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March 3, 2000


The opinion of the court was delivered by: Spatt, District Judge.


This case involves allegations that the Defendant United Parcel Service ("UPS") violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") by failing to accommodate the Plaintiff's alleged disability resulting from her suffering a miscarriage and by retaliating against her for requesting a reasonable accommodation. Presently before the Court is the Defendant's motion to dismiss the complaint under Rule 12(b)(6).


These facts are taken from the allegations in the Plaintiff's complaint. The Plaintiff began working for UPS as a Package Car Driver on or about May 28, 1985. On February 16, 1997, the Plaintiff suffered a miscarriage. That same day, the Plaintiff's fiance spoke with the Plaintiff's manager, Peter Pursino, and notified him that the Plaintiff would be out of work for the rest of the week. On February 22, 1997, the Plaintiff returned to her position, bringing a note from her doctor explaining that her absence was due to a medical emergency.

The UPS company policy grants an employee six sick days within a twelve month period. UPS added the five days the Plaintiff was out due to her miscarriage to her five previous days of unrelated absences in the preceding twelve month period and determined that she had exceeded her allotted sick leave. Two days after the Plaintiff returned to work from her miscarriage, UPS issued her a warning letter, charging her with being absent for 10 days in a twelve month period. The Plaintiff alleges that her miscarriage constituted a disability under the terms of the ADA, and that a five-day leave of absence after her miscarriage was a reasonable accommodation necessary for her to be able to return to work and perform her essential work functions. She contends that by issuing the warning letter, UPS denied her that reasonable accommodation.

Furthermore, the Plaintiff alleges that she has been subjected to harassment because of her request for reasonable accommodation. From time to time, UPS reviews their Package Car drivers by on the job supervision ("OJS rides"). The Plaintiff contends that, prior to her miscarriage, she had never been subjected to an OJS ride, but that after her miscarriage, she has been subjected to eight separate OJS rides. During the various OJS rides, the Plaintiff has been subjected to additional harassment and unfound criticism. For example, she has been verbally reprimanded for stopping the truck to go to the bathroom, and for failing to blow the truck horn when arriving at delivery stops, even though the use of the horn, except in emergencies, is an violation of company policies. On one of the OJS rides, her supervisor, Omar Caesar, urinated in a cup in the back of the truck while the Plaintiff was present and stated while he was doing it, "it all won't fit."

The Plaintiff's complaint, read broadly, alleges two causes of action: (i) failure to accommodate under the ADA, and (ii) retaliation under the ADA for requesting a reasonable accommodation. UPS moves to dismiss the complaint under Fed. R.Civ.P. 12(b)(6) for failure to state a claim on the ground that a miscarriage does not qualify as a "disability" under the ADA.


In a ruling on a motion under Fed. R.Civ.P. 12(b)(6), the court is to look only to the allegations of the complaint and any documents attached to or incorporated by reference in the complaint, Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996); to assume all well-pleaded factual allegations to be true; and to view all reasonable inferences that can be drawn from such allegations and documents in the light most favorable to the plaintiff. Dangler v. New York City Off Track Betting Corp., 193 F.3d 130 (2d Cir. 1999). A motion to dismiss will only be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Posr v. Court Officer Shield # 207, 180 F.3d 409, 413 (2d Cir. 1999).

Title I of the ADA prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a) (Supp. 1995). Employers of persons with disabilities are required to make reasonable accommodations for otherwise qualified individuals with disabilities, 42 U.S.C. § 12112(b)(5)(a), and employers are prohibited from retaliating against an employee that engaged in activities protected under the statute. 42 U.S.C. § 12203(b).

A. As to the failure to accommodate claim

In order to establish a prima facie case of failure to accommodate, a plaintiff must show that: (i) that plaintiff was an individual with a "disability" within the meaning of the statute; (ii) the employer had notice of the disability; (iii) that plaintiff with reasonable accommodation could perform the essential functions of her position; and (iv) the employer refused to make such accommodations. See Mitchell v. Washingtonville Central School District, 190 F.3d 1 (2d Cir. 1999); Yaba v. Roosevelt, 961 F. Supp. 611, 619 (S.D.N.Y. 1997).

A person is "disabled" under the ADA where that person: (i) has a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment. 42 U.S.C. § 12102(2); Colwell v. Suffolk County Police Department, 158 F.3d 635, 641 (2d Cir. 1998). An impairment "substantially limits" a life activity where a person with that impairment is unable to perform a major life activity that the average person in the general population can perform or if significantly restricted as to the condition, manner or duration under which she can perform a particular major life activity as compared to the average person. 29 C.F.R. § 1630.2(j)(1)(ii); Cerrato v. Durham, 941 F. Supp. 388, 392 (S.D.N.Y. 1996). Major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Id.

In determining whether a limitation is "substantial," courts consider the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long term impact of or the expected long term impact of or resulting from the impairment. 29 C.F.R. ยง 1630.2(j)(2); Durant v. Chemical/Chase Bank/Manhattan, 81 F. Supp.2d 518 (S.D.N.Y. 2000); Ditullio v. Village of Massena, 81 F. Supp.2d 397 (N.D.N Y 2000). For the purposes of the ADA, short term, temporary restrictions are not "substantially limiting" and do not render a person "disabled." Id. Conditions, such as pregnancy, that are not the result of a physiological ...

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