United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
John Kelleher brings this action under the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq.
(the “ADA”), against defendant Fred A. Cook,
Inc., for allegedly terminating plaintiff's employment
because of his daughter's disability.
pending is defendant's motion to dismiss the complaint
pursuant to Rule 12(b)(6). (Doc. #21).
following reasons, the motion is GRANTED.
Court has subject matter jurisdiction under 28 U.S.C. §
purpose of deciding the pending motion, the Court accepts as
true all well-pleaded factual allegations in the complaint
and draws all reasonable inferences in plaintiff's favor.
The following facts are taken from the complaint and the
documents attached thereto or incorporated by reference
November 11, 2014, plaintiff began working for defendant as
both a “Laborer” and an “Operator in the
Vactor Division.” (Compl. ¶ 8). Defendant is in
the sewage, septic, and pipeline cleaning business. (Grech
Aff. Ex. B).
early March 2015, plaintiff told Brian Cook, defendant's
owner, that plaintiff's daughter had a serious medical
condition. Plaintiff told Cook “that when his
daughter's condition worsened, he would have to rush home
to care for his other children so his fiancé [sic]
could take his daughter to see various doctors for
treatment.” (Compl. ¶ 11).
March 27, 2015, plaintiff met with Mr. Cook and other company
officials. At that meeting, defendant, through its agents,
told plaintiff “that he had to stop rushing home after
his 10-12 hour workdays.” (Compl. ¶ 15). In
response, plaintiff asked for “eight-hour workdays for
a period of approximately one week to accommodate his infant
daughter's serious health condition.” (Compl.
¶ 16). At that meeting, plaintiff was also told he would
not get a raise. Mr. Cook told plaintiff “that his
problems at home were not the company's problems.”
(Compl. ¶ 18). Plaintiff asserts “the company
expected employees to remain on-site for possible emergency
work after punching out at the end of their shift.”
(Compl. ¶ 15).
next day, a Saturday, plaintiff's daughter had a seizure
and was taken to Albany Medical Center. Plaintiff told Mr.
Cook he would not be able to work the following Monday.
Plaintiff alleges when he returned to work on Tuesday, he had
been demoted from operator to laborer.
this time, plaintiff “requested an accommodation”
to work eight-hour shifts for a week to allow him to travel
to Albany to see his daughter in the hospital. (Compl. ¶
21). Plaintiff alleges Mr. Cook denied his request and
ordered plaintiff to work late.
thereafter, on April 16, 2015, plaintiff arrived
approximately ten- to fifteen-minutes late to work. Mr. Cook
sent plaintiff home, telling him defendant would call if it
needed plaintiff to work. On May 11, 2015, plaintiff received
a letter notifying him of his termination.
November 6, 2015, plaintiff filed a charge of discrimination
with the New York State Department of Human Rights and the
Equal Employment Opportunity Commission (“EEOC”).
alleges he received an EEOC notice of right to sue (the
“right-to-sue letter”) on May 4, 2017. He
commenced this ...