The opinion of the court was delivered by: GEORGE DANIELS, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action against defendants alleging
disability discrimination and retaliation in violation of the
Americans with Disability Act ("ADA"), 42 U.S.C. § 12101, et
seq., as well as the New York City Human Rights Law ("HRL").
Defendant moves to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) on grounds that plaintiff failed to plead
discrimination based on his alleged disability, and failed to
allege a prima facie claim of retaliation. For the following
reasons, defendants' motion to dismiss is denied.
Plaintiff Fouad M. Fouad was hired by defendant Jeport Hotel
Corporation ("Jeport") (d/b/a Comfort Inn New York City
Crossroads Hospitality Company) in 1988 as a front desk clerk. In
1999, plaintiff was diagnosed with perostitis and tendonitis in
his leg. Plaintiff informed his employer that "his disability
limited his ability to stand for long periods of time." (Compl. ¶
9). To accommodate his disability, defendant allowed plaintiff to
sit "only . . . when no guests were at the front desk . . ."
(Compl. ¶ 10). However, plaintiff argues that such an
accommodation was not sufficient because "there were constantly
guests at the front desk." (Compl. ¶ 10). Plaintiff claims that
he still attempted to sit whenever possible, but "was reprimanded
for violating company policy for doing so." (Compl. ¶ 11). Plaintiff further alleges that when he informed defendants that
he would file a complaint with the Equal Employment Opportunity
Commission ("EEOC") if "reasonable accommodations" weren't
provided, defendants told him that he would be terminated.
(Compl. ¶ 13). No new accommodations were provided, and plaintiff
went on disability leave in October 1999. While on leave,
plaintiff filed a Charge of Discrimination with the EEOC on or
about December 1, 1999. Plaintiff claims that he informed
defendants' general manager, Harold Solomon, shortly after he
filed his charge. On February 3, 2000, defendants' terminated
plaintiff's employment. (Compl. ¶ 17).
On a motion to dismiss for failure to state a claim, the Court
should dismiss the complaint pursuant to Rule 12(b)(6) only if it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his complaint which would entitle him to relief.
See King v. Simpson, 189 F.3d 284, 86 (2d Cir. 1999);
Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). In reviewing
a motion to dismiss, this Court accepts the allegations in the
complaint as true and draws all reasonable inferences in favor of
the non-moving party. See Patel v. Searles, 305 F.3d 130,
134-34 (2d Cir. 2002). A complaint includes "documents attached
to the complaint as an exhibit or incorporated in it by
reference, to matters of which judicial notice may be taken, or
to documents either in plaintiff[`s] possession or of which
plaintiff had knowledge and relied on in bringing the suit."
Brass v. Am. Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993)
(citing Cortec Indus., Inc., v. Sum Holding L.P., 949 F.2d 42,
47-48 (2d Cir. 1991)); see also, Int'l Audiotext Network,
Inc., v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995).
However, plaintiff's mere notice of possession of a document is
not sufficient to warrant the Court's consideration of the
document. Rather, "plaintiff's reliance on the terms and effect
of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the
document on a dismissal motion . . ." Chambers v. Time Warner,
Inc., 282 F.3d 147, 153 (2d Cir. 2002).
In order to establish a prima facie case under the Americans
with Disabilities Act ("ADA") 42 U.S.C., a plaintiff must show
(1) that he is an individual with a disability within the meaning
of the act; (2) he is otherwise qualified to perform the job; and
(3) he was discriminated against or discharged because of the
disability. See Wernick v. Federal Reserve Bank of New York,
91 F.3d 379, 383 (2d. Cir. 1996).
The ADA defines "disability" as a "physical or mental
impairment that substantially limits one or more of the major
life activities of such individuals." 42 U.S.C. § 12102(2)(A).
"Major life activities" include "caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning and working." 29 C.F.R. § 1630.2(i). In determining
whether an impairment is substantially limiting, Courts will look
at "(i) the nature and severity of the impairment; (ii) the
duration or expected duration of the impairment; and (iii) the
permanent or long term impact, or the expected permanent or long
term impact of or resulting from the impairment." Colwell v.
Suffolk County Police Dept., 158 F.3d 635, 643 (2d Cir. 1998)
(quoting 29 C.F.R. § 1630.2(j)(2)). Courts within this circuit,
and the vast majority of courts elsewhere, have held that
temporary disabilities do not trigger the protections of the ADA
because individuals with temporary injuries are not disabled
persons within the meaning of the act. Graaf v. North Shore
Univ. Hosp., 1 F.Supp.2d 318, 321 (S.D.N.Y. 1998).
Defendants' argue that plaintiff's impairment does not qualify
as a disability protected under the ADA because plaintiff's major
life activities are not substantially limited, and the impairment
is temporary. Plaintiff's pleadings indicate that he cannot stand
for more than an hour at a time. (Plaintiff's Exhibit 1).*fn1 The ability to stand
has been held by the Second Circuit as a "major life activit[y]"
intended to be protected by the ADA. See Buckley v.
Consolidated Edison Co. of New York, Inc., 155 F.3d 150, 154 (2d
Cir. 1998) (stating that the ADA list of "`major life activities
. . . is meant to include sitting, standing, lifting [and]
reaching'") (quoting the Americans with Disabilities Act
Handbook I-27 (1992)); see also Ryan v. Grae & Rybicki,
P.C., 135 F.3d 867, 870 (2d Cir. 1998) ("other major life
activities include, but are not limited to, sitting, standing,
lifting, or reaching."). Moreover, the doctors' notes provided by
plaintiff do not specify when plaintiff will fully recover from
his impairment.*fn2 Rather, the doctor lists various dates
by which plaintiff's condition may "improve," contingent upon
plaintiff's performance of "physical therapy," and his avoidance
of "unnecessary standing." (Plaintiff's Exhibit 1). At this stage
of the litigation, it is premature to find that plaintiff's
impairment is "temporary" and therefore not protected by the ADA.
Indeed, plaintiff has alleged that his impairment is not
temporary. His allegations are sufficient to defeat defendants'
motion to dismiss.
Defendants also challenge plaintiff's retaliation claim,
aruging that the time span between the day plaintiff went on
disability leave and the day he was terminated is too attenuated
to support an inference of discrimination. To state a claim for
retaliation under the ADA, a plaintiff must show that (1) she was
engaged in a protected activity; (2) the defendant was aware of
that activity; (3) she was discharged; and (4) there was a causal
connection between the protected activity and the termination or suspension. Distasio v. Perkin
Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998). Plaintiff has
alleged sufficient facts to support his claim of retaliation as
he states in his complaint that he (1) filed a charge with the
EEOC; (2) informed defendants' of his action, (3) was later fired
from his job; (4) and had previously been warned that filing a
charge with the EEOC would result in the termination of his
employment. As "time span" is not necessarily a determinative
factor in proving an ADA retaliation claim, closeness in time
between when plaintiff went on disability and when he was
discharged is not required, as long as facts asserting a causal
connection between the two events are present. Distasio v.
Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998) (stating that
a plaintiff's claim for retaliation under the ADA must show a
causal connection between the protected activity and the
termination or suspension).
Plaintiff has sufficiently plead, for the purposes of a Rule
12(b)(6), that he was discriminated against because of his
disability, and later retaliated against, under the ADA.
Accordingly, defendants' motion to dismiss is denied.