(premature onset of labor that could only be controlled by
medication constituted a "disability"); Patterson v. Xerox
Corp., 901 F. Supp. 274 (N.D.Ill. 1995) (holding that plaintiff's
severe back pain from being pregnant substantially limited her
ability to sit at work for extended periods of time). However, in
this type of case, it is the physiological impairment that
results from the complications that renders the person disabled.
Bond v. Sterling, Inc., 997 F. Supp. 306, 310 (N.D.N.Y. 1998).
The Plaintiff here cannot point to any significant physiological
impairment she suffered incident to her miscarriage; indeed, her
short recovery period indicates that the Plaintiff suffered no
permanent or long-term complications as a result of the
miscarriage. LaCoparra, 982 F. Supp. at 228 (plaintiff who had
previously suffered a miscarriage was not disabled under ADA).
Therefore, the Court finds that the Plaintiff has failed to
plead that she has a "disability" as that term is defined by the
ADA. Therefore, the Plaintiff's failure to accommodate claim must
fail, as she cannot establish the first element of a prima facie
B. As to the cause of action for retaliation
A prima facie case of retaliation under the ADA requires the
plaintiff to show that: (i) the employee was engaged in activity
protected by the ADA; (ii) the plaintiff suffered an adverse
employment action; and (iii) there existed a causal connection
between the protected activity and the adverse employment action.
See Muller v. Costello, 187 F.3d 298 (2d Cir. 1999);
Kulniszewski v. Swist, 175 F.3d 1008, 1999 WL 97362 (2d Cir.
1999); Sarno v. Douglas-Elliman Gibbons & Ives, Inc.,
183 F.3d 155 (2d Cir. 1999). Section 12203(b) of the ADA, provides that
"[i]t shall be unlawful to coerce, intimidate, threaten or
interfere with any individual in the exercise or enjoyment of, or
on account of his or her having exercised or enjoyed . . . any
right granted or protected by this chapter."
Several courts have held that a non-disabled employee is
nonetheless protected against retaliation if the employee made a
good faith request for a reasonable accommodation. See e.g.
Butler v. City of Prairie Village, 974 F. Supp. 1386, 1402
(D.Kan. 1997), rev'd in part, 172 F.3d 736 (10th Cir. 1999);
Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir.
1997); Matthews v. American States Ins. Co., 1997 WL 752442
(D.Kan. 1997). This "good faith" analysis squares with the Second
Circuit's rulings that a non-disabled person who files a
complaint of disability discrimination is engaging in protected
activity as long as that person can establish that she had a
"good faith, reasonable belief that the underlying challenged
actions of the employer violated the law." Sarno, 183 F.3d at
159, quoting Quinn v. Green Tree Credit Corp., 159 F.3d 759,
769 (2d Cir. 1998). The plaintiff does not have to establish that
the conduct she opposed was actually a violation of the statute.
The complaint indicates that the Plaintiff engaged in at least
two separate protected activities under the ADA. First, the
Plaintiff alleges that she filed a charge of discrimination with
the EEOC. Filing a charge of discrimination is a protected
activity under 42 U.S.C. § 12203(a). Second, and more
importantly, the Plaintiff's request for a reasonable
accommodations is itself a protected activity. See Muller v.
Costello, 1996 WL 191977 (N.D.N.Y. 1996). As mentioned above,
the courts have generally recognized that non-disabled
individuals who request reasonable accommodation are protected
against retaliation, provided the request was made in good faith.
Here, the Court must view the allegations in the complaint in the
light most favorable to the Plaintiff, and thus, the Court
assumes that the Plaintiff's claim that she was entitled to a
reasonable accommodation, though mistaken, was made in good
faith. Thus, the Plaintiff has adequately alleged that she
engaged in a protected activity under the ADA.
The plaintiff has also sufficiently alleged the second element
of a claim of retaliation: that she was subjected to an adverse
employment action. The complaint contends that, prior to her
request for an accommodation, the Plaintiff had never been
subjected to an OJS ride; since her request, her supervisors have
accompanied her on eight separate trips. Increased supervision
can constitute an adverse action by an employer. See Dortz v.
City of New York, 904 F. Supp. 127, 156 (S.D.N.Y. 1995);
Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359,
381 (S.D.N.Y. 1999). Moreover, the Plaintiff alleges that
these OJS rides have resulted in her receiving unfounded
criticism for stopping the truck to go to the bathroom and for
failing to blow the horn when making a delivery. Viewing the
complaint in the light most favorable to the Plaintiff at this
stage of the litigation, the Court finds that the Plaintiff has
alleged sufficient adverse employment actions to survive a motion
For the final element of the prima facie case, the Plaintiff
must demonstrate a causal connection between the protected
activity and the adverse employment action. One manner of
establishing this connection is by showing that the protected
activity was followed closely by adverse treatment. See Dortz,
904 F. Supp. at 157. In this case, the Plaintiff's complaint
alleges that in 12 years as a Package Car driver, she was never
subjected to an OJS ride, and that shortly after requesting a
reasonable accommodation, she was subjected to eight separate OJS
rides and unfounded criticism of her work performance. Viewing
the evidence in the light most favorable to the plaintiff, a fact
finder could reasonably conclude that there was a causal
connection between the defendant's actions and the plaintiff's
participation in protected activity. The proximity between
plaintiff's request for reasonable accommodations and the adverse
actions show a sufficient nexus to withstand a motion to dismiss.
For the reasons set forth above, the motion by UPS to dismiss
the Plaintiff's cause of action for failure to accommodate
pursuant to Fed.R.Civ.P. 12(b)(6) is GRANTED. The motion by UPS
to dismiss the Plaintiff's cause of action for retaliation
pursuant to Fed.R.Civ.P. 12(b)(6) is DENIED.
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