Plaintiff States Retaliation Claim Under Rehabilitation Act; Alleged Adverse Actions Include Transfer to Broken Desk and Failure to Promote

In Lee v. Carolyn Colvin, Acting Comm’r of Soc. Sec., Defendant., No. 15 CIV. 1472 (KPF), 2017 WL 486944 (S.D.N.Y. Feb. 6, 2017), the court held that plaintiff – a federal employee – sufficiently alleged a retaliation claim under the Rehabilitation Act.[1]The court dismissed several of plaintiff’s other claims, including those for hostile work environment and failure to accommodate his disability.

The court explained: “To make out a prima facie case of unlawful retaliation, a plaintiff must prove that: [i] he participated in a legally protected activity; [ii] his employer knew of the protected activity; [iii] an adverse employment action ensued; and [iv] a causal connection existed between the protected activity and the adverse employment action.”

Applying the law, the court held that plaintiff satisfied these elements, at least at the pleading stage:

Plaintiff has identified a number of putative adverse employment actions, including a transfer to a broken desk in an inconvenient part of the office, a failure to promote, a constructive demotion to an administrative position, and false negative performance reviews. … These actions, in the aggregate, rise to the level of material adversity required at the third step of a prima facie case. …

Finally, Plaintiff has alleged a sufficient causal connection between the protected activity and adverse actions. Plaintiff has done so principally by showing that [his] protected activity was closely followed in time by the adverse action. Plaintiff has alleged a timeline of requests and adverse actions that plausibly establishes a causal relationship: over the course of Plaintiff’s employment, his persistent requests for accommodations were met with increasingly hostile responses and a series of actions plausibly evincing an intent to discourage further requests.

According to [plaintiff’s amended complaint] and its exhibits, Plaintiff first formally requested a reasonable accommodation on July 29, 2010; he was moved three days later to a broken desk that was farther from the printer, scanner, and mail room. Plaintiff filed a formal complaint with the EEOC on June 3, 2011; his electronic caseload privileges were rescinded that same month; and on June 22, 2011, he was assigned “all the physical heavy cases”, despite management’s knowledge that these were more difficult for him to work on. Plaintiff’s 2014 Case was resolved in the SSA’s favor on June 11, 2015, and Plaintiff alleges that the conclusion of this case coincided with an increase in the receptionist duties he was asked to perform[]. The tension regarding Plaintiff’s performance of these duties culminated in Plaintiff’s three-day suspension, which was proposed in November 2015 and implemented in February 2016, and which occurred after, among other things, Plaintiff refused to perform receptionist duties that he was directed to do and that he believed were outside the scope of his position. This timeline supports, at this stage, Plaintiff’s alleged causal connection between his protected activity and the Defendant’s adverse actions. Defendant’s motion to dismiss Plaintiff’s retaliation claim under the Rehabilitation Act is therefore denied.

1 The court dismissed several of plaintiff’s other claims, including those for hostile work environment and failure to accommodate his disability.
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