Disability Discrimination Claim Survives Dismissal Against the Battery Park City Authority

In Pustilnik v. Battery Park City Authority et al, No. 150138/2020, 2021 N.Y. Slip Op. 21087, 2021 WL 1324212 (NY Sup. Ct. NY Cty. Apr. 8, 2021), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claim of disability discrimination asserted under the New York City Human Rights Law.[1]The court also denied defendants’ motion to dismiss plaintiff’s claims of discrimination based on her age and caregiver status.

From the decision:

With respect to Pustilnik’s disability-discrimination claims, Pustilnik has alleged the nature of her disability (severe arthritis and also depression); described in detail how these conditions were exacerbated by the stress and emotional upheaval of her father’s final illness and death and her mother’s increased need for care; alleged that her supervisors were aware not only of her disability but of its deterioration; and alleged that she was fired within a matter of months of her conditions first worsening due to her father’s illness. That is sufficient to state an NYCHRL disability-discrimination cause of action.

Defendants contend that Pustilnik has not alleged any facts that would directly connect her disability and her termination (such as, for example, comments from Pustilnik’s supervisors or co-workers questioning her job performance or commitment during her father’s illness or thereafter). Here, too, defendants are correct about the absence of such allegations. And this court regards the question whether Pustilnik’s complaint states a disability-discrimination cause of action as close. The First Department has made clear, though, that in appropriate cases, temporal proximity alone can raise a sufficient inference of discrimination to satisfy the plaintiff’s pleading burden. (See Brown v. City of NY, 188 A.D.3d 518, 519, 135 N.Y.S.3d 103 [1st Dept. 2020] [CPLR 3211 motion to dismiss]; see also Parris v. New York City Dept. of Educ., 111 A.D.3d 528, 529, 975 N.Y.S.2d 42 [1st Dept. 2013] [CPLR article 78 petition].)

Defendants argue that the necessary temporal proximity is absent because Pustilnik’s disability—and defendant’s awareness of that disability—was longstanding. But the allegations of the complaint detail how Pustilnik’s disability materially worsened in the months prior to her termination, as a result of her father’s illness and death and the associated support and care Pustilnik needed to provide to her mother during that period. It is this aggravation of Pustilnik’s disability that she identifies as contributing to her termination, not the underlying condition in isolation.

Defendants also contend that Pustilnik has still not shown the necessary temporal proximity between the aggravation of her condition and her firing. This court disagrees. An approximately three-month gap existed between Pustilnik’s father’s death in November 2017 and her termination in February 2018. On its own, this three-month gap might be borderline, given the First Department’s holding in Parris that a five-month gap was too long to show the necessary temporal proximity. (See 111 A.D.3d at 529, 975 N.Y.S.2d 42.) But the complaint also expressly alleges that Pustilnik needed to take time off from her job after her father’s death; and that after her return to work, Pustilnik told defendant Jones and other Authority staff about emotional difficulties that she was continuing to experience due to her father’s death. (See NYSCEF No. 1 at ¶ 24.) Under these circumstances, this court concludes that Pustilnik has alleged sufficient temporal proximity to raise an inference of discrimination—at least at the pleading stage.

1 The court also denied defendants’ motion to dismiss plaintiff’s claims of discrimination based on her age and caregiver status.
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