The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
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.
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. § 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 ...