18‐2385
Kelleher v. Fred A. Cook, Inc.


                        United States Court of Appeals
                            for the Second Circuit
                                      AUGUST TERM 2018
                                             No. 18‐2385



                                          JOHN KELLEHER,
                                          Plaintiff‐Appellant,

                                                   v.

                                      FRED A. COOK, INC.,
                                      Defendant‐Appellee.



                                     ARGUED: MAY 10, 2019
                                  DECIDED: SEPTEMBER 24, 2019

                BEFORE:          JACOBS, LEVAL, CIRCUIT JUDGES, FURMAN*, DISTRICT
                                 JUDGE.

        John Kelleher appeals from a judgment of the United States District Court
for the Southern District of New York (Briccetti, J.) dismissing his complaint,
which alleges associational discrimination under the Americans with Disabilities
Act. Because the complaint supports an inference that the plaintiff was
qualified for his position and that he was fired because his supervisor assumed
he would be distracted by his daughter’s disability, he has stated a claim for
associational discrimination. Accordingly, we VACATE and REMAND.


*Judge Jesse M. Furman, United States District Court for the Southern District of
New York, sitting by designation.
                                       STEPHEN BERGSTEIN, BERGSTEIN & ULLRICH,
                                       LLP, NEW PALTZ, NY, FOR THE APPELLANT.

                                       MERCEDES COLWIN (DAVID J. GRECH, ON
                                       THE BRIEF), GORDON REES SCULLY
                                       MANSUKHANI, LLP, NEW YORK, NY, FOR
                                       THE APPELLEE.




      DENNIS JACOBS, Circuit Judge:

      Plaintiff John Kelleher appeals from a judgment of the United States

District Court for the Southern District of New York (Briccetti, J.) dismissing his

complaint against his former employer, Fred A. Cook, Inc. (the “Company”), for

associational discrimination in violation of the Americans with Disabilities Act,

42 U.S.C. § 12101 et seq. (“ADA”). Kelleher alleges that he was fired because his

employer assumed that he would be distracted by his daughter’s serious

disability. Because the circumstances alleged do plead a claim for associational

discrimination under the ADA, we vacate the judgment and remand.




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                                BACKGROUND

      We assume the truth of plausible allegations contained in the complaint.

      In November of 2014, Kelleher began working for the Company as a

Laborer and an Operator. Kelleher received favorable performance reviews

and, in February 2015, was promoted to the position of CCTV Truck Operator.

      Kelleher’s daughter had been born in May of 2014 with a severe

neurological disorder, Rett Syndrome, that affects the ability to speak, walk,

breathe, and eat, among other things. The condition was not fully diagnosed

until 2016; up to then, she appeared to suffer from epilepsy.

      In early March 2015, before his daughter was diagnosed with Rett

Syndrome but while she was suffering from the symptoms, Kelleher first told

Brian Cook, one of his supervisors, that his daughter had a serious medical

condition and that he may have to occasionally rush home to aid in her care.

After this conversation, Kelleher’s relationship with the Company deteriorated,

and he was directed to work in “the shop” while his coworkers handled other

work at a higher wage. On Friday, March 27, 2015, Kelleher’s supervisors

advised him that he could not leave work immediately after his shifts to care for


                                         3
his daughter because he was expected to remain on site in case of emergency.

(Kelleher alleges that although the company “expect[ed]” employees to remain

on‐site after punching out, doing so did not “affect [his] job responsibilities”.

J. App’x 14 .) During the meeting, Kelleher unsuccessfully asked to work 8‐hour

shifts for one week (instead of 10‐12 hour shifts) in order to attend to his

daughter’s condition. He was told that “his problems at home were not the

company’s problems,” and that he would not receive a raise. J. App’x 14 .

      The next day (Saturday), Kelleher’s daughter suffered a near‐fatal seizure

and was taken to Albany Medical Center. Kelleher told Cook that he would be

unable to work the following Monday. When he arrived at work on the

following Tuesday, Kelleher learned that he had been demoted from his position

as an Operator, where his responsibilities included running controls on trucks, to

Laborer, where his chief responsibility involved shoveling sewer systems‐‐“a less

prestigious position.” J. App’x 15. (Kelleher does not challenge the demotion.)

      At some point after Kelleher’s demotion, he again requested 8‐hour shifts

so he could visit his daughter in Albany. The request was denied. On April 16,

2015, two and a half weeks after the day of work he missed for the hospital visit,


                                          4
Kelleher arrived to work 10‐15 minutes late; he was told to go home and that he

would be called if his services were required. A month later, Kelleher received a

letter (dated a month earlier) informing him that he had been terminated.

      After obtaining a notice of right to sue from the Equal Employment

Opportunity Commission, Kelleher filed his complaint in the Southern District of

New York alleging that his termination violated the ADA. The district court

dismissed Kelleher’s complaint because he did “not allege he was terminated

because his employer felt he would be distracted at work; instead, he alleges he

was explicitly unable to be at work for the entire work day, including after the

end of his shift, as defendant required.” Kelleher v. Fred A. Cook, Inc., No. 17‐

cv‐5424 (VB), 2018 WL 3611965, at *4 (S.D.N.Y. July 26, 2018). This appeal

followed.




                                  DISCUSSION

      We review de novo a dismissal of a complaint for failure to state a claim

upon which relief may be granted. Chambers v. Time Warner, Inc., 282 F.3d

147, 152 (2d Cir. 2002). “To survive a motion to dismiss, a complaint must


                                         5
contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (internal quotation marks and citations omitted).




                                           I

      The ADA prohibits “excluding or otherwise denying equal jobs or benefits

to a qualified individual because of the known disability of an individual with

whom the qualified individual is known to have a relationship or association.”

42 U.S.C. § 12112(b)(4). To state a claim for associational discrimination under

the ADA, a plaintiff must allege:

             1) that she was qualified for the job at the time of an adverse
             employment action; 2) that she was subjected to adverse
             employment action; 3) that she was known at the time to have a
             relative or associate with a disability; and 4) that the adverse
             employment action occurred under circumstances raising a
             reasonable inference that the disability of the relative or associate
             was a determining factor in the employer’s decision.

Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 432 (2d Cir. 2016). One



                                           6
scenario that may support an inference that the adverse employment decision

was motivated by associational discrimination is “distraction”: the employer’s

“fear[] that the employee will be inattentive at work due to the disability of the

disabled person.” Id.

      Claims alleging such discrimination are governed by the burden‐shifting

framework set forth in McDonnell Douglas Corp.v. Green, 411 U.S. 792 (1973).

See also McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013) (applying

this framework to ADA claims). A temporary presumption of discriminatory

motive arises if a plaintiff can show (1) that he is a member of a protected class,

(2) that he was qualified for employment in the position, (3) that he suffered an

adverse employment action, and (4) that there is some minimal evidence

supporting an inference that his employer acted with discriminatory motivation.

The burden then shifts to the employer to set forth a non‐discriminatory basis for

the adverse action. The purpose of this burden‐shifting is to discourage

dismissal of employment discrimination claims without an employer having to

set forth a legitimate reason for the adverse action. Littlejohn v. City of New

York, 795 F.3d 297, 306‐08 (2d Cir. 2015). Accordingly, a plaintiff’s burden to


                                          7
establish an initial prima facie case is, by design, “minimal and de minimis.”

Woodman v. WWOR–TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005) (cleaned up).

      Littlejohn explained that the same temporary presumption that “reduces

the facts a plaintiff would need to show to defeat a motion for summary

judgment prior to the defendant’s furnishing of a non‐discriminatory motivation

. . . also reduces the facts needed to be pleaded under Iqbal.” Littlejohn, 795

F.3d at 310. Accordingly, to state a claim, a plaintiff must plausibly allege “that

the plaintiff is a member of a protected class, was qualified, suffered an adverse

employment action, and has at least minimal support for the proposition that the

employer was motivated by discriminatory intent.” Id. at 311.

      Here, there is a procedural anomaly because the complaint affirmatively

pleads and thereby anticipates the employer’s non‐discriminatory reasons for the

adverse employment action‐‐and the employer relies on that pleading alone to

argue that Kelleher’s termination was justified.




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                                          II

      Neither party disputes that the complaint satisfies the second and third

elements of a claim of associational discrimination: Kelleher’s termination

constitutes an adverse employment action, and Cook knew that Kelleher’s

daughter was severely disabled.

      The Company argues that Kelleher’s requests for an accommodation to

attend to his daughter and his attendance (missing one day of work, arriving

15 minutes late on another, and leaving immediately after his shifts) doom his

claim. This argument implicates both qualification (whether he can do the job)

and the reason for the termination: absenteeism, which is a non‐discriminatory

justification for firing him, or the expectation that his daughter’s disability will be

a distraction, which is not.

      The district court concluded that Kelleher’s qualifications were not at

issue, see Kelleher, 2018 WL 3611965, at *3 (“Here, plaintiff has alleged, and

defendant does not dispute, that plaintiff was qualified for his job at the time of

his termination.”), an impression produced by muddled briefing. The court was

right in the sense that Kelleher is qualified to be a Laborer or Operator. But the


                                           9
issue of qualification arises nevertheless because of Kelleher’s request for

accommodation, which the ADA does not mandate employers to provide in this

context. See Graziadio, 817 F.3d at 432 (quoting Larimer v. Int’l Bus. Machs.

Corp., 370 F.3d 698, 700 n.11 (7th Cir. 2004) (“[T]he right to an accommodation,

being limited to disabled employees, does not extend to a nondisabled associate

of a disabled person.”)).1 The Company cites Kelleher’s request, along with his

absenteeism, as proof that he is unable to perform the job without an

accommodation, to which he has no right.

      An employee is qualified if he “can perform the essential functions of the

employment position.” 42 U.S.C. § 12111(8). Although courts are deferential to

an employer’s judgment regarding what functions are essential to a particular

position, the question involves “a fact‐specific inquiry into both the employer’s




1 The ADA provides: “The term ‘reasonable accommodation’ may include
include‐‐(A) making existing facilities used by employees readily accessible to
and usable by individuals with disabilities; and (B) job restructuring, part‐time or
modified work schedules, reassignment to a vacant position, acquisition or
modification of equipment or devices, appropriate adjustment or modifications
of examinations, training materials or policies, the provision of qualified readers
or interpreters, and other similar accommodations for individuals with disabilities.”
42 U.S.C. § 12111(9) (emphases added).

                                         10
description of a job and how the job is actually performed in practice.” Stevens

v. Rite Aid Corp., 851 F.3d 224, 229 (2d Cir. 2017) (quoting McMillan, 711 F.3d at

126). Discovery may be necessary to determine whether an employee was

qualified for a particular position.

      The Company contends that Kelleher’s request for an 8‐hour shift defeats

his claim because he is not entitled to an accommodation under the ADA. But

the argument is confused: Kelleher’s request is not an admission of inability to

perform the essential functions of his position without shorter shifts. And while

Kelleher’s allegations acknowledge one missed one day of work, one 15‐minute

late arrival, and a tendency to leave immediately after his shifts, those allegations

do not render his claim as to his qualification for the job implausible. Though

the ADA does not require an employer to provide a reasonable accommodation to

the nondisabled associate of a disabled person, an employer’s reaction to such a

request for accommodation can support an inference that a subsequent adverse

employment action was motivated by associational discrimination. Thus, in this

case, Cook’s demand that Kelleher “leave his personal problems at home” after

Kelleher requested one week of shortened workdays supports Kelleher’s claim


                                         11
that his later termination was motivated by associational discrimination.

      An employer can make its own rules, and is not required to be tolerant of

small, isolated infractions, or of common workplace behavior such as leaving

after one’s shift. Depending on the employer’s business, policy, and practice,

such conduct may impair performance in a way that renders the employee

unqualified. But when, as here, the reasons for termination are composed of

small, isolated infractions, common workplace behavior, or requests for an

8‐hour shift, we cannot say that the complaint concedes facts that would, as a

matter of law, render Kelleher unqualified for employment shoveling sewer

systems. Whether Kelleher can perform the essential functions of the job cannot

be decided on the pleadings alone.

      The complaint also satisfies the fourth element of an associational

discrimination claim: an inference that the disability of the plaintiff’s relative or

associate was a determining factor in the employer’s adverse action. Kelleher

was told that “his problems at home were not the company’s problems” at the

March 27, 2015 meeting, J. App’x 14, and he was effectively demoted after he

missed a day’s work to care for his daughter. These allegations provide all that


                                          12
is needed to raise a minimal inference that Kelleher’s employer thought that

Kelleher’s daughter was a distraction, and concern over distraction was a

“determining factor” in Kelleher’s termination.

      The Company, and the district court, submit that this case is like Graziado,

which held that the plaintiff had not adduced sufficient evidence giving rise to

an inference of associational discrimination to overcome her employer’s motion

for summary judgment when she admitted that she was reinstated at her job

after taking two weeks off to care for her disabled child, and terminated only

after later taking two or more months off, for reasons unrelated to the need to

care for her disabled child. 817 F.3d at 432. An obvious ground for

distinguishing Graziado is that Kelleher was not reinstated. More

fundamentally, Graziado was decided on summary judgment. On a motion to

dismiss, we do not consider potential nondiscriminatory reasons for termination;

we examine the complaint to determine whether it contains “at least minimal

support for the proposition that the employer was motivated by discriminatory

intent.” Littlejohn, 795 F.3d at 311. Whether such motivation was “the true

reason (or in any event not the sole reason) for the employment decision” is a


                                        13
question that cannot be resolved on these pleadings alone. Id. at 307. “The

plaintiff cannot reasonably be required to allege more facts in the complaint than

the plaintiff would need to defeat a motion for summary judgment made prior to

the defendant’s furnishing of a non‐discriminatory justification.” Id. at 311.




                                 CONCLUSION

      We have considered Appellee’s remaining arguments and find them to be

without merit. For the foregoing reasons, we VACATE the judgment of the

district court and REMAND for further proceedings.




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