Labor & Employment Law Daily City’s doctor misclassifying officer as able to work after surgery, then unable to work, was adverse action supporting bias claims
Monday, January 27, 2020

City’s doctor misclassifying officer as able to work after surgery, then unable to work, was adverse action supporting bias claims

By Kathleen Kapusta, J.D.

“Sick leave when one is healthy,” explained the court, “is not equivalent to sick leave when one is ill.”

Misclassifying a corrections officer after he had undergone shoulder surgery as able to work with a “medically monitored restriction” when he was qualified for the sick list, and then later placing him on the sick list when he was purportedly able to return to light-duty work, constituted an adverse employment action, a federal district court in New York ruled. Denying his employer’s motion to dismiss, the court found the corrections officer, who claimed the doctor who misclassified him told him “I don’t care about you and I don’t care about Dominican people,” stated a plausible Title VII disparate treatment claim. His Title VII retaliation claim also advanced as did his NYSHRL and NYCHRL claims and his Section 1981 claim against the doctor (Valerio v. City of New York, January 21, 2020, Oetken, J.).

After the employee’s shoulder surgery in November 2017 for a work-related injury, his doctor recommended that he take a leave of absence for at least three months and provided a note describing his limitations as “total disability.” Because the Health Management Division (HMD) needed to approve an extended leave of absence, the department of corrections assigned an HMD physician to the employee’s case to assess his qualification for the “sick list,” which would permit him to take extended leave.

Don’t care about you. During his first visit, the employee claimed the physician mocked his accent; told him to “speak properly;” made derogatory comments about his race and national origin; told him “I don’t care about you and I don’t care about Dominican people;” refused to administer a physical exam because his medical documents were “bullshit;” and told him he would go back to work whenever the physician felt like it. He also designated the employee as able to work with a medically monitored restriction (MMR), which precluded extended sick leave. The employee’s request for a new doctor was denied.

Dueling threats. At a second evaluation in February 2018, the employee claimed the physician’s tone was aggressive and demeaning. Accordingly, he asked a nurse to sit in on the remainder of the appointment. When the employee objected to the physician touching his hands and chest, the physician purportedly shoved him, told him to leave, and shouted “[Y]ou’ll do what I tell you to do, and if you don’t like it then go back to your country.” He also allegedly threatened to categorize the employee as fit to work full duty. In response, the employee threatened to report the physician to the state health department. As a result, the physician again categorized him as MMR.

Unable to work from his November 2017 surgery until April 2018, or to obtain “sick list” designation, the employee took unauthorized sick days and was ultimately disciplined for unauthorized absences, placed on probation for a year, and forced to forfeit 60 sick days. He eventually complained to the HMD commanding officer and also filed an EEO complaint alleging race, national origin, and disability discrimination.

Sick list designation. When, in April 2018, the employee’s personal doctor determined that he could return to light-duty work, the HMD physician placed him on the sick list and denied his repeated requests to be removed from the list so he could return to work. This forced absence, the employee alleged, deprived him of overtime opportunities, which had previously constituted a significant portion of his income, and the ability to participate in professional development programs. He did not return to light duty work until February 2019.

Disparate treatment. Suing under Title VII for disparate treatment, the employee argued that his extended misclassification, first as MMR and then on the sick list, was an adverse employment action. Agreeing, the court pointed out that he alleged his misclassification as MMR resulted in extended unauthorized absences and a disciplinary action that became a part of his permanent employment record and in the loss of 60 sick days. Further, he alleged, his subsequent placement on the sick list when he was able to return to light-duty work resulted in an involuntary absence that deprived him of the opportunity to earn overtime and participate in other professional opportunities.

Timing matters. Rejecting the DOC’s contention that deprivation is not an actionable adverse action, the court found it well established that “a written discipline may constitute a materially adverse action when it is placed in a permanent file that is consulted when making future employment decisions regarding promotions or pay.” Nor was the court swayed by the DOC’s assertion that placing the employee on the sick list allowed him to “take the extended sick leave he requested multiple times” and thus it was really the grant of “a long sought-after benefit.” Emphasizing that “timing matters,” the court reasoned that “Sick leave when one is healthy is not equivalent to sick leave when one is ill, just as, say, parental leave before pregnancy is not equivalent to parental leave after a baby is born.” Accordingly, the court found he stated a claim for disparate treatment under Title VII.

Retaliation. As to the employee’s claim that the DOC retaliated against him by placing him on involuntary leave after he threatened to report the physician to the health department and filed several complaints, the DOC argued that neither the doctor or the DOC medical staff knew of the employee’s EEO complaint. But even if this were the only alleged protected activity, a “Title VII plaintiff need not allege facts directly showing a decisionmaker’s knowledge of protected activity to support a causal connection to an adverse action,” said the court. And here, the employee’s EEO complaint was filed in late March 2018 and remained pending through October. The reversal of the physician’s sick list determination occurred in April, which was sufficiently proximate that a reasonable jury could infer causation.

Section 1981. Although the employee’s Section 1981 claim against the city failed—he did not allege that the challenged acts were performed pursuant to a municipal policy or custom—his claim against the doctor advanced for the same reasons his Title VII disparate treatment and retaliation claims against the city advanced.

NYSHRL and NYCHRL claims. As to the employee’s NYSHRL claim, the court noted that “the outcome of an employment discrimination claim made pursuant to the NYSHRL is the same as it is under Title VII.” The sole relevant difference here, observed the court, is that a coworker or supervisor who “actually participates” in the conduct giving rise to the discrimination claim may be held individually liable under the NYSHRL. Thus, for the reasons already explained, the court found the employee stated claims for retaliation and disparate treatment under the NYSHRL against both the city and the physician. Likewise, because the employee satisfied the more demanding standards governing his federal and NYSHRL claims, he also satisfied the standards governing his NYCHRL claims.

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