In Pustilnik v. Battery Park City Authority et al, 18-CV-9446, 2019 WL 6498711 (S.D.N.Y. Dec. 3, 2019), the court, inter alia, granted defendant’s motion to dismiss – under Federal Rule of Civil Procedure 12(b)(6) – plaintiff’s disability discrimination claim under the Americans with Disabilities Act (ADA).
From the decision:
[Plaintiff]’s Complaint is devoid of facts that could buttress her assertion that the explanation for her termination was pretextual and that she was really terminated, at least in part, because of her disability. Pustilnik does not allege, for instance, that Jones or Mehiel, or anyone else at BPCA, ever made any comments about her arthritis or depression, let alone that such conditions played any role in BPCA’s decision to terminate her. See Soto, 2019 WL 2371713, at *13 (dismissing disability discrimination claim where there were “no allegations that anyone … commented on [plaintiff’s disability], failed to accommodate it, or otherwise demonstrated hostility toward Plaintiff due to this alleged disability,” nor were there “any facts connecting the alleged disability to his termination”); Salas, 298 F. Supp. 3d at 687 (dismissing disability discrimination claim where plaintiff had not alleged “that her supervisors or other management … made any statements about … her disability, let alone statements indicating that [it] played a role in their decisions”); Osby v. City of New York, No. 13-cv-8826 (JPG), 2016 WL 4372233, at *7 (S.D.N.Y. Aug. 15, 2016) (dismissing disability discrimination claim where “the complaint [was] bare of facts supporting any connection between [plaintiff’s] disability and [the adverse employment action]”).
While plaintiff alleged that she was terminated shortly after a particular person became defendant’s president (and gained the authority to terminate her), she “fails to plausibly allege that [that person] displayed any animus towards her or anyone else at [defendant] based on any actual or perceived disability.” The court concluded that there was “simply no connection alleged between Pustilnik’s depression or arthritis, on the one hand, and her termination, on the other.”
The court also noted that the fact that the president may have known about plaintiff’s arthritis and/or depression “is also insufficient to raise the requisite inference of discrimination”, citing case law for the proposition that “[t]he mere fact that an employer was aware of an applicant’s disability when deciding not to hire her is insufficient to raise an inference of discrimination.”