Court Clarifies “Failure to Accommodate Disability” Employment Discrimination Claim: Wolfinger v. ConEd

In a recent decision, Wolfinger v. Consolidated Edison Company of New York, Inc., 17-cv-1710, 2018 WL 3637964 (E.D.N.Y. July 31, 2018), the court, inter alia, explained and clarified what, exactly, a plaintiff must allege to sufficiently plead a failure-to-accommodate claim under the Americans with Disabilities Act.

The court explained:

A plaintiff bringing a failure-to-accommodate claim must plead that his employer affirmatively failed to provide him with a reasonable accommodation for his disability. See McBride, 583 F.3d at 97. In practice, this means that any accommodation that the plaintiff claims is reasonable must have been actually sought and unlawfully denied. See Clarke v. White Plains Hosp., 650 F. App’x 73,75 (2d Cir. 2016). “Reassignment of a disabled employee to a vacant light-duty position is well established as a reasonable accommodation under the ADA.” King v. Town of Wallkill, 302 F. Supp. 2d 279, 291 (S.D.N.Y. 2004). “An employer is not, however, obligated to create a new light-duty position for a disabled employee or make permanent previously temporary light-duty positions.” Id. The plaintiff “bears the burden of showing that a reasonable accommodation exist[ed].

Applying the law, the court concluded that plaintiff’s failure-to-accommodate claim should be dismissed, since plaintiff’s complaint “fails to allege when he made his request, that there were light-duty positions available at that time, or that the requested light-duty positions would have constituted a reasonable accommodation.”