Trial News

The Second Circuit has reinstated a man’s lawsuit against his employer after being fired for taking time off and requesting a week of reduced work hours to visit his sick daughter in the hospital. While the Americans with Disabilities Act (ADA) does not require employers to provide accommodations to relatives of people with disabilities, the court found that an employer’s termination of a relative after accommodations were requested could support an inference of “associational discrimination.” (Kelleher v. Fred. A. Cook, Inc., 2019 WL 4616715 (2d Cir. Sept. 24, 2019).)

John Kelleher was a laborer and operator for Fred. A. Cook, Inc., a Westchester County, New York-based company that provides various residential and commercial services. Three months after being hired, he was promoted to be a CCTV truck operator for the company. In early March 2015, one month after his promotion, Kelleher told Brian Cook, one of his supervisors, that his daughter had a serious medical condition. He also told Kelleher he occasionally may have to rush home to help with her care, despite the company’s expectation that workers remain on-site after their shifts in case of any emergency work. Later that month, Cook and other company officials told Kelleher that he needed to stop rushing home after his 10- to 12-hour workdays and that he would not be eligible for a raise. Cook also told Kelleher “that his problems at home were not the company’s problems.”

Shortly after the meeting, Kelleher’s daughter had a seizure and was hospitalized in Albany—she later was diagnosed with Rett Syndrome, a neurological disorder that affects her ability to speak, walk, eat, and breathe. Kelleher took one day off work to stay with his daughter in the hospital and was demoted from operator to laborer. He requested eight-hour shifts during the week that his daughter was hospitalized, but Cook denied this request and instead ordered Kelleher to work late. One day in April 2015, Kelleher arrived 10 to 15 minutes late for work. He was sent home and terminated by letter.

Kelleher filed a discrimination charge with the New York State Department of Human Rights and the Equal Employment Opportunity Commission (EEOC). The EEOC issued Kelleher a right to sue letter, and in July 2017, he sued the company in New York federal district court, alleging he was denied equal employment rights in violation of the ADA despite his job qualifications due to “the known disability of an individual with whom [he was] known to have a relationship or association.”

The district court evaluated Kelleher’s claim for “associational discrimination” by applying a four-part test: whether Kelleher was qualified for the job, whether he was subject to an adverse employment action, whether he was known by his employer to have a relative or associate with a disability, and whether the circumstances of the adverse employment action raised a reasonable inference that the disability was the determining factor in the employer’s decision. (Graziadio v. Culinary Inst. of Am., 817 F.3d 415 (2d Cir. 2016).)

The defendant did not dispute that the first three factors were satisfied, and the district court focused its analysis on the fourth factor. Here, the court said, the plaintiff explicitly alleged he could not stay after the end of his shift as required. The court concluded Kelleher was terminated because he could not meet the job requirements, not for a discriminatory reason, and it dismissed his claim. The court also noted that Kelleher is not entitled to accommodation under the ADA because he is not the disabled individual.

On appeal, the Second Circuit reviewed the case de novo and agreed that to state a claim for associational discrimination, the court must apply the four-factor test set forth in Graziadio. It also applied the burden-shifting framework for employment discrimination claims as set forth in McDonnell Douglas Corp. v. Green (411 U.S. 792 (1973).): If there is a “some minimal evidence supporting an inference that [the plaintiff’s] employer acted with discriminatory motivation” then “the burden shifts to the employer to set forth a non-discriminatory basis for the adverse action.”

In Graziadio, the Second Circuit made it clear that “a nondisabled associate of a disabled person” does not have a right to an accommodation. However, while Kelleher has no right to an accommodation, the court said his “employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination.” The Second Circuit held that the district court erred in considering the potential nondiscriminatory reasons for Kelleher’s dismissal and should merely have examined whether Kelleher provided “minimal support for the proposition that the employer was motivated by discriminatory intent.” (Littlejohn v. City of N.Y., 795 F.3d 297 (2d. Cir. 2015).) It reversed the district court.

Chicago employment discrimination law attorney Paul Mollica called the decision “a reminder to employers that they can’t assume those with care obligations for people with disabilities cannot perform their jobs. Not only is it illegal, but it’s cruel to block people from working who rely on their income and benefits to support their families.” Plaintiff lawyers can learn from the decision too, Mollica added, by “thinking hard before pleading the full universe of facts in a complaint and anticipating all affirmative defenses. Plaintiffs should be cautious not to plead themselves out of court—notice pleading was not abolished by the Supreme Court’s decisions in Twombly and Iqbal.”