In Basso v. Willow Run Foods, Inc., No. 3:21-cv-00811, 2022 WL 35927 (N.D.N.Y. Jan. 03, 2022), the court, inter alia, held that plaintiff sufficiently alleged disability discrimination under the Americans with Disabilities Act (ADA).
From the decision:
Willow Run’s first assertion, that Basso fails to allege an adverse employment action, is simply incorrect. Plaintiff clearly states that defendant fired him on July 20, 2020. This is sufficient to allege an adverse employment action. See Davis, 804 F.3d at 235; see also Limauro v. Consol. Edison Co. of New York, Inc., 2021 WL 466952, at *7 (S.D.N.Y. Feb. 9, 2021) (finding that plaintiff sufficiently satisfied last element of disability discrimination claim because “[g]etting fired certainly qualifies as an adverse employment action”).
Willow Run’s second argument, that Basso fails to link his firing to a discriminatory motivation, also fails. To support a discriminatory animus, plaintiff alleges that: (i) defendant treated non-disabled employees more favorably than him; (ii) defendant expected him to work while on medical leave; (iii) defendant denied his requested accommodations; (iv) defendant treated him poorly when he returned from medical leave; and (v) the timing of plaintiff’s termination gives rise to an inference of discrimination.
Willow Run only appears to challenge two of these allegations. First, defendant argues that paragraph 50 of Basso’s amended complaint is conclusory and devoid of specific factual allegations. Second, defendant claims that the two-and-a-half-month period between plaintiff’s return to work from medical leave and getting fired is “too attenuated to establish an inference of discrimination.”
Neither of these arguments warrant dismissal of Basso’s ADA disability discrimination claim at this stage. While paragraph 50 would benefit from additional specific factual allegations, it is merely one of several paragraphs that support a discriminatory animus. Taken together, plaintiff’s five sets of allegations plausibly support the requisite “minimal inference of discriminatory motivation” as required under Littlejohn, particularly those allegations in paragraphs 42 through 47 concerning defendant’s denial of plaintiff’s requested accommodations. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 332 (2d Cir. 2000) (“We have ruled that failure to make reasonable accommodation, when the employee has satisfied the first three elements of his claim, amounts to discharge ‘because of’ his disability”).
Moreover, although some courts in other contexts have found that two-and-a-half-months between a protected activity and the adverse employment action is insufficiently close to connect the two events, see, e.g., Ponticelli v. Zurich Am. Ins. Grp., 16 F. Supp. 2d 414, 436 (S.D.N.Y. 1998), other courts have found gaps as distant as thirteen months sufficient to suggest a causal relationship, see Stokes v. City of Mount Vernon, N.Y., 2012 WL 3536461, at *8 (S.D.N.Y. Aug. 14, 2012).
Accordingly, Willow Run’s motion to dismiss Basso’s ADA claim for disability discrimination must be denied.
The court held, however, that plaintiff’s disability-based hostile work environment claim must be dismissed, since plaintiff did not “exhaust administrative remedies” with respect to this claim, by failing to include that claim (or any claim what was reasonably related to it) in his administrative filing with the U.S. Equal Employment Opportunity Commission (EEOC).