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The 2nd U.S. Circuit Court of Appeals has found that a federal law protecting disabled employees does not entitle a token clerk who was trapped in a subway car in a firebombing incident to transfer to an above-ground job when feelings of claustrophobia prevented her from continuing to work underground. The decision, Felix v. New York City Transit Authority, 01-7967, deals yet another body blow to the beleaguered Americans with Disabilities Act of 1990, which in the last several years has suffered a series of defeats at the hands of the U.S. Supreme Court. The dispute arose out of a 1995 attack on a token clerk in a Brooklyn station by two would-be robbers, who squirted gasoline into the booth and then set it afire. The clerk died in the attack. The attack gained nationwide notoriety when then-Sen. Robert Dole, who was running for president, blamed Hollywood for the incident. A movie released the previous week called “Money Train” depicted a psychopath squirting gasoline into a token booth and then setting it on fire. At the time of the Brooklyn attack, Denise Felix was en route to the station where she was assigned as a relief clerk. She saw the smoke-filled station and was told about the attack. She was traumatized by the realization that she could have been killed, and was taken to a local hospital for treatment. Doctors diagnosed Felix with post-traumatic stress disorder, characterized by feelings of apprehension and anxiety, insomnia and an inability to work in the subway. They specified that she was not to do any subway work, but could do clerical work. However, the Transit Authority refused Felix’s request to be reassigned to an above-ground job, and instead fired her under a state law that permits termination of civil service employees who are unable to return to work after one year. Felix, who has since died of unrelated causes, sued under the ADA for the Transit Authority’s refusal to accommodate her disability. Southern District of New York Judge Shira Scheindlin granted summary judgment to the Transit Authority, finding that there was no nexus between her disability and the accommodation requested. In a 2-1 decision, the 2nd Circuit affirmed the lower court. The decision by Chief Judge John M. Walker Jr. reflects the continued resistance of the federal courts to any expansion of the definition of a “disability” under the statute. The ADA requires employers to provide reasonable accommodation to any employee with a disability, defined as “a physical or mental impairment that substantially limits one or more of the major life activities.” In Felix’s case, the court found that she was disabled with insomnia caused by her post-traumatic stress. But, it reasoned, the Transit Authority need not offer her an above-ground position because she did not argue that her insomnia was worsened by working in the subway. Rather, the court noted, “she told the [Transit Authority] that she could not work in the subway because she was “terrified of being alone and closed in.” The court made its ruling even though it acknowledged that both mental conditions — the insomnia and the fear of being in the subway — derived from the same traumatic incident. MAJORITY QUESTIONED In dissent, Judge Pierre Leval questioned the majority’s finding that Felix failed to show a causal link between her insomnia and the requested accommodation. To the contrary, he argued, even the Transit Authority’s own doctors found that Felix’s insomnia was aggravated by going underground. Given that, Leval reasoned, the case should have gone to a jury to determine whether she was entitled to a reasonable accommodation of her disability. The majority decision may not surprise practitioners who handle disability claims, as ADA claims fare poorly in court. In the 2nd Circuit, employees prevail on ADA claims only about 2 percent of the time, according to 2001 statistics from the American Bar Association Commission on Mental and Physical Disability Law Survey. Nationwide, that number is slightly more than 4 percent, the ABA survey shows. Yet as a practical matter, the impact of the decision may be limited, because so few disability cases — fewer than 3 in 100 — end up in court. Most are settled through finding a reasonable accommodation for the employee’s disability. Laura Sager of Washington Square Legal Services Inc. argued the case for Felix. Richard Schoolman of the Office of the General Counsel of the New York City Transit Authority represented the agency.

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