Plaintiff cannot make out disability discrimination claim, 2d Circuit says

As I wrote in this blog post, the Second Circuit has held that cases alleging disability discrimination require the plaintiff to prove "but-for" causation, a more defendant-friendly burden of proof than race/gender/religious discrimination cases under Title VII of the Civil Rights Act of 1964. The Court in this case goes on to hold that the plaintiff cannot meet that burden, and the case is dismissed for good.

The case is Natofsky v. City of New York, issued on April 18. Plaintiff has a hearing disability.  He worked for the Department of Investigation as Director of Human Resources and Budget. While plaintiff receiving praise for his performance in 2013, there were managerial changes this time, but plaintiff's supervisor, Ulon, remained in place. Ulon in 2013 asked plaintiff to follow up on emails more quickly, but plaintiff said he was unable to multitask during meetings because he had to put "extraordinary effort into listening" during meetings. Also that year, Ulon wanted plaintiff to come into work later in the morning and made other demands that she later withdrew after plaintiff raised concerns with other supervisors. Ulon then issued plaintiff a performance memo that criticized his performance, and she issued a negative performance appraisal.

After Ulon left the agency, two other supervisors treated plaintiff poorly: one, Pogoda, kept staring at plaintiff's ears as he spoke and rolled her eyes at plaintiff when he mentioned his hearing disability. Pogoda was also impatient with plaintiff and told him to speak more clearly and quickly. On another occasion, Pogoda said plaintiff was "clueless," and he eventually demoted plaintiff, which lowered his salary. After plaintiff protested his demotion, Pogota and another supervisor, Peters, moved plaintiff from his private office to a cubicle in a high-traffic, high-volume area. After complaining about the salary reduction to a Deputy Commissioner, plaintiff's salary was readjusted. Plaintiff eventually resigned from the agency and got a better job with the City's Department of Transportation.

Relying on the Cat's Paw theory of discrimination, Plaintiff's lawsuit claims that Pogoda influenced Peters to demote him because of Pogota's hostility toward plaintiff's disability. Rather than determine whether Cat's Paw applies to "but-for" discrimination cases (it applies in mixed-motive cases under Title VII), the Court of Appeals (Keenan [D.J.] and Walker, with Chin dissenting) says plaintiff cannot prove that, but for his hearing disability, he would not have been demoted. The Court of Appeals cites evidence that management was unhappy with plaintiff's job performance, which explains the demotion. The Court reasons:

There was ample evidence that Pogoda and Peters had reason to (and did) think that Natofsky’s performance was deficient and demoted him on that basis. First, Pogoda noted in March 2014 her view that Natofsky was ʺclueless.ʺ Second, that same month, Natofsky failed to provide Peters with information regarding staffing and budgeting at the DOI, two areas under Natofskyʹs purview. Third, there was a new administration in office that was restructuring the department in which Natofsky worked. Defendants presented evidence that other employees had been asked to leave or were transferred from their positions, including Natofskyʹs immediate supervisor, Ulon. We conclude that ʺconstruing the evidence in the light most favorableʺ to Natofsky and ʺdrawing all reasonable inferences in his favor,ʺ no reasonable juror could conclude that Natofsky would have retained his position but for his disability.

The other claims are also dismissed. Plaintiff cannot show that Ulon denied his preferred work hours and vacation time and criticized his performance out of discriminatory animus. "Natofsky, however, points to no evidence that Ulonʹs critique of his email responsiveness was based specifically on Natofsky’s failure to respond to emails during meetings, as opposed to a more general critique of his timeliness in responding to emails." And, any workplace changes put in place by Ulon were reversed after plaintiff objected to other managers, so these are not adverse employment actions. The retaliation claim against UIon for the negative performance review also fails because the review was drafted almost a year after plaintiff complained about Ulon's maltreatment to another supervisor; that is too much time to draw a retaliatory inference. As for the retaliation claim against Pogoda and Peters, the Court says appealing a negative performance review is not protected activity under the civil rights laws, and plaintiff was not protesting discrimination "but offering a defense of why he may have been slow in responding to emails."

Judge Chin dissents, viewing the evidence differently than the majority, raising the question: if appellate judges view the evidence differently and one of them thinks the plaintiff can win at trial, is there not a factual dispute for the jury after all? Here is how Judge Chin sees it:

Natofsky has put forth evidence that Pogoda and Ulon were at least motivated in part by Natofskyʹs disability. First, Natofsky presented evidence that Pogoda ‐‐ whose discriminatory intent can be imputed to Peters -- fixated on the physical markers of his hearing disability, shook her head in disgust and rolled her eyes after Natofsky told her about his hearing disability, demanded he speak faster, and otherwise ridiculed him for his speech. Second, as evidence of Ulonʹs discriminatory animus, Natofsky presented evidence of two conversations during which his disability was discussed: his exchange with Ulon about email responsiveness and Hearnʹs conversation with Ulon regarding Natofskyʹs hours and vacation request. There was other evidence as well, including inexplicably harsh treatment: when new management came in, Natofsky quickly fell from a highly compensated, highly evaluated supervisor to a poorly‐evaluated generalist making just over half his prior salary and confined to what had been his former assistantʹs cubicle.