Appointing authority faulted for failing to provide a disabled person a reasonable accommodation, namely, permitting the use of a hearing aid

The New York State Division of Human Rights [DHR] adopted the recommended decision and order of the Administrative Law Judge holding that the petitioner in this action, the New York State Unified Court System, Office of Court Administration [OCA], had discriminated against the complainant based on his hearing disability and directed OCA to cease and desist from subjecting individuals to blanket exclusions from the court officer-trainee job title based on hearing loss or the use of hearing aids, pay a civil fine and penalty of $30,000, and pay the complainant $5,000 in compensatory damages, The Appellate Division unanimously confirmed DHR's ruling.

The court said that DHR's finding of discrimination was supported by substantial evidence in that:

1. Complainant, a per diem court interpreter for OCA in its courts and in other courts, established a prima facie case that OCA discriminated against him on account of his disability of some hearing loss in his right ear;

2. Complainant "sufficiently demonstrated that upon the provision of reasonable accommodation," namely, a hearing aid,* he can perform in a reasonable manner the essential functions of a court officer-trainee.

3. Complainant had passed the written test for the court officer-trainee position and was conditionally appointed. 

4. Although the job duties are different, Complainant "adequately performed the functions of court interpreter without a hearing aid and without complaints from those who used his services."

5. Complainant was not obligated to be evaluated for and purchase a hearing aid, and to retake the audiometric test, at his expense, to further make his prima facie case after OCA made clear it still would deem him unqualified and would reject such test results.

The Appellate Division opined that permitting court officers to wear a hearing aid is a reasonable accommodation and would not, as OCA argued, impose undue hardship on OCA by posing any "direct threat," i.e. "a significant risk of substantial harm to the ... safety of the employee or others," noting that "OCA [relies] only to the physical demands of the job and the speculative risk that a hearing aid could become dislodged in a scuffle or fail to operate in an emergency."

Further, said the court, "OCA's argument is undermined by its own policy permitting court officer-trainee candidates to meet its vision standard with or without corrective lenses or glasses, which could be lost or become dislodged in a scuffle."

An individual may be denied employment because of a disability only if that condition will prevent him from performing in a reasonable manner the activities involved in the job or occupation sought, based on an individualized assessment of the specific individual. OCA failed to provide any legitimate non-discriminatory reason for its decision.  

No sufficiently individualized assessment occurred here, nor did OCA's formula take into account the ability of someone with asymmetrical hearing loss to perform the essential functions of a court officer-trainee. While OCA may have a preference for those with a minimal amount of hearing acuity might be a bona fide occupational qualification, the court opined that its preference for hearing acuity without the use of a hearing aid is not.

Citing Matter of County of Erie v New York State Div. of Human Rights, 121 AD3d 1564, the Appellate Division noted that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty ... constitutes an abuse of discretion as a matter of law .... [A] penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness." Here, the civil penalty was neither an abuse of discretion nor was it unreasonable.

Given OCA's blanket policy barring hearing-impaired persons from employment as court officers and its failure to accommodate Complainant who had an asymmetric hearing loss, the Appellate Division concluded that the civil penalty of $30,000 was correctly assessed as Executive Law §297[4][c] provides that a civil penalty below $50,000 may be assessed if an entity is found to have committed an "unlawful discriminatory act".

* OCA bans the use of hearing aids on the job or for the audiometric test to medically qualify for the position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01252.htm

State Comptroller DiNapoli report analyzes regional trends in education for school districts outside NYC

Click on text highlighted in blue to read a new report by New York State Comptroller Thomas P. DiNapoli setting out challenges faced by school districts in New York State outside of New York City.

Regional factors including the local economy, labor force mix and demographics all have implications for spending, pupil outcomes and the delivery of services, including special education. 

The report details school district demographic and financial information from nine separate regions outside New York City.

Resolving conflicting medical evidence in evaluating an application for accidental disability retirement

Supreme Court rejected Petitioner's challenge to the denial of his application for accidental disability retirement benefits by the New York City Employees' Retirement System's [NYCERS] Medical Board and dismissed the proceeding brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the Supreme Court's decision.

The Appellate Division explained that the finding of NYCERS' Medical Board that Petitioner was not disabled was supported by its physical examination and interview of Petitioner. Although Petitioner argued that the Medical Board ignored his medical history, the court said that the any conflicting medical evidence was for the Medical Board to resolve.

The Appellate Division further opined that the disability finding of the Social Security Administration was not dispositive of the Medical Board's disability determination, citing Matter of Barden v New York City Employees' Retirement Sys., 291 AD2d 215. 

Additionally, noted the court, the finding of the medical arbitrator, who examined Petitioner after the Medical Board made its determination, did not warrant Article 78 relief.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01256.htm

Appointing authority's application for disability retirement filed on behalf of an employee injured on the job rejected

In this action to review a determination of New York State Employees’ Retirement System [NYSERS] denying an appointing authority’s [Petitioner] application for disability retirement benefits Petitioner filed on behalf of a Correction Officer [Officer] injured in the line of duty, the Appellate Division concluded that the NYSLERS determination “finding that [Officer] was not permanently incapacitated from performing the duties of a light-duty assignment” was supported by substantial evidence and thus “it will not be disturbed.”

Officer had sustained various injuries while attempting to subdue an inmate and underwent various surgical procedures. With the exception of performing light-duty work for one year, Officer remained out of work since the date of the incident, during which time Officer collected benefits pursuant to General Municipal Law §207-c. 

Ultimately Petitioner filed an application for disability retirement benefits upon the Officer's behalf.* Although NYSLERS had initially evaluated Petitioners' application based upon whether Officer was permanently incapacitated from performing the full duties of a Correction Officer, following receipt of additional documentation from Petitioners, NYSLERS concluded that Petitioners' application should be assessed under the light-duty standard set forth in 2 NYCRR 364.3 (b). A Hearing Officer reached a similar conclusion, finding, among other things, that denial of petitioners' application was warranted because Officer was capable of performing light-duty work. The Comptroller adopted the Hearing Officer's findings and conclusions, resulting in Petitioner’s filing a CPLR Article 78 proceeding to challenge the Comptroller's determination.

Citing 2 NYCRR 364.3 [b] which provides that in the event an employee "has been continuously assigned to light, limited or restricted duties for at least two years prior to the date [upon which the] application for disability retirement benefits was filed with the Comptroller . . ., the Retirement System shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment." the Appellate Division rejectected Petitioners argument that application of the cited regulation is arbitrary and capricious given that Officer actually worked in her light-duty assignment for less than one year and “did not work in any capacity after September 21, 2010,” the Comptroller has held that the phrase "continuously assigned" — as applied in the context of 2 NYCRR 364.3 (b) — "does not mean continuous performance and is not interrupted by absence[s] from work while on sick leave."

In other words, said the Appellate Division, “the dispositive inquiry is whether the employee has been continuously assigned to light-duty work — not, as [Petitioners] argue, whether such employee has in fact continuously performed the light duties to which he or she was assigned”.

As the record reflected that Officer was continuously assigned to a light-duty position beginning in October 2009 — even though Officer concededly did not work at all after September 2010 and given the continuous nature of Officer's assignment, the Appellate Division held that the light-duty standard set forth in 2 NYCRR 364.3 (b) was properly applied to Petitioners' application for disability retirement benefits filed on behalf of Officer.

* Petitioners were authorized to file such an application pursuant to General Municipal Law §207-c (2) and Retirement and Social Security Law §605(a)(2).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00904.htm

Retired police officer seeking a special pistol carrying permit denied “retiree service letter”

Petitioner in this CPLR Article 78 action had asked his former employer [Respondent] for a “retiree service letter” that would assist Petitioner in obtaining a special pistol carrying permit. His former employer denied Petitioner’s request.

Supreme Court found that Respondent’s denial of Petitioner’s request for a retiree service letter was neither arbitrary or capricious, which ruling was unanimously  affirmed by the Appellate Division. The Appellate Division noted that Petitioner had no right to issuance of a retiree service letter "since his authority to carry firearms had been revoked … and had not been restored at the time he retired."*

Petitioner concedes that he was not authorized to carry a firearm under Respondent's policy at the time of his separation from employment, as he surrendered his firearm beforehand due to an injury and he failed to seek  reinstatement of such authorization. 

Further, opined the Appellate Division, Petitioner cannot demonstrate a violation of the Americans with Disabilities Act based on Defendant's refusal to issue the retiree service letter as Petitioner concedes that his injury rendered him unable to perform his duties as a law enforcement officer and there is no factual basis to conclude that Defendant’s decision was made in bad faith rather than as part of an across-the-board policy.

Nor, said the court, did Respondent’s denial of Petitioner’s request violate Petitioner's Second Amendment rights as such denial did not preclude him from applying for a permit under normal legal procedures.

* The Appellate Division’s decision notes that even assuming Petitioner had a private right of action under the Law Enforcement Officers Safety Act of 2004, Public Law 108-277, Petitioner cannot demonstrate that he met the qualification standards within one year of Petitioner’s retirement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01240.htm