57 F. Supp. 3d 288
S.D.N.Y.2014Background
- Nadel was hired as a GS-11 accountant by the VA in April 2010 and was on a one-year probationary appointment supervised by Angela Micalizzi.
- He ruptured his left patellar tendon in June 2010, was on medical leave ~June–September 2010, returned to work cleared by his surgeon with no restrictions, and never requested an accommodation.
- Throughout 2010–2011 Micalizzi repeatedly counseled Nadel about recurring performance errors involving WIP reports and the OLCS; he received written counseling and was terminated during probation for unsatisfactory performance in April 2011.
- Nadel filed informal EEO contact (Nov. 30, 2010) and a formal EEO complaint (Feb. 27, 2011) alleging harassment and hostile work environment; he then sued under the ADA and the Rehabilitation Act asserting disability discrimination, retaliation, and hostile work environment.
- The Court treated only the Rehabilitation Act claims (ADA does not apply to federal employers), considered summary judgment briefing, and found no genuine dispute of material fact supporting any of Nadel’s claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nadel is disabled under the Rehabilitation Act | Knee injury and resulting limp/cane substantially limit major life activities (walking, sleeping, daily activities) | Injury was temporary, surgeon cleared him without restrictions, no accommodation requested — not substantially limiting | Not disabled; summary judgment for defendant |
| Whether Nadel was otherwise qualified for his position | He could perform the job; errors were not his fault or exaggerated | Repeated poor performance and counseling show he was not qualified during probation | Not otherwise qualified; summary judgment for defendant |
| Whether termination was solely because of disability (discriminatory discharge) | Termination was motivated by disability/perception of disability | Performance problems predated injury and were the motivating reason for termination | No causal nexus; summary judgment for defendant |
| Whether termination was retaliation for EEO activity | Termination followed protected EEO complaint (approx. 4 months) | Temporal gap and absence of other evidence make causation insufficient | Temporal gap too attenuated; insufficient causation; summary judgment for defendant |
| Whether conduct amounted to a hostile work environment | Repeated remarks and counseling constituted severe/pervasive harassment | Remarks were routine performance counseling and occasional harsh comments, not objectively severe or pervasive | Conduct not objectively severe or pervasive; hostile work environment claim dismissed |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (Sup. Ct.) (summary judgment standard and genuine issue of material fact)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (Sup. Ct.) (nonmoving party must show more than metaphysical doubt)
- Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597 (2d Cir. 2006) (extra caution on summary judgment in discrimination cases)
- Toyota Motor Mfg. v. Williams, 534 U.S. 184 (Sup. Ct.) (definition of substantially limits major life activities)
- Capobianco v. City of New York, 422 F.3d 47 (2d Cir. 2005) (factors for substantial limitation: nature, duration, permanence)
- Adams v. Citizens Advice Bureau, 187 F.3d 315 (2d Cir. 1999) (temporary impairment not covered)
- Cifra v. General Electric Co., 252 F.3d 205 (2d Cir. 2001) (establishing causation for retaliation via temporal proximity)
- Clark County School Dist. v. Breeden, 532 U.S. 268 (Sup. Ct.) (temporal proximity must be very close to show causation)
- Kaytor v. Electric Boat Corp., 609 F.3d 537 (2d Cir. 2010) (factors for objective severity/pervasiveness in hostile-work-environment claims)