ADA Claim Dismissed; No “Adverse Employment Action”

In Torres v. New York City Dept. of Education, 18-cv-2156, 2019 WL 2124891 (E.D.N.Y. May 15, 2019), the court, inter alia, dismissed plaintiff’s discrimination and retaliation claims – by granting defendant’s motion for a judgment on the pleadings pursuant to FRCP 12(c) – under the Americans with Disabilities Act (ADA), on the ground that plaintiff failed to sufficiently allege an “adverse employment action.”

The court summarized the applicable law:

To prove one’s “employer took adverse action” against him for purposes of a discrimination claim, a plaintiff must show there was “a materially adverse change in the terms and conditions of employment.” Galabaya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). “Examples of materially adverse changes include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation.’ ” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (quoting Galabya, 202 F.3d at 640). To establish an adverse employment action for purposes of a retaliation claim, Plaintiff must allege acts that are “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (internal citation omitted). This definition covers a broader range of conduct than does the adverse-action standard for claims of discrimination under Title VII: “[T]he antiretaliation provision, unlike the substantive [discrimination] provision, is not limited to discriminatory actions that affect the terms and conditions of employment.”

Applying the law, the court held that plaintiff’s three alleged potential adverse employment actions – (1) the denial of his hardship transfer; (2) the refusal to return to work early following his medical leave; and (3) the transfer to the Absent Teacher Reserve – did not qualify as “adverse employment actions” under either the discrimination or retaliation provisions of the ADA.

For example, citing the principle that “[a] pure lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action,” the court found that plaintiff’s lateral transfer request did not qualify.