An asthmatic who required a smoke-free work environment repeatedly requested that his employer reasonably accommodate his disability. Hendler brought a complaint under the ADA; his complaint alleged that, not only did the company fail to provide him with a reasonable accommodation, but also that it eventually retaliated against him by terminating him from his position as senior vice president of marketing. In July 1996, Intelecom filed a motion for summary judgment, contending that Hendler is not disabled because he was able to perform all the essential functions of his job with or without accommodation. On April 15, 1997, the Court (Seybert, J.) concluded, at 963 F. Supp. 200, 12.3 TPLR 2.160, 7 AD Cases 605, that sufficient facts are in dispute to warrant precluding summary judgment on the basis that Hendler does not have a disability. Similarly, because material facts were in dispute, Hendler’s claim that the Defendant violated the New York State Human Rights law (NYSHRL) was rejected by the court. However, Hendler’s claim that the failure to reasonably accommodate his disability is a violation of the NYSHRL was dismissed since the court concluded that, as a matter of law, the Defendant did not violate that statute by failing to provide reasonable accommodation. Defendant’s motion for summary judgment was denied as to all other claims. See “Asthmatic Employee Harassed by Co-workers After He Complained About Smoking Can Sue Under the ADA,” Arkansas Employment Law Letter, September, 1997.
On December 5, 1997, a six-member jury returned a verdict in favor of the Defendant. After deliberating for half a day, the jury answered “no” to the following four questions: whether Intelecom intentionally discriminated against Hendler; whether the company failed to make reasonable accommodations; whether Intelecom retaliated as a result of a disability; and whether Hendler was wrongfully discharged.
10.4 TPLR 3.313, No. CV 952490, U.S.D.C. (E.D. N.Y. 1995).