Finding of unlawful discrimination supported by substantial evidence results in imposition of a civil fine and the payment of compensatory damages to the employee

The New York State Division of Human Rights [DHR], adopting the findings and recommendation of an Administrative Law Judge determined following a hearing, held that the New York State Unified Court System, Office of Court Administration [OCA] had unlawfully discriminated against one of a staff member [Employee] based on a disability and directed OCA to: 

1. Cease and desist from subjecting the Employee to blanket exclusions from the court officer-trainee job title based on hearing loss or the use of hearing aids;

2. Pay a civil fine and penalty of $30,000; and

3. Pay Employee $5,000 in compensatory damages.

OCA appealed DHR's decision.

The Appellate Division unanimously confirmed DHR's decision and dismissed OCA's appeal finding that DHR's finding of unlawful discrimination was supported by substantial evidence.

Noting that the Employee had established a prima facie case that OCA discriminated against him because of his hearing and "sufficiently demonstrated that upon the provision of reasonable accommodation, the use of a hearing aid, he can perform in a reasonable manner the essential functions of a court officer-trainee."

The record indicated that Employee had passed the written test for the court officer-trainee position and was conditionally hired. However, OCA bans the use of hearing aids on the job or for the audiometric test to medically qualify for the position of court officer-trainee. Further, opined the Appellate Division, Employee 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 as OCA had made clear it still would deem him unqualified and reject such test results.

Citing Pimentel v Citibank, N.A., 29 AD3d 141, the Appellate Division observed 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."

Addressing OCA's argument that the physical demands of the job and the risk that a hearing aid could become dislodged in a scuffle or fail to operate in an emergency, the court held that 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.

Noting "OCA's preference for those with a minimal amount of hearing acuity" might be a bona fide occupational qualification the Appellate Division held that OCA's "preference for hearing acuity without the use of a hearing aid is not."
As to the $30,000 civil penalty imposed on OCA, the Appellate Division, observing that 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", concluded that considering OCA blanket policy barring hearing-impaired persons from employment as court officers and its failure to accommodate Employee who had an asymmetric hearing loss, the civil penalty of $30,000 was correctly assessed.

Similarly, the court found that the record contains substantial evidence to support DHR's finding that Employee was entitled to a compensatory damages award of $5,000.

Click HERE to access the Appellate Division's decision.

Important changes involving the Workers’ Compensation Board's operations

In light of the expiration of the State of Emergency necessitated by the COVID-19 pandemic, the Workers’ Compensation Board [Board] returned to more regular operations on June 29, 2021.  All of the guidance and modifications provided on the Board’s webpage relating to the State of Emergency are lifted, with the following exceptions:

• The suspension of the Labor Market Attachment requirement will expire on August 16, 2021. Visit the Board's website to view the guidance. 
• Relief from the original signature requirements on 27 Board prescribed forms will continue until August 16, 2021.
• Board offices remain closed for the time being and contact with Board employees will be by phone and email only.
• Remote-only attendance at hearings will continue, with parties and witnesses appearing by video through the Virtual Hearing Center or, as an option for claimants only, by telephone.
• Consideration of requests for the extension of the 30-day filing requirement will continue for appeals and rebuttals post-marked through July 6, 2021.
• Personal service on the Board still will not be permitted. Service will continue to be by mail only.
• Telehealth will remain in effect by Emergency Regulation. A permanent telehealth regulation is expected to be released for public comment shortly.

This information is also available on the Board’s website.

Questions? Email OfficeofGeneralCounsel@wcb.ny.gov.

Retired former police officer denied a "retiree service letter" which would assist in obtaining a special pistol carrying permit

Retired police officers often request a "retiree service letter" [RSL]to assist the retiree in obtaining a special pistol-carrying permit. 

In this CPLR Article 78 action, a retiree [Plaintiff] sought a court order annulling his former employer's [Agency] determination which denied Plaintiff's request for a RSL and asked the court to issue an order compelling that such a letter be issued. Supreme Court dismissed Plaintiff's petition and he appealed the court's ruling.

Citing Peckham v Calogero, 12 NY3d 424, the Appellate Division unanimously affirmed the lower court's ruling, without costs, holding that the Agency's denial of Plaintiff's request was neither arbitrary nor capricious.

The Appellate Division explained that Plaintiff conceded that he was not authorized to carry a firearm at the time of his separation from employment, as he had earlier surrendered his firearm due to an injury, and he had not sought reinstatement of such authorization. Accordingly, said the court, Plaintiff "had no right to issuance of" the RSL "since his authority to carry firearms had been revoked ... and had not been restored at the time he retired"

Further, opined the court, the Agency's decision not to issue the RSL did not violate Plaintiff's Second Amendment rights, since it did not preclude him from applying for a permit under normal legal procedures set out in §400.00 on New York State's Penal Law.

In addition, the Appellate Division observed that:

1. Assuming there is a private right of action under the Law Enforcement Officers Safety Act of 2004, Plaintiff "cannot demonstrate that he met the qualification standards within one year of retirement";

2. Plaintiff cannot demonstrate a violation of the Americans with Disabilities Act based on his former agency's refusal to issue the RSL as he concedes that his injury rendered him unable to perform his duties as a law enforcement officer; and

3. There is no factual basis to conclude that the Agency's decision refusing to provide Plaintiff with a RSL was made in bad faith rather than as part of an across the board policy.

Click HERE to access the Appellate Division's decision.

 

Live Webinar addressing continuity of goverment in a crisis

Government Technology has scheduled a Webinar addressing Continuity of Government: Maintaining Constituent Services and Employee Collaboration in a Crisis to be held on Tuesday, June 29 | 2:00pm Eastern.

Noting that today’s headlines are filled with reports of increasingly sophisticated and disruptive cybercrimes, Government Technology observes that "government agencies have become primary targets for ransomware attacks that lock up vital systems and data", and that:

"A new wave of supply chain exploits presents serious threats to public sector organizations that rely on growing numbers of partners and service providers to perform their missions. 

"And, of course, many state and local jurisdictions face greater cyber risk due to expanded adoption of remote work and digital service delivery, coupled with a greater dependence on their IT infrastructure."

Click here to Register to attend.

 

 

The disability finding of the Social Security Administration is not dispositive of the Retirement System's Medical Board's disability determination

The determination to deny petitioner's application for accident disability retirement was not arbitrary and capricious, and was supported by some credible evidence (see Matter of Merlino v Teachers' Retirement Sys. of the City of N.Y., 177 AD3d 430, 430 [1st Dept 2019], citing Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760 [1996]). The finding of respondent's Medical Board that petitioner was not disabled was supported by its physical examination and interview of petitioner (see Matter of Fusco v Teachers' Retirement Sys. of the City of N.Y., 136 AD3d 450, 451 [1st Dept 2016]). Upon examination, petitioner was able to move around unassisted, had normal strength and range of motion in his shoulders, elbows, wrists, and hips, and had little or no tenderness in his neck and back. 

In addition, the Medical Board noted that petitioner had not had standard of care epidural injections, trigger point injections, or any other procedures to improve his current complaints. Petitioner claims that the Medical Board ignored his medical history, but resolution of conflicting evidence was for the Medical Board to resolve (see Matter of Athanassiou v Kelly, 101 AD3d 517 [1st Dept 2012]; Matter of Bell v New York City Employees' Retirement Sys., 273 AD2d 119, 120 [1st Dept 2000], lv denied 96 NY2d 701 [2001]).

The disability finding of the Social Security Administration was not dispositive of the Medical Board's disability determination (see Fusco, 136 AD3d at 451, citing Matter of Barden v New York City Employees' Retirement Sys., 291 AD2d 215, 216 [1st Dept 2002]). Nor did the [*2]finding of the medical arbitrator, who examined petitioner after the Medical Board made its determination, warrant article 78 relief (see id.).

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_01256.htm