Lack of proof kills former employee's case

• Date: 01 January 2015
• DOI: http://doi.org/10.1002/nba.30033
• Published date: 01 January 2015

January 2015

11

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© 2015 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

(See EMPLOYMENT LAW on page 12)

The county led a motion for summary judgment,

arguing that Givens was provided the accommodation

that she had requested.

EMPLOYER WINS ➔ District Judge Michael

Telesca observed that Givens had never complained

that the pants were unsatisfactory until she led the

suit. He ruled that because the defendants never had

notice that further accommodation was necessary,

Givens had failed to state a claim that the county

refused to accommodate her disability.

Givens also argued that she was subjected to retali-

ation because she had requested an accommodation.

On that issue, she claimed that Perna singled her out

for not complying with the dress code before her

accommodation request; made negative statements

about her to other employees; made negative state-

ments about her that other employees overheard; re-

quired her to go home to remove a sweatshirt that did

not comply with the dress code; and made a negative

comment about her inability to follow instructions

for a gardening project.

The judge ruled that Perna’s comments regarding

her noncompliance with the dress code could not

constitute material adverse actions, and that they

were not causally related to her protected activity

because they had occurred both before and after she

was granted the accommodation, and Perna had not

made any comments about her pants or her disability.

Further, he ruled that the instance where Perna

required Givens to remove a sweatshirt that was not

in compliance with the dress code was also not caus-

ally related to her request for an accommodation.

He explained that her disability concerned clothing

covering her lower body, which did not require that

she wear a sweatshirt.

The judge said that making Givens remove the

sweatshirt was, at most, a “minor inconvenience” that

did not amount to a materially adverse employment

action. Further, he noted evidence that Perna had

also enforced the dress code against another worker

wearing a sweatshirt, and therefore ruled Givens was

not treated differently in that regard.

Finally, he ruled that the other instances were ir-

relevant.

Judge Telesca granted summary judgment in favor

of the county, ruling that the other cited instances

were irrelevant.

[Givens v. Monroe County, et al., U.S. District Court

for the Western District of New York, No. 11-CV-

6592, 09/25/2014].

Disability

Lack of proof kills former employee’s case

Teressa Williams worked for the Robert F. Ken-

nedy Children’s Action Corps Inc., a nonprot or-

ganization providing services to teenage girls. All of

its employees were required to complete training and

pass an annual examination.

In 2009, Williams passed the exam by telling its ad-

ministrator — who did not work directly for the corps

— that she needed assistance. Without the knowledge

of the corps, that administrator helped her.

In April 2010, Williams was offered the position

of Assistant Supervisor, upon the condition that she

retake the examination.

Immediately before the test, Williams told the ad-

ministrator that, because of learning problems, she

did not believe she could pass. Williams explained that

she had a different style of learning and that group

instruction was difcult for her. She was then given

the opportunity to take the test in a quiet area. She

was also allowed extra time to complete it. Nonethe-

less, Williams left the room during the test, stating

that she could not do it.

In September, Williams was involved in a car ac-

cident and was out of work for one week.

On Oct. 7, Williams refused an order to retake the

test. As a result, the director suspended her with pay.

Five days later, she again refused to appear for the

examination.

Williams was red in January 2013.

She then sued the corps, claiming a violation of

the Americans with Disabilities Act.

It led a motion for summary judgment, arguing

that Williams was not disabled within the meaning

of the statute.

In response, Williams presented an Aug. 1, 2013,

email from her therapist diagnosing her with post-

traumatic stress disorder, depression and anxiety, and

also stating that she had difculty learning in group

settings and preparing for tests.

EMPLOYER WINS ➔ However, District Judge

Michael Ponsor said the email was irrelevant because

the therapist had not addressed the period of time

that Williams worked for the corps.

Williams also produced a letter from her primary care

physician stating that she suffered from mental health

issues that affected her memory during the time she

worked for the corps. Finally, Williams herself testied