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Disability bias claims of 9/11 NYPD officer accused of sick leave abuse will go to jury

By Kathleen Kapusta, J.D.

An NYPD officer who claimed he developed irritable bowel syndrome (IBS), hyponatremia, and orthostatic hypotension as a result of his work assignments during the September 11, 2001, terrorist attacks can take his ADA, NYSHRL, and NYCHRL claims to a jury, a federal court in New York ruled, denying the city’s motion for summary judgment. The officer, who was also a recovering alcoholic, established fact issues as to the severity and pervasiveness of the harassment he faced, which included being called a “scammer,” and the posting of numerous alcohol-related cartoons. His disability bias, retaliation, and reasonable accommodation claims also advanced (Schmitt v. City of New York, November 1, 2018, Glasser, L.).

Employed by the New York City Police Department since 1999, the officer was assigned to Transit District 34 (TD 34), a Brooklyn precinct, where he was working on the day of the terrorist attacks. Although unclear when he was diagnosed with IBS and orthostatic hypotension, he was diagnosed with hyponatremia in August 2014. His IBS requires frequent bathroom trips, and his hyponatremia and orthostatic hypotension cause vertigo, faintness, lightheadedness, dizziness, nausea, and fatigue when he is assigned to positions requiring prolonged standing or are heated. A herniated disc he suffered in a 2006 car accident also made it difficult to stand for long periods of time, and after foot surgery in 2013, he was allowed to wear black orthopedic sneakers rather than the boots mandated by the NYPD.

Alcohol-related ads. In June 2013, the officer entered a peer assistance program to address his alcoholism. Participation in it was supposed to be confidential; while there, he was designated as “confidential sick,” a designation to which only supervisors had access. He returned six months later to “full duty.” The day after he returned, he found alcohol-related advertisements posted on his locker and in the locker and lunch rooms. Alcohol-related ads, photographs, and cartoons continued to be posted around TD 34 for the next several months, including one with his name written on it.

Scammer, sick leave abuser. Sometime after that, he was assigned to a patrol car that was not air conditioned. Although he asked for another car because he was feeling sick, he was instead assigned to a post that was even hotter. The next day, following an evaluation by the medical division, his duty status was changed to “limited,” which meant that he could not have prisoner contact, go on patrol, or operate a patrol car. Two days later, another officer told him about a rumor that a sergeant wanted him in her squad “to f**k with you.” Other officers told him she constantly referred to him as a “f***ing scammer” and that another lieutenant called him a “sick leave abuser.” Even though he was on limited duty and his squad was undermanned, he was transferred to that sergeant’s squad: On his first day was assigned as a “door greeter” and required to stand all day.

Dead man. Not long thereafter, his duty status was changed to “restricted” and he was assigned as a prisoner cell attendant. He was not allowed to leave the cell area for any reason, and when he complained about the lack of air conditioning, the sergeant told him to bring a fan. When the lieutenant chastised him for taking a personal break for over 20 minutes, he purportedly told the lieutenant that his IBS and acid reflux required frequent trips to the bathroom. He was also written up for wearing the black orthopedic sneakers, even though he had a note authorizing him to wear them. He complained to the NYPD EEO office but no action was taken. Other officers, however, told him he “was a dead man” because he “started a shit storm” and his supervisors were going “absolutely bonkers” over it. He subsequently sued under the ADA and state and local law.

Hostile work environment. Although his complaint did not specifically allege a hostile work environment, the court, finding it “reeks with that grievance,” assumed that such a claim might be cognizable even though the Second Circuit has not yet decided the issue. Here, although calling the officer a “scammer” and posting alcohol-related cartoons did not, on their own, establish a hostile work environment, there was a genuine issue of fact as to whether those characterizations by the sergeant and her harsh assignments evidenced her intent to punish him for taking sick leave, and whether the sergeant and lieutenant told other officers about his sick leave in disregard of its confidentiality, thus sparking the postings mocking his disability.

There was also a fact issue as to whether his assignments to “door greeter” without a chair and to the heated cell area, the rejection of his bathroom requests, refusal to transfer him to a cooler post, questioning his wearing of black orthopedic sneakers, and penalizing him for taking too many personal breaks due to his IBS were physically threatening. Further, there was a fact issue as to whether the employer’s conduct after he returned from sick leave was because he was thought to be “scamming” the sick leave system rather than because he was an alcoholic, said the court.

Knowledge. A fact issue also existed as to whether the sergeant and lieutenant knew about his symptoms related to his various conditions. Here, the lieutenant testified the officer told him that he “suffered from some medical issues,” spoke about “many sick ailments, like stomach ailments,” and was constantly complaining about “his stomach, his head. Everything. His feet. Everything.” Because the issue as to that knowledge bears on the issue of intent and raises genuine issues of fact, the court denied summary judgment on the officer’s ADA and NYSHRL claims. And because the NYCHRL’s protections are even broader, summary judgment was denied on that claim as well.

Disability discrimination. As to his disability discrimination claims, while the employer argued that the officer did not suffer an adverse action, the court found a fact issue concerning whether the assignments given to him when he returned from sick leave fell outside the duties of a police officer at TD 34. A jury could find that his transfer to the sergeant’s squad so that she could “f**k with” him was an adverse employment action. And while the employer argued that it had legitimate, nondiscriminatory reasons for these actions—the sergeant’s squad was undermanned and there were limited positions available at TD 34 because of his duty status—there was a fact issue as to the sergeant’s intent behind the transfer request, as well as whether there were other positions available when he was assigned as door greeter and prisoner cell attendant.

Noting there was also a fact issue whether the employer’s conduct was a result of the belief that the officer was scamming the sick leave system, or because of his disabilities, the court found he demonstrated a genuine issue of material fact as to whether he was subject to adverse employment actions because of his disabilities.

Reasonable accommodation claims. The employer claimed it gave the officer reasonable accommodations because “he was provided with assignments that respected the limitations placed on his ability to perform full duty assignments,” but the court noted that a reasonable accommodation is one that enables an individual with a disability who is qualified to perform the essential functions of that position to enjoy equal benefits and privileges of employment, and the employer did not provide him with that. Further, his black orthopedic sneakers and a chair would not have caused undue hardship to the NYPD.

Retaliation. Turning to his retaliation claim, the court pointed out that it already found a fact issue as to whether the employer engaged in adverse employment actions under the more demanding standard for traditional disability discrimination claims, and those same actions could qualify as adverse employment actions under the more lenient standard for retaliation claims. A jury could also infer a causal connection between the alleged adverse employment action and the protected activity based on “f*****g scammer” and other remarks, said the court, finding a fact issue as to whether the remarks showed the sergeant and lieutenant had a discriminatory animus toward the officer because of his disabilities.

Claims against sergeant and lieutenant. Finally, while the court dismissed the ADA claims against the sergeant and lieutenant individually, it noted that under the Human Rights Laws, supervisors who “actually participate[] in the conduct giving rise to a discrimination claim may be held personally liable . . . .” Accordingly, the court exercised supplemental jurisdiction over these claims because they were so related to the officer’s ADA claims against the city that they formed part of the same case or controversy under Article III.