Decisions of Interest

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Regard As Disabled

A former bus driver who had a mechanical heart valve implanted and who took the anticoagulant medication Coumadin was not regarded as disabled by his employer under the Americans with Disabilities Act. Burton v. Metro. Transp. Auth., 2003 WL 345361, (S.D.N.Y. 2/12/03) (Chin, D.J.).

The employer terminated the employee from his position as a bus driver after the operation to implant the valve. The employee contended that the employer's actions proved that it regarded him as disabled. The court held that an employee must establish that the employer regarded him as substantially limited in his ability to work generally, not just that the employer regarded him as unable to work as a bus driver.

The employee argued that the employer regarded him as disabled by virtue of its unwritten policy of not allowing any individuals who take Coumadin to operate a bus. The court held that even if such a policy existed, it would be an insufficient basis for a finding that the employer perceived him as disabled. It would merely demonstrate that the employer had followed its own hiring criteria.

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Bankruptcy/Exceptions to Discharge

A supervisor who was sued in his individual capacity for sexual harassment in violation of Title VII would be able to discharge the resulting judgment entered against him because the evidence failed to demonstrate that he deliberately injured the employee. In re Tompkins, 2003 WL 360018, (Bankr. W.D.N.Y. 2/12/03) (Ninfo, C.B.R.J.).

The employee sued the supervisor in the District Court of the Virgin Islands for sexual harassment in violation of Title VII. The parties executed a settlement agreement that provided that if the supervisor defaulted under the agreement, a judgment would be entered against him. The supervisor defaulted, and the Virgin Islands District Court entered judgment against him. The supervisor then filed a petition for bankruptcy in the Western District of New York in which he attempted to discharge the judgment. The employee objected.

The Bankruptcy Court held that employee failed to prove that the court that entered the judgment had determined that the supervisor violated Title VII or that the supervisor admitted to any violations of Title VII. Therefore, collateral estoppel did not apply, and the Bankruptcy Court determined the merits of the employee's sexual harassment claims.

The Bankruptcy Court, after taking testimony, concluded that even if the employee's allegations were true, including the most serious allegation, that the debtor touched her in a sexual caressing nature when passing behind her, the evidence failed to establish conduct severe or pervasive enough to constitute sexual harassment discrimination. The employee also failed to prove that supervisor acted willfully and maliciously and with an intent to cause injury, and therefore the judgment was dischargeable.

For Plaintiff: Somma, Zabell & Associates, LLP, by Saul D. Zabell and Michael J. D'Angelo, Farmingdale.

For Defendant: Hoguet Newman & Regal, LLP, by Dorothea W. Regal, Kathleen L. Lowden and J. Cullen Howe.

Damages/Evidence

The evidence supported a jury's punitive damages and back pay awards to an employee who was fired due to his bilateral hearing loss, in violation of the Americans with Disabilities Act and New York Human Rights Law. Kuper v. Empire Blue Cross & Blue Shield, 2003 WL 359462 (S.D.N.Y. 2/18/03) (Gwin, D.J.).

Evidence that the person who decided to terminate the employee was familiar with the ADA and responsible for complying with it and that the employer, Empire Blue Cross and Blue Shield, gave the employee false and misleading information about potential jobs after it fired him established the employer's malice or reckless indifference required for an award of punitive damages. The court rejected the employer's argument that its good faith efforts to comply with the ADA precluded a punitive damages award: “Here, though Empire presented evidence that it had an anti-discrimination policy, it offered no evidence that it actively enforced that policy … Empire failed to introduce any training evidence in existence at the time of Kuper's discharge.”

The court also rejected the employer's contention that the back pay award was inappropriate because the employee failed to mitigate his damages. The employee's testimony that for the first 5 months after his discharge he contacted every insurance company in the New York metropolitan area satisfied his burden. The employer's general evidence that the industry was doing well at that time was insufficient to show that comparable work existed.

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Disparate Impact/Statistical Evidence

An employee need not establish statistical evidence of disparate impact specifically for the eligible pool for which the employee sought a promotion in order to establish his prima facie case of disparate impact discrimination. Malave v. Potter, 320 F.3d 321 (2d Cir. 2/20/03) (Miner, Sotomayor, and Katzmann, Circuit Judges.)

Rather, general or broad statistical evidence concerning an entire protected group may be utilized to establish disparate impact where data concerning the number of “at-issue” promotions are not available. A Hispanic employee here was denied a promotion to an upper level management position with the Post Master General on three different occasions. Although he could only provide a statistical analysis of the overall number of Hispanics in the work-force as opposed to evidence of the “applicant pool” for the position he sought, the Second Circuit ruled that such statistical methodology was sufficient to state a disparate impact claim because the preferred statistics of the applicant pool were “difficult” or “impossible” to obtain.

For Plaintiff-Appellant: Law Office of W. Martyn Philpot, Jr., LLC, by Laura Lee A. Dorflinger, New Haven, CT.

For Defendant-Appellee: United States Attorneys' Office, by Anthony T. Rice and John A. Danaher III.

Title VII/Sex Stereotyping

There is no cause of action under Title VII where an employee's claim is firmly rooted in sexual orientation and not on sexual stereotyping. Dawson v. Bumble & Bumble, 2003 WL 470341 (S.D.N.Y. 2/25/03) (Marrero, J.).

An employee of a “high-end” hair salon in midtown Manhattan complained that she was terminated because she was a “lesbian female.” She contended that she was terminated because she had short hair, wore leather and denim attire, which was characterized as a “costume,” and because she did not conform to gender norms. The court noted that plaintiff's work environment was a “milieu of nonconformists” who consisted of openly gay and bisexual personnel.

The comments forming the basis of plaintiff's claim did not directly or implicitly remark on upon the employee's gender. Rather, to the extent plaintiff stated any cause of action, it was based on her sexual orientation, a claim not actionable under Title VII.

For Plaintiff: Rick Ostrove, Leeds, Morelli & Brown, PC, Carle Place.

For Defendant: Patterson, Belknap, Webb & Tyler, by Ellen M. Martin and Kathleen L. Jennings, New York.

ADA/Duty to Accommodate: Direct Threat

An employee who threatened a co-worker with foul and abusive language did not establish that her employer failed to reasonably accommodate her under the Americans with Disabilities Act. Johnson v. Maynard, 2003 WL 548754 (S.D.N.Y. 2/25/03) (Hellerstein, D.J.)

The employee suffered from paranoid schizophrenia and bipolar disorder, but was not disabled under the ADA because these impairments did not limit any major life activity when she used prescribed medication. The employee testified at her deposition that she did not need an accommodation, and the only evidence she submitted relating to a request for an accommodation was her testimony that she asked a co-worker to “watch her.” The court found the request insufficient to constitute a request for a reasonable accommodation: “[the employer] should not be charged with a failure to make a reasonable accommodation when plaintiff neglected to take her medication. After all, an employer cannot be expected to ensure that an employee is properly following her doctor's orders.”

No attorneys listed.

Regard As Disabled

A former bus driver who had a mechanical heart valve implanted and who took the anticoagulant medication Coumadin was not regarded as disabled by his employer under the Americans with Disabilities Act. Burton v. Metro. Transp. Auth., 2003 WL 345361, (S.D.N.Y. 2/12/03) (Chin, D.J.).

The employer terminated the employee from his position as a bus driver after the operation to implant the valve. The employee contended that the employer's actions proved that it regarded him as disabled. The court held that an employee must establish that the employer regarded him as substantially limited in his ability to work generally, not just that the employer regarded him as unable to work as a bus driver.

The employee argued that the employer regarded him as disabled by virtue of its unwritten policy of not allowing any individuals who take Coumadin to operate a bus. The court held that even if such a policy existed, it would be an insufficient basis for a finding that the employer perceived him as disabled. It would merely demonstrate that the employer had followed its own hiring criteria.

No attorneys listed.

Bankruptcy/Exceptions to Discharge

A supervisor who was sued in his individual capacity for sexual harassment in violation of Title VII would be able to discharge the resulting judgment entered against him because the evidence failed to demonstrate that he deliberately injured the employee. In re Tompkins, 2003 WL 360018, (Bankr. W.D.N.Y. 2/12/03) (Ninfo, C.B.R.J.).

The employee sued the supervisor in the District Court of the Virgin Islands for sexual harassment in violation of Title VII. The parties executed a settlement agreement that provided that if the supervisor defaulted under the agreement, a judgment would be entered against him. The supervisor defaulted, and the Virgin Islands District Court entered judgment against him. The supervisor then filed a petition for bankruptcy in the Western District of New York in which he attempted to discharge the judgment. The employee objected.

The Bankruptcy Court held that employee failed to prove that the court that entered the judgment had determined that the supervisor violated Title VII or that the supervisor admitted to any violations of Title VII. Therefore, collateral estoppel did not apply, and the Bankruptcy Court determined the merits of the employee's sexual harassment claims.

The Bankruptcy Court, after taking testimony, concluded that even if the employee's allegations were true, including the most serious allegation, that the debtor touched her in a sexual caressing nature when passing behind her, the evidence failed to establish conduct severe or pervasive enough to constitute sexual harassment discrimination. The employee also failed to prove that supervisor acted willfully and maliciously and with an intent to cause injury, and therefore the judgment was dischargeable.

For Plaintiff: Somma, Zabell & Associates, LLP, by Saul D. Zabell and Michael J. D'Angelo, Farmingdale.

For Defendant: Hoguet Newman & Regal, LLP, by Dorothea W. Regal, Kathleen L. Lowden and J. Cullen Howe.

Damages/Evidence

The evidence supported a jury's punitive damages and back pay awards to an employee who was fired due to his bilateral hearing loss, in violation of the Americans with Disabilities Act and New York Human Rights Law. Kuper v. Empire Blue Cross & Blue Shield, 2003 WL 359462 (S.D.N.Y. 2/18/03) (Gwin, D.J.).

Evidence that the person who decided to terminate the employee was familiar with the ADA and responsible for complying with it and that the employer, Empire Blue Cross and Blue Shield, gave the employee false and misleading information about potential jobs after it fired him established the employer's malice or reckless indifference required for an award of punitive damages. The court rejected the employer's argument that its good faith efforts to comply with the ADA precluded a punitive damages award: “Here, though Empire presented evidence that it had an anti-discrimination policy, it offered no evidence that it actively enforced that policy … Empire failed to introduce any training evidence in existence at the time of Kuper's discharge.”

The court also rejected the employer's contention that the back pay award was inappropriate because the employee failed to mitigate his damages. The employee's testimony that for the first 5 months after his discharge he contacted every insurance company in the New York metropolitan area satisfied his burden. The employer's general evidence that the industry was doing well at that time was insufficient to show that comparable work existed.

No attorneys listed.

Disparate Impact/Statistical Evidence

An employee need not establish statistical evidence of disparate impact specifically for the eligible pool for which the employee sought a promotion in order to establish his prima facie case of disparate impact discrimination. Malave v. Potter , 320 F.3d 321 (2d Cir. 2/20/03) (Miner, Sotomayor, and Katzmann, Circuit Judges.)

Rather, general or broad statistical evidence concerning an entire protected group may be utilized to establish disparate impact where data concerning the number of “at-issue” promotions are not available. A Hispanic employee here was denied a promotion to an upper level management position with the Post Master General on three different occasions. Although he could only provide a statistical analysis of the overall number of Hispanics in the work-force as opposed to evidence of the “applicant pool” for the position he sought, the Second Circuit ruled that such statistical methodology was sufficient to state a disparate impact claim because the preferred statistics of the applicant pool were “difficult” or “impossible” to obtain.

For Plaintiff-Appellant: Law Office of W. Martyn Philpot, Jr., LLC, by Laura Lee A. Dorflinger, New Haven, CT.

For Defendant-Appellee: United States Attorneys' Office, by Anthony T. Rice and John A. Danaher III.

Title VII/Sex Stereotyping

There is no cause of action under Title VII where an employee's claim is firmly rooted in sexual orientation and not on sexual stereotyping. Dawson v. Bumble & Bumble, 2003 WL 470341 (S.D.N.Y. 2/25/03) (Marrero, J.).

An employee of a “high-end” hair salon in midtown Manhattan complained that she was terminated because she was a “lesbian female.” She contended that she was terminated because she had short hair, wore leather and denim attire, which was characterized as a “costume,” and because she did not conform to gender norms. The court noted that plaintiff's work environment was a “milieu of nonconformists” who consisted of openly gay and bisexual personnel.

The comments forming the basis of plaintiff's claim did not directly or implicitly remark on upon the employee's gender. Rather, to the extent plaintiff stated any cause of action, it was based on her sexual orientation, a claim not actionable under Title VII.

For Plaintiff: Rick Ostrove, Leeds, Morelli & Brown, PC, Carle Place.

For Defendant: Patterson, Belknap, Webb & Tyler, by Ellen M. Martin and Kathleen L. Jennings, New York.