ADA Disability Discrimination Claim Dismissal Affirmed; Inability to Show Up for Work Fatal

In Gorbea v. Verizon New York Incorporated, 2021 WL 4851389 (2d Cir. Oct. 19, 2021), the court affirmed the dismissal of plaintiff’s disability discrimination claim under the Americans with Disabilities Act.

The court summarized the elements for discrimination and failure-to-accommodate claims under the ADA. For a discrimination claim, a plaintiff must show by a preponderance of the evidence that:

(1) [her] employer is subject to the ADA;

(2) [s]he was disabled within the meaning of the ADA;

(3) [s]he was otherwise qualified to perform the essential functions of [her] job, with or without reasonable accommodation; and

(4) [s]he suffered adverse employment action because of [her] disability.

For a failure-to-accommodate claim, the court explained that “a plaintiff also must satisfy the first three factors, but for the fourth factor, [s]he must show by a preponderance of the evidence that [her] employer refused to make a reasonable accommodation.”

In explaining why the district court correctly dismissed plaintiff’s discrimination claim – for failure to make out elements 3 and 4, the court explained:

The district court properly found that Gorbea failed to establish the third element of a prima facie case of discrimination: that she was “otherwise qualified to perform the essential functions” of the field technician position, “with or without reasonable accommodation.” Woolf, 949 F.3d at 93. If an employee is unable to show up for work, she cannot perform the essential functions of her job. And an employee’s sworn declaration that she is unable to work tends to “negate an essential element of her ADA case,” absent a “sufficient explanation.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); see Rios v. Dep’t of Educ., 351 F. App’x 503, 505 (2d Cir. 2009) (summary order) (affirming district court’s decision that pro se plaintiff could not establish that she was “ ‘otherwise qualified’ within the meaning of the ADA because she could not perform the ‘essential function’ of regularly showing up to work”). Here, Gorbea testified under oath that her doctors told her she could not return to full-time work with or without an accommodation from August to December 2016 (and also in 2017 and 2018) because of her PTSD and depression, and she did not return to work after August 9, 2016. In Gorbea’s reply brief, she admits that she “told Verizon that I was unable to work for Verizon in any capacity, at that time.” Appellant’s Reply Br. at 8. Because Gorbea was unable to perform an essential function of her job—i.e., showing up to work, with or without reasonable accommodation—she was not “otherwise qualified” to perform her job and failed to establish this element of a prima facie case of discrimination.

Furthermore, Gorbea did not establish the fourth element of her prima facie case—that she suffered an adverse employment action because of her disability. Gorbea failed to offer any evidence that she was fired because of her disability; indeed, her counsel did not submit a counterstatement of material facts or any evidence in opposition to Verizon’s motion for summary judgment. When asked at her deposition why she thought that Verizon had discriminated against her because of her disability, the sole reason Gorbea provided was that Verizon’s claims administrator had denied her request for short-term disability benefits. On appeal, she does not point to any evidence that was before the district court that could allow a reasonable jury to conclude that she was fired because of her disability.

Instead, the evidence before the district court showed that Gorbea was fired because she did not show up to work and she did not respond to Verizon’s numerous letters explaining that her absence was not excused, asking her to notify Verizon if there was an accommodation that would help her return to work, and stating that she could be terminated if she did not return to work or provide the information necessary for Verizon to consider an accommodation. Gorbea’s failure to offer any evidence showing that Verizon terminated her employment because of her disability means that Gorbea cannot establish a prima facie case of discrimination, much less show that Verizon’s proffered reason is pretextual. The district court properly granted Verizon’s motion for summary judgment on this claim.

Plaintiff’s failure-to-accommodate claim failed because plaintiff did not establish (for the reasons stated above) that she was “otherwise qualified” to perform the essential functions of the job, and further because plaintiff “admitted that she never requested a reasonable accommodation from Verizon for her PTSD and depression, even in response to Verizon’s letters inviting her to request an accommodation, which she admits she received.”

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