Spencer Bien-Aime worked as a groundskeeper for a Manhattan apartment building. As a groundskeeper, he was required to conduct a variety of physical activities. In February 2014, his knees became very visibly swollen. He did not request any accommodation nor provide any medical information about the swollen knees. Equity Residential, the property owner, provided him with some kneepads. He wore them at all times and they became old and dirty. After receiving a tenant complaint, Mr. Bien-Aime was asked to wear them only while kneeling or to wear new ones. He filed a complaint of discrimination at the New York agency charged with enforcing its local anti-discrimination law. Mr. Bien-Aime has alleged that he was retaliated against and that they spoke to him like he was a “criminal.” His knees were causing him severe pain and he was unable to work. He filed suit under the ADA for both discrimination and retaliation.
A federal district court in New York dismissed Mr. Bien-Aime’s discrimination claim because he could not perform the essential functions of his position. However, Mr. Bien-Aime’s retaliation claim was permitted to go forward. This groundskeeper did not suffer any change in the terms and conditions of his employment; he was never discharged or demoted and his job title, benefits, schedule, and pay all remained the same. His only evidence of retaliation was his testimony that the general manager “stopped saying good morning to him”; that his direct supervisor “spoke to him without a ‘warm welcome’ in his voice” and lastly that they spoke to him “like he was criminal.” The definition of adverse action in the context of retaliation was broader than in discrimination.