David L. Rose, Esq., Washington DC, Attorney for Plaintiff.
Lauren Paxton, Assistant U.S. Attorney, Wilmington, Delaware, Attorney for Defendant.
RICHARD G. ANDREWS, District Judge.
Before the Court is Defendant's Partial Motion to Dismiss the Third Amended Complaint and Motion to Amend Caption. (D.I. 37). Defendant seeks dismissal of allegations of a driving impairment and claims relating to cancer or abnormal cell growth. Defendant also seeks to amend the caption to replace Michael J. Astrue with Carolyn W. Colvin as the Commissioner of Social Security. In considering this motion, I take as true the Plaintiff's factual allegations in her Third Amended Complaint.
Plaintiff suffers from double vision, vertigo, cancer, and chronic lumbar pain. Plaintiff's disabilities impair her major life activities of seeing, concentrating, and working. Plaintiff has been employed by the Social Security Administration since 1990. She originally worked in New York City. In 2000, Plaintiff moved to Dover, Delaware because of her vertigo and double vision and her mother's cancer treatment. In 2001, Plaintiff sought a hardship transfer to any Social Security office in Delaware because of her mother's cancer treatment. Plaintiff's request was denied.
In February 2006, Plaintiff was transferred to the Social Security Administration office in Philadelphia, Pennsylvania. At the time, Plaintiff was living in Dover, Delaware.
In March 2009, the Assistant Regional Commissioner of the Program Services Center met with Plaintiff and a union representative. After that meeting, Plaintiff was given a temporary reasonable accommodation due to her disabilities. Plaintiff was detailed to the Social Security Administration's Georgetown, Delaware office from April 1, 2009 through September 30, 2009. The temporary transfer was granted due to Plaintiff's vertigo, double vision, and operation necessary to remove cancer cells. During her time in the Georgetown office, Plaintiff was granted an award for her successful job performance.
After the period of her temporary reasonable accommodation ended, Plaintiff returned to work in the Philadelphia office. In December 2009, Plaintiff sought a continuation of her detail at the Georgetown office, which was denied.
In February 2010, Plaintiff applied for six vacant Claims Representative positions. Plaintiff was not selected for any position although she was qualified for those positions.
In June 2010, Plaintiff requested a reasonable accommodation and a hardship transfer to the Dover, Delaware office. Both requests were denied.
On February 22, 2011, the Social Security Administration issued its Final Agency Decision ("FAD"). The FAD addressed Plaintiff's claims that she was not selected for vacant positions, granted a hardship transfer, or granted a reasonable accommodation based on her physical disabilities of paroxysmal vertigo and chronic lumbar pain. The FAD stated that management articulated legitimate, nondiscriminatory reasons for its actions.
Plaintiff's Third Amended Complaint states one cause of action. Plaintiff alleges a claim under the Rehabilitation Act of 1973. A claim under the Rehabilitation Act requires four allegations: "(1) that the employee is subject to the statute under which the claim is brought, (2) that she is an individual with a disability within the meaning of the statute in question, (3) that, with or without reasonable accommodation, she could perform the essential functions of her job, and (4) that the employer had notice of the plaintiff's disability and failed to provide such accommodation." Lyons v. Legal Aid Society, 68 F.3d 1512, 1515 (2d Cir. 1995).
Plaintiff has "alleged that she is an individual with a disability within the meaning of the statute." Defendant, however, argues that some ...