OPINION & ORDER Plaintiff Matthew J. Foster (“Plaintiff” or “Foster”) commenced four separate actions, which were consolidated with the instant lead case, 18 Civ. 1706 (see ECF No. 105), asserting multiple claims sounding in, inter alia, disability-based employment discrimination and retaliation against UPS Freight, Inc. (“UPS Freight”), TFI International Company d/b/a T Force Freight, Inc. (“TForce Freight”), and United Parcel Service of America, Inc.’s (“UPS America”) (together, “Defendants”). On May 27, 2022, Plaintiff filed a Second Amended Complaint for the consolidated actions. (See ECF No. 113, the “CSAC”). Before the Court is Defendant UPS America’s partial motion to dismiss causes of action five through sixteen of the Consolidated Second Amended Complaint, as against UPS America. For the reasons discussed below, the Court DENIES UPS America’s motion to dismiss. BACKGROUND I. Factual Background The following facts are taken from Plaintiff’s CSAC and are construed in the light most favorable to Plaintiffs, the non-movant, and accepted as true for purposes of the motions. Plaintiff, a resident of Dutchess County, NY, suffers from a disability as a result of having experienced a Traumatic Brain Injury in 1985. (Id.
1, 17.) As a result of his disability, Plaintiff’s short-term memory is affected, and he can be verbally repetitive, speaks quickly, and needs instructions confirmed or in writing. (Id. 41.) Plaintiff was licensed and qualified to operate tractor trailers. (Id. 42.) Plaintiff received his commercial driver’s license in 1997 in the State of New York. (Id. 43.) Plaintiff has recertified his commercial driver’s license every other year, including February 2017 and May 2019. (Id.) Plaintiff alleges that UPS America hired Plaintiff as a “City” tractor-trailer driver on March 5, 2015 for work to be performed under UPS Ground Freight. (Id. 44.) Defendant UPS Freight is a wholly owned subsidiary of UPS America. (Id. 2.) Plaintiff also alleges that Defendant UPS America provided Plaintiff with benefits, medical insurance and retirement benefits as part of his employment. (Id.) In April 2017 Plaintiff was locked out of work and directed to obtain medical testing, and was not reinstated until July 2017. (Id. 45.) Plaintiff provided the medical documentation and was finally reinstated at the end of July. (Id.) His request for certain accommodation was denied in September, approximately seven months after having made his initial request. (Id. 46.) Plaintiff claims that UPS America terminated his employment on November 14, 2017 for purported “dishonesty” for failing to report an accident, though Plaintiff argues that the accident was insignificant and was reported to a guard present. (Id. 47.) Plaintiff filed a grievance in connection with his termination. (Id.) Plaintiff also alleges that on November 14, 2017, Plaintiff’s manager demanded that he obtain a medical note stating that he could perform all duties and responsibilities of his job without any accommodation in order to return to employment. (Id. 67.) Plaintiff was placed off payroll and was not paid accrued time. (Id. 68.) In April 2018, Plaintiff was reinstated by UPS America, though demoted to “Road” driver. UPS America determined that Plaintiff could not be accommodated in the “City Driver” position. As a result, Plaintiff lost seniority and overtime opportunities. (Id. 48.) Plaintiff alleges that he was wrongfully terminated again on July 7, 2018. (Id. 49.) On December 13, 2019, Plaintiff was supposed to be re-instated following a grievance arbitration decision. (Id. 50.) Plaintiff expected to be restored to his position as a Road Driver after being provided an interim opportunity assuming the job of Dock Worker. (Id.) Plaintiff alleges that on April 9, 2020, he was informed by UPS America that he could not be accommodated as a Dock Worker and that there was no schedule to retrain him as a driver. (Id. 51.) Plaintiff had quit his former job following the decision, and was therefore left unemployed. (Id. 50.). Plaintiff alleges that he was finally able to return to work on September 14, 2020 as a Road Driver. (Id. 52.) Separately, Plaintiff alleges that UPS America maintained that Plaintiff had not been terminated, and instead, stated that Plaintiff could return to work once he was able to medically demonstrate his ability to work without restrictions and with no accommodations. (Id.
