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A guidance counselor who faced debilitating allergic reactions at her Manhattan elementary school filed suit against the Education Department last week, claiming the city’s refusal to transfer her violates disability laws.
Shortly after starting work at Manhattan’s P.S. 28 in September 2021, Heiny Nunez began experiencing severe migraines that escalated into bouts of dizziness, heart palpitations, trouble breathing, and swelling that was so extreme she couldn’t open her eyes — eventually landing her in the emergency room.
Those symptoms receded when she left the school building — which the suit says is “filled with mold, dust, and mouse droppings” — leading Nunez and her doctors to conclude the environment at P.S. 28 was the cause. But despite repeated requests to transfer to a new school, the Education Department pointed to a policy that requires three years of service in a role before an employee can apply for a “hardship transfer” to another campus.
The suit contends the city violated the federal Americans with Disabilities Act and state and local human rights laws. It asks the Education Department to “eliminat[e] the requirement that an employee with a disability must have served in their position for at least three years before qualifying for a transfer as a reasonable accommodation for their disability.” And it seeks to force the city to transfer Nunez and provide unspecified monetary damages.
“DOE has flagrantly breached the basic legislative prohibition against discriminating because of a disability,” according to the suit, filed last week in federal court. “DOE has denied multiple reasonable accommodation requests from [Nunez] for placement in a different school.”
Education Department officials declined to comment on the lawsuit. In response to a complaint Nunez filed with the Equal Employment Opportunity Commission, an official in the department’s legal office wrote that her “allegations of discrimination are baseless.”
Nunez contends that she worked hard to find solutions, visiting a slew of doctors and trying several different treatments, including a sinus surgery in 2022. She experimented with wearing masks and face shields and taking breaks in her office with the lights off. Her symptoms still returned.
She has spent more than two of the last three years on unpaid leave, forcing her to raid her retirement account, borrow money from relatives, and accept financial assistance from a private donor facilitated by The Legal Aid Society, which is representing her in the case alongside the law firm Freshfields. Her time on unpaid leave does not count toward the three-year rule for hardship transfers.
“I haven’t been able to pay any bills,” Nunez said in a recent interview, adding that she received an eviction notice on her Bronx apartment. “This is my career, but my health comes first. And if I’m not healthy I’m not going to be able to go to work.”
Nunez started her career in the school system a decade ago as a substitute paraprofessional, and she often ping-ponged between campuses across the city without experiencing a severe allergic reaction, the suit notes. She has applied to dozens of other schools through the regular hiring process, but hasn’t been able to land a job in part because those principals have access to records that reveal she is currently on leave, Nunez contends.
A hardship transfer would allow the Education Department to directly place her in a different campus, which she believes would solve the problem.
Education Department officials have taken some steps to accommodate Nunez, including repainting her office, providing air purifiers, new filters for the air conditioning, and regular cleaning, the lawsuit acknowledged. But Nunez and her doctors contended those efforts didn’t reduce her symptoms.
In response to Nunez’s complaint with the Equal Employment Opportunity Commission, Education Department officials claimed they engaged in an “interactive process” with Nunez to set up accommodations at her current school, including the use of air purifiers. They also noted that “inquiries were made to Manhattan and Bronx schools about available vacancies,” but the city “was not able to identify available vacancies in her certification area.”
Officials argued the rule spelled out in the United Federation of Teachers contract that prohibits hardship transfers within an employee’s first three years “reflects the NYCDOE’s need to maintain staff stability and experience and avoid force-placement of less experienced staff into schools.”
Richard Blum, a lawyer at The Legal Aid Society representing Nunez, disputed that the city had engaged in an interactive process as required by law to find an accommodation that would allow Nunez to work.
“They don’t have to give you the accommodation that you ask for if they can come up with one that works,” Blum said. But the accommodation didn’t work and the city ignored that, he added. Nunez “had no opportunity to engage in a dialogue with DOE about a suitable accommodation for her disability,” the suit claims.
Blum emphasized that the decision not to grant Nunez a transfer prevents her from working as a guidance counselor despite widespread concerns about student mental health.
“Are we really in such a glut of teachers and guidance counselors that we want to wean them out based on disability?” he said. “It’s not only illegal, it’s kind of crazy.”
Alex Zimmerman is a reporter for Chalkbeat New York, covering NYC public schools. Contact Alex at azimmerman@chalkbeat.org.
