May 6, 2014

Case Accusing Cornell of Disability Discrimination Moves Forward

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By NOAH RANKIN

After seeing little activity for over two years, the case of Jose Zavala — a Cornell Information Technology employee who sued the University for $1 million for violating the American with Disabilities Act — is set to move forward.

Zavala put forth his lawsuit in November 2011 on the grounds that he was criticized by 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 Sun reported in October 2012.

Zavala has suffered complications from Type 1 diabetes since 1989 — which previously required him to leave his military career of 12 years. He was also diagnosed with early kidney failure in October 2009, a diagnosis he said caused the University to begin discriminating against him.

“My employer knew this whole time that I was a diabetic, but I took good care of myself so it didn’t interfere with my work,” Zavala said. “But as soon as my legs started failing me, which comes with diabetes, all of a sudden I became a target.”

According to Wendy Tarlow, associate University counsel, Cornell has demonstrated that Zavala has not been discriminated against, due to the fact that he was retained when several employees in his department were laid off and that he was relocated departments upon complications due to his disability.

“Cornell has an extremely strong tradition of hiring and retaining employees with disabilities. We’ve actually won several lawsuits that alleged disability discrimination,” Tarlow said. “In Mr. Zavala’s situation, he retained his employment despite having some medical disabilities and having to be accommodated.”

For these reasons, Tarlow said, the University has filed two successive motions to dismiss Zavala’s lawsuit since it was introduced. After the original motion was granted, Zavala was allowed to replead his complaint by further specifying his allegations against the University.

“Mr. Zavala brought an amended complaint, in which he further specified the allegations,” Tarlow said. “We made in essence the same motion over again, which is to say to the court, even if you assume everything he is alleging is true, he still hasn’t stated a viable cause of action.”

This second motion, however, was denied in a district court decision dated March 21, which means that Zavala’s case will go into the discoveries phase, according to Tarlow. In this phase — which will take place Dec. 31 — both parties will exchange existing documents and may take depositions of people on either side.

This is the first time so far that the court will consider facts relating to the case, Tarlow said. In the case of disputed facts, there may be a trial by jury.

“Even though time has gone by, there has been no activity in the case,” Tarlow said. “Now there will be activity in the case — Mr. Zavala will turn over his documents, and Cornell will turn over our documents. We’ll do depositions.”

The deadline for the University to file another motion after this discovery period is February 2015, according to Tarlow.

A court date for the decision has been set for May 2015, Zavala said.

Zavala, whose kidneys have since failed, placing him on dialysis and unable to work, says that he is grateful that the court has moved his case forward.

“I’m just happy that the court allowed the case to go forward,” Zavala said. “I would like to settle, but [Cornell] is pretty determined not to, so it will be the judge’s decision … I just hope for something good to come of this, so this doesn’t happen to anyone else. That’s what my drive’s been.”

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