In Durick v. New York City Dep’t of Educ., No. 15 CIV. 7441 (BMC), 2016 WL 4385908 (E.D.N.Y. Aug. 17, 2016), the court held that plaintiff’s failure-to-accommodate-disability and constructive discharge claims under the Americans with Disabilities Act survived summary judgment.
Failure to Accommodate
As to plaintiff’s failure to accommodate claim, the court explained:
In order to establish a failure to accommodate [disability claim under the Americans with Disabilities Act], plaintiff must demonstrate that (1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of her disability; (3) with reasonable accommodation, plaintiff could have performed the essential functions of the job at issue; and (4) the employer refused to make such accommodations. Plaintiff need not show an adverse employment action to state a claim for failure to accommodate.
The court held that “plaintiff does state a claim on the basis of defendant’s unwillingness to accommodate her request for a parking space at the rear of the school that would have allowed her to avoid steps and take the shortest distance to the entrance to the school.”
In finding that plaintiff raised an issue of fact, the court noted that it was “not just that plaintiff was tired from having to walk from her then-current parking space; it was that doing so was, in her words, ‘brutal’ and ‘wrecked’ plaintiff for the rest of the day.”
In light of its reasonable accommodation finding, the court held that “plaintiff has produced sufficient evidence to create a genuine issue of material fact as to whether the failure to accommodate plaintiff’s claim constituted constructive discharge,” in light of “evidence upon which a reasonable jury could find that [the] deliberate denial of plaintiff’s requested parking accommodation made plaintiff’s working conditions intolerable, that is, that her working conditions would have been so unpleasant that a reasonable person in [plaintiff’s] shoes would have felt compelled to resign.”
The court dismissed plaintiff’s age discrimination claim under the Age Discrimination in Employment Act. Although plaintiff alleged that one person (and only one person) made comments about plaintiff’s age, it was another person – who made no such comments – who rescinded a position offered to plaintiff.