Guidance Counselor Sufficiently Pleads Discrimination Based on Disability (Sleep Apnea) Under the NYC Human Rights Law

In Marquart v. NYC Dept. of Education (NY Cty 150327/2016 June 27, 2017), the court held that plaintiff sufficiently alleged disability discrimination under the NYC Human Rights Law, and denied defendant’s CPLR 3211(a)(7) motion to dismiss that claim (it reached the opposite conclusion, however, as to plaintiff’s age discrimination claim).

Plaintiff sufficiently alleged that he suffered an “adverse employment action” – specifically, that “he received ‘U’ Rating on his performance review, was given a larger caseload (than two other, younger employees), and was denied a transfer request, in total, sufficiently plead an adverse action in light of plaintiff’s additional claims that such rating resulted in the consequence of (1) lost income and pension benefits from being barred from apply for “per session” work; and (2) lost income and pension benefits from due to being barred from a promotion.”

The court also held that plaintiff sufficiently alleged circumstances giving rise to the inference of discrimination based on his actual or perceived disability (sleep apnea). “Circumstances giving rise to the inference of discrimination include actions or remarks made by decision makers that could be viewed as reflecting a discriminatory animus and preferential treatment given to employees outside the protected class.” In this case, plaintiff alleged that “he experienced no issues at work until after informing [the Principal and Assistant Principal] of his sleep apnea condition” and “that unlike his non-disabled counterparts, he was given a greater number of assignments to force him to retire; his non-disabled counterparts were also permitted to work at the ‘main’ site.”

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