In Flieger v. Eastern Suffolk BOCES, No. 16-2556-CV, 2017 WL 2377853 (2d Cir. June 1, 2017) (Summary Order), the Second Circuit affirmed the dismissal of plaintiff’s disability discrimination claims under the Americans with Disabilities Act. This decision touches on various issues that typically arise in these types of cases.
Initially, the court held that plaintiff did not suffer from a “disability” as that term is defined in the ADA:
Flieger’s September 2011 back injury does not constitute a disability under the ADA. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities.  On the day that Flieger injured herself in September 2011, Flieger stated in her deposition that she did not leave work early, but rather took some Aleve and kept working. Flieger explained that she came back to work the next day and required no time off as a result of her injury. Flieger also reported that she continued to be able to lift cases of water at work after her injury. Based on Flieger’s explanation of her own limitations after her September 2011 injury, we conclude that Flieger was not substantially impaired in any major life activity.
Next, the court held that plaintiff did not endure an actionable “adverse employment action.” For example, the denial of a summer school position did not qualify because (inter alia) it was “discretionary and not guaranteed”, nor did the transfer to other teachers’ classrooms.
The court explained the circumstances under which it has been recognized that a transfer is an adverse employment action:
[A] transfer is an adverse employment action if it results in a change in responsibilities so significant as to constitute a setback to the plaintiff’s career.  Moreover, we have held that an involuntary transfer may constitute an adverse employment action if the plaintiff shows that the transfer created a materially significant disadvantage with respect to the terms of her employment.  In contrast, a transfer that does not change the conditions of employment is a mere inconvenience or an alternation of job responsibilities, and hence is not materially adverse.  Thus, if a transfer is truly lateral and involves no significant changes in an employee’s conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer an adverse employment action.
Here, plaintiff could not meet this standard. With respect to one transfer, for example, the court explained:
Flieger presented no facts in her summary judgment motion and no argument before this Court that would suggest the transfer to Celiberti’s classroom involved a demotion, a disadvantage, or a setback with respect to her career. Instead, at the time the transfer was made, Flieger only expressed a concern about Celiberti being a low talker. [Ed note] Flieger never expressed any other concern about transferring to Celiberti’s classroom, and specifically never expressed that she felt the transfer was anything other than a lateral move (notwithstanding that she would have preferred not to have been transferred). The transfer to Celiberti’s classroom was therefore not an adverse employment action.
The court also affirmed the dismissal of plaintiff’s ADA retaliation, hostile work environment, and failure-to-accommodate claims.
As to plaintiff’s hostile work environment claim, while the court acknowledged that Celiberti’s comment that she “didn’t ask for a deaf assistant” was “inappropriate”, it did “not rise to the level of severity required in order for a single comment to support a claim for hostile work environment.”
As to plaintiff’s failure-to-accommodate claim, the court explained:
Discrimination in violation of the ADA includes, inter alia, not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.  A qualified individual is an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.  In evaluating whether a particular job function is essential, this Court considers the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the mention of the function in a collective bargaining agreement, the work experience of past employees in the position, and the work experience of current employees in similar positions.  Of course, a reasonable accommodation can never involve the elimination of an essential function of a job.
Here, plaintiff did not contest that she was unable to perform two tasks: restraining students in danger or working with wheelchair-bound students. This was fatal to her claim:
These tasks, however, comprise seven of the top eleven bullet points on BOCES’ written job description for the Teaching Assistant position. In addition, Jill Diamond, a school personnel officer responsible for Teaching Assistants at BOCES, testified that the ability to restrain a student was essential as every single person that is staffing [a BOCES] classroom needs to be able to intervene in a situation that may turn into a crisis or may be a crisis in process.  Flieger also conceded in her deposition that the ability to restrain a student was part of a BOCES Teaching Assistant’s job regardless of to what room the Teaching Assistant was assigned. Flieger further noted that she had had to restrain a handful of children while she was employed as a Teaching Assistant at BOCES, and Flieger’s own experience with wheelchair-bound students indicates that assisting such students is not an out of the ordinary task that Teaching Assistants are required to perform. Flieger, therefore, has failed to meet her burden of identifying an accommodation that would allow her to continue to perform all of the essential functions of the Teaching Assistant job she once held.