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By responding to a store clerk’s discrimination allegations defensively and with a clear negative animus, rather than proactively and with an open mind, a convenience store may have violated anti-discrimination and retaliation provisions of the Americans with Disabilities Act and New York state law, ruled the 2nd U.S. Circuit Court of Appeals ( Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 2nd Cir, 9 ADD 9-118). A convenience store clerk was diagnosed with epilepsy and experienced seizures of varying seriousness on a daily basis. Because of her epilepsy and New York’s requirement that a person with epilepsy be seizure-free for two years in order to obtain a driver’s license, she was unable to drive. The clerk worked at a store just six blocks from her home, allowing her to commute to work without driving. After working at the store for several months, the clerk began applying for a promotion to assistant manager of her store. Management, however, repeatedly denied her promotion requests, asserting that the assistant store manager was required to drive to the bank to make regular deposits. In response to management’s assertion, the clerk wrote a letter to the company’s director of personnel asserting that management’s position violated the ADA and identifying several ways that she could make bank deposits without driving a car. She suggested that a manager of another store could pick her up on the manager’s route to the bank, that she or management could hire a person or a service to drive her to the bank, or that she could use public transportation to get to the bank. The company’s president replied with a letter asserting “the ADA is not for intimidating employers to change non-discriminatory operational policies. Given our past record of accommodating employees with disabilities, I find your position weak at best. After review with counsel, we feel very strongly about our position. … Additionally, your allegations contained within the letter are slanderous. If you continue this behavior, we will have no choice but to address your behavior through legal channels. This is [the company's] final position on this matter and will not [sic] be entertaining further communication on this matter.” Approximately one week after receiving the president’s letter, the clerk filed a discrimination charge with the Equal Employment Opportunity Commission. Four days after filing her EEOC charge, she experienced a seizure at work and struck her elbow on a cabinet. Four days after her seizure the company suspended her without pay until she received an updated evaluation from a physician. Twelve days after suspending the clerk, the company reinstated her and paid her back wages for time off. Approximately one month later the company offered the clerk an assistant manager position at a different store where it was customary for armored cars to pick up the store’s bank deposits. The clerk repeated her desire to be promoted within her current store. Not only was her current store closer to her home, but the alternate store was in a suspect neighborhood. The clerk asserted that allowing assistant managers with disabilities to work only in those suspect neighborhoods where armored car service was necessary to deliver deposits to the bank would have the detrimental effect of adversely segregating persons by reason of their disability. Despite her misgivings, the clerk accepted the company’s offer. Several months later, however, when a rumored promotion did not materialize, she quit her job. Immediately thereafter, the clerk pursued disability discrimination claims. PREFERRED LOCATION MAY HAVE BEEN A REASONABLE ACCOMMODATION According to the state appellate court, a reasonable jury could determine that the company should have accommodated the clerk’s desire to be considered for promotion in her neighborhood store. Although the company argued that the clerk’s desired accommodation was merely for her personal convenience, the court was not swayed by this argument. “If an employer … permits its workers to apply for promotion at a preferred location (or shift), then a disabled person must have the same opportunity. In this case, the evidence thus far developed indicates that [the company's] employees could apply for promotion at a particular store.” Moreover, a reasonable jury could find that the company could have accommodated the clerk’s disability in performance of her desired assistant manager position. Driving, observed the court, is not an essential function of the assistant manager position — the essential function is making bank deposits. Each of the clerk’s proposed accommodations might seem reasonable in the eyes of a jury, especially because the company provided third party delivery of bank deposits for other stores and because the clerk herself offered to pay for third party drivers if necessary. Finally, the court determined that the clerk’s allegations supported a case of unlawful retaliation. A reasonable jury could conclude that the company president threatened and intimidated the clerk by threatening legal action in response to her ADA assertions and her request for reasonable accommodation. Additionally, a reasonable jury could find retaliation in the company’s decision to suspend the clerk without pay shortly after she filed her EEOC charge. Although the suspension lasted only a week and the clerk was reimbursed her lost pay, suspension without pay is sufficient to constitute adverse employment action, ruled the court. � 2001, CCH INCORPORATED. All Rights Reserved.

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