9/11-Related PTSD Disability Discrimination Case Continues

Goonan v. Federal Reserve Bank of New York, decided July 22, 2014, illustrates an employer’s obligation to reasonably accommodate employees with known disabilities and to engage in an “interactive process” to determine what accommodation(s) are appropriate.

Plaintiff, who worked for the Federal Reserve Bank of New York for 25 years, suffers from Post-Traumatic Stress Disorder arising from his proximity to the terrorist attacks of September 11, 2001. His condition was aggravated when, in 2010, his group moved to an office in 3 World Financial Center.

Plaintiff asked to move to the Fed’s building at 33 Liberty Street, or alternatively, to telecommute from home. His supervisor responded that plaintiff would be able to telecommute only if his performance improved. Defendant proposed seven “alternative” accommodations taken from a treatment plan that had been effective for another employee with 9/11-related PTSD, including moving plaintiff’s cubicle, using a white noise machine, altered lighting, and providing assignments in writing.

Plaintiff “felt that none of these proposals would address the core issue, which was his crippling fear that another attack would cause the new tower to fall on him.” After defendant denied plaintiff’s requested accommodations, plaintiff quit.

Discrimination – Reasonable Accommodation 

The Americans with Disabilities Act “prohibits discrimination against an otherwise qualified employee on the basis of her disability” and “requires employers to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business.” Furthermore, “[a] disabled employee’s request for accommodation kicks off an informal and flexible ‘interactive process’ meant to determine whether and how an employer can reasonably accommodate its employee.”

Applying these principles, the court held that it was “far from clear that the Fed’s seven proposed modifications would have reasonably accommodated Goonan’s disability”, noting that “[n]either of Goonan’s treating doctors recommended or approved the changes, and at their depositions they indicated that such changes might be ineffective or even dangerous.” In addition, “the changes simply do not address Goonan’s consistently stated fear of being near the site of the WTC”, and “[t]he fact that such modifications may have worked for another employee under different circumstances does not show that they were suitable for Goonan as a matter of law.”

The court also rejected defendant’s argument that plaintiff’s rejection its proposal without trying them warranted summary judgment, since “the ADA imposes no obligation on an employee to try out proposed modifications to test their effectiveness: the interactive process does not extend so far as to require either party to do what the other wants on a trial basis.” Rather, “[t]he far more efficient option-indeed, the one contemplated by the ADA-is for employee and employer to exchange information in good faith about what will or will not work before parties spend money and time on setting up accommodations.” (Emphasis added.)

It also rejected defendant’s argument that it was entitled to summary judgment because plaintiff “unilaterally terminated the interactive process by choosing to retire rather than continuing a discussion of alternative accommodations, and that this excuses any failure to offer reasonable accommodations.” Noting that “[t]he heart of the interactive process in an accommodations case is an exchange of information and proposed accommodations in a good-faith and timely manner”, the court held that plaintiff’s “mere decision to quit [is not] dispositive of the entire interactive-process question.”

Here, plaintiff “made his needs known to Fed management at several levels”, and defendant’s “management repeatedly denied his requests for accommodation because of Goonan’s declining performance—an explanation that … turns the rationale of the reasonable accommodation rule on its head and calls into question the good faith of the employer.” 

Based on the evidence, “a reasonable jury could conclude … that the Fed’s statements created an objectively reasonable perception that the interactive process was over and that Goonan had to choose between inadequate accommodations and ending his career.”

The court denied summary judgment to both parties on the affirmative defense of “undue hardship”, since “the parties disagree about the ‘structure and function’ of the Fed’s workforce, including the level of face-to-face interpersonal interaction and supervision required for Goonan to do his job.”

Retaliation

The court held that plaintiff presented enough evidence to raise a genuine issue as to retaliation, reasoning that “[t]he record shows that other employees with comparable or worse performance were indeed allowed to telecommute, and a jury could reasonably find that Goonan was treated differently because he asked for accommodation on the basis of a disability.

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