Plaintiff Presented Enough Evidence to Overcome Summary Judgment on His “Perceived Disability” Discrimination Claim

In Sacks v. Gandhi Engineering, the Southern District of New York adopted a Report and Recommendation that defendant’s motion for summary judgment for disability discrimination under the Americans with Disabilities Act be denied (but that defendant’s motion as to plaintiff’s age and religious discrimination claims be granted).

Plaintiff worked for defendant as a Senior Inspector on a project relating to the 149th Street Bridge, which the NYC Dept. of Transportation had hired defendant to oversee. Plaintiff alleged that he was told that he was being fired due to his lack of “agility.” Defendant’s owner, however, testified that plaintiff was fired because plaintiff was “unable” to perform his job.

Defendant argued that the allegedly perceived impairment – lack of “agility” – does not qualify as a “disability” under the ADA, and that plaintiff failed to show that defendant’s proffered non-discriminatory reason for plaintiff’s termination – poor performance – was a pretext for unlawful discrimination. The court disagreed on both points.

“An individual is disabled within the meaning of the ADA if the individual has (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) [is] regarded as having such an impairment.” (Emphasis added.)

Prior to the ADA’s amendment, courts narrowly interpreted the “regarded as” clause. Under the new law (i.e., the ADA Amendments Act of 2008), “discrimination is based on a perceived disability, and is hence illegal, whether or not the [actual or perceived] impairment limits or is perceived to limit a major life activity.” (Emphasis added.) Therefore, “on summary judgment, to establish that he is disabled within the meaning of the ADAAA, a plaintiff is only required to raise a genuine issue of material fact about whether [his employer] regarded him as having a mental or physical impairment.”

Plaintiff did so.

Plaintiff made out a prima facie case of discrimination on the basis of perceived disability:

Plaintiff has testified that [his supervisor] told him that his employment was being terminated due to his lack of “agility”, and, during discovery, [defendant’s owner] himself stated under oath that Plaintiff’s employment was terminated because Plaintiff was “unable” to perform his job. These statements, taken together, and coupled with the descriptions of the tasks that, according to Defendant, Plaintiff failed to perform (the majority of which involved, inter alia, walking, climbing, or bending), suggest that Defendant held the perception that Plaintiff could not meet the physical demands of his job. Viewed in the light most favorable to Plaintiff, this evidence gives rise to an inference that Defendant believed that Plaintiff had a physiological condition, most likely involving the musculoskeletal system; that Defendant further believed that this impairment prevented Plaintiff from performing key components of his job; and that Plaintiff’s employment was terminated, at least in part, for that reason.

Plaintiff also raised a triable issue of fact as to whether the proffered reason for plaintiff’s termination (poor performance) was a mere pretext for discrimination. 

Specifically, the court held that “a rational jury could conclude … that Defendant believed that Plaintiff could not perform his job because of a perceived disability” and that “[i]n this context, Defendant’s proffered explanation that Plaintiff was terminated for poor performance of his duties is insufficient to warrant summary judgment.”

It further noted the critical distinction between an employer’s perception that an employee is unwilling to perform the physical requirements of the job (which “could provide the employer with a legitimate, non-discriminatory reason for termination”), and the employer’s perception that the employee is unable to perform those job duties (which “would suggest a perceived disability that may be an impermissible reason for termination”).


In this case … the performance issues cited by Defendant include Plaintiff’s purported failure to perform a number a physical tasks, such as “climb[ing] up and down on the construction ladders,” “bend[ing] to measure,” and “walk[ing] on the Rebar mats.” Regardless of whether Plaintiff was, as he contends, actually able to perform these tasks, Defendant has suggested, during discovery, that Plaintiff’s employment was terminated because Plaintiff did not—and could not—engage in these activities.

The court also noted, on the issue of pretext, that the company owner’s “statements as to the reason for Plaintiff’s termination have changed over the course of this litigation”. For example, while the company owner initially stated in a sworn statement that plaintiff was “unable” to perform his duties, he later stated that plaintiff was fired solely for poor performance. Defendant failed to identify any performance issues on an earlier worker’s compensation form. Such “contradictions in Defendants’ own words cast doubt on whether its current statements are “worthy of credence.”

Thus, the record was “sufficient to raise a triable issue of fact as to whether Defendant’s current explanation for Plaintiff’s termination (that Plaintiff simply failed to perform work that he was presumably capable of performing) is a pretext for unlawful discrimination based on a perceived disability” and was “true with respect to Defendant’s asserted reason as to why it did not rehire Plaintiff, when he later reapplied for the same type of position.”

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