The Second Circuit holds that even though the plaintiff (in an ADA associational discrimination case) also plead the employer’s supposedly “legitimate, non-discriminatory” reasons for termination in his complaint, the district court erred in weighing them while deciding a motion to dismiss.
Kelleher v. Fred A. Cook, Inc., No. 18-2385 (2d Cir. Sept. 24, 2019): Mr. Kelleher alleged that he has a daughter “born in May of 2014 with a severe neurological disorder” which required him “to occasionally rush home to aid in her care.”
The complaint further alleged that the employer, after Kelleher disclosed his child’s condition, (1) assigned him to lower-paying work; (2) ordered him to remain on site after his shifts “in case of emergency”; (3) denied him a raise; (4) told him that “his problems at home were not the company’s problems”; (5) refused him shifts that would have fit his daughter’s care schedule; and (6) demoted and eventually fired him.
Kelleher alleged that he was fired for “association” with a disabled person – a claim brought under the ADA, 42 U.S.C. § 12112(b)(4) – on the theory that the employer thought he’d be distracted from work because of his daughter’s medical needs.
Despite fully setting out the above facts in his complaint, the district court held that the plaintiff – in so many words – plead himself out of court. The district court dismissed Kelleher’s complaint because he supposedly 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.”
The Second Circuit vacates and remands. The panel first states what an employee must prove under an associational-discrimination theory:
“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.”
[Quoting Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 432 (2d Cir. 2016).] Once the plaintiff makes a “minimal and de minimis” proffer on each of these elements, then – as under the McDonnell Douglas test generally – the burden “shifts to the employer to set forth a non‐discriminatory basis for the adverse action.”
The district court erred, holds the panel, by crediting the employer’s alleged attendance reasons for terminating him – “one missed one day of work, one 15‐minute late arrival, and a tendency to leave immediately after his shifts” – as unsurmountable facts showing that he was not “qualified” for the position.
Although the plaintiff had (though perhaps, in hindsight, should not have) alleged these facts, they were offered in support of a different proposition, i.e., that he was stymied in his requests for a strict eight-hour shift to care for his daughter. As the panel notes, employers owe no obligation of accommodation to employees associated with disabled people under the ADA. But the refusal to consider such accommodations may be evidence of an intent to discriminate. “[W]hen, 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 ….”
The district court should not, on the other hand, have “consider[ed] potential nondiscriminatory reasons for termination,” because at the pleadings stage the court “examines the complaint to determine whether it contains ‘at least minimal support for the proposition that the employer was motivated by discriminatory intent.'” The panel holds that the complaint, having alleged what was necessary for the prima facie case, survives a Rule 12(b)(6) challenge.