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September 17, 2001


The opinion of the court was delivered by: Larimer, Chief Judge.



Plaintiff, Barbara Ann Chille, a former employee of United Airlines ("United"), commenced this action alleging that United discriminated against her in violation of the Americans with Disabilities Act ("ADA" or "the Act") and the New York Human Rights Law.*fn1 Defendant has moved to dismiss the complaint pursuant to FED. R. CIV. P. 8(a)(2) and 12(b)(6). Defendant's motion is granted, and the complaint is dismissed. Plaintiff, however, is granted leave to replead.


Plaintiff began her employment with United in September 1997. Her last position with the company was as a "Customer Service Representative, ticket counter, ramp and gate" at the Rochester International Airport. Complaint, ¶ 14. At some point during her employment, plaintiff suffered a work-related case of frostbite. Plaintiff alleges that the frostbite created a condition that affected the circulation in her hands. Because of that, she claims that her hands cannot be exposed to temperatures below 50 degrees Fahrenheit.

In September of 1999, plaintiff notified her immediate supervisor of her condition, and requested that the company accommodate her by changing her work area or by providing her with special insulated gloves or gloves that could accommodate a hand-warming device.*fn2 Plaintiffs supervisor relocated her to the baggage handling area. Because of the temperatures in that area, however, this change was not satisfactory to plaintiff. Plaintiff then attempted to change her position with United. She applied for a flight attendant position, but she was not selected.

Plaintiff then sought employment elsewhere, and was offered a flight attendant position with another airline. Plaintiff began training with her new employer as a flight attendant but apparently had a change of heart and during that training period, she elected to "return" to United. Plaintiff alleges that she was using vacation time while training for her new job but, apparently, United viewed it differently. United deemed her activities and separation as a resignation and refused to allow her to continue her employment after she had begun training for a position with another airline. Plaintiff now claims that United's actions were in violation of the ADA. She filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that United discriminated against her because of her disability. The EEOC dismissed plaintiffs claim, and issued a right-to-sue letter. Plaintiff then brought this action.


In light of plaintiffs election to seek other employment, it is difficult to see how plaintiff can establish any nexus between United's adverse employment action and plaintiffs alleged disability. This may well prove to be an insurmountable barrier to plaintiff. The motion before me now is, however, a motion to dismiss and not a summary judgment motion. Therefore, I must give deference to the allegations contained in a properly pleaded complaint.

In deciding a motion to dismiss, the Court must accept "all of the allegations in the complaint as true and draw[] all reasonable inferences in favor of plaintiffs." In re Scholastic Corp. Securities Litigation, 252 F.3d 63, 69 (2d Cir. 2001) (citing Press v. Chem. Inv. Servs. Corp., 166 F.3d 529, 534 (2d Cir. 1999)). "[D]ismissal is proper `only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Id. (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). The question is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 235-236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). "Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test." Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)).

Even under this favorable standard, however, the complaint must be dismissed for failure to adequately plead the requisite elements of an ADA claim. See FED. R. CIV. P. 8(a)(2); 12(b)(6). To state a claim under the ADA, it is elemental that plaintiff must allege that she suffers from a "disability" as defined by the Act. Not every limitation or impairment constitutes a "disability" for purposes of the ADA statute. In pertinent part, the ADA defines "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities of such an individual." 42 U.S.C. § 12102(2). I find the complaint to be woefully inadequate in this regard. Plaintiff has failed to adequately allege that her frostbite and subsequent condition results in a limitation of a "major life activity" as defined by the Act. The regulations implementing the ADA set forth a non-exhaustive list of such major life activities, which include: "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, andw working."*fn3 29 C.F.R. § 130.2(i). Plaintiff has failed to set forth with requisite specificity the "major life activity" that has been substantially limited by the effects of frostbite.

If plaintiff intends to allege that the major life activity of working is impacted, she must properly plead such a claim. She must plead a "substantial" impairment to her working ability.

A substantial impairment to the major life activity of working requires more than merely encountering problems with one particular job. A person will be considered to be "substantially limited" in the major life activity of working if she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). Thus, an individual who is unable to perform only a single job will not be considered disabled under the Act. See, e.g., Murphy v. United Parcel Service, Inc., 527 U.S. 516, 524-525, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999) (claimant who was only able to perform the job of mechanic but who was able to drive a commercial vehicle is not unable to perform a class of jobs); Muller v. Costello, 187 F.3d 298, 313 (2d Cir. 1999) (claimant who was only unable to perform job of a corrections officer is not disabled under the Act).

In this case, plaintiffs pleading is so deficient as to require dismissal. Plaintiff must allege "at a minimum" that she is "unable to work in a broad class of jobs." Sutton v. United Air Lines, 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Merely alleging that plaintiffs hands cannot be exposed to temperatures below 50 degrees Fahrenheit does not ...

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