BY JORDAN GIBBONS
When Daibelis Acosta notified her employer Apogee Retail, owner of Unique thrift store on Jamaica Avenue, that her doctor said she could not lift more than 20 lbs. due to her pregnancy, she was told that she cannot come back to work until her doctor lifts the restriction.
This was in 2013, and now she is filing a discrimination lawsuit against the nationwide retailer that owns the store.
Acosta came to Jamaica from the Dominican Republic in 2012, and started working as a cashier at Unique. Her duties included putting merchandise in bags and cleaning.
She said through a translator that she never had to do any heavy lifting on the job. They had helpers to do that. All they had to do was call someone to pick up any heavy objects or leave it for them to lift later.
Acosta said that after she informed her supervisors she was pregnant, they began assigning her different jobs such as pushing heavy racks of clothes. She began to feel a pain in her abdomen and returned to her doctor, who provided her with a note detailing her restrictions on heavy lifting, pushing or pulling.
That is when her manager Louisa Tsui said she needed to get another doctor’s note that removed restrictions and explained what “heavy lifting” constituted.
Acosta said she brought in the note with the 20 lb. lifting restriction, without any restrictions on pushing or pulling, but was told she would have to go on unpaid leave until the restrictions were removed.
In a recorded phone conversation between Acosta and Tsui that the Press of Southeast Queens obtained, Tsui tells Acosta, “human resources is saying we cannot accommodate you. We cannot help you until that restriction is lifted.”
Acosta asked Tsui why another male employee was allowed to work without lifting heavy items after he had a medical condition and Tsui said that was a different situation, because he wasn’t pregnant.
“It’s not the same, he’s not carrying a human being,” Tsui said in the recording. “If he should get hit by a cart, hit by a door, hit by anything, he wouldn’t lose a human being. I don’t want to live with the fact that you could.”
When contacted, Tsui declined to offer comment.
Attorney Jesse Rose of Phillips and Associates is filing a discrimination lawsuit against Apogee Retail on behalf of Acosta, which is in the end of the discovery process.
During several depositions, Rose inquired to representatives of Apogee Retail why she could not be accommodated and their consistent response was that she needed to be capable of handling all the jobs in the store from cashier to sorting bags of clothes and accessories, and even moving furniture.
“They refused to do anything differently. Their explanation is if you come in that store you have to be able to do everything and if you can’t do that then we don’t want you,” Rose said.
Prior to the New York City Human Rights Law amendment in 2014, which made it illegal for an employer to refuse to provide a reasonable accommodation for the needs of an employee for her pregnancy, childbirth or related medical condition that will allow the employee to perform the essential requirements of the job, “the Commission treated these cases as we would a disability complaint. The result, particularly as it relates to accommodations during pregnancy, would have resulted in a manner similar to current law,” according to a City Commission on Human Rights spokesperson.
“An important objective of the law is to allow pregnant women to continue working and keeping their jobs, rather than being forced out on unpaid leave or fired,” the spokesperson said. “Employers must engage with their employees to determine a reasonable accommodation that allows them to perform the essential requisites of their job.”
One of Apogee’s general managers, David Morely, was deposed during the discovery process and in the deposition explained why the company could not help Acosta stay at work after Rose asked him why she could not be accommodated.
“We just couldn’t. Twenty lbs. – all of our jobs are greater than 20 lbs.,” Morley replied. “We expect our employees to be able to do all the jobs that are inside that store.”
Rose inquired about having her be a cashier or work in the fitting room, but was told by multiple people that all the jobs require lifting more than 20 lbs.
Lynn Alston Young, another general manager, said during the deposition that a person with a 20 lb. lifting restriction would not be able to work in the fitting room because they could get something that is 20 lbs., such as a leather or fur coat.
“You have coats that weigh more than 20 lbs.?” Rose asked.
“Yes. You can have a sequined gown that weighs more than 20 lbs.,” Young said. “You can have a beaded gown that weighs up to 60, 80 lbs.”
Rose said he requested to go in with a scale to weigh the dresses, but Apogee allegedly told him it would be too disruptive to the business. He has appealed to the judge to get a court order to weigh the dresses.
Carol Harding, Apogee Retail New York’s attorney, responded to a call for comment by stating, “out of respect for the privacy concerns of its employees, Apogee does not publicly comment regarding the specifics of its employees’ confidential medical records or conditions of employment.”
“Apogee does not tolerate discrimination of any kind and it always works to ensure the company complies with all applicable employment laws and regulations,” Harding said. “Apogee has had and will continue to have many pregnant employees on its active workforce.”
Rose said he took the case because he liked Acosta personally and felt for her story, which reminds him of the American Dream.
“She’s an immigrant, she came here not speaking any English. She got this job working in a sub-floor basement at a thrift store and made it,” Rose said. “She was paying her bills, able to get by and when they did this, it set her back.”
After her son Noah was born, Acosta said she had to have him live with her aunt while she struggled to make ends meet.
“When I first met her she was having a very difficult time. She had to live separately from her child while she got back on her feet,” Rose said. “But she’s found a job, she’s going to school, she’s back to the point she was before, except she’s in a better job now, she’s not working in a sub-floor basement.”
Acosta is a student at Queensborough Community College, and works for Western Union as a cashier now.
“I want to be a nurse, my father’s a doctor so I feel like I have that in my blood,” she said. “I just don’t want anybody else to go through that because it was bad for me to go through especially while having a kid.”
Reach Reporter Jordan Gibbons at (718)357-7400, Ext. 123, firstname.lastname@example.org or @jgibbons2.