Failure-to-Accommodate Disability (Sciatica) Discrimination Claims Continue Against Individual Defendants; Retaliation Claims Dismissed

In Scott-Robinson v. City of N.Y., No. 15-CV-09703 (NRB), 2016 WL 7378775 (S.D.N.Y. Dec. 15, 2016), the Southern District of New York (Judge Buchwald) dismissed plaintiff’s retaliation claim under the New York City Human Rights Law (NYCHRL), but held that she sufficiently alleged her failure-to-accommodate-disability claims against individual defendants.

Plaintiff, a Child and Family Specialist employed by the New York City Administration for Children’s Services, alleged that the City and individual defendants discriminated against her by failing to accommodate her disability (sciatica) and retaliating against her.

Retaliation

As to plaintiff’s retaliation claim, Judge Buchwald held that, even under the NYCHRL’s comparatively liberal standard, plaintiff failed to state a retaliation claim under the statute.

“To state an employment retaliation claim under the NYCHRL, plaintiff must allege that (1) she engaged in a protected activity, (2) her employer was aware of the activity, (3) she suffered an action that would be reasonably likely to deter a person from engaging in a protected activity, and (4) there was a causal connection between the protected activity and the action.”

Although plaintiff sufficiently pleaded “protected activity”, she did not sufficiently plead “adverse action”.

“Protected Activity”

“Under the NYCHRL, protected activity includes any action taken to protest or oppose statutorily prohibited discrimination. An employee engages in a protected activity when he complains of an employment practice that he reasonably believes violates the law.”

Here, plaintiff’s complaint alleged “that defendants retaliated against plaintiff for making her accommodation request.” The court agreed with defendants that “a retaliation claim cannot be based on the same conduct that comprises a failure-to-accommodate claim.”

It nevertheless held that plaintiff cited other facts that amounted to protected activity, including an email in which she emailed defendant “to find about what is happening with the above request” and stated that “[t]he manner in which; [sic] I am being dealt with is a direct violation of my Due Process Rights.”

New York’s highest Court, the Court of Appeals, “has held that a NYCHRL plaintiff need not say in so many words that [she] was a discrimination victim as long as she “made clear her disapproval of that discrimination by communicating to [her employer], in substance, that she thought [the employer’s] treatment of [her] was wrong.”

Applying this principle, the court held:

Although the email could be clearer, one could reasonably infer that it refers to ACS’s continued denial of plaintiff’s accommodation request, and that plaintiff’s reference to “due process rights” was intended to protest that decision.2 Accordingly, the email constitutes protected activity independent of the underlying accommodation request.

“Adverse Action”

Unfortunately for plaintiff, although she sufficiently alleged that she engaged in “protected activity”, the court dismissed her retaliation claim because she failed to sufficiently alleged that she suffered an “adverse action”.

Citing the Supreme Court’s decision in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006), the court summarized the law:

Under the NYCHRL, adverse action is any action that would be reasonably likely to deter a person from engaging in a protected activity. However, the NYCHRL is not a general civility code; accordingly, it does not bar conduct that amounts to nothing more than petty slights or trivial inconveniences. As the Supreme Court has noted under a similar standard, [c]ontext matters:

The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children. A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.

Here, plaintiff argued that “defendants retaliated against her on three occasions by scheduling conferences that prevented her from going to special ACS-related events attended by her coworkers” and specifically that she “was unable to attend a bake sale, walk, and ‘Celebration of National Social Work Month.’”

The court held that plaintiff’s inability to attend these events did not amount to an adverse action, noting (inter alia) that “there are no allegations that Scott-Robinson had a right or was otherwise entitled to attend the events”, that there were no “allegations suggesting that plaintiff’s attendance at the events was of particular significance, such as being connected to employee training or advancement”, and that “plaintiff’s subjective belief that she was insulted, humiliated, and upset by this obvious discrimination and retaliation, is insufficient under the NYCHRL’s objective standard.”

Therefore, the court concluded: “[W]e do not believe that Scott-Robinson’s inability to attend three social events during work hours would be reasonably likely to deter someone in her position from engaging in protected activity or that it amounts to anything other than the petty slights or minor annoyances that often take place at work and that all employees experience.”

Individual Liability

The court held that plaintiff sufficiently alleged her failure-to-accommodate claims against the individual defendants.

“The NYCHRL permits both direct and aiding and abetting liability. Under both types of liability, plaintiff must show that the individual defendant ‘actually participated’ in the discriminatory conduct.”

Applying the law, the court explained:

With respect to defendant Comeau, the Complaint alleges that he had supervisory authority over plaintiff, that he specifically asked that [plaintiff’s] accommodation be removed, and that he asked plaintiff to provide an updated doctor’s note to support her accommodation request. Even if Comeau did not ultimately decide to deny plaintiff’s accommodation request, these allegations show that he participated in that process.

The allegations are also sufficient with respect to defendant Savage. According to the Complaint, Savage told plaintiff that her accommodation request “was initially denied,” but that ACS’s Office of Equal Employment Opportunity was still reviewing the request to determine whether plaintiff could be accommodated in some other way. Because Savage was the director of ACS’s Office of Equal Employment Opportunity at the time, it is reasonable to infer that she participated in the process of denying plaintiff’s accommodation request.

With respect to defendant Diaz, the Complaint alleges that she met with plaintiff regarding the status of the accommodation request, that plaintiff gave Diaz a doctor’s note in connection with that request, and that Diaz requested certain follow-up information from plaintiff. Diaz also subsequently informed plaintiff that her accommodation request was denied but agreed to speak with her supervisor to see if anything else could be done. Finally, plaintiff allegedly directed an additional accommodation request to Diaz when plaintiff asked whether ACS could transfer her to another Child and Family Specialist position that did not require field work. As with Savage, these allegations are sufficient to suggest Diaz’s participation in denying plaintiff’s accommodation request.

Leave to Amend

Finally, the decision contains an instructive procedural point regarding requests to amend a complaint under Federal Rule of Civil Procedure 15(a). In denying plaintiff’s request, that court noted (inter alia) that plaintiff neither indicated the grounds for her motion as required by Federal Rule of Civil Procedure 7(b), nor did she attach a proposed amended complaint to her request.