Employment Law Daily Transferring employee to facility where subordinate who accused her of bias worked was not reasonable accommodation
Thursday, March 15, 2018

Transferring employee to facility where subordinate who accused her of bias worked was not reasonable accommodation

By Kathleen Kapusta, J.D.

An employee’s requested accommodation—that she be reassigned back to the facility where she had worked prior to her surgery—was unreasonable, a federal court in New York determined, noting she had been reassigned from that facility in order to separate her from a subordinate after the EEOC found she had discriminated against the subordinate based on race. Accordingly, the court granted summary judgment against her ADA failure-to-accommodate claim. Her claim that her agency employer denied her third accommodation request in retaliation for her EEOC complaint also failed (William v. New York City Department of Health and Mental Hygiene, March 12, 2018, Furman, J.).

Hired in 2002 as a public health nurse in the Bureau of Tuberculosis Control, the employee worked primarily at the Fort Greene Chest Center. Around May of 2013, she was diagnosed with herniated lumbar discs, arthritis of the spine and knees, and sciatica. She had previously been diagnosed with gout and diabetic neuropathy. As a result of these conditions, her doctor opined that she could not stand longer than two or three minutes or walk more than 80 feet without stopping. Her doctor recommended surgery and the employee was granted leave from January 15, 2015, until her expected return date of June 2, 2015.

Subordinate’s EEOC charge. Before she began her leave, one of her subordinates filed an EEOC charge in which she claimed the employee had treated her “less favorably than the other non-white employees she supervised.” In December 2014, the EEOC concluded that the subordinate was treated less favorably than nonwhite employees and subjected to retaliation after she complained. It recommended that the employee be transferred away from the Fort Greene location so that the subordinate would no longer be under her supervision.

Accommodation request. In early January 2015, the employee, citing her herniated discs, arthritis, sciatica, gout, and diabetic neuropathy, submitted a Request for Reasonable Accommodation (RFRA) to her supervisor, asking that after her leave, she remain primarily at the Fort Greene Center. Two days later, she was informed that she would be reassigned to two other centers. In March, while still out on leave, she filed a second RFRA, again seeking to remain at the Fort Greene center. Because her leave was subsequently extended, she was told that request was moot.

Third request. In May, stating that she could neither drive a car longer than an hour nor take public transportation, the employee, submitted her third RFRA, seeking the same relief. In response, she was told to report to another center, which she refused to do. She subsequently filed an EEOC discrimination complaint. Although the employer offered her another position at a different facility, she again refused and disclosed that she had filed the EEOC charge. She also refused her employer’s request for more information about the charge. Her employer subsequently denied her RFRA based on her failure to participate in the interactive process. It also referred her for disciplinary charges for her failure to return to work. The employee ultimately resigned.

Failure to accommodate. Addressing the employee’s ADA failure-to-accommodate claims, the court found they failed as a matter of law “for a simple reason.” They all made the same demand: that she be reassigned back to the Fort Greene facility. It was undisputed, however, that she was reassigned from that facility because of the EEOC’s determination that she had discriminated against her subordinate. And while the employee pointed out that her employer disputed the EEOC’s finding, that was immaterial, said the court, also finding similarly irrelevant the fact that the EEOC’s remedy was not binding on her employer.

The undisputed fact, the court observed, was that there was a serious “personality conflict” between the employee and her subordinate that was exacerbated by the employee’s “seemingly unpleasant managerial style.” Moreover, because the facility was small, it was not feasible to separate the two. Under these circumstances, the employee’s proposed accommodation was not reasonable as a matter of law.

As to the employee’s claim that her employer refused to substantively communicate with her about her first two RFRAs, the court pointed out that “the law in this Circuit is clear that ‘an employee may not recover based on his employer’s failure to engage in an interactive process if he cannot show that a reasonable accommodation existed at the time of his dismissal.’” And while she argued that her employer had identified a vacancy and explored it as a potential accommodation, the court noted that an employer cannot refuse to make an accommodation that it was never asked to make and the employee had never requested that accommodation. Accordingly, her employer was entitled to summary judgment on this claim.

Retaliation. The employee also argued that her employer denied her third RFRA in retaliation for filing an EEOC complaint. Here, the court found that her employer proffered a legitimate, nondiscriminatory reason for its action: her failure to participate in the reasonable accommodation process, as manifested in her refusal to provide basic information about her EEOC filing when requested. Specifically, under New York City’s “Equal Employment Opportunity Policy,” when an agency is made aware of a complaint filed with the EEOC, the agency EEO Officer is supposed to transfer the matter to the agency General Counsel. In furtherance of that policy, her employer requested that the employee provide the date on which she had filed her charge, which she refused to do. Nor was there any evidence of pretext, said the court, granting summary judgment against this claim as well.

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