Disability Discrimination Claims Survive Summary Judgment, in Light of Dispute as to Whether Working On-Site Was an “Essential Function” of Plaintiff’s Job

In Fatcheric v. Bartech Grp., Inc., No. 15CV9702, 2017 WL 3084418 (S.D.N.Y. July 19, 2017), the court denied defendants’ motion for summary judgment on plaintiff’s claims of unlawful termination based on her disability, in violation of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law.

Plaintiff applied to be the Program Director for Citicorp North America in March 2014, where she worked on site. Several injuries (including to her foot and knee resulting from a fall on her way to work) limited her ability to work on-site. After her third injury, plaintiff was terminated.

Plaintiff then sued.

“The crux of this action is whether working on-site was an essential function of the Program Director position.”

The court summarized the law:

Employment discrimination claims under the ADA and the NYSHRL are subject to the McDonnell Douglas burden-shifting standard. See McMillan v. City of N.Y., 711 F.3d 120, 125 (2d Cir. 2013) (ADA); Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005) (NYSHRL).

Under this framework, a plaintiff bears the initial burden of establishing a prima facie case of discrimination. Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d Cir. 2014). To establish a prima facie case, a plaintiff must show by a preponderance of the evidence that: (1) her employer is subject to the ADA/NYSHRL; (2) she was disabled within the meaning of the applicable statute; (3) she was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; and (4) she either suffered adverse employment action because of her disability (wrongful termination theory), or her employer refused to make reasonable accommodations (failure to accommodate theory).

So what are “essential functions”? The court tells us:

Essential functions are “ ‘fundamental’ duties to be performed in the position in question, but not functions that are merely ‘marginal.’ ” Stone, 118 F.3d at 97 (quoting 29 C.F.R. § 1630.2(n)(1) (1996)). “Although a court will give considerable deference to an employer’s determination as to what functions are essential, there are a number of relevant factors that may influence a court’s ultimate conclusion as to a position’s essential functions.” McMillan, 711 F.3d at 126. Factors to consider include: “(i) [t]he employer’s judgment as to which functions are essential; (ii) [w]ritten job descriptions …; (iii) [t]he amount of time spent on the job performing the function; (iv) [t]he consequences of not requiring the incumbent to perform the function; (v) [t]he terms of a collective bargaining agreement; (vi) [t]he work experience of past incumbents in the job; and/or (vii) [t]he current work experience of incumbents in similar jobs.” Stone, 118 F.3d at 97 (citing 29 C.F.R. § 1630.2(n)). In the end, “[c]ourts must conduct a ‘fact-specific inquiry’ to determine whether job duties are essential in nature.”

Applying the law, the court found that plaintiff presented a prima facie case:

Construing the record in the light most favorable to Fatcheric, the question of whether working on-site was an essential function of the Program Director position is in dispute. For instance, although the Program Director job description states that a Program Director should build “subject matter expertise within … the client’s environment,” it does not indicate that being physically present on-site is a requirement. (Seltzer Decl., Ex. R.) And Bartech had different on-site expectations for its Program Directors depending on the client. (Seltzer Decl., Ex. A at 61–62.) Moreover, it appears that during her interview for the position Cooke may have told Fatcheric that the on-site demand could be adjusted or eliminated, and her interview notes reflect at least some discussion about Fatcheric working “remote 5 days a week.” …

The facts surrounding Fatcheric’s predecessor or successor provide little clarity on the issue. Her predecessor’s termination appears to have been precipitated by his abandonment of his duties as a Program Director, not simply a failure to appear on-site. As Cooke testified, he simply “stopped showing up for work … no-call, no-show.” (Wheeler Decl., Ex. 2 at 36.) And an internal email indicated that Fatcheric’s replacement was only able to be on-site “a few days monthly.” (Wheeler Decl., Ex. 12.) These are material disputed facts that preclude a determination by this Court of whether working on-site is an essential function of the Program Director position.

Despite this, defendants argued that they met their burden of demonstrating an undue hardship in reasonably accommodating plaintiff, or offering evidence of a legitimate non-discriminatory reason for plaintiff’s termination. The court rejected these arguments, noting (respectively) that it was not clear that working on-site was an “essential function” of plaintiff’s position, and that there were material facts in dispute surrounding plaintiff’s termination.

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