“Soldiers are Babies” Comment Supports PTSD Disability Discrimination Claim Under the NYC Human Rights Law

In Gorman v. Covidien, LLC, No. 13 CIV. 6486 (KPF), 2015 WL 7308659 (S.D.N.Y. Nov. 19, 2015), the court dismissed most of plaintiff’s employment discrimination claims, but permitted his disability discrimination claim under the NYC Human Rights Law to continue.

This case, like all employment cases, arises from a complex tapestry of facts that, for purposes of brevity, will not be discussed in full here. In sum, plaintiff alleged that defendants discriminated against him based on his military status and his actual or perceived disability (post-traumatic stress disorder/PTSD). He alleges discrimination in the form of his placement on a “performance improvement plan” (commonly known as a PIP) as well as constructive discharge.

While the PIP didn’t constitute an “adverse employment action” under the NYSHRL, it did so under the broader NYCHRL:

[W]hile Gorman’s placement on a PIP does not rise to the requisite level of severity for an adverse employment action under the NYSHRL, it does suffice to meet the lower threshold of the NYCHRL. A PIP is not something imposed upon every employee, and thus constitutes a difference between Covidien’s treatment of Gorman and of employees not perceived as disabled. The PIP, though not unreasonable, did impose additional strictures on Gorman that could be fairly characterized as “more than trivial, insubstantial, or petty,” and also excluded him from salary increases during the plan’s three-month duration. Because Gorman has identified the existence of an adverse action within the meaning of the NYCHRL, the Court must then consider whether Gorman was disabled within the meaning of the NYCHRL, and if so, whether his disabled status was causally related to that adverse action.

Next, the court held that, under the Americans with Disabilities Act (as amended), plaintiff “need not have been formally diagnosed with PTSD at the time of the adverse employment action, so long as Kelly [plaintiff’s former supervisor] perceived Gorman as suffering from a limiting mental impairment.”


Gorman has raised a material issue of fact regarding Kelly’s perception of him as disabled. … Kelly stated that “soldiers that suffer from posttraumatic stress disorders are babies, who … can’t handle the normal stresses of life.” Gorman reports that he subsequently told Kelly that he himself had “been out in the Middle East,” and that “when [he] came back from [his] two trips, [he] had gone through some problems as a result of it.” Then … Kelly is alleged to have told Gorman that he expected “military people to be much more competent and organized than you are, but, I guess, babies, you know, like you, need a little bit more direction.” Given Kelly’s previous alleged comment in which he identified veterans who have difficulty adjusting to civilian life as “babies” who were impaired in dealing with normal stress; Gorman’s identification of himself as a veteran who had difficulty adjusting once he returned home; and Kelly’s subsequent characterization of Gorman as a “baby” who needed extra guidance in doing his job, Gorman has raised a triable issue of fact regarding whether Kelly perceived him as having a mental impairment so as to satisfy that prong of a prima facie case for disability discrimination. Furthermore, the timing and substance of the statements—particularly the connection Kelly draws between “babies” with PTSD and “babies” who need additional guidance, such as a PIP, to perform their jobs—prevent the Court from saying, as a matter of law, that no connection exists between Kelly’s alleged perception of Gorman as disabled and Kelly’s subsequent involvement in precipitating and implementing the PIP.

The court also held that plaintiff raised an issue of fact as to whether discrimination played a motivating role in defendants’ employment actions:

[W]hile Defendants have provided legitimate reasons for their actions, they have failed to exclude the possibility that discrimination against Gorman based on his disabled status played some role in the decision to place him on the PIP. Gorman’s supervisor, Dale Kelly, was the impetus behind Gorman’s placement on the PIP; while Kelly may have lacked the authority unilaterally to place Gorman on a PIP, he was clearly an influential player in the company’s decision. … And while a reasonable juror could certainly find that Kelly’s actions were not based on any discriminatory animus, Gorman has raised a factual question regarding Kelly’s motivation sufficient to survive summary judgment.

While plaintiff’s NYCHRL disability discrimination claim survived dismissal, the court granted summary judgment for defendants on plaintiff’s other claims, namely, for military status/disability discrimination under the NYSHRL, retaliation under the NYSHRL and NYCHRL, hostile work enviornment, and intentional infliction of emotional distress.

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