Today, our employment discrimination lawyers review the recent United States Court of Appeals for the Second Circuit decision in Torres v. New York City Dep’t of Educ., No. 21-1679, 2022 WL 16954360, at *1 (2d Cir. Nov. 16, 2022). In this case, Sabato Torres, a white male, generically alleged that the severe racial discrimination and harassment by his Black principal lead to his diagnosis of Post-Traumatic Stress Disorder (“PTSD”). As a disability accommodation, Torres sought a “hardship transfer” as well as extended medical leave. The employer granted Torres the option of choosing either accommodation, but not both because there was no point in transferring the employee to a position that he would not be able to fill while on leave. Indeed, Torres did not return until the next school year, at which point he again requested a hardship transfer as an accommodation. This time, however, the disability accommodation request for a transfer was denied. As a result, the employee sued for disability discrimination under the Americans with Disabilities Act (“ADA”).
Does my employer have to give me every medical accommodation that I need?
No. Before determining whether an employer must give any disability or medical accommodation, the employer and employee must engage in the interactive process, which essentially is a dialog between both the employer and employee to determine the scope of the medical condition or disability and what reasonable accommodations that the employer can provide without incurring an undue hardship. (Best Law Read: What Is The Interactive Process For Disabled Employees?; Interactive Process: It Takes Two To Tango). Importantly, if the employer can provide an accommodation that reasonably meets the medical requirements, the employer gets to choose which reasonable accommodation is provided, not the employee. (Best Law Read: Can I Pick The ADA Accommodation I Want?).
In Torres, the employee’s claim of disability discrimination for his first request failed because the employer gave Torres the choice of two reasonable accommodations, which could not be concurrently used and there was no way to know if he would still need the transfer upon return from extended leave. The United States Court of Appeals for the Second Circuit held:
Torres faults DOE for forcing him to choose between two accommodations rather than allowing him to take leave while also effecting his transfer. The record does not support this characterization. While DOE did not effect Torres’s transfer while he was on leave, it did not foreclose the possibility of a transfer if Torres returned to work… Rather, DOE required Torres to reapply for a transfer closer to his return date. … Under those circumstances, no reasonable factfinder could conclude that DOE’s reasonable accommodation obligation required it to hold open Torres’s approved transfer for at least the one-year leave period he requested.
Id. at *2.
Is a transfer to a different position in the company a reasonable disability accommodation?
Depending on the specific circumstances, a transfer to a different position within a company may or may not be a reasonable disability accommodation under the ADA. Significant considerations will be given to how the transfer will impact the company and other employees. Universally, courts have held that employers will never be required to create a new position nor transfer another employee out of a position to create an opening to accommodate a transfer. Thus, employees have a much better opportunity to get a disability transfer accommodation if the request is made in conjunction with a posted or otherwise known opening.
In Torres, the employee offered no actual evidence that a position was open for him to transfer into. Instead, Torres provided only his counsel conclusory assertion that the employer “virtually always” had open teaching positions; and the urged inference that because a position was open the first time he asked, a position must have been open a year later when he requested the accommodation again. The United States Court of Appeals for the Second Circuit rejected this argument because the burden was on the employee to present actual evidence:
The first assertion is formulaic and speculative, which is insufficient to defeat summary judgment. See McBride, 583 F.3d at 97–98 (holding that “[a]n ADA plaintiff does not satisfy her burden to identify a potential accommodation merely by reciting the formula that her employer could have reassigned her”); Jackan, 205 F.3d at 566 (“The burden of persuasion on the existence of an effective accommodation is not satisfied by mere speculation.” (internal quotation marks omitted)). The second claim is also unavailing because a plaintiff must demonstrate the existence of an available position “within a reasonable amount of time” of his request. Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 104 (2d Cir. 2003). The availability of a position in August 2016 is not a reasonable indicator of a vacant position eight months later at an entirely different point in the school year.
Id. at *2.
Respectfully, a qualified and skilled employment lawyer would have been able to obtain records during discovery to specifically present evidence to the Court of open positions. Best Law Read: More Problems If You Hire A Bad Employment Lawyer; What Happens If I Don’t Call the Right Attorney?; Hiring The Wrong Attorney Can Seriously F’Up Your Employment Case; Employment Law: Avoid Hiring The Wrong Attorney).
What should I do if my job won’t give me a disability discrimination accommodation?
Best Ohio Employment Lawyer Answer: Getting a disability accommodation at work is tricky. Few lawyers deal with disability discrimination under the ADA. Even few have successfully tried disability discrimination and failure to accommodate cases to a jury. (Best Law Read: Spitz Lawyers Win $1.33 Million Verdict). If you are facing discrimination at your workplace based on your disability or medical condtion, or if your employer refuses to provide you with an ADA accommodation, then call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). The best option is not to wait. Call our lawyers in Cleveland, Columbus, Toledo, Cincinnati, Youngstown, Ohio; Detroit, Michigan; and Raleigh, North Carolina to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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