Court Allows Failure to Accommodate Neurological Disability Claim to Continue

In Serdans v. New York Presbyterian Hospital, the Appellate Division, First Department permitted plaintiff’s claim that defendant failed to accommodate her disability to continue.

Plaintiff, a registered nurse and nurse practitioner specializing in critical care, “suffers from a neurological disorder for which she was treated with deep brain stimulus (DBS) through electrodes permanently implanted in her brain. Plaintiff’s DBS system is sensitive to electromagnetic radiation such as that emitted by magnetic resonance imaging systems.”

The parties eventually “reached an agreement to accommodate plaintiff’s disabling condition by having her assigned to work exclusively in the hospital’s cardio-thoracic intensive care unit (CTICU).”

The court agreed with defendants that plaintiff’s disability discrimination claim (not predicated on a failure-to-accommodate theory) should have been dismissed.

While there was an issue of fact as to whether plaintiff suffered an “adverse employment action” under the State Human Rights Law and was “treated differently” under the City Human Rights Law, plaintiff failed to point to evidence raising an inference of discriminatory animus:

Remarks by hospital staff testified to by plaintiff, to the effect that she had “brought [her situation] upon [herself]” and should “take [her] assets elsewhere” were not of themselves derogatory or indicative of discriminatory animus. At most, plaintiff has shown only “[s]tray remarks” which, “even if made by a decision maker, do not, without more, constitute evidence of discrimination”. Plaintiff’s testimony that unidentified persons laughed at her “behind [her] back” likewise does not raise an issue of fact as to discriminatory animus.

The court dismissed plaintiff’s retaliation claims, which were based on the “same constellation of evidence” she advanced in support of her disability discrimination claim.

As to plaintiff’s failure-to-accommodate claim, although plaintiff “concede[d] that defendant engaged in the requisite good faith interactive process in arriving at an agreement to accommodate her disability by assigning her exclusively to work in the CTICU”, the court found issues of fact “as to whether defendant failed to implement the agreement [to accommodate her disability], by, among other things … frequently cancelling her work assignments and ultimately ceasing to assign her work altogether.”

Finally, the court held that “the exclusivity provisions of the Workers’ Compensation Law do not preclude plaintiff’s claim for personal injuries she allegedly sustained as a result of defendant’s violations of the State and City HRL, including by exposure to electromagnetic interference in the MICU.”

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