August 5, 2019

Cup of Joe | Demoted 61-Year-Old MTA Bus Driver Who Was Told, "Lucky to Work at All,” Sues for Discrimination


“Old age is like a plane flying through a storm. Once you're aboard, there's nothing you can do.”

- Golda Meir, As Good as Golda: The Warmth and Wisdom of Israel's Prime Minister

This week’s case is about the power employers believe they have to take away a worker’s dignity in sickness and in the worker’s childhood of old age.

Enter: Brian Thane, employee; MTA, the employer; Dr. Nicole Esquenet; MTA’s in house doctor; and, Dr. Arthur Weiss, MTA’s in-house neurologist.

Brian, a New York City bus driver since 2007, was 61 years old. On April 16, 2015, he experienced dizziness and leg weakness during a shift. He ended his shift early and went to the hospital, where he stayed overnight.

Brian had suffered a transient ischemic attack (“TIA”). The hospital records noted that he was told that he would need to be cleared to return to work by his primary care physician and neurologist. However, one of the doctors at the hospital noted that it was probable that Brian’s symptoms were related to his chronic neck issues.

After being released from the hospital, Brian got medical clearance from several doctors, including three neurologists, to return to work as a bus driver.

But the MTA doctors insisted that the episode was a TIA, which is a disqualifying condition for a bus driver, and that Brian was not fit for the position. Brian was demoted and began to work as a cleaner for the MTA.

Brian sued the MTA for Age and Disability Discrimination

Testimony of Nicole Esquenet – MTA’s Doctor

Q: Why was Brian not permitted to return to work immediately after he was cleared by his own doctors?

A: It is the MTA’s policy that after a driver has been hospitalized they must report  to their office of Occupational Health Services to medically assess and approve the driver.

Q: Notwithstanding the fact that Brian was cleared by several doctors?

A: Correct.

Q: And you saw Brian on May 5, 2015?

A: Yes.

Q: But you did not conduct an examination on Brian on that day?

A: No.

Q: Or any other day?

A: No. I looked through his medical records from the hospital.

Testimony of Brian

Q: When you went to the offices of Dr. Esquenet, did she examine you?

A: No. Doc was just going through my medical file.

Q: Did Dr. Esquinet say anything to you?

A: Dr. Esquenet said that she could do whatever she wanted with my file because I was “getting up there in age.

Q: Did the doctor say anything else?

A: Yeah. Doc said that I was “lucky to work at all.”

Q: Did you see any other company doctors?

A: Yes. May 8, 2015, I saw Dr. Weiss. He is a neurologist. He examined me and did some tests.

Q: Did he say anything to you.

A: Yeah! Dr. Weiss said that I was okay to go back to driving my route.

Q: What happened after that?

A: Well, on June 8, 2015, I got a call from the company, and they said that Dr. Weiss changed his mind about me driving because he got additional hospital records.

The Employer’s Argument

The MTA argued that it did not discriminate against Brian by reassigning him as a cleaner because he posed a direct threat to the public’s safety due to his diagnosis of TIA.

Brian’s Argument

Brian argued that he was not conclusively diagnosed with TIA and challenged the methods by which the MTA determined that he was unfit to drive his bus route. Brian argued that he was cleared for bus driving by multiple doctors, but the MTA still regarded him as disabled and discriminated against him.

The Court’s Ruling

Though, as the MTA argues, it is entitled to set rigorous safety standards for its bus drivers, it must implement those standards in accordance with the City, State and Federal Disability laws, and conduct an individualized assessment considering the required factors.

Brian was qualified to work as a bus driver, despite his hospital visit, and he was discriminated against because of his age. Dr. Esquenet’s statement that she could do whatever she wanted with Brian’s file because he was “getting up there in age” and “lucky to work at all” could allow a jury to infer that the MTA had a discriminatory motivation in removing him from his position as a bus driver.

Brian defeats the MTA.

The Grievance

On July 24, 2015, Brian filed a grievance seeking reinstatement as a bus driver in accordance with his union’s collective bargaining agreement. He began working as a bus driver again on May 24, 2016, and the arbitrator awarded him back pay for the period of time that he was working as a cleaner.

And Brian will still be compensated for monetary damages in his court case.

Brian’s lawyers and Union Rep did amazing work on this one. But the MTA sure seems like a strange place to work.

Here is the case: https://www.leagle.com/decision/infdco20190729849

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