Disability discrimination verdict is upheld

Appellate courts defer to the jury's credibility determinations. Whom do we believe? Whom do we disbelieve? Verdicts get appealed all the time. The Second Circuit will not upset a jury verdict unless it has a very good reason to do so. This verdict got affirmed because the Court of Appeals deferred to the jury.

The case is Presumey v. Board of Education, a summary order issued on May 30. Plaintiff was a schoolteacher. She claims the school district failed to accommodate her disability. She was a professional assistant who worked with disabled students. When she injured her shoulder at work, she requested light duty. The district told her there was no light duty assignment in her job class and it ultimately fired plaintiff on the basis that her medical condition made it impossible to perform the essential functions of her job. This language tracks the Americans with Disabilities Act, which says the employer must accommodate a disabled employee if the accommodation does not eliminate an essential job function.

At trial, the district said that the essential functions of a professional assistant include lifting, toileting and feeding students. True, plaintiff could not perform those functions, but she said they were not essential to her job. While defendant at trial put on witnesses who said these duties were essential to plaintiff's position, and that the the job description and handbook said that assistants like plaintiff have to take on these responsibilities, plaintiff controverted that evidence at trial. She noted that her students had a variety of disabilities, some of whom did not require lifting. Not all assistants had to lift and toilet the students, as "those functions were waived for certain professional assistants." Other assistants got light duty and were assigned to work with students in wheelchairs, which did not require lifting. You get the picture. Even the handbook is not controlling on this issue.

Since the trial evidence did not compel a finding that lifting and toileting students constituted an essential job requirement, the Court of Appeals (Lynch, Lohier and Cogan [D.J.]) allows the verdict to stand. That distinguishes this case from Stevens v. Rite Aid Corp., 851 F.3d 224 (2d Cir. 2017), where the Court of Appeals threw out a huge verdict in favor of a pharmacist who had needle-phobia and was therefore unable to perform an essential job duty: administering vaccines to customers.

What does this case teach us? Even if documents appear to support the defendant's case, the plaintiff can get around that if she finds the right witnesses to show that management did not always follow its light duty policies. 

Another interesting side note about the trial: it looks like plaintiff called a co-worker, Eileen Dailey, to the stand. Dailey had the same job as plaintiff but, plaintiff told the jury, Dailey did not have to do any lifting even though Dailey was disabled. Of course, if true, this argument would help plaintiff's case. Plaintiff called Dailey to the stand to refute the district's position that, despite Dailey's physical infirmities, she was in fact able to lift and toilet students. If Dailey got light duty, why not plaintiff? Plaintiff's counsel challenged the veracity of Dailey's testimony in arguing to the jury that Dailey was unable to perform these functions in light of her disabilities. The court rulings in this case are not clear on what exactly plaintiff's counsel did when Dailey was on the stand, but plaintiff testified that Dailey's left arm and leg were affected by paralysis, and the trial court ruling says Dailey had "an obvious foot drop, clearly walked with difficulty, and did not move her left arm at all." Plaintiff's counsel told the jury, "you saw with your own eyes what the truth is about that lady." It must have been uncomfortable to attack Dailey's testimony that way, but as one trial expert once said during a trial practice CLE, "trial lawyers don't go to heaven."