The Southern District of New York recently decided Nelson v. City of New York, which it characterized as an atypical disability discrimination case that “raises several questions about the outer limits of federal disability law.”
The court denied defendants’ motion for summary judgment (in part) with respect to plaintiff’s claims under (among other laws) the federal Americans with Disabilities Act (ADA).
Plaintiff, a retired NYPD officer, sued various NYPD employees and the City of New York, alleging that she was improperly denied reinstatement as a result of a perceived mental impairment/disability.
The law provides:
To establish a prima facie case under the ADA, a plaintiff must show by a preponderance of the evidence that: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability. … The ADA defines “disability” as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.
The court explained why this case is unique:
It is beyond dispute … that Plaintiff was denied reinstatement because of her mental impairment, as perceived by her employer. Here, however, unlike in the traditional disability-discrimination case, Plaintiff does not argue that she was denied her position as a result of discriminatory animus in the usual sense. Rather, Plaintiff’s claim amounts to an allegation that Defendants incorrectly determined that Plaintiff was unsuited for reinstatement, because they mistakenly (or perhaps recklessly) diagnosed her as having an impairment worse than it actually was—and severe enough to prevent her from performing her job. Accordingly, the Court must assess whether a discrimination claim can lie where a plaintiff is terminated because of a perceived disability, but without a traditionally “invidious” discriminatory intent.
The court agreed with the position taken by the Third Circuit and the EEOC Guidelines, namely, that “even an innocent misperception based on nothing more than a simple mistake of fact as to the severity, or even the very existence, of an individual’s impairment can be sufficient to satisfy the statutory definition of a perceived disability.”
It therefore held that “despite the fact that the City did not act with discriminatory intent, Plaintiff has demonstrated that the City declined to rehire her because it regarded her as disabled.”
The court next considered, and rejected, the argument that plaintiff was properly not reinstated because she would “pose a direct threat to the health or safety of other individuals.” The parties agreed that an NYPD officer “must be able to tolerate the stress of police work” but disputed “whether, at the time of her reapplication to the NYPD, plaintiff had the mental capability to handle the stress of the job.”
Therefore, the question of “whether plaintiff can perform the essential function of her job blend[ed] into the related question whether she is a ‘direct threat’ to herself or others.”
The court concluded:
Whether a reasonable jury could determine that Plaintiff could perform the essential elements of police work is an extremely close question. After carefully scrutinizing the record, however, the Court concludes that the City has failed to demonstrate beyond genuine dispute that Plaintiff was a direct threat to herself or others, and by extension, that she was unable to perform the essential functions of her job.
It pointed to, for example, the dispute as to the “nature and severity of the potential harm stemming from plaintiff rejoining the force and the likelihood that potential harm would occur”, plaintiff’s “personal therapist’s determination that Plaintiff could tolerate the stress of the job”, and the City’s exclusive reliance on plaintiff’s history (as opposed to plaintiff’s current psychological profile).