ADA Retaliation Claim May Be Supplemented in Amended Complaint

In Laface v. Eastern Suffolk BOCES, 2020 WL 2489774 (EDNY May 14, 2020) (J. Spatt), the court, inter alia, granted plaintiff leave to amend his complaint to supplement his retaliation claim under the Americans with Disabilities Act (ADA).

The court outlined the relevant law:

To succeed in an ADA retaliation claim, a plaintiff must prove that:

(i) a plaintiff was engaged in protected activity;

(ii) the alleged retaliator knew that plaintiff was involved in protected activity;

(iii) an adverse decision or course of action was taken against plaintiff; and

(iv) a causal connection exists between the protected activity and the adverse action.

To survive a motion to dismiss, “the plaintiff must plausibly allege that: (1) [his employer] discriminated—or took an adverse employment action—against him, (2) ‘because’ he has opposed any unlawful employment practice.”

Courts analyze ADA retaliation claims under a burden shifting analysis. First, the plaintiff must make a prima facie showing of retaliation; then, the burden shifts to the employer to articulate a legitimate, non-[retaliatory] reason for the adverse action; lastly, the plaintiff must provide evidence demonstrating that the proffered reason is merely pretext for [retaliation]. [Citations and internal quotation marks omitted.]

Applying the law, the court explained:

In the TAC, the Plaintiff claims that his requests for a reasonable accommodation for his mold allergy constitutes protected activity. ECF 60-2 at 3. Seeking a reasonable accommodation for a disability does amount to protected activity. Rieger v. Orlor, Inc., 427 F. Supp. 2d 105, 120 (D. Conn 2006); see also ECF 25 at 18. Although, as noted above, the Plaintiff has not pleaded a disability within the meaning of the ADA, this does not preclude the Plaintiff’s requests from being considered a protected activity, because, as this Court held in the November 2018 Opinion regarding a different claimed disability, the parties do not dispute that the Plaintiff was sincere in his belief that he was disabled and that his request was in good faith.

The Defendants raise no assertions as to whether the Plaintiff suffered an adverse employment action. The Plaintiff asserts that he suffered two: (1) when BOCES placed him on involuntary ADA leave; and (2) when BOCES intentionally kept him from performing the essential functions of his job by depriving him of a mold-free environment.

An adverse employment action is “any action that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ” Vega, 801 F.3d at 90 (internal citations omitted). Placement on involuntary medical leave can be an adverse employment action. Requiring a doctor’s note to return from medical leave “is not an adverse employment action, even under the more lenient standard applicable to retaliation claims. However, involuntary leave or unjustified charging of sick days can be an adverse employment action.

As to causation, the Defendants again make no arguments, and indeed, they concede n their opposition that they placed him on medical leave in response his request for a transfer, and for keeping him on medical leave, despite his asking to return to work. This satisfies the causation requirement that the alleged retaliation was a but-for cause of the adverse action, and not simply a substantial or motivating factor in an employer’s decision.

[Citations and internal quotation marks omitted.]

Based on this, the court held that plaintiff pleaded a prima facie case of retaliation under the ADA.

It next considered, and rejected, defendants’ attempt to have plaintiff’s complaint dismissed on futility grounds by invoking the “business necessity” exception under the ADA. While noting that the Second Circuit has yet to address the question of whether a court may grant a motion to dismiss a claim under Rule 12(b)(6) based on a defense of business necessity, its review of case law from other Circuits led it to conclude that it would be improper for the Court to rule on such a defense at this point in the litigation.

As such, the court granted plaintiff’s motion to the extent he sought leave to amend his ADA retaliation claim to include allegations concerning his mold allergy.

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