Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—2d Cir.: ADA accommodation claim of NYC employee denied remote work/alternate office request revived, (Jul 27, 2026)

By Kathleen Kapusta, J.D.

The employee, who suffered from COPD among other respiratory conditions, had worked remotely during the pandemic.

Although the Second Circuit affirmed in large part the dismissal of the ADA claims of a New York City finance department employee who suffered from multiple respiratory conditions, and who requested as accommodations that he be allowed to work remotely part of the week and in a different office than the one in which he had been working the other part of the week, as well as the denial of his motion to file an amended complaint, it vacated the lower court’s judgment dismissing his ADA and NYCHRL failure-to-accommodate claims. As to those claims, the court found at least three simple allegations of fact that, taken together, made it plausible he would be able to perform his job’s essential functions with his requested accommodations (Cangro v. New York City Department of Finance, No. 24-3004 (2d Cir. July 24, 2026)).

The long-time finance department employee, who suffered from coughing, wheezing, chest tightness, asthma, and diminished lung capacity, was diagnosed with COPD and bronchiectasis in 2016. Although he was allowed to work remotely from his home during the COVID-19 pandemic, in March 2022, the city issued a new accommodation permitting him to work remotely three days a week and in the department’s Manhattan office two days a week.

Accommodation requests. In response, the employee requested that he be allowed to work the in-office days in the Staten Island office because he had difficulty breathing while commuting from Staten Island to the Manhattan Office on public transportation wearing a mask, which was required at the time, and because the Manhattan office’s lack of ventilation and adequate temperature controls exacerbated his respiratory issues.

The city, concluding that his commute to work was separate from his ability to perform his job’s essential functions, denied his request. In June 2023, again citing the ventilation and climate-control issues, as well as his inability to walk more than 10 feet without losing his breath, the employee requested to work completely remotely from home. When that request was denied, he asked to be allowed to work three days from home and two days in the Staten Island office.

That request was also denied, and he was instead told to report to the Manhattan office five days a week. After he appealed, he was allowed to work from home two days a week and from the Manhattan office the remaining three days a week.

Lower court proceedings. The employee sued, alleging disparate treatment discrimination and failure-to-accommodate claims in violation of the ADA, failure-to-accommodate in violation of the New York City Human Rights Law, and failure to engage in a cooperative dialogue in violation of the NYCHRL. The district court granted the city’s motion to dismiss, finding the complaint lacked plausible allegations of an adverse employment action and the employee’s ability to perform the essential functions of his job with accommodation. It subsequently denied his request to file an amended complaint to add an ADA retaliation claim.

Retaliation claim. On appeal, the employee argued that the district court erred in concluding that his proposed amended complaint did not adequately state an ADA retaliation claim. He claimed in his proposed complaint that his manager told him he was under investigation by the city’s Department of Investigation (DOI) because he was seeking accommodations to work from home and because he had complained to the EEOC. He also alleged that there was no legitimate reason for DOI to investigate him and, in fact, just a few days later, his manager apologized to him for telling him he was under investigation and it was apparently just a “rumor” that was not true.

Agreeing with the court below, the appeals court found the employee’s assertion in the proposed amended complaint about the report of a DOI investigation, made by his manager and then apologetically retracted as merely a rumor, did not constitute an adverse employment action even after the Supreme Court’s 2024 Muldrow v. City of St. Louis decision. Here, the court also noted that the employee’s manager had supported the employee’s accommodation request, including his request to work at the Staten Island office.

As to the employee’s claim the department denied him a promotion in retaliation for his accommodation requests and EEOC complaint, the court noted that the 2024 promotion denial occurred 11 months after his receipt of a right-to-sue letter from the EEOC and more than 22 months after his accommodation request. Both intervals, said the court, were simply too long to support any reasonable inference he was denied a promotion in retaliation for either of those acts.

Financial resources. Further, said the court, the proposed amended complaint “seems to belie any factual basis for a reasonable inference that [the employee] was denied the promotion he sought because of his disability or his requests for a disability accommodation.” First, the court found his assertion that it was “clear that financial resources cannot be the reason for the denial of [his] promotion” was entirely unsubstantiated. While the proposed complaint referred to a difference in pay for the position he was seeking, it merely said that the “difference... was comparable” without saying comparable to what.

Logically, observed the court, it could not mean comparable to the salaries the employee and the “other[s]” were already earning, otherwise there would have been no real “difference.” The court also found it reasonable to infer as a matter of common sense that the “numerous other employees” who were granted the promotion were not seeking jobs that paid them lower salaries and thus the proposed complaint’s assertion that it was clear that financial resources could not be the reason for the promotion denial was unsupported by any fact found in that pleading. “Indeed,” said the court, “the assertion is contrary to the most plausible inferences factually suggested.”

Discriminatory motive. Further, while the proposed complaint suggested that a discriminatory motive could be inferred because “numerous other employees from [his] division were promoted... from the same promotional list he was on,” the mere mention of such numerosity did not, without other allegations, suggest an unlawful motive. For example, the court explained, the proposed complaint also stated that the employee was “approximately number 25” on the promotion list and there was no allegation that any of those who were promoted did not rank higher on the list than the employee. Accordingly, the court found no error in the district court's conclusion that the proposed amended complaint failed to proffer a retaliation claim on which relief could be granted.

Disparate treatment. Affirming the dismissal of the employee’s ADA disparate treatment claim, the court found the employee failed to plausibly allege an adverse employment action. While he argued that his allegations of physical and mental health harm stemming from the department’s denials of his various accommodation requests satisfied Muldrow’s lower harm threshold, he did not allege any harm with respect to the terms and conditions of his employment.

Failure-to-accommodate claims. The court, however, vacated the dismissal of his ADA and NYCHRL failure-to-accommodate claims, finding at least three fact allegations in the operative and proposed complaints that, taken together, made it plausible he would be able to perform his job’s essential functions. First, said the court, it appeared to be undisputed that the employee was able to perform those functions working from his home from March 2020 to March 2022.

Second, even after other employees were required to return to the office, he was permitted to work from home two days a week, suggesting that he could perform functions of his job without going to the Manhattan office even after pandemic-related policies were lifted. And third, the operative and proposed complaints alleged that the employee’s manager “supported” his requested accommodation of working some days from his home and some days in the Staten Island office.

While the court noted that the word “supported” itself, in this context, was somewhat conclusory, at this early stage in the litigation and drawing all inferences in the employee’s favor, “a manifestation of support by [his] manager for the requested accommodation supports the assertion that [the employee] could,” with that accommodation, perform the requirements of his job, said the court, finding his allegations, taken together, were sufficient to survive dismissal.

The case is No. 24-3004.

Judge: Kearse, A.

Attorneys: Steven J. Harfenist (Harfenist, Kraut & Perlstein) for Emil Cangro. Ingrid Gustafson, New York City Law Department, for New York City Department of Finance and City of New York.

Cases: DisabilityDiscrimination Discrimination Retaliation StateLawClaims Procedure ConnecticutNews NewYorkNews VermontNews