Posted: October 28, 2013

Disparate Treatment Claim Dismissed For Lack Of Nexus

In Forgione v. The City of New York, et al., 11 CV 5248 (E.D.N.Y. Oct. 17, 2013), Judge Gleeson granted summary judgment for the police department and two of its officials, dismissing disability discrimination claims brought by a police captain under the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq.  (The court also dismissed retaliation claims brought under City law as well as under the New York State Human Rights Law and the Americans with Disabilities Act.)  The New York City law is broader than its federal counterpart in significant respects, including by not requiring a plaintiff to demonstrate that his claimed disability impedes a major life activity or that he was subjected to an “adverse employment action” because of the disability.  To prevail, Forgione only had to prove that he was treated differently, not that the “treatment was particularly severe or adverse.”  Thus, the disparate treatment claim was dismissed not because Forgione failed to show substantial damages, but because there was an insufficient nexus between the supervisor’s actions and his perception of the plaintiff’s disability.

Plaintiff Ralph Forgione was a police captain who alleged he was perceived as having post-traumatic stress disorder after telling his supervisor that his (Forgione’s) father had murdered his mother when he was 18 years old, and that his being referred to Psychological Services for a fitness-for-duty evaluation constituted “different” treatment.  After the assessment, he was cleared for duty, and the opinion does not state whether Forgione claimed to have lost any pay or status as a result.  However, the City demonstrated that no nexus existed between the perceived status and the referral by showing that the real basis for the referral was an incident in which Forgione had instructed a subordinate to make a false report to their superiors, and Judge Gleeson dismissed the disparate treatment claim on that ground.

But try a thought experiment with all the same facts, except that in the hypothetical, the City did send Forgione for a psychological assessment because Forgione told his supervisor that his father murdering his mother, and Forgione is then cleared for duty just as he was in the case before Judge Gleeson.  Would that state a claim for disparate treatment, even though Forgione was cleared for duty and one would be hard pressed to identify any significant harm to him?  And should the Police Department’s interest in having psychologically fit officers play any role in the analysis, or does the different treatment and the existence of a nexus begin and end the claim?  It may well be that the Police Department emphasized the lack of nexus on summary judgment because it was the easier argument, but the breadth of the City’s human rights law appears to create the potential for recovery by plaintiffs who are not harmed in any material respect.

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