In Gates v. City of New York et al, 20 Civ. 3186, 2021 WL 3774189 (S.D.N.Y. Aug. 25, 2021), the court, inter alia, dismissed plaintiff’s claim of disability discrimination under the Americans With Disabilities Act.
Plaintiff alleged that defendants discriminated against him on the basis of his perceived disability, namely, “depression/suicidal.”
After outlining the “black letter” law – including the elements of ADA claims, as well as the applicable “burden shifting framework” in which it is applied – the court applied it to the facts:
Gates has not alleged facts that give rise to a plausible claim of disability discrimination. As Defendants note, the “chronology set forth in plaintiff’s Complaint undermines his claim,” Motion at 7, particularly as to Kinsella. According to the Complaint, Kinsella began mistreating Gates over five months before the question of a disability ever arose. The Complaint alleges that “[i]mmediately” after Gates was elected to be an SBA delegate for his unit on March 11, 2019, Kinsella “began to treat [Gates] with extreme hostility.” Compl. ¶¶ 25, 26. The Complaint directly attributes these actions to Gates’s role in the union, stating that Kinsella “discipline[d] [Gates] for violations [he] did not commit” “[b]ecause of [Gates’s] union duties” and in an effort “to interfere with [Gates’s] responsibilities as Union Delegate.” Id. ¶ 28.
Indeed, the Complaint makes clear Kinsella never believed Gates was disabled. To state a claim for discrimination based on a perceived disability under the ADA, the employer “must regard the employee as disabled within the meaning of the ADA.” Capobianco v. City of New York, 422 F.3d 47, 57 (2d Cir. 2005) (emphasis added) (internal quotation marks omitted). “A ‘regarded as’ claim turns on the employer’s perception of the employee and is therefore a question of intent ….” Id. (internal quotation marks omitted) (quoting Colwell v. Suffolk Cnty. Police Dep’t, 158 F.3d 635, 646 (2d Cir. 1998)); see Thomsen v. Stantec, Inc., 483 F. App’x 620, 622 (2d Cir. 2012) (affirming the district court’s grant of summary judgment where the plaintiff had testified that “he did not believe that anyone at Stantec perceived him as being substantially limited in any major life activity”). The Complaint alleges Kinsella “created a disability that [Gates] was suicidal,” Compl. ¶¶ 35-36 (emphasis added), and “essentially used the NYPD Patrol Guide procedure for suicide to harass and retaliate against [Gates],” id. ¶ 41. Gates’s own allegations therefore make it impossible for the Court to infer that Kinsella regarded Gates as having a disability.
In fact, if Gates had alleged that Kinsella actually perceived Gates as suicidal, this would undermine the Complaint even further. Gates admits that Kinsella acted in accordance with the NYPD Patrol Guide procedure for potentially suicidal employees. See id. Thus, Gates would be alleging that Kinsella discriminated against him when she—based on her genuine belief that Gates was suicidal—followed the NYPD’s procedure for handling suicidal officers. As Defendants rightly argue, sending Gates to a psychologist in such a situation would not amount to an adverse action. Motion at 7-8; see Forgione v. City of New York, No. 11 Civ. 5248 (JG), 2012 WL 4049832, at *5 (E.D.N.Y. Sept. 13, 2012) (“Forgione’s two referrals for psychological evaluation do not amount to adverse action under the ADA. Although Forgione may have perceived the referrals as inconvenient and unwarranted, and although they may have carried negative connotations, they did not effect a materially adverse change in his working conditions.”); see also id. at *5 n.5 (“Referrals for medical evaluation that are job-related and consistent with business necessities are expressly permitted by the implementing regulations of the ADA.” (citing 29 C.F.R. § 1630.14(c))). And this would certainly not give rise to a reasonable inference that Kinsella was motivated by any discriminatory intent.
The court further held that it was unable to infer that any of the alleged adverse actions were done “because of” plaintiff’s perceived disability, and noted that plaintiff’s complaint was “rife with unsupported allegations that ‘[u]pon information and belief’ Gates was discriminated against based on a perceived disability.” Plaintiff’s “subjective belief that he was discriminated against due to a perceived disability,” held the court, was “patently insufficient to state a claim.”