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By Patrick Dorrian
March 6 — A New York receptionist fired after repeated absences to tend to her infant daughter's breathing problems has triable associational bias claims under the Americans with Disabilities Act and local law, a federal judge ruled March 4.
Denying 878 Education LLC summary judgment on Elizabeth Manon's ADA claim, the U.S. District Court for the Southern District of New York found that comments by the company's director of admissions—including saying he needed someone without children and asking “So, what is it, your job or your daughter?”—may be the sort of “smoking gun” that constitutes direct evidence under federal anti-bias law.
In addition, Judge Richard J. Sullivan said Garcia may have known from Manon's reference to “reactive airway disease” and other evidence that her daughter was “disabled” under the ADA, and not just “suffering from a number of temporary and isolated medical ailments,” as the company argued. As a result, a jury could find the company liable for ADA bias even under the more stringent “but-for” causation standard, the judge concluded, noting that Manon was fired the day she returned to the office following an absence to care for her daughter.
Manon's associational discrimination claim under the New York City Human Rights Law, which is governed by the more lenient “motivating-factor” causation standard and only requires proof of knowledge of an “impairment,” not a disability, also survives summary judgment, the court decided. But it said her NYCHRL gender bias claim failed for lack of evidence that she would have been treated more favorably had she been “a man and a father instead of a woman and a mother.”
Manon was the sole receptionist in the company's admissions department from May 2012 through November 2012.
According to the opinion, out of 132 work days during her tenure, Manon arrived late 27 times, left work early 54 times, and was absent 17 days. She also worked beyond her scheduled eight-hour shift more than 31 times.
Manon claims that despite her attendance record, the director of admissions, Alfonso Garcia, only reprimanded her once for being late. She also acknowledges being reprimanded for once wearing jogging pants to work.
On Oct. 10, 2012, Manon's daughter was taken to the emergency room with a low oxygen level. When she informed Garcia, he told her “not to worry” about her absence from work. Manon took further absences as her daughter remained in the hospital for three days. She says she later told Garcia her daughter had reactive airway disease.
In late October, Manon missed several more days of work to care for her daughter, and took further time off beginning Nov. 14 when her daughter returned to the emergency room with breathing problems. She kept Garcia and others informed of the situation.
Manon returned to work Nov. 16, but Garcia fired her. She claims he told her the company was “letting her go” because it needed someone without children in her position. When she pleaded for a chance to save her job, Manon alleges, Garcia repeated that he needed someone who was present at all times and asked, “How can you guarantee me that  two weeks from now your daughter is not going to be sick again?”
Following her discharge, Manon sued the company, Garcia and another company official under the ADA, the NYCHRL and Title VII of the 1964 Civil Rights Act, asserting disability-based associational discrimination, gender bias and caregiver discrimination claims. She later withdrew her Title VII claim.
Partially denying summary judgment on Manon's remaining claims, Sullivan noted that Garcia was Manon's supervisor and made the alleged remarks to her during the meeting at which she was fired. Thus, his comments “could easily be viewed as a ‘smoking gun' admission,” or at least “create a ‘thick cloud of smoke' sufficient” to warrant trial, the judge said.
He added that Manon's frequent communications with Garcia regarding her need for time off would also enable a jury to find he was aware of her daughter's disability when he fired Manon, a necessary element of an ADA associational discrimination claim.
While it's unclear following Gross v. FBL Financial Services Inc., 557 U.S. 167, 106 FEP Cases 833 (2009), an Age Discrimination in Employment Act case, whether the lesser mixed-motive standard of proof still applies under the ADA, Manon has enough evidence even under Gross's more burdensome “but-for” test, Sullivan found.
In addition to evidence of Garcia's biased comments, the court noted that Manon was discharged the day she returned to work after being absent to care for her daughter and that, according to Manon, her alleged performance deficiencies, apart from one attendance-related reprimand and a warning about her work attire, were never documented by the company.
Phillips & Associates represented Manon. Lamb & Barnosky LLP represented the company.
To contact the reporter on this story: Patrick Dorrian in Washington at email@example.com
To contact the editor responsible for this story: Susan J. McGolrick at firstname.lastname@example.org
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Manon_v_878_Educ_No_13cv3476_RJS_2015_BL_59175_SDNY_Mar_04_2015_C.
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