April 25, 2019

The anatomy of a civil rights action involving allegations of failure to accommodate a disability, unlawful discrimination, a hostile work environment, and retaliation

In this civil rights action a former employee [Plaintiff] sued her former employer [Defendant] alleging the Defendant failed to provide a workplace accommodate in consideration of her disability, subjected her to acts of unlawful discrimination, subjected her to a hostile work environment, and subjected her to retaliation. The federal district court dismissed her several claims.

The Second Circuit Court of Appeals reviewed her appeal of the federal district court’s dismissal of her complaint de novo, "construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor” but, citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, noted that "[a]lthough a court must accept as true all the factual allegations in the complaint, that requirement is “inapplicable to legal conclusions.” The Circuit Court then considered the major components of Plaintiff's complaint and concluded as follows:

Failure to accommodate a disabled individual:  A plaintiff makes a prima facie case of disability discrimination arising from an alleged "failure to accommodate" by showing (1) "[p]laintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of [her] disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” The Circuit Court concluded that Plaintiff failed to plausibly allege that she requested reasonable accommodations for her disability.

Although the Americans with Disabilities Act [ADA] provides that reassignment to a vacant position is a reasonable accommodation, it does not require employers to create entirely new positions and it is the employee's burden to show that a reasonable accommodation exists, including the existence of a vacant position for which he or she is qualified.

In any event, the Circuit Court determined that Plaintiff had not alleged that there was an open position when she asked to transfer from her then position and to the extent that Plaintiff asserted that she should have been promoted as an accommodation, "that was not a reasonable accommodation."

Addressing Plaintiff's claim that Defendant "could have provided her with an ergonomic chair and other equipment, the Circuit Court said that Plaintiff had not alleged that she had requested these accommodations and declined to consider that aspect of her claims.

Adverse employment actions: Plaintiff's claims arising out of alleged adverse employment actions were found to have occurred more than three hundred days before Plaintiff filed her administrative charges with the New York State Division of Human Rights and thus they were found to have been "statutorily time-barred."

Disparate Treatment: Plaintiff alleged that she had been denied promotion because of her disability. The Circuit Court said the Plaintiff [1] sought to be promoted to positions for which she did not possess a minimum qualification as she did not have the requisite bachelor’s degree nor did she allege any facts showing that she was qualified for appointment to any position that permitted the applicant to satisfy the job eligibility requirements through a combination of experience and education. As to these and similar allegations involving Plaintiff's alleged disparate treatment by Defendant, the Circuit Court explained that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to [defeat] a motion to dismiss.”*

Hostile Work Environment: To establish a hostile work environment claim, the Circuit Court said Plaintiff must show that “the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of . . . her work environment” and that any harassment she experienced was based on her being a member of a "protected class." In contrast, the Circuit Court noted that "[r]un-of-the-mill workplace conflicts, troubling though they may be, do not rise to the level of an objectively hostile workplace" and concluded that Plaintiff failed allege facts sufficient to establish a viable hostile work environment claim.

Retaliation: Citing Treglia v Town of Manlius, 313 F.3d 713, the Circuit Court observed that ADAretaliation claims are analyzed pursuant to the framework  established for Title VII cases.** Further, to establish an adverse employment action in the context of retaliation, the challenged action or actions must be materially adverse in contrast to merely being essentially "trivial harms,” “slights,” and, or, “annoyances,” which do not constitute adverse acts. The Circuit Court opined that none of incidents described by Plaintiff attained the level of an adverse action but, at most, consisted of interpersonal slights.

The Circuit Court then concluded its analysis of the complaints advanced by Plaintiff's by stating that "for the foregoing reasons" the judgment of the district court is affirmed.

* Observing that Plaintiff had plausibly alleged that certain supervisors were rude to her, the Circuit Court opined that "rudeness is not an adverse employment action and [Plaintiff] did not allege that she was ever formally disciplined by [by supervisors] despite their criticism."

** This framework requires “(1) the employee's participation in a protected activity; (2) that [the employer] knew of [the employee's] participation in that protected activity; (3) that [the employee] suffered an adverse employment action; and (4) that there exists a causal relationship between the protected activity and the adverse employment action.” 

The decision is posted on the Internet at: