Employer's Suggestion of Eye Exam Is Sufficient to Indicate Notice of Employee's Disability

​An employer's suggestion to a safety director, when denying his request for an iPad to facilitate reading lengthy documents while traveling among worksites, that he have his eyes examined was sufficient for a reasonable juror to find that the company was on notice of the employee's disability, the U.S. District Court for Southern New York ruled.

The plaintiff, a safety director for a construction firm, was responsible for developing and executing workplace health and safety plans. He was required to read statutes and safety plans on his iPhone as he traveled among multiple worksites and used a safety audit software application to facilitate his work.

The plaintiff requested an iPad so he could see the mobile app on the screen better with less eye strain. At trial, the plaintiff testified that he has heart disease and type 2 diabetes, with a resulting vision impairment. The plaintiff also testified he had told someone at his company that he had problems with his eyesight but couldn't remember when that was.

When the plaintiff asked for the iPad, a vice president replied that he should see the office manager for a new phone. The plaintiff then told the office manager he had received approval for purchase of an iPad to be used in conjunction with his iPhone.

The plaintiff had an eye exam at this time. The doctor indicated that his vision was 20/20, he reported no ocular complaints and no diabetic retinopathy was present.

When the iPad arrived, the office manager held it pending approval from the vice president. The plaintiff again wrote to the vice president, saying "my iPad is being held ... waiting for your approval. I understand there was a miscommunication … as you thought I was ordering a phone. Please advise!" The vice president responded that he had never received a request for an iPad. The plaintiff forwarded him the earlier correspondence and also reminded him that he had verbally approved purchase of an iPad one year earlier. At this point the company treasurer refused him the iPad, telling him he should get an eye exam.

The plaintiff's employment ended several months later, and he sued the employer and two corporate officials for discrimination and retaliation. A jury returned a verdict for all defendants on the disability discrimination and retaliation claims. However, the jury found that the plaintiff had requested a reasonable accommodation for his disability, which the employer failed to accommodate under New York State and New York City law, and awarded him $300,000 in punitive damages. The employer filed a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b).

To establish a claim under those two laws for failure to accommodate, a plaintiff must show that:

• The individual has a disability under the meaning of the statute.
• An employer covered by the statute had notice of the disability.
• The plaintiff could perform the essential functions of the job at issue with reasonable accommodation. 
• The employer refused to make such accommodations.

The defendant argued it was entitled to judgment because:

• The plaintiff did not establish that the employer was on notice that his request for an iPad was for a reasonable accommodation.
• No reasonable juror could have found that the plaintiff was qualified to determine he needed an iPad due to his alleged disability.
• The plaintiff's eye exam demonstrated that his need for an iPad was not connected to a visual impairment.
• The plaintiff failed to show that the need to read the mobile app on the go was an essential job function.
• The evidence was insufficient to support an award of punitive damages.

Specifically, the employer argued that the plaintiff's request for an iPad did not put it on notice that he was requesting a reasonable accommodation for a disability because the request seemed to be made for business efficiency purposes. The company contended the plaintiff never referenced his poor eyesight or any other disability when asked what the iPad was for, but instead described various business reasons for needing it.

However, in denying his request for an iPad, the treasurer suggested he get an eye exam. This could be interpreted as reflecting her awareness that the plaintiff had an eye impairment and that his request was related to that disability, the court said. Holding that a reasonable juror could find that the company was put on notice of the plaintiff's disability and denied his request without engaging in a "good faith interactive process," the court denied the Rule 50 motion for judgment.

Further, the court found the evidence sufficiently established that an iPad was needed to accommodate the plaintiff's impaired eyesight. The plaintiff testified that he requested an iPad to cause less strain on his eyes, and thus the requested accommodation was required to accommodate the disability, the court stated. Although the eye exam report indicated "no ocular complaints," the plaintiff testified that he has terrible vision even while wearing glasses and that the doctor's notes should be read only as a comparison to his last annual visit for a diabetic eye exam.

The court declined to dismiss the jury's verdict on this basis, finding that "a reasonable juror could have concluded that the plaintiff had difficulty reading legal documents on his cellphone even while wearing glasses, that this inability to read legal documents on his phone impacted his ability to perform his job, and that this difficulty reading documents on his cellphone stemmed from his eye impairment."

Responding to the defendant's argument that the plaintiff failed to establish that the use of the mobile app was an essential job function requiring accommodation, the court noted there is no requirement under New York State or New York City law that a plaintiff prove that without an accommodation the person was unable to perform essential job functions. Both statutes require only that the accommodation relate to plaintiff's duties as part of his job or occupation. The court stated that "even if plaintiff were able to perform all essential functions of his job without an iPad (through maximizing the font on his cellphone and straining his eyes), that fact alone would not bar him from asserting a reasonable accommodation claim under New York State or New York City law." The evidence, construed in favor of plaintiff, supports that the app was part of his job responsibilities, he was frequently traveling as part of his job and that he needed an iPad to use the app in light of his impairment, the court said.

Finally, the court found the argument that the evidence presented was insufficient to support a punitive damages award was not asserted by defendants in their initial motion for judgment and thus was forfeited. Further, regardless of whether the argument was forfeited, the court said the evidence was sufficient to support the award of punitive damages. Evidence indicated the plaintiff had requested the iPad as an accommodation for his poor eyesight and the treasurer knew of or consciously disregarded his disability when she refused to provide him with an iPad, instead suggesting he "go get an eye exam."

Concluding that "the evidence supported that [the employer] engaged in at least 'recklessness' or 'conscious disregard' of plaintiff's rights when it refused to at least engage in an interactive process with him regarding his requested accommodation," the court denied the motion for judgment as a matter of law.

Casmento v. Volmar Construction Inc., S.D.N.Y., No. 20-cv-00944 (Oct. 28, 2022).

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.