The anatomy of stating a claim for a reasonable accommodation of an alleged disability

Federal District Court granted the motion to dismiss Plaintiff's action alleging violations of the Rehabilitation Act of 1973* and related state and municipal laws submitted by the New York City Health and Hospitals Corporation, et. al. [NYCHHC] and Plaintiff appealed.

The Circuit Court of Appeal said that the significant questions presented in this appeal are:

(1) whether an employee alleging a failure‐to‐accommodate claim under the Rehabilitation Act has carried his initial burden to make a prima facie case where the employer allegedly has notice that the employee is on extended disability leave, but the employee never requests an accommodation; and 

(2) whether rights established by the Rehabilitation Act are enforceable under 42 U.S.C. §1983. 

The Circuit Court conclude that an employee cannot make a prima facie case against his employer for failure to provide a reasonable accommodation under such circumstances. The court also explained that the rights established by the Rehabilitation Act are not enforceable under 42 U.S.C. §1983. Accordingly, it affirmed the District Court's and dismissed Plaintiff's appeal.

The decision notes that where “the disability is obvious, that is the employer knew or reasonably should have known that the employee was disabled,” the employer is obligated to engage in “an interactive process with their employees and in that way work together to assess whether an employee’s disability can be reasonably accommodated.” 

Although this duty is triggered when the employer knows, or have had sufficient notice such that the employer reasonably should have known, that the employee has a disability within the meaning of the Act in contrast to a having mere impairment, in this instance the District Court concluded that Plaintiff failed to state a reasonable accommodation claim because, by neither responding to the NYCHHC's communications nor appealing its personnel decision, Plaintiff failed to exhaust the administrative remedies available to him.

Plaintiff did not allege that he ever requested an accommodation from NYCHHC, either formally or informally. Although NYCHHC was aware that Plaintiff was on an extended disability leave from work‐related injuries, such knowledge, alone, is insufficient to plausibly allege notice that those injuries constituted a disability within the meaning of the Act as Plaintiff took work‐related disability leave on multiple prior occasions for conditions that did not prevent him from returning to work without any accommodations. 

Finally, noted the Circuit Court, although Plaintiff alleged that NYCHHC received “regular updates from his doctor on his condition and ability to work,” Plaintiff failed to allege facts about the content of those updates "from which it could plausibly be inferred that Plaintiff’s disability was 'obvious' to NYCHHC."

As Plaintiff failed to plausibly allege that NYCHHC knew or should reasonably have known he was disabled, NYCHHC was under no obligation to initiate "the interactive process," and Plaintiff’s failure to affirmatively request an accommodation is a sound basis for dismissal of his complaint. 

* Plaintiff also filed a Title VII complaint [42 U.S.C. §1983] for the same alleged violations he advanced under the Rehabilitation Act.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/c81e66a1-6d73-4cac-bb70-4dcf70ac25db/1/doc/18-2816_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c81e66a1-6d73-4cac-bb70-4dcf70ac25db/1/hilite/

Long, unblemished, service record considered to mitigate harsh disciplinary penalty imposed on employee

A New York City Transit Authority [NYCTA] bus driver [Petitioner] was served with disciplinary charges alleging he had engaged in lewd activity in public. A disciplinary hearing officer found Petitioner guilty of the charges and recommended that Petitioner be terminated. The appointing authority adopted the findings and penalty recommended by the arbitrator and dismissed Petitioner from his position.

Petitioner appealed the penalty imposed by NYCTA but Supreme Court denied Petitioner's motion to vacate the arbitration award. Petitioner appealed the Supreme Court's ruling. and subsequently the Appellate Division vacated the penalty portion of the arbitration award, remanding the matter to the arbitrator for the arbitrator to consider imposing a different penalty.* The Appellate Division explained that the time that incident at issue occurred:

1. Petitioner had been a NYCTA bus driver for 15 years;**

2. Had received consistently positive performance evaluations; and

3. Had never been disciplined.

However, during the second arbitration hearing, held upon remand, Petitioner testified that he had recently pleaded guilty to reckless driving in Ohio, which offense the arbitrator considered in conjunction with the original offense and imposed the penalty of demoting Petitioner to the position of cleaner.

Again Petitioner appealed, challenging the "different penalty" imposed by the arbitrator.

The Appellate Division opined that the revised penalty imposed by the arbitrator was proper and there was sufficient proof to justify the award, which was consistent with the court's earlier directive with respect to the arbitrator considering imposing a lesser penalty on Petitioner.

* See Matter of Fernandez v New York City Tr. Auth., 120 AD3d 407.

** The Appellate Division noted Solis v Department of Educ. of City of N.Y., 30 A.D.3d 532, in which that court found that termination unwarranted for petitioner with "otherwise unblemished 12-year record."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_09087.htm

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A Reasonable Disciplinary Penalty Under the Circumstances
 Determining an appropriate disciplinary penalty to be imposed on an employee
 in the public service found guilty of misconduct or incompetence.
For more information click on http://booklocker.com/7401.html
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On March 7, 2020 Governor Andrew M. Cuomo declared a state of emergency to help New York more quickly and effectively contain the spread of the COVID-19

On March 7, 2020, during a briefing on the novel coronavirus, Governor Andrew M. Cuomo declared a state of emergency to help New York more quickly and effectively contain the spread of the virus. The Governor also confirmed 32 additional cases, bringing the statewide total to 76. 

Additionally, the Governor directed the New York State Department of State's Consumer Protection Division to launch an investigation into reports of unfair price increases of consumer products such as household cleaning supplies and hand sanitizer amid the novel coronavirus outbreak, and launched a toll-free hotline - 1-800-697-1220 - for New Yorkers to report suspected price gouging."

The Governor said "As we continue to provide essential updates and encourage people to act upon the facts on coronavirus instead of the hype, I have officially done a declaration of emergency which gives us certain powers to help local health departments that are very stressed. As the local health departments continue to monitor and quarantine people, we have a more expedited purchasing protocol to get them all the tools they need to contain the virus spread. In the meantime we are cracking down on price gouging which continues to be a problem, and I want businesses to be aware that you could lose your license because we are very serious about this."

This state of emergency declaration allows, among other things:

Expedited procurement of cleaning supplies, hand sanitizer and other essential resources;

Allowing qualified professionals other than doctors and nurses to conduct testing;

Expedited procurement of testing supplies and equipment;

Expedited personnel onboarding;

Expedited leasing of lab space;

Allowing EMS personnel to transport patients to quarantine locations other than just hospitals; and 

Providing clear basis for price gouging and enforcement investigation

The 32 new cases identified today are located in New York City and Westchester and Saratoga counties. Of the 76 total individuals in New York State who tested positive for the virus, the geographic breakdown is as follows:

Westchester: 57

New York City: 11

Nassau: 4

Rockland: 2

Saratoga: 2

In addition, the Division of Consumer Protection has also created an online consumer complaint form, where New Yorkers can report suspected price gouging or concerns about improper delivery of quantity. Consumers who wish to file a complaint can visit 

https://www.dos.ny.gov/consumerprotection/. All credible complaints will be referred to the New York State Attorney General's office.

At a briefing yesterday, Governor Cuomo announced travel insurance companies and travel agents will offer New York residents and businesses the ability to purchase coverage when making travel plans that would allow them to cancel a trip for any reason, including for reasons related to COVID-19.

The Department of Financial Services issued guidance allowing travel agents and travel insurers to offer this type of coverage after DFS received consumer complaints that such polices were not available in New York State. This new action is designed to provide reassurance to New York businesses and residents who are seeking to make plans that may involve travel to locations that are not currently under travel advisories due to COVID-19.

Six global and national insurance companies have agreed to offer "cancel for any reason" coverage to travelers, including: Allianz, Nationwide, Starr Indemnity, Berkshire, Crum & Forster, and Zurich. DFS also directed New York State travel insurance issuers to proactively reach out to individuals and businesses who bought their policies to let them know what is covered.

Click on the text in color to read a copy of the DFS Insurance Guidance Letter .

Attempting to revoke or rescind a resignation sent to an appointing authority

This CPLR Article 78 petition filed by a town attorney [Petitioner] asked the Supreme Court to review the Town Board [Respondent] deeming Petitioner's resignation effective based on its having been "accepted" during a meeting  of the Town Board.* Petitioner contended  that his resignation was ineffective, and that he was improperly terminated from his position as town attorney. Supreme Court granted Respondent's motion to dismiss the petition, dismissed the proceeding and Petitioner appealed the court's ruling

Petitioner had been appointed town attorney effective January 3. By letter dated May 11 of that same year addressed to the Town Supervisor, Petitioner gave notice of his intent to resign from the position "as soon as my successor has been identified, and the Town Board is ready to appoint him or her." On May 14 the Town Supervisor had Petitioner's letter delivered to the Town Clerk, who stamped and filed it in the regular course of business. 

Although Petitioner subsequently attempted to rescind the resignation addressed to the Town Supervisor and the Deputy Town Supervisor, the Town Board "accepted his resignation" during a meeting in June of the same year and employed a replacement town attorney.

The Appellate Division affirmed Supreme Court's ruling.

Although the Petitioner's written resignation was sent to the Town Supervisor instead of the Town Clerk as required by Public Officers Law §31(1)(g) and (2), the Appellate Division said that it found that "the statute was substantially complied with when the resignation letter was delivered by the Town Supervisor's legislative aide to the Town Clerk, who then filed it in the regular course of business. Therefore, the [Petitioner's] resignation was effective."

Moreover, as it was undisputed that Petitioner never sought the consent of the Town Clerk to withdraw or cancel the resignation, the court said it agreed with the Supreme Court's determination to dismiss the proceeding based on Petitioner's "failure to exhaust administrative remedies."

There may be other elements to be considered in determining the "effectiveness" of a resignation.

Although an appointing authority may characterize "acceptance" as the operative element in effecting a resignation, such a characterization is troublesome. For example, §31 of New York’s Public Officers Law provides that written resignations by public officers  take effect upon delivery to the appropriate authority [emphasis supplied]. 

Similarly, the New York State Civil Service Commission’s Rules for employees of the State as an employer provide, in pertinent part, as follows:

“If no effective date is specified in a resignation, it shall take effect upon delivery to or filing in the office of the appointing authority. If an effective date is specified in a resignation, it shall take effect on such specified date.” Clearly acceptance of the resignation is not the "operative" element with respect to effecting a resignation except in those situations where “acceptance” is mandated by statute.

§2111 of the Education Law is an example of a situation where "acceptance of the resignation" is mandated by statute. 

§2111 provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

It should also be noted that the withdrawal of a written resignation may be effected by an individual if such written withdrawal is delivered to the appropriated body or officer before that body or officer receives the individual's written resignation.

In Hazelton v Connelly, 25 NYS2d 74, the Court of Appeals opined that all that is required for a resignation to become operative is its delivery to the appointing authority prior to the receipt of an employee’s notice of the employee's withdrawal or rescinding of the resignation. Approval or acceptance of the resignation is not required for the resignation to take effect except as otherwise mandated by statute, by a relevant rule or regulation or by a relevant term or condition of employment set out in a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01175.htm

Educator suspended for 15 days without pay as the penalty for locking a 10-year old student out of the classroom

The Appellate Division held that the arbitrator's imposing a disciplinary penalty suspending an educator for 15 days without pay had a rational basis and was supported by the evidence, which included:

1. The arbitrator reasonable determination that the educator was guilty of misconduct when he locked a 10-year old student out of the classroom and left him unsupervised in the hallway. 

2. Finding that even were the educator justified in removing the student from the classroom, his actions in locking the student out of the room in a state of distress and leaving him in the hallway without adequate supervision, violated school policy.

The Appellate Division said that imposing a penalty of a 15-day suspension from employment did not shock its sense of fairness, citing  Matter of Ghastin v New York City Dept. of Educ., 169 AD3d 507.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00976.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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