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Verrocchio v. Federal Express Corp.

February 17, 2010

GABRIELE E. VERROCCHIO, PLAINTIFF,
v.
FEDERAL EXPRESS CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiff Gabriele Verrocchio commenced the instant action against Defendant Federal Express Corporation asserting a claim for violation of the Americans with Disabilities Act ("ADA"), and a claim for breach of contract. Presently before the Court is Defendant's motion pursuant to Fed. R. Civ. P. 12(b)(6) seeking dismissal of the Complaint in its entirety.

I. FACTS*fn1

Plaintiff Gabriele Verrocchio began working for Defendant Federal Express Corporation in 1983. On December 23, 2006, Plaintiff was working as a courier. On that date, he was rear-ended by another vehicle in a work-related accident. The accident caused multiple injuries to Plaintiff, resulting in his taking a medical leave of absence from work.

Plaintiff pursued a workers' compensation claim as a result of the accident. In July 2007, Plaintiff underwent an independent medical examination ("IME"). The IME report indicated that Plaintiff was medically unable to return to his position as a courier, but that he could "return to light duty using mainly right upper extremity if available." In August 2007, two of Plaintiff's medical providers indicated in documents that Plaintiff would be unable to work until at least the end of September 2007. These "out of work orders" were faxed to Defendant.

On or about August 24, 2007, Defendant notified Plaintiff that he was required to report to work on August 28, 2007 for a Temporary Return to Work Assignment ("TWA") with limitations. Plaintiff did not report to work for the TWA.

By letter dated September 4, 2007, Plaintiff was again advised to report to work for a TWA on September 10, 2007. The letter stated that Plaintiff was expected to provide proof of his inability to perform his job. Plaintiff did not report for the TWA. Plaintiff did contact Defendant and, on September 6, 2007, Plaintiff's physician provided Defendant with a list of restrictions.

On or about September 14, 2007, Defendant sent Plaintiff a letter of termination, citing his failure to report for the TWA. Plaintiff was advised of his right to appeal the termination through Defendant's "Fair Treatment Process." Plaintiff, through his attorney, appealed the termination claiming that Plaintiff was medically "unable to return to work until at least the end of September, 2007, with specific limitations." Plaintiff's appeal was denied.

Plaintiff filed a charge of discrimination with the New York Division of Human Rights. The New York Division of Human Rights found that probable cause existed that Defendant engaged in an unlawful discriminatory employment practice.

Plaintiff then commenced the instant action claiming that he was discriminated against on account of his injuries in violation of the Americans with Disabilities Act and that Defendant breached the employment contract. Presently before the Court is Defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

II. STANDARD OF REVIEW

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, ---U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (internal quotations and citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 1949-50 (internal quotations and citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Id. at 1950 (internal citations and quotation omitted).

III. DISCUSSION

a. Americans With ...


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