Appellate court holds that temporal proximity does not create inference of disability discrimination unless the employer knew about the employee’s disability at the time of firing

In its October 12, 2016 decision in Tibbetts v. Pelham Union Free School District, the Appellate Division, Second Department, affirmed the granting of summary judgment dismissing the plaintiff’s complaint for disability discrimination. The order granting summary judgment had been made below by the Supreme Court, Westchester County Justice Smith.

Plaintiff, who was employed by the School District as a probationary teacher, alleged that she was discriminated on the basis of disability by virtue of having been fired from her position two weeks after she returned to work after suffering from injuries in a slip-and-fall accident. Plaintiff asserted that the temporal proximity between the onset of her disability and her discharge gave rise to an inference that she was terminated because of her disability. The Appellate Division upheld Justice Smith’s finding that no such inference of discrimination was justified because the School District demonstrated that it was unaware of Plaintiff’s disability.

In so holding, the Second Department adopted the same temporary proximity standard that federal courts utilize in evaluating retaliation claims, to wit: that temporal proximity, alone, is not sufficient. There must be other facts, in addition to temporal proximity, which indicate a discriminatory motive on the part of the employer. For example, in his September 15, 2016 decision in Alemessaoudi v. Mark 2 Restaurant, Judge Paul G. Gardephe of the U.S. District Court for the Southern District of New York rejected the employer’s motion for summary judgment because Plaintiff was terminated for months after complaining about sexual harassment and the harasser, who was plaintiff’s manager, threatened that he would “get [Plaintiff] fired.” Judge Gardephe ruled that the temporal proximate, combined with the harasser’s threat, constituted sufficient evidence upon which a jury could conclude that plaintiff’s firing was retaliatory.

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