Summary judgment reversed in disability discrimination case

The Court of Appeals has reversed summary judgment in a disability discrimination case, holding that the jury could find that the plaintiff was disabled under the Americans with Disabilities Act and that her employer offered pretextual reasons for her termination.

The case is Bar-Tur v. Arience Capital Management, a summary order decided on August 3. Plaintiff has Common Variable Immunodeficiency, which interferes with her ability to produce enough antibodies in response to exposure to antigens, resulting in greater vulnerability to viruses and infections. It significantly disrupts plaintiff's sleep and negatively affects her breathing. While the district court held that the disability does not substantially affect plaintiff's breathing in light of her "moderately active lifestyle," this reasoning improperly weighed the evidence. On this record, the jury can find that plaintiff's condition substantially affects her breathing and sleeping. This issue is for the jury.

The jury must also decide if plaintiff was fired because of her medical condition. "The record contained evidence that at the time of her demotion and discharge, Arience employees commented that: (1) Bar-Tur would be able to attend to her 'little doctor's appointments' now that she was relieved of certain responsibilities; (2) the demotion was 'supposed to be a personal opportunity for [Bar-Tur] to take care of some important things in [her] life'; and (3) Arience wanted to give Bar-Tur 'space to work through [her] health issues.'" This is enough to prove management's discriminatory motive, especially since the Second Circuit (Chin, Carney and Underhill [D.J.]) thinks the jury may find that management offered bogus reasons for her discharge in light of plaintiff's positive performance evaluation and numerous complimentary emails about her job performance.

Plaintiff also has a viable retaliation claim. She complained in-house about disability discrimination on November 4, 2008. An hour and a half later, she was ordered to go home without access to email and voicemail, and her computer system was terminated. She was fired two days later. This sequence of events, along with the evidence in support of her discrimination claim, give her a winnable retaliation claim. Summary judgment is reversed.