By Marjorie Johnson, J.D.
Because the complaint supported an inference the employee was qualified for his position and that he was fired because his supervisor assumed he would be distracted by his daughter’s disability, he stated a claim for associational discrimination.
A supervisor’s demand that an employee “leave his personal problems at home” after he requested one week of shortened workdays to care for his disabled daughter, along with the employee’s demotion after a single absence, bolstered his claim that his subsequent termination was not motivated by “small, isolated infractions, common workplace behavior, or requests for an 8-hour shift,” but instead by unlawful associational discrimination. “Though the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a disabled person, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination,” explained the Second Circuit in reversing the district court’s dismissal of his ADA claim (Kelleher v Fred A. Cook, Inc., September 24, 2019, Jacobs, D.).
Discloses daughter’s disability. The employee was hired in November 2014 and promoted to the position of CCTV truck operator in February 2015. In early March, he told his supervisor that his daughter had a serious medical condition and that he may have to occasionally rush home to aid in her care. At the time, she had not yet been diagnosed with Rett Syndrome—a severe neurological disorder that affects the ability to speak, walk, breathe, and eat, among other things—but was suffering from the symptoms and appeared to have epilepsy.
Denied requests to leave quickly, shorter shifts. On Friday, March 27, he was advised that he could not leave work immediately after his shifts to care for his daughter because he was expected to remain on site in case of emergency. His supervisors also denied his request to work eight-hour shifts for one week instead of 10-12 hour shifts in order to attend to his daughter. He was told that “his problems at home were not the company’s problems,” and that he would not receive a raise.
Demoted after single absence. The next day (Saturday), his daughter suffered a near-fatal seizure and was taken to the hospital. He told his supervisor that he would be unable to work the following Monday and returned to work on Tuesday. Upon his arrival, he learned he had been demoted back to his prior position as a laborer, where his chief responsibility involved shoveling sewer systems.
Terminated. He again requested eight-hour shifts so he could visit his daughter at the hospital, but his request was denied. When he arrived to work 10-15 minutes late in April, he was told to go home and that he would be called if his services were required. A month later, he received a letter informing him that he had been terminated.
Lawsuit dismissed. He brought this lawsuit asserting ADA associational discrimination, which the district court dismissed due to his failure to “plausibly allege he was terminated because his employer felt he would be distracted at work.” On appeal, the employer argued that his requests for an accommodation to attend to his daughter and his attendance (missing one day of work, arriving 15 minutes late on another, and leaving immediately after his shifts) doomed his claim.
Arguably qualified. The Second Circuit found that the employee’s qualifications were at issue here since he had requested an accommodation to which he was not entitled as a nondisabled person. But while the employer asserted that his request for an eight-hour shift defeated his claim because he was not entitled to an accommodation, this argument was “confused” since the request was not an admission that he was unable to perform the essential functions of his position without shorter shifts. And while he acknowledged that he missed one day of work, once arrived 15-minutes, and tended to leave immediately after his shifts, those allegations did not render it implausible that he was qualified.
The Second Circuit recognized that an employer can make its own rules, and “is not required to be tolerant of small, isolated infractions, or of common workplace behavior such as leaving after one’s shift.” Depending on its business, policy, and practice, such conduct may render the employee unqualified. However, since the purported reasons for the termination here were composed of “small, isolated infractions, common workplace behavior, or requests for an 8-hour shift,” the employee was not unqualified as a matter of law for employment shoveling sewer systems. That issue of whether he could perform the essential functions of the job could not be decided on the pleadings alone.
Bias can be inferred by response to requests. The employee also plausibly alleged that he was terminated out of “fear” that he would be “distracted” at work due to his daughter’s disability. “Though the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a disabled person, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination,” explained the Second Circuit.
The employee alleged that he was told that “his problems at home were not the company’s problems” at the March 27 meeting and that he was effectively demoted after he missed a day’s work to care for his daughter. These allegations raised a minimal inference that the employer thought his daughter was a distraction, and that concern over this distraction was a “determining factor” in his termination.
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