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
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
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.
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 constitute
an adequate pleading that plaintiffs work activity has been
In light of the nature of plaintiffs alleged infirmity and her
own activities in seeking other employment, I have grave doubts
as to the likely success of plaintiffs claim. Prudence dictates,
however, that plaintiff should be given leave to replead, if she
can do so consistent with the requirements of FED. R. CIV. P.
11.*fn4 See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir.
1995) (Generally, when a court dismisses a complaint because it
does not comply with Rule 8, the court should grant plaintiff
leave to file an amended complaint.); Ricciuti v. N.Y.C.
Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991) ("As a
matter of procedure, when a complaint is dismissed pursuant to
Rule 12(b)(6) and the plaintiff requests permission to file an
amended complaint, that request should ordinarily be granted.").
Defendant's motion to dismiss (Dkt.# 4) is granted. Plaintiff
is granted leave to
file an amended complaint within twenty (20) days of entry of
this Decision and Order.
IT IS SO ORDERED.