     19‐423
     Morey v. Windsong Radiology Group

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
     PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
     (WITH THE NOTATION ASUMMARY ORDER@).       A PARTY CITING TO A
     SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 12th day of December, two thousand nineteen.
 4
 5          PRESENT: BARRINGTON D. PARKER,
 6                           RICHARD J. SULLIVAN,
 7                                   Circuit Judges,
 8                           KATHERINE POLK FAILLA,
 9                                   District Judge. 
10          ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11          ANDREA MOREY,
12
13                          Plaintiff‐Appellant,
14
15                    v.                                                         No. 19‐423‐cv
16
17          WINDSONG RADIOLOGY GROUP, P.C. and
18          KAREN BLATTO,
19
20                           Defendant‐Appellees.
21          ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

     
       Judge Katherine Polk Failla of the United States District Court for the Southern District
     of New York, sitting by designation.
 1         FOR APPELLANT:                           FRANK HOUSH, Esq., Housh Law
 2                                                  Offices, PLLC, Buffalo, New York.
 3
 4         FOR APPELLEES:                           BENJAMIN M. ZUFFRANIERI, J.R.
 5                                                  (Spencer L. Durland on the brief),
 6                                                  Hodgson Russ LLP, Buffalo, New
 7                                                  York.

 8         Appeal from a judgment of the United States District Court for the Western

 9   District of New York (William M. Skretny, Judge).

10         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

11   AND DECREED that the judgment of the District Court is AFFIRMED.

12         Andrea Morey appeals from a judgment of the Western District of New

13   York (Skretny, J.) granting Defendants’ 12(b)(6) motion to dismiss her claims of

14   discrimination and retaliation under the Americans with Disability Act of 1990

15   (“ADA”), 42 U.S.C. § 12201 et seq., and the New York State Human Rights Law

16   (“NSHYRL”), Executive Law § 296 et seq. On appeal, Morey, who is four feet five

17   inches tall, alleges that her height constitutes a disability, that Defendants failed to

18   provide a reasonable accommodation for her alleged disability, and that she was

19   terminated in retaliation for requesting such a reasonable accommodation. We




                                                2
 1   assume the parties’ familiarity with the underlying facts and the record of prior

 2   proceedings, to which we refer only as necessary to explain our decision.

 3         We review the grant of a motion to dismiss under Federal Rule of Civil

 4   Procedure 12(b)(6) de novo. City of New York v. Beretta U.S.A. Corp., 524 F.3d 384,

 5   392 (2d Cir. 2008), cert. denied, 556 U.S. 1104 (2009). We accept as true all factual

 6   allegations in the Complaint and draw all reasonable inferences in favor of the

 7   plaintiff. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).

 8   To survive a motion to dismiss, a plaintiff must allege enough “factual content that

 9   allows the court to draw the reasonable inference that the defendant is liable.”

10   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A pleading that offers only “labels and

11   conclusions” or “a formulaic recitation of the elements of a cause of action will not

12   do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

13                                             I.

14         Morey alleges that her employer discriminated against her by refusing to

15   provide a reasonable accommodation. See 42 U.S.C. § 12112(b)(5)(A) (defining

16   discrimination under the ADA as including “not making reasonable

17   accommodations to the known physical or mental limitations of an otherwise



                                              3
 1   qualified individual with a disability”).     A claim for discrimination under the

 2   ADA is ultimately subject to the burden‐shifting analysis established in McDonnell

 3   Douglas Corp. v. Green, 411 U.S. 792 (1973). McBride v. BIC Consumer Prod. Mfg.

 4   Co., 583 F.3d 92, 96 (2d Cir. 2009). But to survive a motion to dismiss, Morey need

 5   only allege facts to support her prima facie case that “(1) [she] is a person with a

 6   disability under the meaning of the ADA; (2) an employer covered by the statute

 7   had notice of [her] disability; (3) with reasonable accommodation, [she] could

 8   perform the essential functions of the job at issue; and (4) the employer has refused

 9   to make such accommodations.” McMillan v. City of New York, 711 F.3d 120, 125–

10   26 (2d Cir. 2013); see also Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir.

11   2015).

12            As relevant here, the ADA defines “disability” as a “physical or mental

13   impairment that substantially limits one or more major life activities of such

14   individual” or “being regarded as having such an impairment.”            42 U.S.C. §

15   12102(1). “Major life activities” include, among other things, caring for oneself,

16   performing manual tasks, sitting, lifting, bending, concentrating, working, and

17   thinking. 29 C.F.R. § 1630.2(i). Whether an impairment “substantially limits”



                                               4
 1   major life activities is to be “construed broadly,” but “not every impairment will

 2   constitute a disability.” Id. § 1630.2(j). Moreover, while Congress expanded the

 3   definition of “substantially limits” when it amended the ADA in 2008, the

 4   amendments did not render the term “impairment” limitless. See B.C. v. Mount

 5   Vernon Sch. Dist., 837 F.3d 152, 160 n.7 (2d Cir. 2016) (“The ADA Amendments Act

 6   of 2008 . . . , while leaving untouched the general definition of ‘disability’ . . . did

 7   flesh out the previously undefined term ‘major life activities.‘”).                The

 8   amendments did not diminish the importance of “distinguish[ing] between

 9   conditions that are impairments and physical, psychological, environmental,

10   cultural and economic characteristics that are not impairments.” Francis v. City

11   of Meriden, 129 F.3d 281, 284 (2d Cir. 1997).

12         In her Complaint, Morey merely alleges that she is “well outside the normal

13   range of height for adults,” and that her “height is a physiological, musculoskeletal

14   condition which substantially limits one or more of her major life activities.”

15   App’x 7. She then conclusorily states that she “suffers from a disability within

16   the meaning of the ADA” that “substantially limits [her] major life activities.”

17   App’x 11. However, the only specific limitation she alleges is that she could not



                                                5
 1   “see or reach the [fluoroscope] controls or maneuver the equipment safely” when

 2   performing an HSG exam at a specific location. App’x 9–10. This is clearly not

 3   sufficient.

 4         As Judge Lynch noted when he was on the district court, “a person’s height

 5   is not ordinarily an ‘impairment’ covered as a disability by . . . the ADA.” Gowins

 6   v. Greiner, No. 01 CIV. 6933 (GEL), 2002 WL 1770772, at *10 (S.D.N.Y. July 31, 2002).

 7   Plaintiff must allege further facts as to how her disability “substantially limits” her

 8   “major life activities” to plausibly state a claim. See Iqbal, 556 U.S. at 678 (holding

 9   that “[t]hreadbare recitals of the element of a cause of action” are insufficient to

10   state a claim); Kelleher v. Fred A. Cook, Inc., 939 F.3d 465, 468 (2d Cir. 2019)

11   (explaining that, to state a claim under the ADA, “a plaintiff must plausibly allege

12   ‘that the plaintiff is a member of a protected class’”); see also Hale v. King, 642 F.3d

13   492, 500 (5th Cir. 2011) (finding that a plaintiff fails allege a disability under the

14   ADA if he “has failed to allege that his condition[] substantially limited him in his

15   performance of a major life activity”). Because Morey’s Complaint is bereft of

16   such detail, the district court properly dismissed her Complaint for failure to




                                                6
 1   accommodate based on her “threadbare” assertion that she suffers from a

 2   disability.

 3                                            II.

 4         Morey also alleges that Defendants retaliated against her by harassing and

 5   terminating her because she requested a reasonable accommodation. As we have

 6   previously held, even though Morey has not alleged she has an actual disability

 7   under the ADA, this does not necessarily doom her retaliation claim so long as she

 8   has a “good faith, reasonable belief that the underlying challenged actions of the

 9   employer violated [the ADA].” Sarno v. Douglas Elliman‐Gibbons & Ives, Inc., 183

10   F.3d 155, 159 (2d Cir. 1999) (quotation marks omitted).

11           “Claims for retaliation [under the ADA] are analyzed under the same

12   burden‐shifting framework established for Title VII cases.”     Treglia v. Town of

13   Manlius, 313 F.3d 713, 719 (2d Cir. 2002). Thus, “[i]n order to establish a prima

14   facie case of retaliation, [a plaintiff] must show that:   (1) [s]he engaged in an

15   activity protected by the ADA; (2) the employer was aware of this activity; (3) the

16   employer took adverse employment action against [her]; and (4) a causal

17   connection exists between the alleged adverse action and the protected activity.”



                                              7
 1   Id.   Requesting a reasonable accommodation is a protected activity under the

 2   ADA. Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 149 (2d Cir. 2002).

 3   A “‘reasonable accommodation’ is one that gives the otherwise qualified plaintiff

 4   with disabilities ‘meaningful access’ to the program or services sought.”

 5   Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003).         Nevertheless, a

 6   “reasonable accommodation” cannot “mean elimination of any of the job’s

 7   essential functions.” Gilbert v. Frank, 949 F.2d 637, 644 (2d Cir. 1991).

 8          In her Complaint, Morey alleges that she was initially provided a stool to

 9   use the fluoroscope, which she “never complained about,” and that “she [did not]

10   ask for any other accommodation.” App’x 9. Morey alleges that she then had

11   additional trouble with the HSG exams, and that she had a meeting with

12   Windsong’s      management,    during    which    she   “requested    a     reasonable

13   accommodation of assistance in operating the fluoroscope because of her height

14   limitations.”    App’x 10.      But nowhere does Morey indicate what that

15   “reasonable accommodation” was or how it was conveyed to Windsong.

16   Instead, Morey merely told Windsong that “she was concerned for her and her

17   patients’ safety when she operated this machine because she was unable to see or



                                               8
 1   reach the controls or maneuver the equipment safely,” and that she was concerned

 2   about “using a step‐stool and platform to reach the controls, as this arrangement

 3   was unstable.”     Id.      Apparently, the only accommodation discussed or even

 4   identified was an arrangement whereby Morey would “leave the HSG exams to

 5   the other technicians.”        Id.   But, during oral argument on appeal, Morey

 6   conceded that using a fluoroscope was an “essential function” of her job. In light

 7   of that concession, we agree with the district court that Morey has failed to allege

 8   a request for a reasonable accommodation, and that her retaliation claim fails. See

 9   Gilbert, 949 F.2d at 644.

10                                               III.

11         Morey next argues that the district court abused its discretion in not

12   allowing her leave to replead. Ordinarily, we review the denial of a motion to

13   amend a complaint for abuse of discretion. In re Lehman Bros. Mortg.‐Backed Sec.

14   Litig., 650 F.3d 167, 188 (2d Cir. 2011).       Here, however, Morey never actually

15   requested leave to file an amended complaint in the district court. In her reply to

16   Defendants’ motion to Dismiss, Morey merely asked that the district court “deny




                                                 9
 1   Defendants’ Motion to Dismiss Plaintiff’s Complaint, and grant such further relief

 2   as the Court deems proper.” (17‐cv‐968 Doc. No. 13‐5.)

 3         Clearly, the district court did not abuse its discretion in declining to sua

 4   sponte allow Morey leave to file an amended complaint. “While leave to amend

 5   under the Federal Rules of Civil Procedure is ‘freely granted,’ see Fed.R.Civ.P.

 6   15(a), no court can be said to have erred in failing to grant a request that was not

 7   made.” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011); see also Parisi v. Coca‐

 8   Cola Bottling Co. of New York, 172 F.3d 38 (2d Cir. 1999) (“In light of the fact that

 9   [plaintiff] did not seek leave to file an amended complaint by formal motion, in his

10   papers in opposition to defendantʹs motion to dismiss, or by way of a motion for

11   reconsideration, we do not find that the district court abused its discretion in not

12   sua sponte granting leave to replead.”). Accordingly, Morey has failed to show

13   error on the part of the district court.

14                                              IV.

15         Finally, having determined the federal claims did not survive the motion to

16   dismiss, the district court appropriately declined to exercise supplemental

17   jurisdiction over Morey’s state law claims, Kolari v. N.Y.‐Presbyterian Hosp., 455



                                                10
1   F.3d 118, 122 (2d Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3)), and Morey does not

2   argues otherwise.

3         We have considered Morey’s remaining arguments and conclude that they

4   are without merit. For the foregoing reasons, the judgment of the District Court

5   is AFFIRMED.

6                                        FOR THE COURT:
7                                        Catherine O=Hagan Wolfe, Clerk of Court
8




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