See Nguyen, 286 F.Supp.3d at 1182 (explaining that employer's arguments about performance issues are unrelated to employee's disability and thus are irrelevant to whether plaintiff could establish prima facie case); see also Angell v. Fairmount Fire Prot. Dist., 907 F.Supp.2d 1242, 1251 (D. Colo. 2012) (concluding plaintiff's alleged performance issues were “entirely irrelevant to the issue of whether Plaintiff was qualified to perform the essential functions of his job”); Jacobsen v. Dillon Cos., No. 10-cv-1944-LTB-BNB, 2012 WL 638122, at *4 (D. Colo. Feb. 28, 2012) (rejecting employer's “attempts to recharacterize Plaintiff's job performance as a job requirement”); Aquart v. Ascension Health Info. Servs., No. A-09-CA-804-AWA, 2011 WL 233587, at *9 (W.D. Tex. Jan. 24, 2011) (“Generally, the question centers on whether the plaintiff's disability, with or without reasonable accommodation, prevents her from performing the essential functions of a position.”); Ricks-Lankford v. Tex. Dep't of Assistive & Rehab. Servs., No. A-10-CA-011 SS, 2011 WL 5040439, at *4 (W.D. Tex. Oct. 24, 2011) (rejecting defendant's argument that plaintiff wasn't qualified based on alleged inadequate performance because defendant “conflate[d] whether the Plaintiff was qualified for her position with the question of whether she was performing her duties properly or well”);
Thus, Denver's arguments about Officer Nguyen's performance issues unrelated to his hearing disability (e.g., report writing and determining the best route to a scene) are irrelevant to whether Officer Nguyen can establish a prima facie failure-to-accommodate case. E.g.,Angell v. Fairmount Fire Protection District. , 907 F.Supp.2d 1242, 1251 (D. Colo. 2012) (holding that employer's allegation of performance failures unrelated to employee's disability "is entirely irrelevant to the issue of whether Plaintiff was qualified to perform the essential functions of his job"); Aquart v. Ascension Health Info. Servs. , No. A-09-CA-804-AWA, 2011 WL 233587, at *9 (W.D. Tex. Jan. 24, 2011) ("Generally, the question centers on whether the plaintiff's disability , with or without a reasonable accommodation, prevents her from performing the essential functions of a position."); Carter v. Potter , No. Civ.A. 02-7326, 2004 WL 2958428, at *9 (E.D. Pa. Dec. 21, 2004) ("The parties' dispute over whether plaintiff adequately performed his mail casing tasks is not a dispute over plaintiff's objective qualifications for the job, but rather one over adequacy of performance."); see also 2 Employee and Union Member Guide to Labor Law § 7:69 ("[U]nless caused by a disability, performance or misconduct problems are not part of the ‘qualified’ element ....").Thus, I have previously rejected arguments that, like Denver's, conflate the qualification question with performance issues unrelated to a plaintiff's disability.
Further, the ADA only requires employers to consider reasonable accommodations and it is well-settled that: " 'Not all requested accommodations are appropriate, and the ADA only "provides a right to reasonable accommodation, not to the employee's preferred accommodation." ' Aquart v. Ascension Health Info. Serv., No A-09-CA-804, 2011 WL 233587, at *6 (W.D.Tex. Jan. 24, 2011) (quoting EEOC v. Agro. Distrib., LLC, 555 F.3d 462, 471 (5th Cir.2009)); see Bielski v. Green, 674 F.Supp.2d 414, 424 (W.D.N.Y.2009) (employee cannot insist on particular accommodation if employer provides another reasonable accommodation instead) (collecting decisions)." Stadtmiller v. UPMC Health Plan,Inc., 799 F. Supp. 2d 492, 509 (W.D. Pa. 2011) aff'd, 491 F. App'x 334 (3d Cir. 2012).
Even if it was not the accommodation requested, and even if the Port Authority did not engage in an ideal interactive process to find accommodations for plaintiff, an accommodation was nonetheless provided. Simply because plaintiff did not receive what he requested - whether that was a light duty position with the hours he demanded, or the provision of a helper - that does not mean that the Port Authority's accommodation was not reasonable. See Stadtmiller v. UPMC Health Plan, Inc., 799 F. Supp. 2d 492, 509 (W.D. Pa. 2011)(Aguart v. Ascension Health Info. Serv., No A-09-CA-804, 2011 WL 233587, at *6 (W.D.Tex. Jan. 24, 2011) (quoting EEOC v. Agro. Distrib., LLC, 555 F.3d 462, 471 (5th Cir.2009))) ("'Not all requested accommodations are appropriate, and the ADA only 'provides a right to reasonable accommodation, not to the employee's preferred accommodation.''"). The ADA requires no more.
“Not all requested accommodations are appropriate, and the ADA only ‘provides a right to reasonable accommodation, not to the employee's preferred accommodation.’ ” Aquart v. Ascension Health Info. Serv., No A–09–CA–804, 2011 WL 233587, at *6 (W.D.Tex. Jan. 24, 2011) (quoting EEOC v. Agro. Distrib., LLC, 555 F.3d 462, 471 (5th Cir.2009)); see Bielski v. Green, 674 F.Supp.2d 414, 424 (W.D.N.Y.2009) (employee cannot insist on particular accommodation if employer provides another reasonable accommodation instead) (collecting decisions). Stadtmiller's testified at his deposition: