ADA Retaliation Claim Survives Dismissal

In Ivankovskaya v. Metro. Transportation Auth. Bus Co., No. 15-cv-5727, 2017 WL 3328166 (E.D.N.Y. Aug. 3, 2017), the court held that plaintiff sufficiently alleged a retaliation claim under the Americans with Disabilities Act (ADA).[1]I addressed this decision’s resolution of plaintiff’s hostile work environment and disability discrimination claims, respectively, here and here.

Plaintiff worked as a bus operator for the MTA Bus Company. After being diagnosed with a disc herniation, she requested a “reasonable accommodation” in the form of an adjustable seat. She claims that defendant denied her accommodation request, subjected her to a hostile work environment, and retaliated against her for making the request.

The court explained the legal standard:

The ADA prohibits an employer from retaliating against an employee for engaging in an activity protected under its provisions. See Pediford-Aziz v. City of New York, 170 F.Supp.3d 480, 485-486 (E.D.N.Y. Mar. 17, 2016). To establish a claim of retaliation, a plaintiff must show: (1) that she was engaged in an activity protected by the ADA; (2) that the employer was aware of this activity; (3) that the employer took adverse employment action against her; and (4) that a causal connection exists between the alleged adverse action and the protected activity. Id. at 485. “Making requests for reasonable accommodations for a disability is protected activity within the contemplation of the statute.” Vale, 80 F.Supp.3d at 439 (internal citations and quotation marks omitted). Further, it is not necessary for a plaintiff to allege that she is actually disabled within the meaning of the ADA to pursue a retaliation claim.

It next summarized plaintiff’s allegations:

The plaintiff claims that the defendant retaliated against her because of her “continued need for accommodations for her disability.” (FAC ¶ 26.) Specifically, the plaintiff contends that on June 4, 2014, approximately two months after her April 23, 2014 complaint and request for a bus with adjustable seats, “she starting smelling what she believed to be a gas leak” and asked her supervisor to inspect her bus. (FAC ¶ 25.) The supervisor “indicated he did not smell anything and directed [the plaintiff] to run her route with the bus [ ].” (FAC ¶ 25.) The plaintiff was “dizzy and light headed” by the end of her shift, and asked her “command center” to call her an ambulance, which they did. (FAC ¶ 25.) Because of the plaintiff’s blood pressure, the EMTs took her to the hospital. (FAC ¶ 25.) After the plaintiff came back to work on June 13, 2014, Tortora called her into his office and told her that the allegedly defective bus had been inspected, and there was no gas leak. (FAC ¶ 26.) Tortora “accused [the plaintiff] of making a false report … [and] suspended [her] without pay on the grounds that she allegedly committed fraud.” (FAC ¶¶ 26, 27.) Thereafter, following “multiple levels of disciplinary hearings” and an arbitration hearing, the charges against the plaintiff were dismissed. (FAC ¶ 28.) The plaintiff further alleges that she “remains out of work without pay while she waits for her formal reinstatement at work.” (FAC ¶ 29.) The plaintiff claims that the defendant suspended her without pay, not because she lied about the gas leak, but as a pretext to “retaliate[e]” against her for her requests for reasonable seat accommodations. (FAC ¶ 26.) While the issue is close, I find that the plaintiff has put forth a minimally plausible claim to raise an inference of retaliation.

Applying the law, the court held that suspension without pay is sufficient to constitute an adverse employment action for purposes of an ADA retaliation claim. In addition:


Viewing the complaint in a light most favorable to the plaintiff, and construing all allegations as true, the defendant’s action—accusing the plaintiff of making a false report and subsequently suspending her without pay—raises a barely plausible claim of a pretext for retaliation—that the defendant suspended her not because of the gas leak story, but because she kept demanding adjustable seats.

The court rejected the defendant’s argument “that the approximately two-month passage of time between the plaintiff’s request for accommodation and the adverse employment action is not sufficiently contemporaneous to support an inference of retaliation”, noting other decisions finding such a time differential sufficient. “Moreover, temporal proximity alone—between a request for an accommodation and an adverse employment action—can give rise to a prima facie inference of retaliation.”

1 I addressed this decision’s resolution of plaintiff’s hostile work environment and disability discrimination claims, respectively, here and here.
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