October 24, 2012

Employee Sues Cornell for Violating Americans With Disabilities Act

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A Cornell Information Technology employee is suing the University for $1 million for violating the Americans With Disabilities Act in a way that he says brought him “severe emotional pain and suffering, mental anguish, humiliation [and a] loss of enjoyment of life.”

Jose Zavala, 51, has worked at the University since 1993. In his lawsuit — which was filed in November 2011 — Zavala alleges that he was criticized by his supervisors for attending medical appointments, was asked to obtain an excessive number of medical clearances to return to work, and was deprived of the vehicle and tools needed for his job.

The University, denying the claims, said that its actions have not adversely affected Zavala’s employment. Cornell has filed a preliminary motion arguing that Zavala’s case has no merit, according to Wendy Tarlow, associate University counsel.

“Mr. Zavala is a valued employee, and we don’t feel he has been treated unfairly,” Tarlow said in an interview with The Sun. “We feel that he has been accommodated well throughout his time here at Cornell University.”

Zavala, who served in the military, has suffered complications from Type 1 diabetes since 1989 — a condition that he says makes him a disabled veteran. Despite his disability, Zavala said he had been able to handle his job duties until the University allegedly began discriminating against him.

Zavala said that, when he was diagnosed with early kidney failure in October 2009, his supervisor and newly hired associate director unfairly withdrew some of his responsibilities and assignments, basing their decisions to do so on his disability rather than his job performance.

When his kidneys failed and his foot swelled, the University “wanted to get rid of me because they saw it,” he claims.

That discrimination, Zavala said, manifested itself in his 2009 performance evaluation, which he said was unfair and did not accurately describe his actual performance.

“My record was great; I never had anything bad put on my record the whole time I’m here. Then, all of a sudden, they start worrying about my foot,” he said. “They [started] saying, ‘Well, you’re missing too many days going to the doctor,’ and that shouldn’t be put on [my] job performance evaluation.”

This and other alleged incidents of discrimination led Zavala to file his lawsuit against the University, he said. In September, Zavala asked that the University pay a settlement of $464,000, but the University rejected it, according to a message between Zavala and Tarlow.

According to Zavala, the $1 million he is currently asking for was calculated based on what he would make working for Cornell from now until he turns 65.

In his lawsuit, Zavala also alleges that the University switched his job positions in a way that was unfair.

Zavala has worked for two different teams in CIT: the Cornell Field Service, which is responsible for activating wireless internet across campus, and the Backbone LAN Support, which focuses on setting up routers, switches and fiber optics. After working in the CFS for a few years, Zavala was moved to the BLS, a branch he said he prefers working in.

In October 2010, Zavala was issued a doctor’s order that said he could not climb ladders, and the University transferred him from the BLS back to the CFS — a move that Zavala said was a demotion.

“I didn’t get any money taken away from me, but you work so hard, you go to school, you learn different skills, and now you get thrown back into doing something that somebody that is entry-level would basically do,” he said.

According to Tarlow, Cornell later made an offer to Zavala to rejoin the BLS. The two parties, however, split on their interpretations of the offer.

While the University claims in the lawsuit that Zavala rejected its offer, Zavala said that his meeting with a University official to discuss the offer was “a setup.” The offer, he said, did not give him the opportunity to truly return to his previous position — forcing him to reject it and stay with the CFS.

Cornell has argued that the court should dismiss some of Zavala’s claims because too much time passed between the alleged incidents and Zavala filing his complaints.

In a motion, the University said that a claimant must file a charge within 300 days of an alleged discriminatory action. If true, the court would not have jurisdiction to consider acts that occurred prior to Oct. 23, 2010 — such as the University allegedly unfairly evaluating Zavala in his job performance report.

The University has also argued that “nowhere in the chronology laid out by the plaintiff is there any indication of a legally cognizable adverse action, let alone one which was caused by plaintiff’s disability status.”

The University’s motion defines adverse actions as actions that create a “materially significant disadvantage” for the plaintiff. These include termination of employment, a demotion in wage or salary, a less distinguished title, a material loss of benefits or significantly diminished material responsibilities.

The University asserts that the restrictions it placed on Zavala’s work, the medical clearances it asked Zavala to undergo and its evaluation of his job performance cannot be considered adverse actions.

As the lawsuit proceeds, Zavala said he hopes that the case — which concerns years of alleged discrimination, and has pit him against the University — will soon be resolved.

“This has been hard on me physically and psychologically,” Zavala said. “It’s hurt my relationship with my coworkers; it’s hurt my relationship with my wife.”­­­­­

Zavala, who is representing himself in the case, said that the stress from the lawsuit has aggravated his illness.

“I just had a mini-stroke. I was hospitalized for 24 hours for observation, and my doctor said, ‘Do whatever you can to get closure on this,’” he said. “[Because] I’m doing this on my own, it’s created a lot of stress on me. My kidneys have gotten worse.”

According to Zavala, it could be only a year before his kidneys fail altogether, forcing him to be put on dialysis.

But for Zavala, fighting the lawsuit is worth it.

“I just need closure,” Zavala said. “I know that if Cornell prevails in this, they’re going to lay me off. There’s no doubt in my mind.”

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