By Robert Margolis, J.D.
The ADA did not require a law firm to accommodate a legal secretary’s request for a schedule modification, so she could attend a preferred yoga class as part of physical therapy resulting from her disability, a federal district court in New York has held. The court granted the law firm’s summary judgment motion, dismissing the employee’s ADA claims for failure to accommodate her disability, discrimination, and retaliation (Flynn v. McCabe & Mack LLP, February 8, 2018, Seibel, C.).
The employee worked at the law firm as a legal secretary from approximately October 1994 to February 20, 2014. In 2005, she underwent cancer treatments, which caused peripheral neuropathy in her arms, legs, and feet, and left her experiencing “significant numbness, less sensation, tingliness, no sensation and weakness in [her] legs and feet, which has substantially impaired [her] ability to walk, [her] ability to climb stairs and [her ability to] stand for long periods of time.” She concedes that this condition did not prevent her from doing her work or getting to and from the jobsite.
Beginning in at least May 2009, the employee attended several appointments with various health care professionals and requested time off from work for, among other things, physical therapy, and yoga. In August 2012, the law firm partners for whom the employee worked knew that she needed to attend physical therapy. They approved her request to change her schedule, so she could attend physical therapy sessions three days per week for 12 weeks. While all clerical staff work hours were changed in September 2012 from 8:00 a.m. to 4:00 p.m. to 8:30 a.m. to 4:30 p.m., the employer accommodated the employee by temporarily allowing her to keep her work hours at 8:00 a.m. to 4:00 p.m. so she could attend her physical therapy sessions for the entire 12 weeks.
In late October 2013, the employee asked for a schedule change back to 8:00-4:00, so she could attend a yoga class with her preferred instructor; she contended that her doctors encouraged her to “stay mobile,” but admitted that no doctor prescribed the yoga class, and her most recent physical evaluation gave no indication that yoga was necessary for her. The employer denied her request in December 2013, the same month that it granted her an accommodation enabling her to take an early lunch to attend a mid-day physical therapy appointment.
Meanwhile, issues had arisen about the employee’s “interpersonal performance” with other employees. On July 23, 2012, one of the partners authored a memo describing how the employee’s coworkers “walk[ed] on eggshells around her and express[ed] anxiety in having to deal with her directly.” It described incidents of rude behavior, confrontations, and “constant negative comments” that were “impeding” the partner’s work and productivity, while causing strife in her department, and “outweighing” the employee’s positive contributions. The employer claimed it informed the employee she would be terminated if the conduct continued. She denied being counseled about her behavior at that time and denied ever being insubordinate with anyone at the law firm.
The employee was terminated from employment in February 2014. At her deposition she testified that she believed she was terminated because she made derogatory comments about one of the partners for whom she worked.
After receiving her right to sue letter, she brought claims under the ADA for (1) failure to accommodate, (2) unlawful termination, and (3) retaliation for complaining about disability discrimination. She brought each claim under New York law as well. The employer moved for summary judgment on all claims.
Accommodation. The employee contended that the employer violated the ADA when it denied her request to modify her work hours, so she could participate in yoga and other exercise classes at her gym. The court held that to sustain her claim, the employee had to establish that the accommodation was necessary for her to perform the essential functions or her job. Because she failed to present sufficient evidence to support such a finding, the court granted the employer summary judgment on her failure-to-accommodate claim. The court noted that the employee had testified at her deposition that her neuropathy “didn’t really stop me from doing the work. I might have slowed up a little bit but I could get it done.” In addition, the particular yoga class that she needed a schedule modification to attend was deemed by the court a “personal preference” that the employer need not accommodate.
Discrimination. The court granted summary judgment on the employee’s discrimination claim, holding that she failed to provide evidence for the fourth element of her prima facie case—that she suffered an adverse employment action because of her disability. She established no connection between her disability and termination, instead conceding that her complaints about the partner’s alleged nastiness were what led to her termination.
But even if she had established her prima facie case, the employer “offered ample evidence” that the employee was terminated for the legitimate nondiscriminatory reason of her “poor interpersonal skills and insubordination,” according to the court. Evidence of internal memos describing her complaining about others, calling her “attitude … an issue,” and describing poor interpersonal skills, coupled with the employer’s handbook indicating the importance of staff members being friendly, courteous, and helpful to each other, met this burden for the employer.
Even after the employee’s conduct improved for a time, issues arose again shortly before she was terminated. While the employee presented positive performance reviews, “appreciation cards,” and positive references from other employees, she presented no evidence that connected her termination to her disability. Thus, she did not establish that discrimination was more likely the reason for her termination than her interpersonal skills, the court held. As the court noted, while the employee’s evidence may have raised a factual issue as to whether she actually was a troublemaker, it did not refute that the employer thought she was a troublemaker.
Retaliation. The court held that the employee’s evidence that her termination was motivated by retaliation for her accommodation requests was insufficient for the same reasons as her evidence as to discrimination. The evidence showed that it was personal conduct, not her accommodation requests, that motivated the termination.
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