The burden of establishing a prima facie case of unlawful discrimination within the meaning of New York States Human Rights Law is on the applicant or the employee, as the case may be

Petitioner, who had been born deaf, appealed a decision by the New York State Division of Human Rights [DHR] dismissing her complaint that the New York State Office for People With Developmental Disabilities [OPWDD] had unlawfully discriminated against her in violation of New York State's Human Right's Law [[NYSHRL] when OPWDD rescinded its offer to employ Petitioner "because of her hearing loss without first offering her a reasonable accommodation".

Citing Matter of Abram v New York State Div. of Human Rights, 71 AD3d 1471, the Appellate Division said a judicial review of the Division's determination, which adopted the findings of an Administrative Law Judge [ALJ] who had conducted DHR's public hearing of Petitioner's complaint, is limited to the issue whether the DHR's decision is supported by substantial evidence. 

The court then noted NYSHRL requires a petitioner to bear "the burden of establishing a prima facie case ... showing":

(1) the petitioner is a person with a disability within the meaning of the NYSHRL;

(2) an employer subject to the provision of the NYSHR had notice of the petitioner's disability;

(3) with a reasonable accommodation the petitioner could perform the essential functions of the job at issue; and

(4) the employer had refused to make such an accommodation.

The court opined that "there was no dispute that the first two elements" were satisfied as Petitioner was born deaf and used interpreters during her interview and physical examination with OPWDD. 

However, said the Appellate Division, DHR's determination as to the third element was not supported by substantial evidence, explaining that "Whether a job function is essential depends on multiple factors, 'including the employer's judgment, written job descriptions, the amount of time spent on the job performing the function, the consequences of not requiring the plaintiff to perform the function, mention of the function in any collective bargaining agreement, the work experience of past employees in the job, and the work experience of current employees in similar jobs'."

Rather than considering such factors and whether Petitioner made a prima facie case that she could undertake the essential functions of the job with or without reasonable accommodation, DHR adopted the conclusory determination that "[t]he physical requirements for the ... position" as set forth by the New York Department of Civil Service, and specifically the requirement that Petitioner must pass a hearing test, "are based on the essential functions of the job." That, opined the Appellate Division "was error".

Although written job descriptions, including the standards set by the Department of Civil Service, should be given deference in determining essential job functions in a reasonable accommodation analysis, no one factor is dispositive. Accordingly, said the Appellate Division, "DHR erred in making its determination based solely on the Department of Civil Service standards". Pointing out that the record established that "Petitioner had previously performed substantially similar work, that she was able to perform that job with an interpreter as an accommodation, and that OPWDD's governing accommodation policy provides that reasonable accommodation includes providing interpreters, the record demonstrates that petitioner met her prima facie burden as to the third element".

Addressing the fourth element, the Appellate Division said DHR determined that Petitioner "did not request a reasonable accommodation from" OPWDD, and then concluded that Petitioner failed to establish a prima facie case that OPWDD failed to provide reasonable accommodation. However, noted Appellate Division, "even where a petitioner 'did not request any specific accommodation' prior to initiating 'litigation, [NYSHRL] require[s] [employers] to engage in an interactive dialogue regarding possible accommodations once they bec[o]me aware of [a prospective employee's] condition' requiring accommodation."

In the words of the court, "... the implementing regulations specifically state that [t]he employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested".* 

The Appellate Division concluded that Petitioner "met her prima facie burden as to the fourth element", thus shifting "the burden of production ... to [OPWDD] to rebut the presumption with evidence" that it chose not to hire Petitioner "for a legitimate, nondiscriminatory reason"

Noting that the ALJ's determination, "as adopted by DHR, erroneously concluded that [Petitioner] failed to demonstrate a prima facie case, no determination was made whether OPWDD rebutted the presumption", the Appellate Division annulled DHR's decision and remitted the matter to it "for a new determination".

* See 9 NYCRR 466.11[j][4], [Citation emphasized by the Appellate Division in its decision].

Click HERE to access the Appellate Division's decision posted on the Internet.

Albany Law School Government Law Center to host Fair Trial/Free Press Conference on November 20, 2024

A distinguished panel of experts from the media, courts, and the legal profession will discuss the legal, political, and ethical issues that arise after an AI-generated video of an altercation between public officials goes viral on social media. An interactive discussion between the panelists and the audience will follow the panel's discussion of the event. This free event is open to the public, will be live-streamed, and includes a Reception for those attending in person. Registration is required. Click HERE for more information and to Register for this event.

 

New York State Comptroller DiNapoli releases municipal and school audit reports

On November 18, 2024, New York State Comptroller Thomas P. DiNapoli announced the following municipal and school audits were posted on the Internet 

Click on the text highlighted in color to access the text of the audit.

Edgemont Union Free School District – Information Technology (IT) (Westchester County) The IT director did not disable unnecessary user accounts in a timely manner. As a result, the district had an increased risk of unauthorized access to and use of the network. In addition to sensitive IT control weaknesses, auditors reviewed all 665 nonstudent network user accounts and determined that district officials did not disable 34 unneeded network user accounts that had last login dates ranging from July  2021 to July  2023. Officials also did not develop written procedures for adding, modifying or disabling nonstudent network user accounts.

Town of Albion – Supervisor’s Records and Reports (Oswego County)  The supervisor did not follow basic accounting practices by maintaining complete and accurate accounting records and financial reports. As a result, the supervisor provided financial records and reports to the board that contained significant errors, and the board lacked reliable information to manage the town’s financial operations. Auditors determined that the supervisor did not maintain a general ledger, subsidiary revenue and expenditure ledgers or cash receipts and disbursements journals to properly track financial activity. The supervisor’s 2023 revenue and expenditure budget-to-actual reports were not accurate. For example, the reports did not include $551,134 of real property tax revenue and a $109,000 expenditure for a storage building. In addition, budgetary transfers totaling $27,125 were improperly reported as actual expenditures. The supervisor also did not account for payroll-related liabilities, maintain proper cash control accounts and reconcile the town’s bank accounts. Lastly, the board did not conduct a thorough annual audit of the supervisor’s 2023 accounting records, as required by state law.

Caledonia Joint Fire District – Board Oversight of Long-Term Planning (Livingston County) The board and district officials did not develop written multiyear financial and capital plans or develop and adopt a written policy related to fund balance and reserves. For example, the board and district officials maintained a capital building reserve totaling $16,424 and planned to construct a multimillion-dollar fire station but did not develop a detailed written financial plan for this capital project. The board and district officials also did not develop a written vehicle and equipment replacement plan, and three board members did not know when these items needed to be replaced or their estimated replacement costs. Although the district had a capital equipment and apparatus reserve totaling $847,113, the board chair’s original estimated vehicle and equipment replacement needs indicated the district would need $2.7 million to replace these items over the next five years. Without written long-term financial plans, officials did not determine, among other things: how the construction and replacements would be funded long term; the sustained financial needs associated with constructing a new fire station and replacing old vehicles and equipment; or the effect these decisions would have on the district’s fund balance and the tax levy.

City of Lockport – Budget Review (Niagara County) Based on the results of the review, the significant revenue and expenditure projections in the proposed budget appear reasonable. Auditors expect 2024 fire department overtime expenditures to be within the adopted budget’s overtime appropriations. The overtime appropriations in the proposed 2025 budget were reasonable. City officials followed previous recommendations and decreased ambulance revenue estimates closer to actual revenues from $1,025,786 to $991,420; actual collections were approximately $941,000 as of Sept. 30, 2024. The city’s ambulance appropriations and revenue estimates in the proposed 2025 budget were reasonable and conservative.

Otisco Fire District – Audit Follow-Up (Onondaga County) The purpose of this review was to assess the district’s progress in implementing the recommendations in an audit report released in February 2017. Auditors found the district has not made progress in implementing corrective action. Of the three audit recommendations, two recommendations were not implemented, and one recommendation was not applicable for the period that we reviewed.

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Albany Law School Government Law Center to host Fair Trial/Free Press Conference on November 20, 2024

A distinguished panel of experts from the media, courts, and the legal profession will discuss the legal, political, and ethical issues that arise after an AI-generated video of an altercation between public officials goes viral on social media. An interactive discussion between the panelists and the audience will follow the panel's discussion of the event. This free event is open to the public, will be live-streamed, and includes a Reception for those attending in person. Registration is required. Click HERE for more information and to Register for this event.

Important reminders concerning New York State's Workers' Compensation Board hearings

With the New York State Workers’ Compensation Board’s [Board] reopening to the public by appointment for in-person hearings and other services, Board wishes to take the opportunity to issue a few important reminders:

• All hearings (whether in person or virtual) are formal, legal proceedings, and all parties of interest are required to abide by the Standards of Civility for Proceedings before the Board.
• Legal representatives are expected to attend hearings on time and in professional attire and should be prepared to address the outstanding issues at the hearing.
• All parties should be respectful in their communications at all times.
• Participants in virtual hearings should attend their hearing from an indoor, quiet location.
• Attorneys and representatives for the parties are encouraged to meet and confer prior to the hearing date to narrow and/or resolve the issues before the Judge.

Following these simple rules of etiquette will help ensure a better hearing experience for all involved.