In Nelson v. WW Intern., Inc., No. 155745/2020, 2024 WL 32208823 (N.Y. Sup Ct, New York County June 28, 2024), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s disability discrimination claim asserted under the New York City Human Rights Law.
From the decision:
A plaintiff may prove a disability discrimination claim under the NYCHRL if he proves that unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor, for an adverse employment discrimination (Watson v Emblem Health Services, 158 AD3d 179 [1st Dept 2018]). A plaintiff may defeat summary judgment by offering some evidence that at least one of the reasons proffered by a defendant for the adverse employment action is false, misleading, or incomplete (id.). This is also known as the “mixed motive” standard (Cadet-Legros v New York University Hosp. Center, 135 AD3d 196 [1st Dept 2015]).
Here, there is evidence from Slack messages between McGrath and Moon that they knew Plaintiff continued to suffer from a disability when McGrath stated, “I genuinely believe that he does not feel well most of the time” (NYSCEF Doc. 68 at Bates No. WW002273). Nonetheless, in subsequent messages, in discussing the recent development of Plaintiff to provide a doctor’s note to continue his accommodation, McGrath stated “[h]e must be freaking out – now he knows that this has become an HR Issue.” Moon responded “I mean, I hope he understands. And just gets his a ___ into the office.” Moon went on to state “in the meantime I will start drafting the PIP…” McGrath responded by stating “…He pushed it too far…. he could have easily avoided this” (NYSCEF Doc. 70 at Bates No. WW002295-98). At a minimum, this exchange creates a triable issue of fact as to whether Plaintiff’s work from home accommodation, given to him due to his immunocompromised status as a lymphoma survivor, played a role in being placed on a performance improvement plan and ultimately terminated.
Viewing the facts in the light most favorable to the plaintiff as the nonmovant, the record supports a finding that Plaintiff was placed on a PIP at least in part as an effort to do-away with Plaintiff’s work from home accommodation – an accommodation that was supported by a note from his doctor stating he was required to work from home to protect his fragile immune system (see Karayiorgou v Trustees of Columbia University, 198 AD3d 598, 599 [1st Dept 2021] [summary judgment denied due to issues of fact as to whether defendant’s non-discriminatory explanation was pretextual]; Ramos v Metro-North Commuter Railroad, 194 AD3d 433, 434 [1st Dept 2021]). There is likewise evidence that Plaintiff’s colleagues also believed he was being terminated at least in part due to his work from home accommodation (NYSCEF Doc. 81). There is also a long history of positive performance reviews indicating that Plaintiff was able to perform well despite his accommodation, and so viewing the facts in the light most favorable to the nonmovant, there is an inference that the increased scrutiny of Plaintiff’s accommodation, the slack message that Plaintiff needed to “get his a ___ into the office” and the PIP could give rise to an inference of disability-based discrimination. These are triable issues of fact.
The court additionally held that summary judgment was not warranted on plaintiff’s cooperative dialogue claim.