ADA Disability Discrimination & Retaliation Claims Dismissed; Employer Actions Were Time-Barred, Not “Adverse Employment Actions”, or Were Not Undertaken Because of Discriminatory Animus

In Osby v. City of New York, 13-cv-8826, 2017 WL 4236563 (S.D.N.Y. Sept. 22, 2017), the court granted defendant’s motion under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, and dismissed plaintiff’s disability discrimination and retaliation claims under the Americans with Disabilities Act (ADA).

To make out an ADA discrimination claim, plaintiff must allege that:

(1) the employer is subject to the ADA; (2) the plaintiff is disabled within the meaning of the ADA or perceived to be so by her employer; (3) she was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; (4) she suffered an adverse employment action; and (5) the adverse action was imposed because of her disability.

To make out an ADA retaliation claim, plaintiff was required to allege that:

(1) [] she engaged in an activity protected by the ADA; (2) [] her employer was aware of this activity; (3) [] her employer took an adverse employment action against her; and (4) [] a causal connection exists between the alleged adverse action and the protected activity.

At the pleading stage, explained the court, a plaintiff has a “minimal” burden and “need only allege that [her] employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.”

Here, most of the adverse actions identified by plaintiff were time-barred, and all but one of her remaining allegations failed to make out a discrimination or retaliation claim because they did not constitute “adverse employment actions” under the ADA.

The court explained:

To qualify as an adverse employment action, the employer’s action must be more disruptive than a mere inconvenience or an alteration of job responsibilities. … Directing an employee to submit her time sheets on a daily basis and requesting further medical documentation to support medical absences plainly fail to meet this standard.

Furthermore, the court held that plaintiff’s receipt of a “good” (and not a “very good” or “outstanding”) performance evaluation was not “materially adverse” and that “most of plaintiff’s complaints about her performance evaluation contemplate minor employment difficulties” which amounted to “[e]veryday workplace grievances, disappointments, and setbacks” that “do not constitute adverse employment actions.”

Discriminatory Animus

On the other hand, plaintiff’s docked pay (resulting from a payroll audit) did amount to an adverse employment action “because it materially affected plaintiff’s compensation.” Plaintiff failed, however, to “meet her minimal burden of showing that the adverse employment action was imposed because of discriminatory animus.” (Emphasis supplied by court.)

Plaintiff’s complaint did not allege any facts directly supporting a finding of discriminatory animus; therefore, the only basis upon which discriminatory animus may be inferred was an adverse employment action was imposed close in time to when plaintiff began her medical leave of absence.

Applying the law, the court rejected plaintiff’s reliance on temporal proximity:

Here, although plaintiff alleges a close temporal relationship between the time she began taking medical leave for her knee injury in 2012 and the time of her payroll audit, the rest of plaintiff’s Amended Complaint cuts against an inference of discriminatory animus. Plaintiff’s exhibits demonstrate a persistent history of entering her time incorrectly into her employer’s time entry. See Am. Compl. Ex. B.2; see also Pl.’s Opp. Ex. A.3 It appears from plaintiff’s Amended Complaint that: her employer had specific policies governing how employees were expected to enter their leaves of absence into their payroll system; plaintiff did not abide those policies; and, as a result, it appears her employer corrected her time entries on numerous occasions to comport with their policies. Where countervailing facts such as these exist on the face of plaintiff’s Amended Complaint, the Court declines to infer discriminatory animus solely on the basis of temporal proximity. For that reason, plaintiff’s claims for discrimination and retaliation under the ADA fail.

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