Court Calls for Second Circuit Clarification On Causation Standard in Disability Lawsuits

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By Chris Opfer

Dec. 29 — The U.S. Court of Appeals for the Second Circuit may soon have to decide whether Americans with Disabilities Act claims should be considered under a “but for” or “mixed motive” causation standard, a federal judge said Dec. 29.

Denying summary judgment to Suffolk County, N.Y., on former corrections officer Steven Sherman's claims that he was fired because of a knee injury and in retaliation for complaining about discrimination, the U.S. District Court for the Eastern District of New York found that Sherman raised triable questions about whether his injury and complaint were the “but for” cause of his termination or simply played a role in the decision.

The judge observed, however, that recent U.S. Supreme Court precedent and conflicting district court decisions within the Second Circuit left an “open question” about the appropriate causation standard that may soon need to be resolved.

“In this case, if the Court’s resolution of the proper level of causation required to prove a discrimination and retaliation claim under the ADA were outcome determinative of any of the Plaintiff’s relevant ADA claims, the Court would decide the issue and perhaps sua sponte certify that part of the order to the Second Circuit,” Judge Arthur D. Spatt wrote. “To be sure, if this case proceeds to trial, an answer to the question of the proper level of causation required for an ADA claim will be required in the form of jury instructions.”

High Court Rulings Raise Question

The Supreme Court held in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 118 FEP Cases 1504 (2013), that a worker suing for retaliation under Title VII of the 1964 Civil Rights Act must show that retaliation was the “but for” cause of an adverse employment action . 

The Sixth and Seventh Circuits are among the other appeals courts that have since extended Nassar and the high court's earlier decision in Gross v. FBL Financial Services Inc., 557 U.S. 167, 106 FEP Cases 833 (2009), to require “but for” causation in ADA discrimination and retaliation cases .

These courts have interpreted the statute's ban on discrimination and retaliation “because of” a disability or protected activity to necessitate a higher standard than the mixed motive causation model permitted in Title VII discrimination cases. A worker can successfully sue for discrimination under a mixed motive theory by showing that bias was at least one of the reasons for an adverse employment action.

Although the Second Circuit hasn't weighed in, Spatt said some district courts in the circuit have “read the writing on the wall” and concluded that ADA claims require “but for” causation. Others, he said, have continued to rely on pre-Gross circuit precedent allowing ADA claims to proceed on a mixed motive theory.

Triable Questions Identified

Sherman sued the county, the local sheriff's department and a number of former supervisors, alleging among other claims that he was fired from his job as a corrections officer because of a lingering knee injury that he sustained while training in the Suffolk County corrections officer academy. He claimed that his superiors forced him to participate in physical activities, despite his doctor's orders, and ultimately terminated him for relatively minor performance deficiencies after he complained about age and disability discrimination on the job.

While some district courts within the circuit have required “but for” causation in ADA cases, Judge Spatt said, others “have preferred to treat Parker as binding absent a conclusive pronouncement by the Second Circuit or the Supreme Court, and have continued to apply mixed-motives analysis under the ADA.”

The court denied the county's motion for summary judgment, finding that Sherman raised triable discrimination and retaliation claims under either the “but for” or mixed motive standard.

Spatt noted in particular that Sherman produced evidence showing that he told a supervisor the day before the termination that he may need surgery to address the injury. Another supervisor testified in a deposition that he'd never seen another corrections officer fired for “minimally acceptable” performance review scores like those on which Sherman's termination was based.

The court dismissed the claims against the sheriff's department, finding that it wasn't a distinct entity from the county. Holding that individuals can't be held liable under the ADA, the court also dismissed the claims against Sherman's various supervisors.

District Courts Split

Spatt said the Second Circuit will likely need to resolve the causation question, either in this or another case. “However, where, at this point, it is unnecessary to decide the question, the Court declines to do so, particularly given the lack of briefing on this issue,” he wrote.

Spatt said the Second Circuit hasn't overturned a ruling issued before the Gross and Nassar decisions, in which the appeals court held that an ADA discrimination plaintiff need only show that the worker's disability played a motivating role in an adverse employment decision (Parker v. Columbia Pictures Indus., 204 F.3d 326, 10 AD Cases 396 (2d Cir. 2000)). He also cited a summary order rendered after the Supreme Court decisions in which the Second Circuit said that the mixed motive standard still applied in ADA cases (Perry v. NYSARC, Inc., 424 F. App’x 23 (2d Cir. 2011)).

“Despite the holdings of Parker and Perry, the Second Circuit has essentially treated whether the ‘but for' standard applies to ADA claims as an open question in this circuit,” Spatt wrote. While some district courts within the circuit have required “but for” causation in ADA cases, Spatt said others “have preferred to treat Parker as binding absent a conclusive pronouncement by the Second Circuit or the Supreme Court, and have continued to apply mixed-motives analysis under the ADA.”

Sherman was represented by Cronin & Byczek LLP. The Suffolk County Attorney's Office represented the county, the sheriff's department and the individual defendants.

To contact the reporter on this story: Chris Opfer in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at