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May 18, 2012

Employer has the burden of proof that a disability prevents the employee from reasonably performing the functions and duties of the position


Employer has the burden of proof that a disability prevents the employee from reasonably performing the functions and duties of the position
Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights, 57 AD3d 1057

New York State Correction Officer Edward J. Rice suffered a heart attack that resulted in the implantation of stents and a defibrillator in his chest. Although Rice was cleared for duty without restriction by his cardiologist, Corrections placed him on involuntary leave until November 2005, at which time it terminated Rice's employment on the basis that he "ha[d] been continuously absent" and "unable to perform the duties of his position for more than one year" as a result of a disability pursuant to Civil Service Law §73.

Rice filed a complaint with the State’s Division of Human Rights (SDHR), alleging that Corrections had engaged in an unlawful discriminatory practice by terminating his employment due to a disability.

Although a SDHR Administrative Law Judge determined that Rice had failed to establish that he was fit to perform the essential duties of a correction officer and, thus, Corrections had not improperly terminated his employment, the Commissioner of Human Rights concluded that Corrections had, in fact, engaged in an unlawful discriminatory practice by terminating Rice's employment.

The Commissioner awarded Rice back pay, as well as damages for emotional pain and suffering.

Corrections appealed, but the Appellate Division said that Corrections could not terminate Rice’s employment on the basis of his disability unless it proved that the disability prevented him from reasonably performing the functions and duties of a correction officer.

In support of the determination that Corrections had engaged in an unlawful discriminatory practice by terminating Rice's employment on the basis of his disability, SDHR relied upon, among other things, the reports of Rice's treating cardiologists, as well as the original report of the physician who performed an independent medical examination for petitioner, that Rice was capable of returning to work without any restriction.

In contrast, SDHR found that the reports of Correction's medical examiner that Rice was unable to function as a correction officer due to the possibility of a physical confrontation with an inmate damaging his defibrillator were insufficient to support the termination of his employment inasmuch as “the identified risk was speculative and hypothetical in nature.”

Finally, said the court, the fact that Rice's application for, and receipt of, Social Security disability insurance benefits subsequent to the termination of his employment does not, as a matter of law, preclude a finding that Corrections had unlawfully discriminated against Rice.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09517.htm

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