    16-1106
    Ray v. Weit
                        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.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 8th day of September, two thousand seventeen.

    PRESENT:
                ROSEMARY S. POOLER,
                GERARD E. LYNCH,
                      Circuit Judges,
                PAUL A. ENGELMAYER,*
                      District Judge.
    _____________________________________
    Shelda Ray,

                  Plaintiff - Appellant,

    v.                                                                 16-1106

    Brian Weit, New York City Department of Education,
    New York City Department of Education,

               Defendants - Appellees.
    _____________________________________

    FOR PLAINTIFF -APPELLANT:                          Shelda Ray, pro se, Brooklyn, NY.



         * Judge Paul A. Engelmayer, of the United States District Court for the Southern District of
    New York, sitting by designation.


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FOR DEFENDANTS -APPELLEES:                            Eric Lee, Assistant Corporation Counsel, Scott
                                                      Shorr, Assistant Corporation Counsel, for
                                                      Zachary W. Carter, Corporation Counsel of the
                                                      City of New York, New York, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Mauskopf, J.).


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

DECREED that the judgment of the district court is AFFIRMED IN PART, VACATED IN

PART, AND REMANDED.

       Appellant Shelda Ray, proceeding pro se, appeals the district court’s judgment dismissing

her complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for employment

discrimination based on race, gender, and disabilities under Title VII of the Civil Rights Act and

the Americans With Disabilities Act (“ADA”). In September 2016, this Court denied Appellant’s

motion for in forma pauperis status and dismissed her appeal as to all claims other than those

brought under the ADA based on Appellees’ failure to accommodate Appellant’s alleged

disabilities. We assume the parties’ familiarity with the underlying facts, the procedural history

of the case, and the issues on appeal.

       This Court reviews de novo the dismissal of a complaint pursuant to Rule 12(b)(6).

Forest Park Pictures v. Universal Television Network, 683 F.3d 424, 429 (2d Cir. 2012). The

complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although all allegations contained in the complaint

are assumed to be true, this tenet does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S.




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662, 678 (2009). Courts should interpret pro se complaints liberally to raise the strongest claims

they suggest. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011).

        The ADA forbids an employer from discriminating against a qualified individual on the

basis of his or her disability. 42 U.S.C. § 12112(a). “Discriminat[ion]” includes failure to make

“reasonable accommodations to the known physical or mental limitations of an otherwise

qualified individual with a disability” unless the employer “can demonstrate that the

accommodation would impose an undue hardship on the operation of [its] business.” 42 U.S.C.

§ 12112(b)(5)(A). To prove a claim for failure to accommodate, a plaintiff must show that she is

disabled under the ADA, her employer had notice of the disability, she could perform the essential

functions of her job with reasonable accommodations, and her employer refused to make those

accommodations. McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009). It

is generally the employee’s responsibility to inform her employer that she needs an

accommodation. Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006). The ADA

contemplates that employers will engage in an “interactive process,” working with their

employees to assess whether a disability can be reasonably accommodated. Stevens v. Rite Aid

Corp., 851 F.3d 224, 231 (2d Cir. 2017).

       Under the ADA, a disability is a physical or mental impairment that substantially limits one

or more of the individual’s “major life activities,” a record of such impairment, or being regarded

as having such an impairment. 42 U.S.C. § 12102(1). Major life activities include, as relevant

here, “seeing,” “walking,” “standing,” and “breathing.”        42 U.S.C. § 12102(2)(A).        An

impairment meets this standard if it substantially limits an individual’s major life activity “as

compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii).

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       Review of the record and relevant case law reveals that the district court properly

dismissed Appellant’s failure to accommodate claims based on her alleged asthma and podiatric

problems because the accommodations that Appellant sought for these disabilities—a locker and

work area in locations that were not cold or damp and did not require her to climb stairs—had

nothing to do with Appellant’s ability to perform the essential functions of her job or with the

reason she was terminated. Rather, Appellant was terminated solely because of her chronic and

excessive tardiness. She claimed the tardiness was due to her visual impairment and Appellees’

failure to grant her request for a modified work schedule—one that would allow her to start her

work day later in the morning and leave later in the afternoon, so that she did not have to leave her

house before the sun rose.

       As to that impairment, the district court erred in finding that the major life activity that was

limited by Appellant’s 99% loss of vision in one eye was either working or commuting, that

Appellant’s vision did not substantially limit her ability to work, and that commuting was not a

major life activity. Rather, the major life activity limited by Appellant’s vision loss was “seeing.”

29 C.F.R. § 1630.2(i)(1)(i). And, although Appellant did not specifically allege how the 99% loss

of vision in one eye affected her ability to see before the sun rose, enough is alleged to raise a

plausible claim as to whether Appellant’s limited vision impacted her ability to arrive at work on

time. The details of exactly how, and to what extent, her impediment affected her ability to arrive

at work at 8:30 AM may await discovery. See Bell Atlantic Corp., 550 U.S. at 556 (to survive a

motion to dismiss, a complaint must merely provide enough facts to raise a reasonable expectation

that discovery will reveal the evidence needed to support the claim).



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       As to Appellant’s request for an accommodation for her vision loss, reasonable

accommodations under the ADA include “job restructuring” and “part-time or modified work

schedules.” 42 U.S.C. § 12111(9)(B). This Court has held that “[p]hysical presence at or by a

specific time is not, as a matter of law, an essential function of all employment.” McMillan v.

New York City, 711 F.3d 120, 126 (2d Cir. 2013). Thus, reasonable accommodations can include

a modified work schedule. Id. at 127; Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d

113, 120 (2d Cir. 2004) (a modified work schedule may constitute a reasonable accommodation in

some circumstances, if it does not involve the elimination of an essential job function).

       Appellees do not argue to the contrary. Rather, they argue only that Appellant’s visual

impairment/failure to accommodate claim should nevertheless fail because this Court can take

judicial notice that her visual impairment was not the reason why she could not arrive at work on

time. According to Appellees, although Appellant claimed that she could not leave the house

before the sun rose because of her visual impairment, the record showed that she needed to be at

work by 8:30 a.m., it took her no more than one hour to travel to work, and the sun always rose

before 7:30 a.m. during the 2012-13 school year.

       However, in opposition to the motion to dismiss, Appellant maintained that she needed to

leave her house by 6:30 a.m. to make it to work on time. We observe that, although it may have

taken Appellant slightly less than one hour to walk to and then ride on public transportation, that

apparently did not account for any time spent waiting for the bus or train. In any event, a factual

dispute as to how long it took Appellant to commute to work could not have been resolved on a

motion to dismiss under Rule 12(b)(6). See Financial Guar. Ins. Co. v. Putnam Advisory Co.,



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783 F.3d 395, 405 (2d Cir. 2015) (resolution of a factual dispute is inappropriate on a motion to

dismiss).

       Accordingly, we VACATE the judgment of the district court to the extent it dismissed

Appellant’s failure to accommodate claim based on her visual impairment and REMAND for

further proceedings on that claim, but we AFFIRM the judgment in all other respects.

                                            FOR THE COURT:

                                            Catherine O=Hagan Wolfe, Clerk




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