Witcher v. New York City Department of Education,
(23-cv-465, 2d Cir. June 28, 2024): Second Circuit Vacates District Court's Dismissal of Special Education Teacher’s ADA Claims Finding That She Pled Facts Sufficient to Plausibly Establish Interference and Retaliation Under the Statute
Background and Procedural History
Plaintiff’s Background
Selena C. Witcher (Witcher) is an African American woman with 10 years of teaching experience, a Master’s degree and certification as an early childhood special education instructor. She worked for the Department of Education (DOE) for three years at the Basheer Quisim School, aka Public School 53 in the Bronx. Witcher was a probationary teacher for a class of first grade special education students. Prior to obtaining a reasonable accommodation, she received performance evaluations of “3:” the rating of an effective instructor. Witcher initially reported to Defendant Principal Collin Wolfe (Wolfe). After she obtained an accommodation, she subsequently reported to named Defendant Assistant Principal Lorena Moreno (Moreno).
Procedural History
On September 13, 2021, proceeding pro se, Witcher filed suit against the DOE, Lorena Moreno (Moreno), Collin Wolfe (Wolfe) and her former union representative Victoria Walters (Walters). Her lawsuit commenced : after she filed 3 internal complaints with DOE’s Office of Equal Opportunity (OEO), none of which were addressed; and once she received an administrative dismissal from the Equal Employment Opportunity Commission (EEOC) on July 7, 2021. Witcher then filed suit on July 21, 2021. Her initial lawsuit raised claims under the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).
Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants sought dismissal of Witcher’s third amended complaint in its entirety. Judge Sarah Netburn found that Witcher had failed to plead facts sufficient to establish her claims. She also declined to exercise supplemental jurisdiction over Witcher’s claims under the state and city human rights laws. Judge Netburn also denied Witcher’s request to amend her complaint for a fourth time. The Honorable Judge Paul Gardephe then adopted Judge Netburn’s Report and Recommendation, and dismissed Witcher’s complaint in its entirety.
Factual Discussion
Due to her pre-existing conditions, Witcher was considered high risk if she contracted COVID. To protect herself, Witcher sought and obtained a reasonable accommodation to work from home. Within two months of her accommodation being granted, Witcher began to experience retaliation. When Wolfe was put on notice of Witcher's accommodation to work remotely, Witcher alleged that she was subjected to a continuum of retaliatory employment actions that culminated in her being denied tenure and prohibited her from working at DOE.
Witcher primarily proceeded pro se, but nevertheless plausibly pled that Defendants’ adverse employment actions were pretextual. Her complaints alleged that upon notice that she had been granted an accommodation, Wolfe said that he was coming after her job. Wolfe allegedly made this comment while he was on speakerphone; Witcher alleged that her ex-paramour heard Wolfe.
The three complaints Witcher filed with the District Court, also discussed a series of letters that Defendants issued that ptresent factual disputes about her performance. Defendants issued a barrage of letters that failed to adhere to their internal protocols and procedures. From the inception of their issuance, Witcher denied the veracity of the allegations and asserted, that they were issued in retaliation for her protected activities. Defendants contended that the letters memorialized the grounds for denying her tenure without any corroborating evidence from the alleged aggrieved parents. Clearly the letters and complaints alone contained factual disputes that made dismissal inappropriate at the pleading stage.
Witcher also stated that she was forcibly transferred from teaching first to fourth grade classes; a transfer that required her to teach outside of her early childhood certification/licensure. The Complaints filed with the court explained that the fourth grade students were a more difficult and less esteemed assignment. In their filings, Defendants responded that the transfer was an employment decision to which they were entitled.
Witcher’s protected activities also led to a demotion in terms of her reporting structure. She went from reporting directly to Principal Collin Wolfe to directly reporting to Assistant Principal Lorena Moreno. For the first time during oral argument, Defendants claimed that the change was due to how Witcher spoke to Wolfe and that it was not retaliatory.
There is a question of whether Witcher had a viable hostile work environment and constructive discharge claim. Witcher filed 3 complaints with DOE’s Office of Equal Opportunity. Two of the complaints were referred elsewhere, and the OEO failed to reach a determination regarding the other. Increased stress and anxiety led Witcher to ask the Superintendent and the OEO for a transfer to another school as a reasonable accommodation. This request was denied without any further engagement.
Defendant Moreno filed an OEO complaint against Witcher where she alleged, that Witcher had discriminated against her based on her race and national origin. Moreno contended that Witcher discriminated against her because of her accent. Witcher contended that she corrected Moreno when the latter mispronounced her last name. The OEO substantiated the complaint against Witcher, while it failed to issue an outcome on any of Witcher’s complaints.
Witcher’s probationary employment eventually came to an ignominious end when she was denied tenure. Despite having a distinguished career and the respect of her colleagues and parents, Defendants failed to grant Witcher tenure. Defendants again failed to follow their protocols and procedures. Subsequent to her departure, she received a letter from DOE’s investigation unit with allegations of physical, verbal and corporal abuse. In another correspondence, Witcher was then informed that she would not be eligible for any employment with the DOE.
Despite the alleged investigation, the New York State Department of Education renewed Witcher’s teaching license. Witcher later learned that the letters pertaining to the abuse allegations and surrounding investigations were fabricated. Upon inquiry, Witcher learned that neither the State nor the Administration of Children Services had received any complaints of abuse. Witcher cited three letters that confirmed that no such charges against her were on record and that she was not guilty of any allegations of abuse.
District Court Misapprehends the Law and Acts Outside of its Role as Arbiter of the Law:Witcher v. NYC Dept. of Educ., 21-CV-07750 (SDNY Jan. 12, 2023)
The District Court dismissed all of Witcher’s claims. The Court found that Witcher failed to plead facts to plausibly establish that Defendants discriminated against her based on her disability. The Court also dismissed Witcher’s failure to accommodate claims. It determined that the school’s failure to transfer her to another school did not violate the ADA. The Court's analysis failed to examine whether there was an interactive process or any further steps by the school to comply with the ADA’s articulated accommodations process.
The District Court’s factual determinations also warranted reversal and vacatur. The Report and Recommendation found that Witcher added Wolfe’s statement during a phone conversation in bad faith. The Court was skeptical about the veracity of the factual allegations. It determined that Witcher’s failure to add Wolfe’s statements in her three other complaints made her claims dubious. The Court’s Report also discredited the three complaints made to the OEO. It determined that despite the nature of the office, that Witcher’s complaints failed to constitute protected activity.
The District Court also failed to accord Witcher the latitude consistent with her pro se status. On the one hand it added a duty of fair representation claim based on Witcher naming her former union rep as a defendant, however it nonetheless failed to analyze her viable interference claims under the ADA.
Analysis and Significance of the Appellate Court’s Findings
The Appellate Court, reversed, vacated and remanded in part the ruling of the District Court.
Key Points of the Decision and Oral Argument:
1) The District Court erred in failing to find that Witcher had sufficiently pled facts to establish a claim of interference under the ADA;2) It affirmed the District Court’s finding that Witcher had failed to plead facts for a discrimination claim based on her disability;3) The Panel questioned the distinction between interference and retaliation claims;4) The Summary Order touched on the question of what constitutes protected activity: was it when the accommodation was sought; and or when Defendants were on notice?; and 5) The Summary Order expanded the definition of what constitutes a demotion in a pedagogical setting.
The District Court’s Failure to Find an Interference Claim Constituted Reversible Error
Citing Witcher’s pro se status, the Appellate Court found that the District Court committed reversible error when it failed to find that Witcher had pled facts sufficient to establish an interference claim under the ADA. To support its position, it referenced the oral argument transcript, when Defendants/Appellees conceded that the pleaded facts could be interpreted to raise an interference claim.
The Court found that the manufactured disciplinary writeups, the demotion from the first to fourth grade teaching assignment and the failure to grant Witcher tenure all constituted interference. During the oral argument, the Court asked for additional case law on interference. The absence of a more detailed discussion of this question suggests that the Court may revisit this issue in the future.
Interference v. Retaliation Under the ADA: (42 U.S.C. 12203 (a) versus 12203 (b))
The ADA has three separate areas of relief. An employee may seek to recovery in the following contexts: discrimination based on a person’s association, actual or perceived disability (i.e. disparate treatment, disparate impact and or hostile work environment claims); retaliation based on an employee’s protected activity of complaining about discrimination or asking for a reasonable accommodation; and the prohibition against interference with an individual’s right under the statute.
The distinction between what constitutes retaliation versus interference presents a nuanced question that the Court seems eager to address in its future decisions. Retaliation claims are pretty clear and established: 12203(a) prohibits retaliation based on whether an individual engaged in protected activities (i.e. “made a charge, testified, assisted or participated in any manner in an investigation proceeding or hearing under the statute”) In making the determination of whether retaliation has occurred, the Court looks at whether the employee experienced adverse employment actions. Precedent has not established a finite list, but has stressed the importance of a contextual case-by-case analysis of the facts, and the employee’s workplace realities.
Decisions have primarily been reversed when the Circuit Court has determined that the Trial Court has engaged in a piecemeal analysis of the record. Reversible error has been found, when decisions examined the adverse employment actions individually and in isolation. Precedent instead has required the Courts to look at an employee’s workplace and the adverse actions experienced in their totality. The mosaic language in Gallagher and Vega are typically cited to further bolster this position.
Unfortunately, interference claims have not received the same amount of attention from the Courts. 42 U.S.C. 12203(b) makes it unlawful to coerce, intimidate, threaten or interfere with any individual's exercise or enjoyment of any rights granted or protected by the ADA. The EEOC’s Guidance provides some clarity on interference claims: “Employers may not intimidate, threaten, or otherwise interfere with a job applicant’s or current or former employee’s exercise of ADA rights.” The guidance has determined that it is thereby unlawful for an employer to use threats to discourage an individual from asking for a reasonable accommodation, and or to pressure them not to file a disability discrimination complaint.
Precedent has not engaged in a discussion of each subsection of the ADA together in one opinion. There has also been a failure to address the overlap of when adverse employment actions in retaliation for protected activity also constitute interference. The Court noted that the disciplinary letters, the demotion, Wolfe’s statement and the denial of tenure together could constitute interference. Despite this determination, it also seemed that it sought additional case law and analysis on this aspect of the statute. Those of us who appear before the Court should thereby expect further decisions in this grey area.
Protected Activity: When the Accommodation was Sought or When Defendants Were on Notice of the Fulfilled Request
Defendants/Appellees referenced several cases that supported the proposition that protected activity only took place upon receipt of a reasonable accommodation. They contended that the complaints failed to specify when Witcher made the request and whether Defendants were on notice that she made the request. It was their position, that the protected activity took place when Witcher made the request, and that the time between the request and the adverse employment actions may have been too far apart and tenuous for a retaliation claim based on proximity.
The Appellate Court took a more pragmatic approach, and examined the questions of if and when the Defendants were on notice of the request. It declined to make a determination about whether the request or the actual granting of the request constituted protected activity. The panel in oral argument asked Witcher about the reasonable accommodation process. From the discussion, the panel was able to determine that HR or some similarly functioning body made the decision and that they notified the Defendants. They also determined that for purposes of its analysis that the request and granting of the accommodation blended together. The Court thereby held that the protected activity took place when Witcher pled in her complaints: when Defendants were notified that her request had been granted to work remotely. Practitioners should also not be surprised when the Court revisits this question at a later date.
Expanded and Context Based Definition of Demotion in a Pedagogical Setting
Appellees cited several cases that supported the position, that transferring pedagogical staff from one grade to another was not a demotion. As such, they maintained the position that such transfers were consistent with their right to make business and HR decisions. However, their analysis omitted any discussion whether the demotion required Witcher to teach outside of her licensure.
Witcher raised this point during oral argument, however the panel did not address it then or in its decision. Typically out of title claims are addressed through the grievance process with the employee’s union. From Witcher’s filings and arguments, it seems that she will pursue recourse with her union based on this claim. The District Court suggested that she also may seek recourse for a duty to fair representation claim, if properly pursued and filed.
Ultimately, the Appellate Court determined that Witcher’s removal from first to fourth grade in and of itself could be deemed a demotion. It suggested the demotion itself presented an issue of factual dispute in terms of whether it was actually a less desirable assignment. The Appellate Court failed to address the out-of-title/licensure facet of the analysis. It also failed to address the change in Witcher’s reporting structure and the letter with the false allegations of abuse.
Impressions and Takeaways
The adage about a person acting as their own counsel does not apply here, Witcher did an excellent job of presenting her case. She filed two complaints pro se and got assistance with the third. Beyond that, Witcher filed and commendably argued her appeal before the Second Circuit. At oral argument, she gave a concise and powerful presentation of the facts. In kind, the Court's panel helped her flesh out some of the nuanced arguments that it has yet to address in its orders and decisions.
If nothing else, this case should put practitioners on alert that Post-Covid workplace accommodation cases will grow in number. Employers will continue to grapple with how to deal with employees with co-morbidities that require remote work. As such, supervisors and decision-makers should be very careful with how they engage this protected group, and how they proceed with employment decisions. As for the Courts, they will have to better flesh out the definition and time tables involving protected activities. Overall, a better discussion/analysis of interference claims pursuant to 42 U.S.C. 12203(b) is long overdue. Lawyers representing clients with retaliation claims should therefore err on the side of caution, and should raise both in order to ensure that they fully protect their clients’ rights. By Special Hagan, Esq.Written on August 13, 2024 @CopyrightedThe Author does not grant permission to use or cite the discussion without permission, failure to request may result in legal action. Requests can be sent to special@haganlawoffices.net
Background and Procedural History
Plaintiff’s Background
Selena C. Witcher (Witcher) is an African American woman with 10 years of teaching experience, a Master’s degree and certification as an early childhood special education instructor. She worked for the Department of Education (DOE) for three years at the Basheer Quisim School, aka Public School 53 in the Bronx. Witcher was a probationary teacher for a class of first grade special education students. Prior to obtaining a reasonable accommodation, she received performance evaluations of “3:” the rating of an effective instructor. Witcher initially reported to Defendant Principal Collin Wolfe (Wolfe). After she obtained an accommodation, she subsequently reported to named Defendant Assistant Principal Lorena Moreno (Moreno).
Procedural History
On September 13, 2021, proceeding pro se, Witcher filed suit against the DOE, Lorena Moreno (Moreno), Collin Wolfe (Wolfe) and her former union representative Victoria Walters (Walters). Her lawsuit commenced : after she filed 3 internal complaints with DOE’s Office of Equal Opportunity (OEO), none of which were addressed; and once she received an administrative dismissal from the Equal Employment Opportunity Commission (EEOC) on July 7, 2021. Witcher then filed suit on July 21, 2021. Her initial lawsuit raised claims under the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).
Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants sought dismissal of Witcher’s third amended complaint in its entirety. Judge Sarah Netburn found that Witcher had failed to plead facts sufficient to establish her claims. She also declined to exercise supplemental jurisdiction over Witcher’s claims under the state and city human rights laws. Judge Netburn also denied Witcher’s request to amend her complaint for a fourth time. The Honorable Judge Paul Gardephe then adopted Judge Netburn’s Report and Recommendation, and dismissed Witcher’s complaint in its entirety.
Factual Discussion
Due to her pre-existing conditions, Witcher was considered high risk if she contracted COVID. To protect herself, Witcher sought and obtained a reasonable accommodation to work from home. Within two months of her accommodation being granted, Witcher began to experience retaliation. When Wolfe was put on notice of Witcher's accommodation to work remotely, Witcher alleged that she was subjected to a continuum of retaliatory employment actions that culminated in her being denied tenure and prohibited her from working at DOE.
Witcher primarily proceeded pro se, but nevertheless plausibly pled that Defendants’ adverse employment actions were pretextual. Her complaints alleged that upon notice that she had been granted an accommodation, Wolfe said that he was coming after her job. Wolfe allegedly made this comment while he was on speakerphone; Witcher alleged that her ex-paramour heard Wolfe.
The three complaints Witcher filed with the District Court, also discussed a series of letters that Defendants issued that ptresent factual disputes about her performance. Defendants issued a barrage of letters that failed to adhere to their internal protocols and procedures. From the inception of their issuance, Witcher denied the veracity of the allegations and asserted, that they were issued in retaliation for her protected activities. Defendants contended that the letters memorialized the grounds for denying her tenure without any corroborating evidence from the alleged aggrieved parents. Clearly the letters and complaints alone contained factual disputes that made dismissal inappropriate at the pleading stage.
Witcher also stated that she was forcibly transferred from teaching first to fourth grade classes; a transfer that required her to teach outside of her early childhood certification/licensure. The Complaints filed with the court explained that the fourth grade students were a more difficult and less esteemed assignment. In their filings, Defendants responded that the transfer was an employment decision to which they were entitled.
Witcher’s protected activities also led to a demotion in terms of her reporting structure. She went from reporting directly to Principal Collin Wolfe to directly reporting to Assistant Principal Lorena Moreno. For the first time during oral argument, Defendants claimed that the change was due to how Witcher spoke to Wolfe and that it was not retaliatory.
There is a question of whether Witcher had a viable hostile work environment and constructive discharge claim. Witcher filed 3 complaints with DOE’s Office of Equal Opportunity. Two of the complaints were referred elsewhere, and the OEO failed to reach a determination regarding the other. Increased stress and anxiety led Witcher to ask the Superintendent and the OEO for a transfer to another school as a reasonable accommodation. This request was denied without any further engagement.
Defendant Moreno filed an OEO complaint against Witcher where she alleged, that Witcher had discriminated against her based on her race and national origin. Moreno contended that Witcher discriminated against her because of her accent. Witcher contended that she corrected Moreno when the latter mispronounced her last name. The OEO substantiated the complaint against Witcher, while it failed to issue an outcome on any of Witcher’s complaints.
Witcher’s probationary employment eventually came to an ignominious end when she was denied tenure. Despite having a distinguished career and the respect of her colleagues and parents, Defendants failed to grant Witcher tenure. Defendants again failed to follow their protocols and procedures. Subsequent to her departure, she received a letter from DOE’s investigation unit with allegations of physical, verbal and corporal abuse. In another correspondence, Witcher was then informed that she would not be eligible for any employment with the DOE.
Despite the alleged investigation, the New York State Department of Education renewed Witcher’s teaching license. Witcher later learned that the letters pertaining to the abuse allegations and surrounding investigations were fabricated. Upon inquiry, Witcher learned that neither the State nor the Administration of Children Services had received any complaints of abuse. Witcher cited three letters that confirmed that no such charges against her were on record and that she was not guilty of any allegations of abuse.
District Court Misapprehends the Law and Acts Outside of its Role as Arbiter of the Law:Witcher v. NYC Dept. of Educ., 21-CV-07750 (SDNY Jan. 12, 2023)
The District Court dismissed all of Witcher’s claims. The Court found that Witcher failed to plead facts to plausibly establish that Defendants discriminated against her based on her disability. The Court also dismissed Witcher’s failure to accommodate claims. It determined that the school’s failure to transfer her to another school did not violate the ADA. The Court's analysis failed to examine whether there was an interactive process or any further steps by the school to comply with the ADA’s articulated accommodations process.
The District Court’s factual determinations also warranted reversal and vacatur. The Report and Recommendation found that Witcher added Wolfe’s statement during a phone conversation in bad faith. The Court was skeptical about the veracity of the factual allegations. It determined that Witcher’s failure to add Wolfe’s statements in her three other complaints made her claims dubious. The Court’s Report also discredited the three complaints made to the OEO. It determined that despite the nature of the office, that Witcher’s complaints failed to constitute protected activity.
The District Court also failed to accord Witcher the latitude consistent with her pro se status. On the one hand it added a duty of fair representation claim based on Witcher naming her former union rep as a defendant, however it nonetheless failed to analyze her viable interference claims under the ADA.
Analysis and Significance of the Appellate Court’s Findings
The Appellate Court, reversed, vacated and remanded in part the ruling of the District Court.
Key Points of the Decision and Oral Argument:
1) The District Court erred in failing to find that Witcher had sufficiently pled facts to establish a claim of interference under the ADA;2) It affirmed the District Court’s finding that Witcher had failed to plead facts for a discrimination claim based on her disability;3) The Panel questioned the distinction between interference and retaliation claims;4) The Summary Order touched on the question of what constitutes protected activity: was it when the accommodation was sought; and or when Defendants were on notice?; and 5) The Summary Order expanded the definition of what constitutes a demotion in a pedagogical setting.
The District Court’s Failure to Find an Interference Claim Constituted Reversible Error
Citing Witcher’s pro se status, the Appellate Court found that the District Court committed reversible error when it failed to find that Witcher had pled facts sufficient to establish an interference claim under the ADA. To support its position, it referenced the oral argument transcript, when Defendants/Appellees conceded that the pleaded facts could be interpreted to raise an interference claim.
The Court found that the manufactured disciplinary writeups, the demotion from the first to fourth grade teaching assignment and the failure to grant Witcher tenure all constituted interference. During the oral argument, the Court asked for additional case law on interference. The absence of a more detailed discussion of this question suggests that the Court may revisit this issue in the future.
Interference v. Retaliation Under the ADA: (42 U.S.C. 12203 (a) versus 12203 (b))
The ADA has three separate areas of relief. An employee may seek to recovery in the following contexts: discrimination based on a person’s association, actual or perceived disability (i.e. disparate treatment, disparate impact and or hostile work environment claims); retaliation based on an employee’s protected activity of complaining about discrimination or asking for a reasonable accommodation; and the prohibition against interference with an individual’s right under the statute.
The distinction between what constitutes retaliation versus interference presents a nuanced question that the Court seems eager to address in its future decisions. Retaliation claims are pretty clear and established: 12203(a) prohibits retaliation based on whether an individual engaged in protected activities (i.e. “made a charge, testified, assisted or participated in any manner in an investigation proceeding or hearing under the statute”) In making the determination of whether retaliation has occurred, the Court looks at whether the employee experienced adverse employment actions. Precedent has not established a finite list, but has stressed the importance of a contextual case-by-case analysis of the facts, and the employee’s workplace realities.
Decisions have primarily been reversed when the Circuit Court has determined that the Trial Court has engaged in a piecemeal analysis of the record. Reversible error has been found, when decisions examined the adverse employment actions individually and in isolation. Precedent instead has required the Courts to look at an employee’s workplace and the adverse actions experienced in their totality. The mosaic language in Gallagher and Vega are typically cited to further bolster this position.
Unfortunately, interference claims have not received the same amount of attention from the Courts. 42 U.S.C. 12203(b) makes it unlawful to coerce, intimidate, threaten or interfere with any individual's exercise or enjoyment of any rights granted or protected by the ADA. The EEOC’s Guidance provides some clarity on interference claims: “Employers may not intimidate, threaten, or otherwise interfere with a job applicant’s or current or former employee’s exercise of ADA rights.” The guidance has determined that it is thereby unlawful for an employer to use threats to discourage an individual from asking for a reasonable accommodation, and or to pressure them not to file a disability discrimination complaint.
Precedent has not engaged in a discussion of each subsection of the ADA together in one opinion. There has also been a failure to address the overlap of when adverse employment actions in retaliation for protected activity also constitute interference. The Court noted that the disciplinary letters, the demotion, Wolfe’s statement and the denial of tenure together could constitute interference. Despite this determination, it also seemed that it sought additional case law and analysis on this aspect of the statute. Those of us who appear before the Court should thereby expect further decisions in this grey area.
Protected Activity: When the Accommodation was Sought or When Defendants Were on Notice of the Fulfilled Request
Defendants/Appellees referenced several cases that supported the proposition that protected activity only took place upon receipt of a reasonable accommodation. They contended that the complaints failed to specify when Witcher made the request and whether Defendants were on notice that she made the request. It was their position, that the protected activity took place when Witcher made the request, and that the time between the request and the adverse employment actions may have been too far apart and tenuous for a retaliation claim based on proximity.
The Appellate Court took a more pragmatic approach, and examined the questions of if and when the Defendants were on notice of the request. It declined to make a determination about whether the request or the actual granting of the request constituted protected activity. The panel in oral argument asked Witcher about the reasonable accommodation process. From the discussion, the panel was able to determine that HR or some similarly functioning body made the decision and that they notified the Defendants. They also determined that for purposes of its analysis that the request and granting of the accommodation blended together. The Court thereby held that the protected activity took place when Witcher pled in her complaints: when Defendants were notified that her request had been granted to work remotely. Practitioners should also not be surprised when the Court revisits this question at a later date.
Expanded and Context Based Definition of Demotion in a Pedagogical Setting
Appellees cited several cases that supported the position, that transferring pedagogical staff from one grade to another was not a demotion. As such, they maintained the position that such transfers were consistent with their right to make business and HR decisions. However, their analysis omitted any discussion whether the demotion required Witcher to teach outside of her licensure.
Witcher raised this point during oral argument, however the panel did not address it then or in its decision. Typically out of title claims are addressed through the grievance process with the employee’s union. From Witcher’s filings and arguments, it seems that she will pursue recourse with her union based on this claim. The District Court suggested that she also may seek recourse for a duty to fair representation claim, if properly pursued and filed.
Ultimately, the Appellate Court determined that Witcher’s removal from first to fourth grade in and of itself could be deemed a demotion. It suggested the demotion itself presented an issue of factual dispute in terms of whether it was actually a less desirable assignment. The Appellate Court failed to address the out-of-title/licensure facet of the analysis. It also failed to address the change in Witcher’s reporting structure and the letter with the false allegations of abuse.
Impressions and Takeaways
The adage about a person acting as their own counsel does not apply here, Witcher did an excellent job of presenting her case. She filed two complaints pro se and got assistance with the third. Beyond that, Witcher filed and commendably argued her appeal before the Second Circuit. At oral argument, she gave a concise and powerful presentation of the facts. In kind, the Court's panel helped her flesh out some of the nuanced arguments that it has yet to address in its orders and decisions.
If nothing else, this case should put practitioners on alert that Post-Covid workplace accommodation cases will grow in number. Employers will continue to grapple with how to deal with employees with co-morbidities that require remote work. As such, supervisors and decision-makers should be very careful with how they engage this protected group, and how they proceed with employment decisions. As for the Courts, they will have to better flesh out the definition and time tables involving protected activities. Overall, a better discussion/analysis of interference claims pursuant to 42 U.S.C. 12203(b) is long overdue. Lawyers representing clients with retaliation claims should therefore err on the side of caution, and should raise both in order to ensure that they fully protect their clients’ rights. By Special Hagan, Esq.Written on August 13, 2024 @CopyrightedThe Author does not grant permission to use or cite the discussion without permission, failure to request may result in legal action. Requests can be sent to special@haganlawoffices.net