Absences and Failure to File Notice of Claim Doom Disability Discrimination Suit Against City of New York

In Garrett v. City of New York, the New York Supreme Court (NY County) recently granted defendants’ motion for summary judgment on plaintiff’s disability discrimination claims under the New York State and City Human Rights Laws. This case illustrates the extent to which illness-related absences from work may constitute a “reasonable accommodation”.

Plaintiff alleged that she was denied a reasonable accommodation and subjected to a hostile work environment because of her disability (irritable bowel syndrome and colitis).

The court recited the legal standard for providing a “reasonable accommodation” for a plaintiff’s disability:

A complaint states a prima facie case of disability discrimination under the [New York State Human Rights] Law if the individual suffers from a disability and the disability engendered the behavior for which he or she was discriminated against in the terms, conditions, or privileges of his or her employment. The term ‘disability’ is limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job held. A reasonable accommodation is defined in relevant part as an action that permits an employee with a disability to perform his or her job activities in a reasonable manner. It may not, however, impose undue hardship on the employer.

The City established its entitlement to summary judgment.  The court cited many cases establishing “that showing up for work on a regular basis is an essential part of performing one’s job in a reasonable manner.”

The City also presented significant factual support for its position:

It is clear from the massive amount of evidence presented by the City, and not countered by Garrett, that for a large percent of the work years from 2006 through 2011, Garrett was not present at the job. Moreover, even with the accommodation of using a blanket doctor’s note, she was not able to perform her job activities in a reasonable manner. During the period when she was permitted to use the blanket note, her absences were excessive and she repeatedly failed to call in to her supervisor as required by Procedure No. 03-03. Furthermore, during that period, there were repeated complaints about her work and the impact it was having on the Spousal Certification Unit made not only by her supervisors, but also by the institutional providers. As noted above, a special accommodation is not required where it will impose an undue hardship on the employer. …

[When] a medical evaluation of Garrett … was ultimately conducted, it was determined that Garrett was unfit to perform her duties, and ultimately, Garrett entered into a stipulation of settlement with the City agreeing to a voluntary medical leave of at least four months.

In light of this evidence, the court concluded that the “decision of Garrett’s supervisors to discontinue permission for her to use a blanket doctor’s note does not constitute disability discrimination.”

The court also rejected plaintiff’s  New York City Human Rights Law hostile work environment claim, based on her allegations that (for example) her supervisor made negative comments about plaintiff’s illness and “screamed” at plaintiff.

The NYCHRL imposes a relatively lenient standard for liability. Thus, for example, while the State Human Rights Law requires that the harassment must be “severe or pervasive”, under the CHRL, the issue of “severity” and “pervasiveness” applies only to the issue of damages, rather than liability. Plaintiff’s evidence, however, was insufficient to establish liability under even this more relaxed standard:

[N]either Garrett’s attendance record, nor her job performance appeared to improve after Berch was no longer her supervisor. Moreover, Garrett ultimately agreed to take a medical leave of absence after her medical evaluation resulted in findings that she was medically unfit to fulfill her duties based on the number of sick days she had taken. The Court further notes that Garrett’s claims regarding statements allegedly made by Berch to her have been denied both by Berch and contested by Torres. Indeed, no statements of witnesses have been produced by Garrett to support her contentions. However, even assuming the truth of Garrett’s allegations regarding statements allegedly made by Berch, based on the totality of the circumstances, the Court concludes that those allegations are not sufficient to sustain a claim of hostile environment pursuant to the New York City Human Rights Law.

Finally, the court rejected plaintiff’s negligence claim, which was based on her allegation that the city “failed to properly supervise” plaintiff’s supervisor to “effectively prevent her from discriminating against Garrett based on her disability.”  Plaintiff failed to comply with the Notice of Claim requirement (codified in the General Municipal Law), which arises whenever recovery from a City employee is sought on the basis of negligence.

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