Caregiver Status Discrimination Claims Survive Dismissal Against 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 caregiver-status 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 disability.

The court summarized the issues and the law as follows:

Pustilnik also has asserted an NYCHRL claim for discrimination on the basis of her status as a caregiver to her parents. In particular, Pustilnik alleges that during her father’s final illness, she needed “to accompany her father to medical appointments and to be in the hospital with him to ensure he received proper care.” (NYSCEF No. 1 at ¶ 20.) And she alleges that after her father’s death, she had “ongoing caretaker responsibilities for her 87-year-old mother,” which entailed frequent visits or telephone calls to her mother “to help her with daily life activities such as making doctor appointments, maintaining her apartment, and making necessary telephone calls.” (Id.) These responsibilities are alleged to have continued until Pustilnik’s termination. (See id.)

The NYCHRL bars employment discrimination on account of an individual’s “caregiver status.” (NY City Admin. Code § 8-107 [1] [a].) The statute defines “caregiver” as “a person who provides direct and ongoing care for a minor child or a care recipient.” (Id. § 8-102.) The definition of “care recipient” includes “a person with a disability” who is a “covered relative,” such as a parent, who “relies on the caregiver for medical care or to meet the needs of daily living.” (Id.) The statute does not, however, define what it means for a care recipient to “rel[y] on the caregiver for medical care” or the scope of “needs of daily living.” Nor are these terms specifically discussed or explained in the statute’s legislative history.

As to plaintiff’s father the court explained:

In contending that she acted as a caregiver for her father, Pustilnik has not alleged that she directly provided her father with medicine or other forms of physical care. Nor (as in Palmer) does Pustilnik’s complaint allege that she provided transportation or comparable logistical support that her father needed to access medical care provided by others. On the other hand, Pustilnik has alleged that she accompanied her father to medical appointments and was with him in the hospital “to ensure he received proper care.” (NYSCEF No. 1 at ¶ 20.) Construing these allegations in the light most favorable to Pustilnik, she has alleged in essence that she was acting as his patient advocate with treating providers to ensure that the treatment he received fully addressed his medical needs—a common role for adults helping elderly parents or relatives who need medical care. This court concludes that by alleging that she was taking steps necessary to ensure that her father could receive proper medical care, Pustilnik has established for pleading purposes that she was acting as a caregiver for her father within the meaning of the NYCHRL.

This court is not persuaded by defendants’ argument that a plaintiff must herself directly provide medical care (for example by administering pills and injections to another person, or by managing another person’s catheter or feeding tube) to qualify as a caregiver. (See NYSCEF No. 17 at 17.) The statute could easily have said as much; but it did not. And defendants’ proffered interpretation would exclude large swathes of medically related caretaking responsibilities—as in the example from Palmer in which a sick spouse (or child or parent) depends on the NYCHRL plaintiff to transport him for needed medical treatment. This narrow reading of “caregiver status” (or its subsidiary definitions) cannot be reconciled with the NYCHRL’s undisputedly broad and remedial purpose.
Additionally, as with her disability-discrimination claim, Pustilnik has sufficiently alleged a causal relationship between her taking time off from work to provide care to her father while he was dying and her subsequent termination, given the close temporal proximity between the two. The court again finds this question to be close. But given the comparatively relaxed pleading standards governing NYCHRL claims, Pustilnik’s caregiver-discrimination allegations relating to her father state a cause of action, if only just.

As to plaintiff’s allegations that she acted as a caregiver for her mother, the court explained:

Pustilnik’s claim that she also acted as a caregiver for her mother after her father’s death rests on the “needs of daily living” aspect of providing care, not the “medical care” aspect. In assessing the sufficiency of the complaint, this court must first consider how to construe “needs of daily living”: i.e., whether it encompasses all typical “daily life activities,” as Pustilnik contends (see NYSCEF No. 12 at 19-20), or whether it should be read more narrowly.

This court concludes that a (somewhat) narrower reading of “needs of daily living” is correct. This statutory term is similar in phraseology to “activities of daily living”—a commonly used concept in contexts where an individual (or set of individuals) is responsible for providing care to another. (See e.g. Mental Hygiene Law [MHL] § 81.20 [7] [describing the duties of a guardian for the personal needs of an incapacitated person]; Coleman v. Daines, 79 A.D.3d 554, 555, 913 N.Y.S.2d 83 [1st Dept. 2010], aff’d 19 N.Y.3d 1087, 955 N.Y.S.2d 831, 979 N.E.2d 1158 [2012] [discussing a Medicaid application for in-home personal care services].) Thus, “needs of daily living” for purposes of the NYCHRL do not encompass all typical “daily life activities” as Pustilnik would have it, but instead an individual’s core needs, such as “mobility, eating, toileting, dressing, grooming, housekeeping, cooking, shopping, money management, banking, driving or using public transportation.” (MHL § 81.03 [h] [defining “activities of daily living”].)

The allegations of Pustilnik’s complaint relating to the assistance she provided her mother are somewhat vague and conclusory: she states only that she frequently called or visited her mother to help with activities “such as making doctor appointments, maintaining her apartment and making necessary telephone calls.” (NYSCEF No. 1 at ¶ 20.) This court agrees with defendants that the general statement that Pustilnik helped her mother “maintain[ ] her apartment” and “mak[e] necessary telephone calls” is not sufficient to state a caregiver-status cause of action under the NYCHRL.

This court reaches a different conclusion, though, with respect to Pustilnik’s allegation that she helped her mother schedule appointments regarding her mother’s ongoing physical and psychological conditions (which are detailed in the complaint). Receiving treatment to preserve or restore one’s physical and mental health can be a core aspect of daily life, on a par with the other “activities of daily living” described above. Thus, even if an individual’s need for assistance with making doctor’s appointments or the like does not itself rise to the level of relying on another for medical care, it qualifies at the very least as a “need[ ] of daily life” for purposes of the NYCHRL. And Pustilnik’s allegation that her “caretaking responsibilities were well-known to BPCA senior officials,” and that Pustilnik frequently provided such assistance to her mother until her termination, suffices to make out—at least for pleading purposes—a caregiver-discrimination cause of action.

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