The opinion of the court was delivered by: MOTLEY
This opinion addresses defendant North Shore University Hospital's ("North Shore's") Fed.R.Civ.Proc. 12(b)(6) motion to dismiss plaintiff Stanley V. Graaf's ("Graaf's") lawsuit against it. Graaf has sued under numerous causes of action, namely, Title VII, the Americans with Disabilities Act (ADA), 42 U.S.C. § 1981, § 1985, and § 1986, and various state law claims. For the reasons discussed below, North Shore's motion is GRANTED, in part, and DENIED, in part.
Plaintiff, Stanley V. Graaf, is an Aruban citizen of West Indian descent residing in the United States and married to a white citizen of the United States. Defendant North Shore Hospital was Graaf's employer from 1979 until 1993, when he was terminated by defendant. Graaf had begun his employment with defendant in April of 1979 as a trainee in the Carpenter's Shop but he was reassigned in 1981 to the Maintenance Shop in defendant's Engineering and Maintenance Department and was allegedly replaced by a white employee with less experience than plaintiff. Moreover, Graaf alleges that a white employee in the Carpenter's Shop had told him that he would not work with a black person and that he would rather work with the less experienced white employee.
Graaf alleges that in 1983, while he was in the Engineering and Maintenance Department, he was directed to clean a shed. Graaf further alleges that defendants Tulimiero and Gordon approached him and taunted him by telling him that he looked like a "black hairy monkey in a cage in need of a banana." Compl., P16. Graaf alleges that when he complained of this incident to the Director of the Department, the Director told him that defendants Tulimiero and Gordon were his supervisors and ordered him to do what he was told.
According to Graaf, this was only the beginning of a pattern of discrimination that continued until his termination in 1993. Among other things, Graaf alleges (1) that defendant Tulimiero threatened to assault him at an office party at which he was dancing with a white woman, (2) that racial epithets had been spray-painted onto his locker, (3) that he was repeatedly passed over for promotions, (4) that when he complained of this discrimination to the president of defendant North Shore, defendant John Gallagher, defendant Gallagher accused plaintiff of being too sensitive, (5) that defendant Tulimiero improperly refused to give plaintiff a raise he had been promised, (6) that defendant Tulimiero made a number of discriminatory comments to plaintiffs wife, urging her to leave him, and (7) that when he was having an operation after being injured on the job and unable to perform his employment duties, he was terminated for allegedly discriminatory reasons.
Graaf claims that defendants have discriminated against him on the basis of his race, color, and national origin in violation of the Civil Rights Act of 1964. Plaintiff further seeks damages under 42 U.S.C. § 1981, § 1985, § 1986, and the Americans with Disabilities Act. Finally, plaintiff seeks relief under a number of pendent state law claims.
A complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond a doubt that plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957). Moreover, when passing on a motion to dismiss, the court must accept the allegations in the complaint as true and construe them in favor of the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Dwyer v. Regan, 777 F.2d 825 (2d. Cir. 1985).
I. Graaf's Federal Causes of Action
Graaf has brought a claim under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12010 et seq. Under the ADA, a plaintiff must establish a prima facie case by showing (1) that he is an individual with a disability within the meaning of the act; (2) he is otherwise qualified to perform the job; and (3) he was discriminated against or discharged because of the disability. See Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir. 1996). Graaf stated that he suffered a back injury which forced him temporarily to leave work; he does not claim that his injury was permanent. Courts within this circuit, and the vast majority of courts elsewhere which have considered the question, have held that temporary disabilities do not trigger the protections of the ADA because individuals with temporary injuries are not disabled persons within the meaning of the act. See Boyce v. New York City Mission Society, 963 F. Supp. 290, 296--297 (S.D.N.Y. 1997) (noting that "ADA interpretive guidelines further clarify the physical conditions intended to be within the scope of the Act by stating 'temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities'"); Stronkowski v. St. Vincent's Medical Center, 1996 WL 684407, *7 (D.Conn. Aug. 1, 1996) ("Temporary injuries, like Stronkowski's (back) injury, without substantial limitations and permanent effects, do not warrant the protections of the ADA"); see also Davis v. Bowes, 1997 U.S. Dist. LEXIS 16258, 1997 WL 655935, *15 (S.D.N.Y. 1997) ("designating a transient or temporary illness as a handicap is inconsistent with congressional intent.").
The ADA guideline referenced in the Boyce opinion lists broken limbs, sprained joints, concussions, appendicitis, and influenza as examples of temporary non-chronic impairments. See 29 C.F.R. app. 1630.2(j). To be sure, a serious back injury, like the one incurred by Graaf, can result in chronic impairments and is probably more serious than a broken limb or a sprained joint. However, plaintiff has stated that he is able to return to work. Due to the temporary nature of ...