Happy new year everyone!
Hope everybody had a happy and safe new year. Back to it!
Today’s case is Sherman v. County of Suffolk, 2014 U.S. Dist. LEXIS 177780 (E.D. NY December 29, 2014). The case talks about numerous issues: causation under title I and title V of the ADA; adverse action under title I and title V of the ADA, hostile environment as it applies to ADA claims, and several other related issues. As is my usual custom, the entry is divided into categories. They are: facts; thoughts on the facts; issues before the court and holdings; court’s reasoning on the issue; and takeaways. The reader is free to focus on any or all of the categories.
In January 2010, plaintiff, 55, received and accepted a conditional job offer as a correction officer from the Suffolk County Sheriff’s Department. A correction officer is responsible for guarding prisoners and maintaining order and security at Suffolk County detention and correctional facilities. They must have a strong knowledge of the rules and regulations governing Suffolk County correctional facilities as well as possessing the intelligence, communicative ability, and physical or mental fitness appropriate to a position involving risk and responsibility and safety of himself and others. The plaintiff understood that his offer was conditional upon passing established academic and physical training requirements and he commenced the Academy’s 13 week training program. Here’s what happened next:
1. Plaintiff injured his quad muscle in his left leg while doing a drill called the “mountain climber;”
2. While plaintiff self medicated the day of injury, he did go to his personal physician the following day who diagnosed the quad strain. He asked his physician that he start physical therapy as soon as possible;
3. On February 4 of 2010, the plaintiff was called to the command office to discuss his injury. On the way in, plaintiff alleged that he was apologized to by a person in the Suffolk County Sheriff’s office for what she considered to be the inappropriately early administration of the “mountain climber.” At the meeting, the option of leaving and rejoining the Academy in the following class of recruits was discussed, though a dispute existed as to whether the plaintiff was encouraged to do so. After the meeting, the plaintiff, since he was unsure when the next class would be, remain enrolled at the Academy and informed his supervisor that he had started physical therapy;
4. Both the command officer and the person who apologized to him assured him that they would do whatever they could to help him recover;
5. On February 11, 2010, plaintiff spoke to an investigator at the medical evaluation unit. According to the plaintiff, he was told that the investigator tried to persuade him to deny his injury and rejoin the physical training saying that the Academy will come after him because of his age;
6. On February 15, 2010, the plaintiff submitted a letter from his physical therapist saying that failing to abstain from strenuous activity during the next 4-6 weeks could result in further injury;
7. On February 22, 2010, the plaintiff submitted a letter to the person who allegedly had apologized to him earlier asking her for help and advice on rehabilitating his injury. That letter was never answered;
8. On April 2, 2010, an MRI revealed that he had no significant tear but did have bursitis of the hip and tendinitis. Plaintiff contended that was the result of being forced to use the stairs during the period following his injury;
9. In July of 2010, plaintiff participated in and completed firearm training, which included running. Plaintiff testified that he did not go against his physician’s orders by participating in firearm training because the leg was feeling well enough for him to attempt to do it so he did it;
10. Beginning in March 2010, plaintiff began to feel isolated from his fellow recruits through such acts as: everybody receiving handcuffs except for him; being berated by a commanding officer; and being told to copy military protocol regarding proper treatment of superior officers;
11. On March 22, 2010, plaintiff filed an informal written complaint to personnel relations alleging that he was being treated in an unfair manner because of his age and injury. He withdrew that complaint four days later so as to not jeopardize the individual defendants careers. On April 8 of 2010, plaintiff wrote a letter to a superior informing her of his reason for not pursuing the discrimination complaint and expressing to her that he believed that the situation was resolved. However, he did say that while he did not have any desire to pursue the matter further, he would do so if the situation presented itself again;
12. Plaintiff was not allowed to participate in the graduation ceremony and was required to climb stairs in order to pose with his fellow recruits. The climbing of stairs violated his medical orders and a superior’s authorization to allow him to abstain from using stairs. It should be pointed out the defendants maintained that he climbed the stairs voluntarily;
13. Plaintiff alleged that he only received his badge after having to beg for it thereby causing him further humiliation. Defendants had a different view, characterizing the giving of the badge and diploma prior to completion of physical requirements of the Academy in New York State as a courtesy;
14. Suffolk County granted the plaintiff an extension of a year to satisfy his physical training requirements.
15. On April 27, 2010 plaintiff started his position at the Suffolk County correctional facility working on light duty at station one. He did wear a knee brace but did not tell a superior officers for fear of reprisal;
16. On June 30, 2010, plaintiff was cleared to return to full duty. However, plaintiff alleged that from April through August 2010 he felt incapable of fully performing his duties as a result of severe pain in his left knee stemming from his injury;
17. On June 22, 2010 and on June 30, 2010, plaintiff received negative evaluations;
18. On July 20, 2010, plaintiff received a letter from the Academy requesting that he complete the physical training requirements;
19. In August 2010, plaintiff supplied a note to the defendant from his position indicating that he could not complete the mile and a half run and could not complete the physical part of the Academy at that time;
20. On October 7, 2010, plaintiff was approached by three officers when he arrived home from work and informed of the termination;
21. Subsequent to termination, beginning on March 26, 2012, plaintiff began an antidepressant treatment, which he attributed to the alleged discrimination he faced while at Suffolk County correctional facilities and that he was less depressed and able to manage his anxiety.
22. Plaintiff ultimately sued the County of Suffolk, the Suffolk County Sheriff’s Department, and three individuals for disability discrimination under the ADA, § 1983 claims, as well as for disability and age discrimination under New York State law. Of course, defendants moved for summary judgment.
Thoughts on the facts:
1. I find it very odd that nowhere in the discussion of the opinion, as far as I could find, is it mentioned that the plaintiff filed a claim with the EEOC or the equivalent New York State agency. I find it odd that I cannot find that in the opinion since for a person to be able to bring an ADA claim in federal court, administrative remedies must be exhausted first. One has to assume that despite the fact that I cannot find it in the opinion, such a filing had to have been done because otherwise the defense most assuredly would have raised that issue as a defense;
2. I am certainly aware of the right of an employer to make a job offer conditional on a physical exam. However, what I have not seen before, and I am not saying that it doesn’t happen, is making a job offer conditional on completing a several weeks course containing numerous physical requirements in a variety of situations.
Issues before the Court and Holdings:
1. Who are the proper defendants?
Answer: County of Suffolk
2. Is there individual liability for ADA discrimination or ADA retaliation claims?
3. What is an adverse action under title I of the ADA?
Answer: whenever a plaintiff endures a materially adverse change in the terms and conditions of employment. That change must be a change in working condition that is more disruptive than a mere convenience or an alteration of job responsibilities.
4. Did the transitory and minor exception for a regarded as claim under the ADA apply?
5. Was the plaintiff otherwise qualified?
Answer: a genuine issue of material fact exists.
6. What is the standard for causation under title I of the ADA?
Answer: Second Circuit has not decided the issue. Regardless of the standard that may apply, sufficient facts were presented to create a genuine issue of material fact.
7. What is the standard for causation under title V of the ADA (retaliation)?
Answer: But for
8. What is an adverse action under title V of the ADA (retaliation)?
Answer: anything that might dissuade a reasonable worker from making or supporting a charge of discrimination.
9. Is a hostile work environment claim actionable under the ADA?
Answer: Second Circuit has not decided, but assuming that the claim is actionable, the elements of a hostile work environment claim are not satisfied.
Court’s Reasoning on the Issues
1-2. The proper defendant is the county because the Suffolk County Sheriff’s Department is not a suitable entity and claims against it are the same as those against the County. Also, it is clear under the case law based upon the applicable statutes that there is no individual liability for ADA discrimination or retaliation claims;
3. With respect to title I of the ADA, an adverse action occurs whenever a plaintiff endures a materially adverse change in the terms and conditions of employment. That change must be a change in working condition that is more disruptive than a mere convenience or an alteration of job responsibilities. Outside of the termination, no such adverse action occurred because any such action did not materially alter the terms and conditions of the plaintiff’s employment;
4. For the transitory and minor exception under the regarded as prong of the ADA to apply, that disability must be BOTH transitory and minor. While plaintiff’s disability may have been minor, it arguably was not transitory;
5. A genuine issue of material fact existed as to whether the plaintiff was otherwise qualified (capable of performing the job’s essential functions with or without reasonable accommodations), because of deposition testimony from a sergeant of the Suffolk County Sheriff’s office saying that the negative reviews was not meant to go to the merits but really was done for the purpose of getting him more training since it wasn’t fair to evaluate him in the same way that all other officers were evaluated when those officers were getting consistent training;
6. With respect to causation under title I of the ADA, the case law is very uncertain as to whether the standard is motivating factor or but for, and the Second Circuit simply has not addressed the issue (as to why, it is far from clear that but for would apply to title I claims, see my most popular blog entry of 2014). The court spent several pages discussing how Circuit Courts and District Courts are dealing with the mixed motive issue. Nevertheless, the court found that plaintiff had established a genuine issue of material fact under either the motivating factor or the but for standard of causation. In particular, evidence existed in the record that the plaintiff informed the supervisor that he needed surgery the day of or the day before his termination. Further, the same person who testified as to the purpose of the negative evaluation, also said that it was his knowledge and personal observation that he had never seen the use of minimally acceptable scores on the evaluation to be used as the basis of termination for an employee. That said, if it subsequently develops that the standard for causation is outcome determinative, the court said that they would perhaps on their own motion certify that question to the Second Circuit for their consideration;
7. It is clear per University of Texas Southwestern Medical Center v. Nassar, that the standard for causation with respect to retaliation is but for;
8. When it comes to retaliation claims, an adverse action is anything that might dissuade a reasonable worker from making or supporting a charge of discrimination. For the reasons stated in paragraph 6 above, sufficient evidence existed for a genuine material issue of fact to exist on this point;
9. The Second Circuit has not decided whether hostile work environment claim is actionable under the ADA. That said, the Second Circuit has noted that several other circuits have decided that such a claim exists. Assuming that such a claim exists, the element for such a claim with respect to disability discrimination are that the conduct: 1) was objectively severe or pervasive. That is, was the environment such that a reasonable person would find it hostile or abusive; 2) was the environment such that the plaintiff subjectively (in his or her own mind), perceived the environment as hostile or abusive; and 3) was such an environment created because of the plaintiff’s disability. In this case, the court found that the evidence to support such a claim was not sufficient to create a genuine issue of material fact.
1. If on the defense side, be sure that the plaintiff has exhausted their administrative remedies. I would have to believe that failure to note that fact on the part of a defense attorney if such is the fact, would have to be grounds for legal malpractice;
2. I would not take this case as giving license that a conditional job offer can be based upon completion of a physical exam occurring over several weeks under various circumstances. That is certainly not the intent of the conditional job offer system;
3. Just because some employers are essentially paramilitary, does not give the employers the right to ignore the provisions of the ADA. Key here, of course, is consistent and frequent training of all personnel.
4. Keep the lines of communications open. That includes responding to any correspondence;
5. Transparency is always better than the end run. For example, instead of giving the negative evaluations, why didn’t personnel just step up and say this person needed more training and that a waiver or modification of the rules was in order;
6. If you are going to terminate someone, don’t overkill the situation. For example, it could not have been helpful to have sent three officers to the individual’s home to terminate him;
7. Depositions matter;
8. The standard for adverse action with respect to retaliation claims is lower than the standard for adverse action with respect to title I claims;
9. For the exception under the regarded as prong to apply, the disability must be both transitory AND minor.
10. Nassar, referenced above, to my mind clearly states that mixed motive is in play with respect to title I claims but not title five (retaliation), claims. That said, a possible monkey wrench in that point of view is discussed in this blog entry.
11. The handwriting is probably on the wall with respect to whether a hostile work environment claim is possible under the ADA. The answer will probably be that it is, though such a claim would not necessarily be easy to prove. This case gives you the elements of such a claim.