Teacher’s Disability Discrimination (Failure to Accommodate) and Retaliation Claims Continue

In Gewirtz v. New York City Dept. of Educ., 2015 NY Slip Op 50713(U) (NY Sup. Qns. Cty. May 4, 2015), the court denied defendants’ motion for summary judgment on plaintiff’s disability discrimination (failure to accommodate) and retaliation claims under the New York State Human Rights Law (SHRL) and New York City Human Rights Law (CHRL).

Plaintiff alleged that she was injured when she tripped and fell over a pile of books in her classroom, resulting in back pain. The day after returning to work, she “requested an accommodation wherein a co-worker would bring his or her class to plaintiff’s classroom and plaintiff would finish the co-worker’s lesson while the co-worker escorted plaintiff’s class to wherever was necessary.” The principal denied that request within 24 hours.

Initially, the court denied defendants’ motion for summary judgment on plaintiff’s disability discrimination claims. Citing the Court of Appeals’ 2014 decision in Jacobsen v. NYC Health & Hosps. Corp., the court explained:

In a disability discrimination case, an employer normally cannot obtain summary judgment on a SHRL or CHRL claim unless the record demonstrates that there is no triable issue of fact regarding whether the employer duly considered the requested accommodation.

While the failure to engage in a good faith interactive process with the employee regarding the reasonableness of his or her proposed accommodation request does not state a basis for liability on its own, an employer that fails to participate in this process cannot prevent the employee from bringing a SHRL or CHRL claim to trial on the reasonable accommodation issue.

The evidence submitted in support of the motion demonstrates that plaintiff’s proposed accommodation request was denied within approximately 24 hours and that no further discussion into the feasibility of plaintiff’s proposal took place. Under these circumstances, defendants fail to demonstrate their entitlement to judgment on the issue of reasonable accommodation.

The court also denied defendants summary judgment on plaintiff’s retaliation claims:

To establish their prima facie entitlement to judgment on plaintiff’s retaliation claims, defendants must demonstrate that plaintiff cannot make out a prima facie claim or retaliation and that there exists no triable issue of fact regarding whether defendants’ explanations for the challenged actions were pretextual.

Here there is no dispute that plaintiff engaged in a protected activity and that her employer was aware of plaintiff’s participation.

In addition, plaintiff’s deposition testimony that she received increased scrutiny following her rejected accommodation requests is sufficient to present a question of fact regarding whether her employer engaged in conduct that was reasonably likely to deter a person from engaging in that protected activity.

Moreover, although defendants have demonstrated a non-retaliatory basis for the alleged adverse actions, they have failed to demonstrate as a matter of law that there they were not motivated, at least in part, by an impermissible motive.

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