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Kelleher v. Fred A. Cook, Inc.

United States District Court, S.D. New York

July 26, 2018

JOHN KELLEHER, Plaintiff,
v.
FRED A. COOK, INC., Defendant.

          OPINION AND ORDER

          Vincent L. Briccetti United States District Judge

         Plaintiff 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.

         Now pending is defendant's motion to dismiss the complaint pursuant to Rule 12(b)(6). (Doc. #21).

         For the following reasons, the motion is GRANTED.

         The Court has subject matter jurisdiction under 28 U.S.C. § 1331.

         BACKGROUND

         For the 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 therein.[1]

         On 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).

         In 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).

         On 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).

         The 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.

         Around 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.

         Shortly 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.

         On 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”).

         Plaintiff alleges he received an EEOC notice of right to sue (the “right-to-sue letter”) on May 4, 2017. He commenced this ...


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