Jose Zavala worked as a network technician at Cornell University as a member of the "Backbone" team, which worked on complex, high-level networking assignments.  Zavala suffered from Type I diabetes.  In October 2009 he sought treatment for swelling in his right foot and was diagnosed with early stage kidney failure.  He asked his supervisor, Jeremy Butler, for reduction in duties that required walking.  Instead, Butler assigned Zavala tasks that required even more walking.

During Zavala's February 2010 performance evaluation, his supervisor told him he had been downgraded because of time he missed for medical appointments.  Zavala refused to sign his evaluation, but the Director of Operations, Sasja Huijts, threatened him and demanded he sign.  Zavala then took a 3-week medical leave to deal with some health issues.

When Zavala returned to work, Huijts had assigned him to a customer service position and did not return his regular company vehicle to him.  Zavala gave Huijts a fitness for duty letter, showing that he could return to his regular position, but Huijts refused it.  Human Resources did not address Zavala's concerns.  He finally returned to work, but on June 6, 2010 he broke his foot.  The University denied him light-duty accommodation.

Zavala was on short-term disability until October 2010.  When he returned, Huijts reassigned him off the Backbone team and took away his tools and truck.  The new work was far less complex or fulfilling, and did not offer as much overtime as Zavala's prior assignment.  Zavala complained again to HR, and was offered the chance to return to the Backbone team under the supervision of Huijts and his former supervisor.  Zavala refused due to the previous actions the supervisors took against him.

In April 2011 Zavala received another negative evaluation.  On August 19, 2011, he filed a complaint with the EEOC of disability discrimination.  The EEOC forwarded the complaint to the relevant state agency.  Cornell argued that Zavala's claim is time barred and that he has not alleged an adverse employment action.

To establish a case of disparate treatment under the ADA, Zavala must show that (1) Cornell is subject to the ADA, (2) Zavala was disabled, (3) Zavala was otherwise qualified to perform the functions of his job, and (4) he suffered an adverse employment action because of his disability.  Cornell only disputed the fourth factor.  An adverse employment action is a materially adverse change in the terms, privileges, duration and conditions of employment.

Zavala argued that his reassignment was an adverse action.  Cases under the ADA have held that a reassignment can be an adverse action, but it must be analyzed on a case-by-case basis.  Here, Zavala showed that his new work was less complex and rewarding and that he lost most of his opportunity for overtime work.  The court held this was sufficient to plead an adverse action.  Even though Zavala refused to be reassigned back to the Backbone team, he still suffered the adverse action during the period before he was permitted to return to his old team.

In terms of Zavala's negative performance evaluations, as a matter of law, only where the negative evaluation results in an adverse change in work conditions may it be considered an adverse action.  Here, the court found it reasonable to infer that Zavala's transfer resulted from criticism received in his evaluation.  Therefore, a claim that the evaluation was an adverse action may proceed.  The court also found that Huijt's refusal to accept Zavala's right to work letter caused material detriment to Zavala, specifically his loss of overtime and reassignment to lower-level work.

Zavala also brought a claim for hostile work environment.  This claim requires that he demonstrate that the workplace was permeated with discriminatory intimidation, ridicule or insult that is pervasive enough to alter the conditions of his employment.  Given the totality of the circumstances here, the court agreed that Zavala had pled enough facts to state a claim.  For example, even though his supervisors knew of his mobility limitations, they removed his truck and forced him to find other modes of getting to and from work sites.

The final issue was the timeliness of Zavala's claims.  Normally a plaintiff may not assert claims that occurred over 180 days before the charge.  However, where the EEOC forwards the claim to a state agency, as it did here, the plaintiff may look back 300 days for events to support his claim.  Therefore, Zavala was allowed to bring the claims based on earlier actions.

Zavala also argued that he could bring the earlier claims under the continuing violation doctrine.  Under this doctrine, a court will assess (1) whether the older incidents and newer ones are similar in kind, (2) whether the incidents were recurring or isolated in nature, and (3) whether the effect of the discrimination is permanent in nature.  Under this theory, the court agreed that Zavala had successfully pled a continuing violation.  Cornell's motion for summary judgment was denied.

Note:

Zavala's reassignment to a new position was held to be an adverse employment action.  When dealing with disabled employees, schools should make sure that any time an employee is reassigned in order to accommodate the disability (as opposed to punish the employee as was the case here), the school should clearly document the move as an accommodation and have written records that the employee agrees to the reassignment.  This will help the school if later the employee claims he or she viewed the reassignment as punishment.

Zavala v. Cornell University, --F.Supp.2d--, 2014 WL1123418