ADA Disability Discrimination Claim Dismissed; Schedule Change Was Not an “Adverse Employment Action”

In Simon v. City of New York, 17-cv-9575, 2019 WL 916767 (S.D.N.Y. Feb. 14, 2019), the court, inter alia, dismissed plaintiff’s disability discrimination claim under the Americans with Disabilities Act (ADA) because she did not sufficiently allege an “adverse employment action.”

Specifically, this decision is instructive as to whether and to what extent a schedule change is an “adverse employment action.”

From the decision:

Reviewing the facts in the light most favorable to Simon, the Court finds that she has not successfully alleged that she suffered an adverse employment action because of her disability under circumstances that would give rise to an inference of discrimination by her employer. An adverse action must be “a ‘materially adverse change’ in the terms and conditions of employment.” Sanders v. New York City Human Resources Admin., 361 F.3d 749, 755 (2d Cir. 2004) (citing Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999) ). “To be materially adverse, a change in working conditions must be ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’ ” Sanders, 361 F.3d at 755 (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) ). Simon alleges in her Complaint that she “protest[ed]” to the change in her schedule, that the change was “in contravention to her ADA qualifying Disability that rendered her unable to start earlier than 11:00 a.m.,” and that, since she would not come in before 11:00 AM, it shortened her work day.4 Compl. ¶¶ 38, 40. She does not connect this change in her schedule to circumstances that give rise to an inference of discrimination. A one-hour shift in Simon’s work schedule, by itself, does not amount to an adverse employment action. …

Although a shift change can be construed as a materially adverse employment action “under extraordinary circumstances,” a plaintiff must provide some evidence of extraordinary circumstances5 to show that a shift change in their case was materially adverse. See DiBrino v. Dept. of Veteran’s Affairs, 118 Fed. App’x 533, 535 (2d Cir. 2004) (citing Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 787-88 (3d Cir. 1998) ). No evidence showing an extraordinary circumstance has been presented to the Court. Plaintiff says that she was “unable” to start work at 10:00 AM rather than 11:00 AM, but provides no evidence of why that is the case; nor does she provide any other evidence of extraordinary circumstances6 to show that the shift change was materially adverse.

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