“Poor Performance” Caused by a Disability Is Not a Good Reason to Deny an Accommodation

The Americans with Disabilities Act (“ADA”) requires employers to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”  42 U.S.C.A. § 12112(b)(5)(A).  To determine an appropriate accommodation employers are required to engage in an interactive process with an employee when they know that the employee has a disability.  Can an employer reserve particular work modifications for those individuals who meet specific performance standards and refuse to consider these modifications during the interactive process with an employee whose unaccommodated disability has interfered with his performance?  A recent decision, Goonan v. Fed. Reserve Bank, 12 Civ. 3859 (JPO) (S.D.N.Y. Jan. 7, 2013), answers this question with a resounding “no.”

Bruce Goonan worked for the Federal Reserve Bank of New York (“the Fed”) for twenty-five years.  During the attack on the World Trade Center (“WTC”) on September 11, 2001, Mr. Goonan was trapped in his office two blocks from the WTC and believed that he would not survive.  As a result, he began to suffer from severe anxiety.  Through counseling he was able to cope with his symptoms and continue working for the Fed.  However, in January 2010, he was moved to a new building.  His new office overlooked Ground Zero.  Having to walk past Ground Zero on his way to work caused Mr. Goonan to develop flashbacks of 9/11.  He became suicidal, anxious, depressed, and suffered from nightmares.  For the first time in his career at the Fed Mr. Goonan received an unsatisfactory review.  A psychiatrist diagnosed him with PTSD and Major Depression.  In order that his therapy would have the opportunity to work, the psychiatrist recommended that Mr. Goonan be allowed to work in a different building where some of his co-workers already worked or to telecommute, as 50% of the employees in his department did on a regular basis, so that he would not have to pass Ground Zero each day.  The Fed offered “accommodations” such as transfer to a cubicle on the other side of the building, listening to soothing music through a headset, and use of a multi-spectrum light, but adamantly refused to consider any accommodation which involved Mr. Goonan working at a different location.  Mr. Goonan’s symptoms, including suicidal thoughts, persisted and by May of 2011 he decided to retire.

The Fed moved for summary judgment.  It explained its denial of Mr. Goonan’s request for a transfer to a different work location by pointing to his “poor performance.”  The Court found this explanation “troubling, since denial of an accommodation on the ground that a non-accommodated, disabled employee is experiencing performance inadequacies turns the rationale for the ADA’s rule of reasonable accommodation on its head.”  The Fed argued that Mr. Goonan had terminated the interactive process by retiring, but the Court denied summary judgment and held that the facts as presented above were sufficient to support a claim that the Fed was responsible for the breakdown of the interactive process and therefore liable for discriminating against Mr. Goonan by failing to accommodate his disability.

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