained permission from an EHG manager to use the day to see her doctor instead for a pregnancy-related examination. She was paid for her absence as a holiday. (Amended Complaint, P 18).

 On March 8, 1994, plaintiff called in sick due to pregnancy-related complications. EHG did not object to her sick report, and plaintiff was again paid as a vacation day. (Amended Complaint, P 19).

 Plaintiff met with defendant Durham and an EHG manager named Sblendido on March 9. Durham and Sblendido asked how plaintiff was feeling and if she wanted to go on disability leave or take a leave of absence. Plaintiff replied that she preferred to continue working and that her doctor had not advised her that it was medically necessary for her to stop working. Neither Durham nor Sblendido warned plaintiff that her job was in jeopardy or that her absences were considered excessive. (Amended Complaint, P 20).

 On March 11, plaintiff again called in sick with cramping and other pregnancy-related complications. The group manager to whom she reported her condition did not object to the report, and EHG paid plaintiff for her absence as a vacation day. (Amended Complaint, P 21). On March 14 and/or 15, 1994, plaintiff continued to experience symptoms including cramping and leaking. She attempted to contact a manager and left a message that she was again reporting sick. Again, EHG management raised no objection, and plaintiff was paid for her absence as a vacation day. (Amended Complaint, P 22).

 On or about March 16, 1994, plaintiff returned to EHG to resume work. Defendant Durham informed her that defendant Heslin had indicated to Durham that plaintiff had "taken too many days off and had to be let go." (Amended Complaint, P 23). Durham herself disclaimed responsibility for the decision, advising plaintiff that she was acting at Heslin's behest. Id. Plaintiff filed this lawsuit in response to the discharge, claiming that her termination was violative of a number of statutes, and defendant EHG moved to dismiss certain of plaintiff's causes of action.

 DISCUSSION

 I. Standard Applicable to a Motion to Dismiss

 In deciding a motion to dismiss, I must view the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 237, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Yoder v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 562 (2d Cir. 1985). I must accept as true the factual allegations stated in the complaint, Zinermon v. Burch, 494 U.S. 113, 118, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990), and draw all reasonable inferences in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993). A motion to dismiss can only be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 II. Pregnancy as a Disability under the ADA

 Defendant EHG asserts that plaintiff's claim under the ADA must be dismissed for failure to state a cause of action because "pregnancy is not a protected 'disability' under the ADA." (Goldberg Aff., P 9). Because at this stage of this lawsuit, it does not appear beyond doubt that plaintiff can prove no set of facts entitling her to relief, I must deny the motion to dismiss on this ground.

 In order to state a claim under the ADA, the plaintiff must adequately allege that she suffers from a "disability." The statute contains a three-part definition of the term "disability:"

 
The term "disability" means, with respect to an individual--
 
(A) a physical or mental impairment that substantially limits one or more of the major life ...

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