Manhattan Building Porter’s ADA Retaliation Claim Survives Summary Judgment; Disability Discrimination Claims Dismissed

In Bien-Aime v. Equity Residential, No. 15-CV-1485 (VEC), 2017 WL 696695 (S.D.N.Y. Feb. 22, 2017), the court granted defendant’s motion for summary judgment as to plaintiff’s disability discrimination claims (under the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL), but denied it as to plaintiff’s ADA retaliation claim.

Plaintiff – a groundskeeper/porter at the Westmont building in Manhattan – alleged that defendant discriminated against him by failing to accommodate his disability (a knee-related problem) and retaliated against him for complaining about the discrimination.

The court dismissed plaintiff’s NYSHRL and NYCHRL claims for lack of subject matter jurisdiction – specifically, under the doctrine of election of remedies, since the New York State Division of Human Rights investigated and dismissed plaintiff’s discrimination and retaliation claims.

Next, it dismissed plaintiff’s ADA failure-to-accommodate and disability discrimination claims. As to the former, plaintiff “failed to adduce any evidence tending to show that there exists an accommodation that would allow him to perform the essential functions of his employment.” As to the latter, plaintiff “failed to adduce any evidence tending to show that Equity took an adverse employment action against him because of his disability.”

It reached a different conclusion, however, as to plaintiff’s ADA retaliation claim. It summarized the law:

Plaintiff’s ADA retaliation claim, however, requires a different analysis. Title IV of the ADA prohibits an employer from retaliating against an employee for engaging in ADA-protected activity. 42 U.S.C. § 12203. To establish a prima facie case of retaliation under the ADA, the plaintiff “must show that: (1) he engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citations omitted). The Second Circuit has construed “adverse employment action” to be broader for retaliation claims than for discrimination claims. Acheampong v. N.Y. City Health & Hosps. Corp., No. 11CV9205-LTS-SN, 2015 WL 1333242, at *12 (S.D.N.Y. Mar. 25, 2015). In the context of an ADA retaliation claim, an adverse employment action is an action that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ”

Applying the law to the facts, the court held:

In support of his retaliation claim, Bien-Aime offers the following evidence: Eichinger “stopped saying good morning” to him; Sec “totally change[d]” in the way he spoke to him and spoke to him without a “warm welcome” in his voice; Sec continually monitored him at work; Sec asked him about two instances in which he incurred employee overtime without prior approval; and Sec and Eichinger talked to him like he was a criminal. Pl. Tr. at 139:1–8, 143:18–144:22, 147:25–148:1, 157:2–8, 177:22–24.10 Defendants argue that such actions are “petty slights or trivial inconveniences” that are not actionable as adverse employment actions. Although the Court agrees that it is a close question, whether Sec and Eichinger’s different and arguably hostile treatment of Bien-Aime would “dissuade a reasonable worker from making or supporting a charge of discrimination” is a genuine issue of disputed fact that must be resolved at trial. When considering the record in the light most favorable to Bien-Aime, as the Court must, a rational juror could find that Sec and Eichinger’s negative treatment of Bien-Aime after he filed the NYSDHR complaint could dissuade a reasonable worker from complaining of discrimination. Accordingly, the Defendants’ motion for summary judgment relative to the ADA retaliation claim is denied.

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