Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—S.D.N.Y.: Former corrections officer, injured at work, advances failure to accommodate claims, (Jan 10, 2025)

By Todd Harrison, J.D.

Despite being placed on restricted status, she was repeatedly assigned to a position that involved heavy lifting and inmate interaction.

A former corrections officer’s claims for failure to accommodate her disability in violation of the ADA, the Rehabilitation Act, and state law survived a motion to dismiss, ruled a federal district court in New York. Although a Department of Corrections doctor placed her on restricted status after she had suffered a workplace injury, she was still assigned to a position that required heavy lifting and contact with inmates and she had requested a reassignment on at least one occasion. However, she failed to prevail on an adverse employment action theory of discrimination, and her retaliation and hostile work environment claims were also dismissed (Dixon v. City of New York, No. 23-cv-8941 (JGK) (S.D.N.Y. Jan. 7, 2025)).

The former corrections officer who brought this case was employed by the New York City Department of Correction (DOC) from December 22, 2011, to August 1, 2022. At all times relevant to this case, she was assigned to a correctional facility located in the Bronx.

Workplace injury. On or about July 3, 2020, the officer sustained an on-duty injury to her hand when three of her fingers were crushed between a door and a door frame. Her primary care physician recommended that she be placed on light duty.

A few weeks after seeing her primary care physician, the officer was seen by a DOC doctor who placed the officer on MMR3 restricted status, indicating that the officer had “serious physical and/or psychological limitations” and that her work duties should not entail inmate supervision or pushing, pulling, and lifting heavy objects. The DOC doctor also determined that the officer should not work overtime.

Work assignment. Following her visit with the DOC doctor, the officer was assigned to a post in a control room. This position required the officer to have inmate contact and to move and lift heavy bags of laundry in violation of her MMR3 status.

Reassignment requested. On November 30, 2020, the officer was informed that the door to the control room was broken. She called the deputy warden and asked to be reassigned because her hand was in a splint and the posting violated her MMR3 status. She alleged that the deputy warden addressed her in “a loud, aggressive and belligerent tone,” and asked her “[a]re you telling me you’re not fit for duty?”

Further injury. Later that day, when the officer returned to the control room, she found the door was closed. She struggled to open the door with her injured hand, resulting in her feeling pain in her right side. She alleged that her struggle with the broken door caused an injury to her back, neck, spine, right hand, right wrist, and right shoulder and rotator cuff.

On January 4, 2021, the officer was examined by a DOC doctor and was again placed on MMR3 restricted status. She continued to be assigned shifts in the control room.

Overtime. On November 16, 2021, the officer alleged that she was ordered to work overtime in violation of her MMR3 status. She was permitted to leave her post only after her union threatened to file a grievance. She was again ordered to work overtime the following day and was allegedly threatened with discipline if she left her post.

Leave. Two days later, the officer called in sick due to anxiety caused by the DOC’s alleged refusal to provide her with reasonable accommodations. She was permitted to remain away from work with no return to duty date pending a future appointment with DOC’s medical division. She had an initial appointment with a psychologist at the division. The officer also began seeing a therapist who determined that the officer was unable to perform her job duties at this time.

On June 6, 2022, the officer again saw the division’s psychologist who determined that there was nothing physically wrong with the officer. During a subsequent visit on July 12, the psychologist informed the officer that she would be returning to work.

Resignation. The officer attempted to resign from her position on July 27, 2022, but the DOC allegedly refused to accept her resignation. She contended that this refusal was in retaliation for reporting violations of her restricted status. She was able to successfully resign on August 1 with the assistance of her union.

Subsequently, the officer filed a charge of discrimination with the EEOC. After receiving a right to sue letter, she initiated the present action, alleging claims of discrimination, retaliation, and hostile work environment pursuant to the ADA, the Rehabilitation Act, the NYSHRL, and the NYCHRL. The DOC moved to dismiss all claims.

Disability. First, the court addressed the officer’s claims for disability discrimination under the ADA and the Rehabilitation Act, initially addressing the issue of whether the officer was disabled within the meaning of the law.

According to the DOC, the officer’s impairment was temporary, and thus was not a disability as defined by the ADA and the Rehabilitation Act. In response, the officer alleged that she had suffered an “anatomical loss affecting” her “musculoskeletal system” when she initially injured her hand. In addition, she suffered further injury when attempting to open the control room door. She also alleged that this impairment limited a major life activity, namely her ability to work.

Here, the court found that the officer had plausibly alleged that her ability to work was substantially limited, and there was nothing to indicate that her impairment had abated. Having determined that the officer was disabled within the meaning of the law, the court turned its attention to whether the officer successfully pleaded the remaining elements of her discrimination claims under either an adverse employment action or failure to accommodate theory of liability.

Adverse employment action. Addressing an adverse employment action theory of liability, the court observed that the officer alleged that she had suffered harassment from inmates and supervisors because of her disability and was constructively discharged as a result. The court was not persuaded.

The officer cited one instance where a deputy warden aggressively asked her if she was fit for duty when she requested a reassignment from the control room. Even if this action constituted verbal abuse, verbal abuse alone is typically insufficient to constitute an adverse employment action, explained the court. As to alleged threatening comments from inmates, there was nothing to suggest that the comments were linked to her disability, and thus did not satisfy the causation requirement.

With regard to the extent that the officer alleged that her repeated assignment to the control room constituted an adverse employment action, she failed to allege that it was any more disruptive than an alteration to her normal job duties or that her reassignment was because of her disability, as opposed to in spite of her disability.

Finally, although constructive discharge may constitute an adverse employment action, the court later determined that the officer had failed to show that she suffered from a hostile work environment, a lower bar than is required to show a constructive discharge. Accordingly, she could not allege an ADA or Rehabilitation Act discrimination claim based on an adverse employment action theory.

Failure to accommodate. Turning to the officer’s discrimination claim under a failure to accommodate theory, the court determined that the officer had met the requisite threshold to state such a claim. The DOC doctor placed her on MMR3 status, the DOC was notice of this status but refused to comply, and, on at least one occasion, the officer had requested a reassignment which was denied.

Retaliation. Next, the court considered the officer’s claim for retaliation under the ADA and the Rehabilitation Act. The officer contended that she was retaliated against for reporting violations of her MMR3 status through her continued assignment to the control room, forced overtime, and verbal abuse. She further alleged that the DOC’s refusal to accept her initial attempt at resigning also constituted retaliation. The court was not moved.

There was no direct evidence of a causal relationship between the protected activity and the alleged adverse action, explained the court. Further, the officer failed to allege facts that could provide indirect evidence of causation. The officer’s assignment to the control room predated her complaints regarding the alleged refusal to comply with her MMR3 status and thus were not followed closely by discriminatory treatment, said the court. Further, her last alleged written complaint was made on June 10, 2021, but she was not required to work overtime until November 16, and she did not attempt to resign until July 27, 2022. Because close temporal proximity did not exist to show indirect evidence of retaliation, the motion to dismiss these claims was granted.

Hostile work environment. Addressing the officer’s ADA and Rehabilitation Act hostile work environment claims, the court found that she failed to show sufficiently severe or pervasive harassment to support such claims. A single instance of alleged verbal abuse, even combined with a recurring assignment to the control room, was not enough to survive the DOC’s motion to dismiss, said the court. The officer’s claim for constructive discharge was similarly dismissed.

State-law claims. Finally, the officer alleged discrimination, hostile work environment, and retaliation claims pursuant to the NYSHRL and the NYCHRL. These laws are less demanding of plaintiffs than the ADA or Rehabilitation Act for discrimination claims, explained the court. Nonetheless, the officer had failed to show that she was treated “less well” than others because of her disability and failed to allege any direct evidence of discriminatory intent. However, her failure to accommodate claims under state law survived for the same reasons as they did under the ADA and the Rehabilitation Act.

As to the retaliation claim under state law, even under a more generous standard, the officer had failed to allege any facts supporting the inference of a causal connection between her complaints regarding the alleged failure to accommodate and the circumstances of her resignation or treatment while employed. As such, the motion to dismiss these claims was granted.

Regarding her hostile work environment claims, the court determined that the officer had failed to allege that she received worse treatment than other non-disabled officers because of her disability. As such, these claims too were dismissed.

The case is No. 23-cv-8941 (JGK).

Judge: Koeltl, J.

Attorneys: Rocco G Avallone (Avallone & Bellistri) Keena Dixon. Andrea Martin, New York City Law Department, for City of New York.

Cases: Discrimination DisabilityDiscrimination Discharge PublicEmployees Retaliation StateLawClaims NewYorkNews