Case updates this week:

September 11: In Pratt v. Science Applications International Corporation, the United States District Court for the Eastern District of Virginia granted in part and denied in part Science Application International Corporation’s (“Defendant”) motion for summary judgment. Patty Pratt (“Plaintiff”), in her Complaint, alleged five counts of disability discrimination against Defendant under the Americans with Disabilities Act (“ADA”). 

In June 2019 Defendant hired Plaintiff to work under a government contract Defendant had with the National Reconnaissance Office (“NRO”). Plaintiff’s position required the use of a classified NRO computer in a Sensitive Compartmented Information Facility (“SCIF”). In May 2021, because of the COVID-19 pandemic, Defendant and the NRO implemented policies to prevent the spread of the virus. These policies included a vaccination requirement that for all employees and a requirement that all unvaccinated employees wear face masks. The Plaintiff declined to disclose her vaccination status, so NRO assumed she was unvaccinated and required to mask herself while at work. 

By the end of May 2021, Plaintiff’s NRO manager received a series of complaints that Plaintiff was not wearing a mask while at work, despite her assurances “she could abide by the [NRO] regulations.” On May 28, Plaintiff’s managers at NRO and with Defendant discussed with her her refusal to vaccinate or wear a mask. During that meeting, Plaintiff disclosed that she had medical conditions that made it difficult for her to wear masks for an extended period. They all decided that NRO’s policies applied, and that Plaintiff should apply for an accommodation through the NRO. NRO placed her on leave and required that she not return to work at the NRO facility until she received her accommodation. On June 17, the NRO Chief Medical Officer told Plaintiff that she could meet the face mask requirement by wearing a cloth covering like a scarf without the need for an accommodation, so she returned to work.  

In July 2021, the mass spread of the Delta Variant of the COVID-19 virus prompted the NRO to update its policies to require all unvaccinated personnel to wear a mask at all times while on NRO or NRO-occupied property. Defendant told Plaintiff to submit a second accommodation request in connection with the updated masking requirement. Defendant told Plaintiff that while her accommodation request was pending, she could not go to the NRO facilities unless she complied with the mask requirement. On August 6, Defendant informed the Plaintiff that NRO denied her request to be exempt from wearing a mask. But both Defendant and NRO continued to try to devise some other workable accommodation, including telework.  

Meanwhile, on June 10, 2021, Plaintiff received a job offer at a higher salary from another company, which she accepted the next day. She did not tell anyone with Defendant or NRO that she had accepted another position with a different company. Instead, while ostensibly on leave with Defendant, on August 20, she started her new job with her new employer. Defendant and NRO continued to work on a telework accommodation for plaintiff until August 31, when they learned by happenstance that Plaintiff, who was still on leave with them, had started working for another company. Upon learning that she had started another job, Defendant asked Plaintiff if she planned to submit a formal resignation. She replied that she had been constructively discharged. 

On May 19, 2022, Plaintiff filed her complaint against Defendant alleging: disability discrimination and retaliation under the ADA in connection with her alleged constructive discharge; disability discrimination and retaliation claims based on Defendant requiring her to take leave while her accommodation requests were pending; and failure to accommodate her disability. At the outset, the Court found that any claims based on Plaintiff’s first leave of absence were time-barred and dismissed them.  

The Court noted that “a plaintiff may establish a constructive discharge by showing that her employer deliberately made [her] working conditions intolerable in an effort to induce [her] to quit.” The Court distilled Plaintiff’s factual allegations to a claim that, by placing her on leave, Defendant had constructively discharged her. The Court was wholly unpersuaded. Plaintiff’s second leave of absence started more than a month after Plaintiff had accepted her new job. In fact, it appeared that Plaintiff had taken leave from her job with Defendant so that she could perform her full-time responsibilities with her new employer. The Court found that no reasonable jury could find that Plaintiff had been constructively discharged based on the undisputed facts. 

Defendant argued in a footnote that this unpaid leave could not be considered an adverse action under the ADA. But the Court held that it would not grant summary judgment on the issue without a fuller briefing.  

With respect to Plaintiff’s discrimination and retaliation claims, which were grounded in Defendant’s alleged failure to accommodate her disability, the Court noted that “when an employer’s responsibility to provide a reasonable accommodation is triggered, it may be necessary for the employer to engage in an ‘interactive process’ to determine the appropriate accommodation under the circumstances.” Plaintiff’s main argument was that Defendant should have created a private workspace for her instead of requiring her to take leave while they worked on a telework option. However, the Court noted the undisputed facts suggested a reasonable juror would determine that the Plaintiff acted in bad faith. “Plaintiff never voiced a dissatisfaction with telework during the interactive process and withdrew from the process before Defendant had obtained permission from the NRO to have Plaintiff engage in telework.” Similarly, Plaintiff expressed no objection during the interactive process to being placed on leave while her accommodation request was pending. Instead, she raised these complaints for the first time in her lawsuit. Nevertheless, the Plaintiff did not allege any facts to show that placing her on leave was unreasonable, nor did she identify any accommodation that other than leave that would have met the NRO’s needs, while allowing her to go unmasked. Plaintiff complained that Defendant “denied” her a private office, but produced no facts to dispute Defendant’s statements that it had none, and thus could not have denied one to her. 

The Court granted Defendant’s motion for summary judgment in all respects but one. The Court denied Defendant’s argument that the second leave of absence was not an adverse action under the ADA but did so without prejudice so that Defendant could renew its motion and provide a full briefing of the issue. 

September 12: In O’Leary v.  City of New York, the United States District Court for the Southern District of New York granted City of New York’s (“Defendant”) motion to dismiss. Matthew O’Leary (“Plaintiff”) began his job at the New York City Department of Investigation (“DOI”) in July 2017. In accordance with an order of the New York City Commissioner of Health and Mental Hygiene imposing a vaccine mandate for city employees, Plaintiff, a Roman Catholic who “opposes any medical treatment in any way connected to aborted fetal cells,” submitted a request for a religious exemption which stated that the COVID-19 vaccine had “involvement with fetal cell lines taken from aborted fetal tissue.” The DOI denied Plaintiff’s vaccine exemption request because it found it was not based on sincerely held religious beliefs. Plaintiff then appealed to a Citywide Panel. The Citywide Panel also denied Plaintiff’s request. Plaintiff was then placed on leave without pay, and eventually terminated on February 11, 2022.  

On June 17, 2022, Plaintiff received a letter from the DOI offering to reinstate his employment following the February 2022 termination, if he submitted “proof of a first vaccination dose by June 30, 2022, and a second dose by August 15, 2022.”  Plaintiff declined the Reinstatement Offer. Plaintiff subsequently filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and received a right to sue notice. 

In this case, Plaintiff asserted two causes of action under Title VII of the Civil Rights Act. The first for wrongful termination, and the second for failure to accommodate. Plaintiff also alleged that his First Amendment Free Exercise rights under the U.S. Constitution had been violated. Plaintiff characterized the Defendant’s actions leading up to the offer of reinstatement as a “continuous practice and policy of discrimination.” However, the Court determined that each instance of alleged discriminatory conduct: the DOI’s denial of Plaintiff’s accommodation request; the Citywide Panel’s denial of Plaintiff’s Appeal; Plaintiff’s termination, and the City’s reinstatement offer were discrete events. Further, each of these events, save the reinstatement offer, took place outside the 300-day EEOC time limit, and were time-barred. The reinstatement offer, standing alone, was not a discriminatory act under Title VII.   

According to the Court, an alleged discriminatory act needs to have a “materially adverse change in the terms and conditions of employment.” Examples of this materially adverse change include: “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.”  The Court held that the City’s offer to reinstate the Plaintiff simply did not fall into any of these categories. Therefore, the Court dismissed all of Plaintiff’s Title VII claims.  

With respect to Plaintiff’s Free Exercise challenge, the Court relied on Kane v. De Blasio, a case in which the Second Circuit held that a similar vaccine mandate was neutral on its face and did not discriminate against religious practice. The Court distinguished the portion of Kane that ordered fresh consideration of the Plaintiffs’ accommodation requests by a citywide panel, because the reviewer in Kane had impermissibly assessed the plaintiffs’ religious beliefs against the beliefs of others to determine if they were sincere. Unlike Kane, Plaintiff’s religious values in this case were taken at face value. The Court held that Plaintiff offered only “conclusory statements regarding defendant’s discriminatory motivation.” These “bare assertions” were not enough to survive a motion to dismiss. Here, the DOI used acceptable criteria and made a judgment that the Plaintiff’s beliefs were not sincere. The Plaintiff did not provide evidence of hostility or disparate treatment resulting in the Court dismissing Plaintiff’s free exercise claim.