United States District Court, E.D. New York
MEMORANDUM & ORDER
F. Kuntz, II United States District Judge
Subi Mehmeti ("Plaintiff), proceeding pro se,
filed this employment discrimination action on December 20,
2017, against Jofaz Transportation, Inc.
("Defendant"). By Order dated January 25, 2017,
Dkt. 5, the Court granted Plaintiffs application to proceed
in forma pauperis for the limited purpose of that
Order, finding his statement of indigency to be implausible.
The Court further found that Plaintiffs original Complaint
failed to state a claim under the Americans with Disabilities
Act of 1990 ("ADA") and directed Plaintiff to file
an amended complaint within 30 days. Plaintiff filed his
Amended Complaint on February 17, 2017, but it fails to cure
the deficiencies in the original Complaint. Accordingly,
Plaintiffs case is dismissed for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B).
original Complaint, Plaintiff described how he was terminated
from his employment as a bus driver after he parked his bus
in an unauthorized location on October 3, 2012, in order to
seek medical attention for symptoms including headache,
vision problems, redness and bruising in his face, and
respiratory difficulties. Compl. at 5, ECF No. 1. Plaintiff
stated that he had met with his supervisor, Leonard
D'Amico, at 12:30 P.M. on October 3, 2012, and informed
Mr. D'Amico about his health condition "and that
[he] was unable to work" as he was "totally
paralyzed by the disease." Id. Plaintiff
explained that he was ultimately diagnosed with "cancer
of the head on the left side of respiratory."
reiterates these facts in his Amended Complaint. ECF No. 6.
For the first time, Plaintiff asserts that he informed a
manager, "Michael (Chinese man), " of his severe
headache at 5:30 A.M. on October 3, 2012, and explained he
would use his break to see his doctor. Amend. Compl. at 4.
Plaintiff alleges: "I asked him (manager) can I take the
bus 3.2 miles for to save time. The manager said to me Yes:
you have used always bus in such cases, to go to the family
doctor. (This is an order verbal and not in writing)."
Id. Plaintiff also asserts that he called his union,
Local Union No. 854, on October 3, 2012. Id. at 7.
On that call, a union worker told Plaintiff to "[g]o see
Leonard D'Amico don't worry because we will speak
with him." Id. At Plaintiffs meeting with Mr.
D'Amico, he allegedly explained he has "a serious
health condition, " and specifically that he had "a
maximum strong headache; [he is] trapped in the respiratory
tract; From the pain and crises of pain, [he] ha[s] lost my
normal viewing [and he is]. .. unable to work."
Id. at 7-8.
Amended Complaint also attaches multiple documents, including
copies of a certification of Plaintiff s birth in Albania in
1953, his naturalization certificate, his commercial
driver's license, statements of his medical condition
from 2010, income statements, a list of passengers, driver
checklists, maps of his route, an Employee Disciplinary
Action Notice, doctors' notes and medical records, a
letter from his union, and a letter from Pedro Rivera, Field
Supervisor, dated October 1, 2012, but describing events that
occurred on October 2 and 3, 2012, including an investigation
into Plaintiffs activities. ECF No. 6-2.
Court explained in the Order of January 25, 2017, Title I of
the ADA makes it unlawful for an employer, employment agency,
labor organization, or joint labor-management committee to
discriminate against a qualified individual on the basis of
disability in regard to terms, conditions, and privileges of
employment. 42 U.S.C. §§ 12111(2), 12112.
Aprima facie case of discrimination pursuant to the
ADA requires a plaintiff to show that: (1) the employer is
subject to the ADA; (2) the plaintiff was disabled within the
meaning of the ADA; (3) the plaintiff was otherwise qualified
to perform the essential functions of the job, with or
without reasonable accommodation; and (4) the plaintiff
suffered an adverse employment action because of the
disability. Brady v. Wal-Mart Stores, Inc., 531 F.3d
127, 134 (2d Cir. 2008). The Court found that the original
Complaint failed to state a claim under the ADA because
Plaintiff had not alleged that he was a qualified individual
with a disability within the meaning of the ADA, nor that he
was otherwise qualified to perform the essential functions of
his job, with or without accommodation, nor that he was
terminated because of a disability.
Amended Complaint fails to remedy these deficiencies.
Plaintiff acknowledges that he was terminated because he
parked his bus in an unauthorized location. His recent
explanation-that he was given verbal permission by a manager
to use the bus for personal business-does not speak to the
requirements of the ADA. In fact, his assertions that he told
his supervisor that he suffered from severe headaches,
"had lost [his] normal viewing, " and "was
unable to work" because he was "totally paralyzed
by the disease" do not suggest that he was qualified to
work as a school bus driver.
Amended Complaint fails to cure the deficiencies in the
original complaint, the action is hereby DISMISSED pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would
not be taken in good faith and therefore in forma
pauperis status is DENIED for purpose of an appeal.
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