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Kelleher v. Fred A. Cook, Inc.

United States Court of Appeals, Second Circuit

September 24, 2019

John Kelleher, Plaintiff-Appellant,
v.
Fred A. Cook, Inc., Defendant-Appellee.

          Argued: May 10, 2019

         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.

          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.

          Before: Jacobs, Leval, Circuit Judges, Furman [*] , District Judge

          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.

         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 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, 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. ...


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