Tuesday, June 13, 2017

No relief under the ADA for retaliation, HWE and other claims

There are many ways for a plaintiff to lose a disability discrimination case in federal court. This case highlights many of those pitfalls.

The case is Flieger v. Eastern Suffok BOCES, a summary order decided on June 1. To win a case under the Americans with Disabilities Act, you have to be disabled. But plaintiff is not disabled under the Act. While she suffered a back injury -- and we all know that back pain hurts like hell -- on the day of the injury, she did not leave work early but instead took some Aleve and kept working. She came back to work the next day and took no time off over the injury. This all means she was not substantially impaired in any major life activity.

Plaintiff also suffered no adverse employment actions because of her disability. Bad things did happen to her, but they were not material changes in her everyday work experience. While plaintiff was denied a summer school teaching position, she admitted at deposition that she understood that employment for positions like this were discretionary and not guaranteed. She also took too many sick days, which somehow rendered her ineligible for the summer position. While she was transferred to other classrooms, these are not enough. One transfer was not a demotion or setback to her career; the only problem with one transfer was that the the other teacher she had to work with was a "low talker," a phrase the Second Circuit (Newman, Pooler and Hall) uses without quotations or any footnote reference to Seinfeld. The other classroom transfer was, in the Second Circuit's view, not done for pretextual reasons, as management said it wanted plaintiff to have extra supervision, and the evidence shows that the decisionmaker did not discriminate against plaintiff and that, instead, plaintiff was quite thankful for this supervisor's assistance in sending her to the Mayo clinic, and she also thanked her for the transfer in glowing terms.

Plaintiff's retaliation claim under the ADA also fails. Plaintiff says the classroom transfers were retaliatory for complaining about discrimination. But the Second Circuit says that the first transfer was not retaliatory because her visit to the Mayo Clinic was not a complaint of discrimination nor a request for an accommodation. The second classroom transfer was not retaliatory for the same reason it was not discriminatory under the ADA.

We also have a hostile work environment claim under the ADA. That claim fails also. Plaintiff had a hearing disability. A supervisor said after learning of plaintiff's disability that she "didn't ask for a deaf assistant." While this was inappropriate language, this comment did not rise to the level of severity required for a single incident to create a hostile work environment. Plaintiff also told another supervisor at the time that she was being treated fairly.

Finally, plaintiff claims she was denied a reasonable accommodation because of her disability. This claim is also dismissed. Plaintiff is unable to physically hold or escort a student in danger of causing injury to himself or others, and she cannot administer any crisis intervention or prevention techniques because she cannot engage in any kind of restricting. In other words, there are certain tasks that plaintiff cannot perform, with or without an accommodation. That means she cannot perform essential job functions and is therefore not qualified for an accommodation under the ADA.

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