Failure to Accommodate Disability, Retaliation Claims Survive Summary Judgment

In a recent case, ANNA MARIE SCORSONELLI, Plaintiff, v. MADISON DENTISTRY, P.C., et al., Defendants., 2019 WL 6032787, at *1–2 (S.D.N.Y., 2019), the court, inter alia, held that plaintiff’s failure-to-accommodate-disability claim could continue.

From the decision:

A reasonable jury could likewise find that Defendants failed to accommodate Scorsonelli’s disability. Even if Scorsonelli’s daily requests for time off do not qualify as a request for accommodation, that fact would not be fatal to her claim. The law requires employers to engage employees they know or should know suffer from a disability in an interactive process to identify a reasonable accommodation. See, e.g., Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135-36 (2d Cir. 2008). Here, there is sufficient evidence in the record for a jury to find that Defendants were on notice of Scorsonelli’s alleged disability. See ECF No. 40, ¶ 6; ECF No. 41, ¶¶ 14-17. Moreover, a jury could find that a finite period of medical leave would have been a reasonable accommodation given, among other things, that Defendants permitted Ms. Smith to take four months of leave to care for her husband. See Graves v. Finch Pruyn & Co., 457 F.3d 181, 185 n.5 (2d Cir. 2006) (noting that, although the Second Circuit has not yet determined whether unpaid leave is ever a reasonable accommodation, most circuits and the Equal Employment Opportunity Commission have concluded that it can be under some circumstances); see also ECF No. 46, ¶ 144. Under these circumstances, Scorsonelli’s termination may amount to a denial of a reasonable accommodation. See, e.g., Adduci v. Yankee Gas Servs. Co., 207 F. Supp. 3d 170, 180-82 (D. Conn. 2016) (holding that a reasonable jury could find that employer failed to provide reasonable accommodation of employment in an alternative position and instead terminated his employment).

Finally, although the question is a particularly close one, a reasonable jury could conclude that Scorsonelli’s repeated daily requests for leave constituted “protected activity” and that her termination — which occurred while she was on leave because (in Defendant Dr. Frank DeCicco’s words) it “wasn’t an adaptable situation,” ECF No. 43, ¶ 78 — was in retaliation for those requests. See, e.g., Rodriguez v. Atria Senior Living Grp., Inc., 887 F. Supp. 2d 503, 512 (S.D.N.Y. 2012) (“Requesting a reasonable accommodation of a disability is an ADA-protected activity.” (citing Weixel v. Board of Educ. of City of N.Y., 287 F.3d 138, 149 (2d Cir. 2002)).1

In short, drawing all inferences in Scorsonelli’s favor, see, e.g., Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004), the Court is compelled to conclude that Defendants’ motion for summary judgment must be denied.