United States District Court, N.D. New York
GRACE M. POGORZELSKI, Plaintiff,
COMMUNITY CARE PHYSICIANS, PC, Defendant.
THE PLAINTIFF: Grace M. Pogorzelski Pro Se.
THE DEFENDANT: Nixon, Peabody Law Firm ANDREW C. ROSE, ESQ.
Nixon, Peabody Law Firm JOSEPH A. CARELLO, ESQ. TODD R.
MEMORANDUM-DECISION AND ORDER
L. Sharpe Senior District Judge.
pro se Grace Pogorzelski brings this discrimination
action under the Americans with Disabilities Act
(ADA) against her former employer, Community
Care Physicians, PC (hereinafter, “Community”).
(Compl., Dkt. No. 1.) Pending is Community's motion to
dismiss. (Dkt. No. 17.) For the following reasons, the motion
alleged disability is “[t]riple-[n]egative [b]reast
[c]ancer/[bilateral].” (Compl. at 2.) On August 6,
2014, she notified her manager of her diagnosis “and
requested that she adhere to the schedule that w[as] agreed
upon when [Pogorzelski] was hired so that [Pogorzelski] could
arrange for [r]adiation treatments.” (Id. at
3.) The manager offered her sympathy and said that
“‘of course, we will do whatever we can. However,
I need to speak to H[uman]R[esources]. Please keep me
abreast.'” (Id.) Twelve days later, on
August 18, Pogorzelski was dismissed by her manager in the
presence of the Human Resources Director. (Id.) When
asked why, the Human Resources Director stated,
“‘[W]e don't owe you an
explanation.'” (Id.) Pogorzelski replied
that she hoped “it wasn't about something all
together [sic] different[.]” (Id.) Her manager
then said, “‘[O]h[, ] Grace, I would never do
that.'” (Id.) The Human Resources Director
again said that they did not owe Pogorzelski an explanation.
April 29, 2016, Pogorzelski filed a complaint against
Community, claiming that her termination constitutes
disability discrimination under the ADA. (See
generally Compl.) Community thereafter filed the pending
motion to dismiss. (Dkt. No. 17.) After Pogorzelski filed her
response, (Dkt. No. 19), and Community replied, (Dkt. No.
20), Pogorzelski filed another response, (Dkt. No. 22).
Community then filed a sur-reply, (Dkt. No. 25), after
receiving permission to do so, (Dkt. Nos. 23-24).
Standard of Review
Rule of Civil Procedure 12(b)(6) provides that a cause of
action shall be dismissed if a complaint fails “to
state a claim upon which relief can be granted.” For a
full discussion of the governing standard for Rule 12(b)(6),
the court refers the parties to its prior decision in
Ellis v. Cohen & Slamowitz, LLP, 701 F.Supp.2d
215, 218 (N.D.N.Y. 2010).
Sufficiency of Pogorzelski's Disability