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21-1995-cv

Ibela v. Allied Universal

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 “summary order”). A party citing 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 5th day of May, two thousand twenty-two.

PRESENT: JOSÉ A. CABRANES,

JOSEPH F. BIANCO,

EUNICE C. LEE,

Circuit Judges.

OTHMAN IBELA,

Plaintiff-Appellant, 21-1995-cv

v.

ALLIED UNIVERSAL,

Defendant-Appellee.

FOR PLAINTIFF-APPELLANT: Othman Ibela, pro se, Jamaica, NY.

FOR DEFENDANT-APPELLEE: Evan S. Weiss, Martenson, Hasbrouch & 

Simon LLP, Atlanta, GA.

Appeal from an order and judgment of the United States District Court for the Southern

District of New York (Andrew L. Carter, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the order and judgment of the District Court be and hereby 

are AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
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Appellant Othman Ibela, pro se, sued his former employer, Allied Universal (“Allied”), for 

employment discrimination and retaliation under the Americans with Disabilities Act (“ADA”) and 

hostile work environment under Title VII of the Civil Rights Act of 1964,

1 as well as for claims 

under the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights 

Law (“NYCHRL”). He alleged that his coworker was hostile to him based on his national origin and 

that his supervisor denied him work when he requested a reasonable accommodation for his bipolar 

disorder. The District Court dismissed the federal claims pursuant to Federal Rule of Civil 

Procedure 12(b)(6) and declined to exercise supplemental jurisdiction over the NYSHRL and 

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

of the case, and the issues on appeal.

DISCUSSION

“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), 

construing the complaint liberally, accepting all factual allegations in the complaint as true, and 

drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 

152 (2d Cir. 2002). To survive a motion to dismiss, 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). A 

claim will have “facial plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). Pro se submissions are reviewed with “special solicitude,” and 

“must be construed liberally and interpreted to raise the strongest arguments that they suggest.”

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir. 2006) (internal quotation marks and 

emphasis omitted).

As a threshold matter, we agree with the district court that Ibela abandoned his Title VII 

hostile work environment and retaliation claims by failing to re-assert them in his amended 

complaint and, thus, those claims are not properly before us on appeal. See Shields v. Citytrust Bancorp, 

Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily 

supersedes the original, and renders it of no legal effect.” (internal quotation marks 

omitted)). Therefore, we proceed to review his ADA claims. 

I. ADA Disability Discrimination Claim

The District Court properly dismissed Ibela’s ADA discrimination claim. To establish a prima 

facie case of discrimination under the ADA, a plaintiff must plead that “(1) his employer is subject to 

the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to 

perform the essential functions of his job, with or without reasonable accommodation; and (4) he 

1 When he amended his complaint, Ibela removed his Title VII claim.
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suffered adverse employment action because of his disability.” Woolf v. Strada, 949 F.3d 89, 93 (2d 

Cir. 2020). A person has a “disability” under the ADA if he has: (a) “a physical or mental 

impairment that substantially limits one or more [of his] major life activities,” (b) “a record of such 

an impairment,” or (c) is “regarded as having such an impairment.” 42 U.S.C. § 12102(1). Major life 

activities include “caring for oneself, performing manual tasks, seeing, hearing, eating . . . and 

working.” 42 U.S.C. § 12102(2). To determine whether a major life activity is substantially limited by 

an impairment, we consider, among other factors, “the nature and severity of the impairment; its 

duration or expected duration; and the existence of any actual or expected permanent or long term 

impact.” Capobianco v. City of New York, 422 F.3d 47, 57 (2d Cir. 2005) (citing 29 C.F.R. 

§ 1630.2(j)(2)).

Ibela did not sufficiently allege that he suffered from a disability within the meaning of the 

ADA. A diagnosis alone is insufficient to establish disability under the statute. See Toyota Motor Mfg., 

Kentucky, Inc. v. Williams, 534 U.S 184, 198 (2002) (“It is insufficient for individuals attempting to 

prove disability status . . . to merely submit evidence of a medical diagnosis of an impairment.”),

overturned on other grounds by ADA Amendments Act of 2008, Pub. L 110-325, 122 Stat. 3553 (Jan. 1, 

2009). Because Ibela did not allege any facts showing that his bipolar disorder impacted, let alone 

substantially limited, a major life activity, he failed to state a claim for disability discrimination.

II. ADA Retaliation Claim

However, we vacate the District Court’s order of dismissal insofar as Ibela alleged retaliation 

under the ADA for requesting a reasonable accommodation. The District Court concluded that it 

could not consider the merits of Ibela’s ADA retaliation claim because he had not established that 

he suffered from a disability within the meaning of the ADA. But there is no requirement that the 

plaintiff be disabled in order to be protected from retaliation under the ADA. A “plaintiff need not 

establish that the conduct he opposed was actually a violation of the statute so long as he can 

establish that he possessed a good faith, reasonable belief that the underlying challenged actions of 

the employer violated that law.” Muller v. Costello, 187 F.3d 298, 311 (2d Cir. 1999) (internal quotation 

marks omitted). As long as a plaintiff has a good faith belief that he was disabled and requested a 

reasonable accommodation, he can state a claim for ADA retaliation. See Weissman v. Dawn Joy 

Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000) (“[E]ven if Weissman has failed to prove that there 

was a violation of the ADA, the defendant may still have retaliated against Weissman for engaging in 

protected conduct.”).

To state an ADA retaliation claim, an employee “must show that he engaged in a protected 

activity, that he suffered an adverse employment action, and that a causal connection exists between 

that protected activity and the adverse employment action.” Fox v. Costco Wholesale Corp., 918 F.3d 

65, 72–73 (2d Cir. 2019). Seeking a reasonable accommodation constitutes protected activity under 

the ADA. Weixel v. Bd. of Educ. of N.Y.C., 287 F.3d 138, 149 (2d Cir. 2002). Ibela alleged that 

Nicholas began denying him work, reducing his hours, and denying him overtime after he requested 
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a reasonable accommodation due to his bipolar disorder. These adverse actions occurred within two 

months of Ibela’s June 2019 reasonable accommodation request. See Gorman-Bakos v. Cornell Co-Op 

Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001) (“[A] plaintiff can indirectly establish a 

causal connection to support a discrimination or retaliation claim by showing that the protected 

activity was closely followed in time by the adverse employment action.” (internal quotation marks 

and alteration omitted)).

Ibela’s amended complaint and opposition brief plausibly allege a reasonable belief on his 

part that he was engaging in protected conduct, and satisfy the elements of an ADA retaliation 

claim. Therefore, the District Court erred by refusing to consider the merits of that claim.

Further, because we vacate the dismissal in part, we also vacate the dismissal of the 

NYSHRL and NYCHRL claims specifically relating to retaliation based on Ibela’s request for 

reasonable disability accommodations. See Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 

27 (2d Cir. 2014) (vacating dismissal of state law claims where this Court partially vacated the 

dismissal of federal law claims).

CONCLUSION

We have considered all of Ibela’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the order and judgment of the District Court in part with respect to the 

ADA discrimination and Title VII hostile work environment and retaliation claims. We VACATE 

and REMAND the order and judgment with respect to the ADA retaliation claim, and with respect 

to the NYSHRL and NYCHRL claims, insofar as those state law claims are related to Ibela’s ADA 

retaliation claim.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court