Bernheim v. New York City Department of Education

Background

Laura Bernheim, representing herself, sued the New York City Department of Education (DOE) and individual supervisors, Annelisse Falzone and James Quail. She alleged discrimination and retaliation based on age and disability. The court construed her claims as arising under the Age Discrimination in Employment Act, the Rehabilitation Act, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the New York State Human Rights Law, and the New York City Human Rights Law.

The court had previously dismissed Bernheim’s state and city human-rights claims because she had not filed a required notice of claim, while giving her permission to seek permission for a late filing concerning allegations related to her medical condition. Bernheim then filed an amended complaint. DOE later moved to dismiss all claims for failure to state a claim, meaning DOE argued that the complaint did not allege enough facts to support legal relief.

Magistrate Judge’s Recommendations and Objections

Magistrate Judge Cott recommended granting DOE’s motion except as to Bernheim’s ADA retaliation claim and allowing her to file another amended complaint. Bernheim and DOE objected to parts of that recommendation. Judge Caproni reviewed the unchallenged portions for clear error and reviewed the challenged portions independently.

Court’s Analysis

The court found no clear error in the recommendation that all claims except the ADA retaliation claim were inadequately pleaded. Those claims included Bernheim’s other federal claims and her state and city claims. The court therefore dismissed those claims.

As to ADA retaliation, the court considered whether Bernheim’s request for FMLA leave could be protected activity under the ADA. The court declined to follow two decisions concluding that an FMLA-leave request, by itself, could not qualify. It reasoned that requests for reasonable accommodations have long been treated as protected activity and concluded that, under the facts alleged, Bernheim’s request for FMLA leave was sufficient to satisfy that part of an ADA-retaliation claim.

The court also found that Bernheim had plausibly alleged a connection between her leave requests and the alleged adverse employment action. Although DOE argued that the disciplinary process began before Bernheim’s June and August 2018 leave requests, the complaint referred to requests made on “multiple occasions, including most recently” in June and August. Construing that allegation in Bernheim’s favor, the court found it plausible that an earlier leave request preceded the disciplinary process.

The court rejected DOE’s argument that Bernheim should not be allowed to amend her ADA failure-to-accommodate claim because she could not perform her job’s essential functions with the proposed intermittent-leave accommodation. The court treated that argument as new because DOE had not raised it before the magistrate judge. It also noted the magistrate judge’s analysis that physical presence is not legally an essential function of every job and that intermittent leave may be a reasonable accommodation under the ADA.

Disposition

The court adopted Judge Cott’s report and recommendation in full. DOE’s motion to dismiss was granted in part and denied in part. All of Bernheim’s claims except her ADA retaliation claim were dismissed without prejudice, and she was granted leave to file a second amended complaint by October 22, 2021. The court warned that failure to plead sufficient facts could lead to dismissal with prejudice of those claims. The case remained assigned to Judge Cott for general pretrial management and recommendations on later dispositive motions.