Norman v. NYU Langone Health System

Background

Jasmine Norman sued her employer, NYU Langone Health System, under the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL). She alleged that she had a disability based on an allergy to the flu vaccine and that NYU Langone failed to accommodate her, discriminated against her, and retaliated against her.

NYU Langone’s policy required employees working in areas where patients might be present to receive an annual flu vaccine or obtain an approved exemption. In 2017, the policy required employees whose exemption requests were denied to receive the vaccine or face discipline, including possible discharge. NYU Langone offered FluBlok, a flu vaccine developed without certain ingredients found in traditional egg-based vaccines, as an alternative in some cases.

Norman had reported adverse reactions to flu vaccines as a child and in 2001. Her 2001 reaction included shortness of breath and chest palpitations, resolved without medical treatment, and lasted about ten to twenty minutes according to her testimony. In 2017, she requested a medical exemption. The employer referred her to an allergy specialist, who recommended a FluBlok skin test. Norman declined the test at that appointment. The employer denied her exemption request and told her she could be referred for termination if she did not comply with the policy. She was later suspended with pay until an appointment for testing. The FluBlok skin test was negative, but after she received the FluBlok vaccine she experienced shortness of breath and palpitations and was treated with albuterol and an EpiPen before being taken to an emergency department. The employer approved her medical exemption on February 12, 2018, and continued approving it in later years. The opinion states that Norman experienced no retaliation after returning to work.

ADA failure-to-accommodate claim

The court applied the summary-judgment standard, under which judgment is appropriate when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law.

Norman argued that NYU Langone should have allowed her to wear a face mask during the 2017 flu season instead of receiving a flu vaccine. The court assumed, without deciding, that her vaccine allergy could be an impairment affecting the major life activity of breathing. It nevertheless held that she had not shown that the impairment substantially limited her breathing when she requested the accommodation on November 10, 2017.

The court relied on the brief nature of her 2001 symptoms, the absence of medical intervention, her ability to continue driving home, her statements on employment-related forms that she had not had serious breathing problems and had no known allergies, and her testimony that she had not experienced similar symptoms after she stopped receiving flu shots. The court acknowledged that an episodic impairment can qualify as a disability, and that some vaccine reactions could be sufficiently severe to qualify. But it concluded that the evidence in this case would not allow a reasonable factfinder to find that Norman had a qualifying disability at the relevant time. The court therefore did not address the remaining elements of her accommodation claim and granted summary judgment to NYU Langone on that claim.

ADA disability-discrimination claim

For the disability-discrimination claim, the court held that Norman had not shown that she had an ADA disability during the relevant period. The court also found that the record did not support the conclusion that NYU Langone regarded her as disabled. The employer’s referral to the allergy specialist was for the purpose of determining whether she had a medical condition qualifying for an exemption, and the record did not show that the employer believed she likely had such a condition.

Because Norman failed to establish at least one required element of her initial discrimination case, the court did not decide whether NYU Langone had a legitimate, nondiscriminatory business reason for its actions. The court granted summary judgment on the ADA disability-discrimination claim.

ADA retaliation claim

Norman alleged that requesting an accommodation was protected activity and that NYU Langone retaliated by threatening to terminate her. The court found that she had raised factual issues concerning whether she engaged in protected activity, whether the employer knew about it, and whether the threat of termination together with her paid suspension could constitute an adverse employment action.

The court nevertheless held that there was no genuine dispute that NYU Langone lacked a retaliatory motive. The exemption requests were reviewed without identifying information, Norman testified that her supervisors were trying to help her, and she described the problems as confusion and miscommunication surrounding a new policy. The court found that the employer’s actions, including referring her to the allergy specialist and to human resources, did not show retaliatory hostility. It therefore granted summary judgment on the ADA retaliation claim.

State and city claims

The NYSHRL and NYCHRL claims arose from the same facts as the federal claims, so they qualified for supplemental jurisdiction. After dismissing all claims over which it had original federal-question jurisdiction, however, the court declined to exercise supplemental jurisdiction over the remaining state and city claims. It cited the complex and developing nature of New York disability law and concluded that judicial economy, convenience, fairness, and respect for state courts favored allowing those claims to proceed in state court.

The court dismissed the NYSHRL and NYCHRL claims without prejudice to renewal or refiling in state court. It directed the clerk to terminate NYU Langone’s summary-judgment motion and close the case.

Disposition

Judge Analisa Torres granted NYU Langone’s motion for summary judgment on Norman’s ADA claims. The court dismissed Norman’s NYSHRL and NYCHRL claims without prejudice to refiling in state court.