By Kate Acheson
In Forgione v. City of New York, a New York District Court found that an officer mistakenly perceived as suffering from Post-Traumatic Stress Disorder (“PTSD”), only had sufficient proof to show “retaliation,” but not “discrimination” under the Americans with Disabilities Act (“ADA”), where the Department had sent the officer for a fitness for duty evaluation. The Court concluded that evidence existed of a retaliatory intent in the compelled examination, but that a psychological examination did not constitute an “adverse action” under the ADA.
Ralph Forgione, a 20-year veteran officer, was transferred to a new precinct in 2009. Although he was not having any problems at work, his new superior officer, Kavanagh, believed he suffered from PTSD and told him he needed therapy. Forgione told his supervisor that he did not suffer from PTSD, or need therapy and complained to Chief Gomez. The next day, Kavanagh ordered Forgione to visit the Psychological Services Unit (“PSU”). When Forgione returned from PSU, Kavanagh said Forgione’s complaints made him look bad, threatened Forgione’s work schedule, and suggested Forgione was so disturbed that he might “go home and kill [his] wife and kids.” Forgione complained to Chief Gomez and requested a transfer, which was denied.
Around this same time, Forgione also asked another chief, Chief Pizutti, for a transfer. When a position became available, Pizutti denied Forgione’s transfer request, told Forgione that he needed help, and ordered him to go to PSU again. However, even after PSU found Forgione fit for duty, Pizutti told Forgione he would not be transferred “anytime in [the] near future.”
Between November of 2009 and January of 2010, Forgione developed urinary incontinence. He went to see a department-approved doctor who initially recommended Forgione take a week off. However, the doctor’s office unexpectedly requested Forgione return the next day, at which time, the doctor gave him a clean bill of health and insisted he be put back to work. Forgione complained about the doctor to Chief Pizutti and requested sick leave to resolve his urinary condition. Pizutti refused, even after Forgione produced an urologist’s note excusing him from work.
Based on these actions, Forgione sued the City of New York for discrimination and retaliation. The court found that there was sufficient proof of an ADA violation only for the retaliation claim, not the discrimination claim. In that claim, Forgione argued that he was denied a transfer and refused sick leave in retaliation for complaining to Chiefs Pizutti and Gomez about Kavanagh comments and behavior in response to perceiving Forgione as disabled due to PTSD. Under the ADA:
Complaining about discrimination to a supervisor constitutes protected activity and an employer is forbidden from taking an adverse employment action against an employee in retaliation for engaging in such activity…. This is true even when the conduct of which an employee complains is not in fact unlawful, as long as “he possessed a good faith, reasonable belief” that it was.
But the “discrimination” claim fell short, according to the court:
Courts have understood this [ADA] language to require a plaintiff to plead that he was subject to action by his employer because of his disability (in this case, perceived PTSD)…. An ADA plaintiff suffers an adverse employment action when “he or she endures a ‘materially adverse change’ in the terms and conditions of employment.”… “Examples of materially adverse employment actions include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [and] significantly diminished material responsibilities….’”… Forgione’s two referrals for psychological evaluation do not amount to adverse action under the ADA. Although Forgione may have perceived the referrals as inconvenient and unwarranted, and although they may have carried negative connotations, they did not effect a materially adverse change in his working conditions.
Although Forgione’s discrimination claim against Kavanagh under the ADA was insufficient, the Court found that Forgione had a good faith, reasonable belief that Kavanagh’s actions were unlawful in that they discriminated against him for a perceived disability. Because Forgione complained to Chiefs Pizutti and Gomez in good faith about “unlawful” behavior, his complaint was protected by the ADA prohibition on retaliation. Thus, the Court found the actions of the City following Forgione’s complaint – denying Forgione’s transfer and refusing to grant his sick leave – might have been retaliatory and, therefore, the retaliation claim cannot be summarily dismissed.
