An employer cannot obtain summary judgment in an unlawful discrimination case unless the record demonstrates that there is no triable issue

In an action to recover damages for alleged unlawful employment discrimination on the basis of disability in violation of the New York State Human Rights Law [NYSHRL], Plaintiff appealed a Supreme Court's order granting the City of Yonker's [Employer] motion for summary judgment dismissing Plaintiff's complaint. 

The Appellate Division reversed the Supreme Court's order, on the law, with costs, and the Employer's motion for summary judgment dismissing the Plaintiff's complaint was denied.

Plaintiff, employed in the Employer's Department of Public Works [DPW] and was assigned to work in sanitation immediately before being placed on an authorized leave of absence without pay. Plaintiff requested assignment as a custodian at another location, one of the City's senior citizens centers, in consideration of his disability psoriatic arthritis as a reasonable accommodation of his disability. 

Employer told Plaintiff that it was currently unable to provide the requested accommodation as approving the request would require the Plaintiff to be "permanently excused from performing the essential functions of his position".

The Appellate Division, noting that NYSHRL prohibits discrimination in employment based on, among other grounds, disability, observed "if a reasonable accommodation would permit the employee to perform the essential functions of the employee's position, the employee has a 'disability' within the meaning of the statute, and the employer cannot disadvantage the employee based on that disability".

Observing that reasonable accommodations include "reassignment to an available position", the Appellate Division opined that an employer normally cannot obtain summary judgment on an employment discrimination claim based on disability pursuant to NYSHRL "unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation," and the employer cannot present such a record "if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request".

To prevail on a summary judgment motion with respect to a claim pursuant to NYSHRL, the Appellate Division noted:

1. The employer must show that it engaged in a good-faith interactive process that assessed the needs of the disabled individual;

2. The employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested;

3. The Employer must establish, prima facie, that it engaged in a good-faith interactive process that assessed the needs of the plaintiff"; and

4. The Employer's consideration of the reasonableness of the employee's requested accommodation.

The Appellate Division said the Employer relied on the deposition testimony and affidavit of the DPW's Commissioner, who denied the Plaintiff's request for an accommodation. 

However, the court noted that there was no evidence in the record that the Commissioner was aware of Plaintiff's condition when he made his decision; or that the Commissioner considered the accommodation that the Plaintiff was requesting --  reassignment to the position of a custodian at one of the City's senior citizens centers;

The Commissioner, however, had testified:

a. He had not met with the Plaintiff to discuss his request for an accommodation;

b. He did not know that the Plaintiff's request for an accommodation involved  psoriatic arthritis; 

c. He did not know the limitations typically associated with that condition; and

d. He did not speak with the Plaintiff's physician and that he did not recall reviewing any of the information that the physician provided to the City.

Accordingly, opined the Appellate Division, the City's motion for summary judgment dismissing the Plaintiff's complaint should have been denied by Supreme Court "without regard to the sufficiency of the [Plaintiff's] opposition papers".

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

Supplemental military leave benefits for certain New York State employees extended

 On August 13, 2025, the New York State Department of Civil Service posted the item set out below on the Internet: 

NOTICE OF ADOPTION Supplemental Military Leave Benefits,  

I.D. No. CVS-18-25-00006-A Filing No. 689 

Filing Date: 2025-07-25 Effective Date: 2025-08-13 

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action: 

Action taken: Amendment of sections 21.15 and 28-1.17 of Title 4 NYCRR, Statutory authority: Civil Service Law, section 6(1) 

Subject: Supplemental military leave benefits. 

Purpose: To extend the availability of supplemental military leave benefits for certain New York State employees until December 31, 2025. 

Published in the May 7, 2025 issue of the Register, I.D. No. CVS-18-25-00006-P. 

Final rule as compared with last published rule: No changes. 

The text of rule and any required statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov

Assessment of Public Comment: The agency received no public comment.

Plaintiff's efforts to vacate a determination of a hearing officer made pursuant to Education Law §3020-a rejected

A former teacher [Plaintiff], terminated by the New York City Department of Education [DOE] after "notice and hearing" pursuant Education Law §3020-a, initiated an action pursuant to Article 75 of the CPLR challenging the decision and recommendation of an arbitrator that resulted in Plaintiff's termination as an employee of DOE. Supreme Court, however, granted DOE's motion to dismiss Plaintiff's petition, which ruling was affirmed by the Appellate Division, with costs.

Petitioner, then a tenured teacher employed by DOE, was terminated after being found guilty of charges of misconduct and neglect of duty.  The Education Law §3020-a hearing officer issued a written determination sustaining most of the specifications alleged by the DOE and recommended the Plaintiff be terminated from employment, which findings and recommendation were adopted by DOE.

Citing Matter of Waldren v Town of Islip, 6 NY3d 735, and other court decisions, the Appellate Division explained that a court may set aside an administrative penalty only if "it is so disproportionate to the offense as to be shocking to one's sense of fairness". Opining that "reasonable minds might disagree over what the proper penalty should have been does not provide a basis for . . . refashioning the penalty". The Appellate Division also noted that "A penalty should not be set aside where it is not irrational and does not shock the conscience."

As the question of whether the penalty "is so disproportionate to the misconduct as to shock the conscience requires a case by case factual analysis", the Appellate Division concluded that "in light of all of the circumstances of this case", the penalty of termination in the instant matter was "not irrational and does not shock the conscience".

As to Petitioner's contentions that the hearing officer's determination must be vacated because the arbitration did not conform to the procedures set forth in Education Law §3020-a or in the collective bargaining agreement, the Appellate Division ruled that such argument were "waived, as these issues were not raised at the arbitration hearing."

Accordingly, the Appellate Division found that "Supreme Court properly granted DOE's motion" to dismiss Plaintiff's CPLR Article 75 appeal.

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

On August 12, 2025 Governor Kathy Hochul announced she had appointed Freida D. Foster as Chair of the New York State Workers' Compensation Board and has appointed Renee Delgado, Esq. to serve as Vice Chair of Workers’ Compensation Board

Governor Kathy Hochul appointed Freida D. Foster as Chair of the New York State Workers' Compensation Board (WCB). Ms. Foster has been a Board member since 2009 and Vice Chair since 2016. Former Chair Clarissa M. Rodriguez, Esq. stepped down from her role as Chair in July and will continue to serve as Board Member. Board Member Renee Delgado, Esq. has been appointed Vice Chair. Governor Hochul appointed Ms. Delgado as Board Member in 2022.

“New Yorkers deserve trusted, well-experienced individuals serving them and putting their best interests forward,” Governor Hochul said. “I look forward to working with Chair Foster and Vice Chair Delgado in their new capacities as the Board continues their work in protecting the rights of employees and employers and ensuring our workers get the benefits they need.”

WCB Board Chair Freida D. Foster
Governor Hochul’s appointee for the position of Chair of the New York State Workers’ Compensation Board is Ms. Foster. In the 16 years she has served on the WCB, Ms. Foster has reviewed tens of thousands of workers’ compensation appeals and helped the agency’s efforts to modernize its systems and processes. She also had an important role in implementing NYS Paid Family Leave and assisting the Chair with overall day-to-day oversight and management of the agency and the Full Board.

New York State Workers’ Compensation Board Chair Freida D. Foster said, “I am deeply grateful for the support from Governor Hochul and her executive team, as well as the incredible leadership team at the Board. I am honored to serve under this historic administration and look forward to building on the many important achievements made under the leadership of Chair Rodriguez.”

Ms. Foster has decades of professional experience in the areas of education, government/civic service, and public relations. Prior to joining the Workers' Compensation Board, Ms. Foster was a Public Relations Manager at Burson-Marsteller, where she was the Manager for largest account in the firm, Help America Vote Act (HAVA) and organized the city-wide education campaign for NYC’s voting system transition from manual to electronic machines.

Ms. Foster has held membership on several boards, all with a focus on community and/or civic service as well as student leadership. She currently serves as Chair of the Harlem Community Development Corporation Board of Directors and for the CUNY School of Public Health Advisory Board. Additionally, she sits on the Community Advisory Board for Channel Thirteen/WLIW. She previously served as a Trustee for the City University of New York (2006-16), helping oversee campus management.

A lifelong Harlem resident, Ms. Foster holds an MS in Corporate Communications from the University of Wisconsin and a BA in Communications from Hofstra University.

WCB Vice Chair Renee Delgado
Governor Hochul’s appointee for the position of Vice Chair is Board Member Renee Delgado, who has been serving on the WCB since 2022 and has devoted much of her career to advocating for workers' rights. An experienced attorney, Vice Chair Delgado worked for 14 years at the New York State Public Employees Federation, AFL-CIO (PEF) before joining the Board, holding various titles including Associate Counsel, Director of Contract Administration, and General Counsel. Renee has also worked as a Special Assistant in the Counsel's Office at the New York State Department of Labor, as Assistant Director of Legal Services at the SUNY Colleges of Nanoscale Science and Engineering, as Assistant District Attorney in Queens County and Albany County, and as a legislative aide in the New York State Assembly.

New York State Workers’ Compensation Board Vice Chair Renee Delgado said, “I am honored to be appointed Vice Chair of the NYS Workers’ Compensation Board and thank Governor Hochul for the opportunity to serve our great state. I look forward to working with Chair Foster to deliver a fair and efficient system that protects the rights of injured workers and employers.”

Ms. Delgado holds a juris doctorate from the CUNY School of Law at Queens College, a master's degree in criminal justice from John Jay College in Manhattan, and a bachelor's degree from SUNY Albany.

An award of attorneys' fees must be authorized by agreement between the parties, by statute, or by court rule

In a proceeding pursuant to CPLR Article 78 to review a determination of the New York City Department of Education [DOE] which denied the Petitioner's request for a religious exemption from a COVID-19 vaccine mandate, DOE appealed an order of the Supreme Court which:

1. Granted the Plaintiff's petition;

2. Directed that the Petitioner be reinstated to her full employment status; and

3. Awarded the Petitioner $90,555.63 in back pay; and

4. Awarded the Petitioner $31,095 in attorneys' fees.

In response to the COVID-19 epidemic the  New York City Commissioner of Health and Mental Hygiene issued a mandate requiring all DOE employees to provide proof of COVID-19 vaccination. Such mandate was subsequently amended to provide that [nothing] in this [mandate] shall be construed to prohibit any reasonable accommodations otherwise required by law."

Pursuant to an arbitration award between DOE and the Petitioner's union Petitioner was placed on leave without pay while remaining eligible for health benefits and "given the option to comply with the vaccine mandate, retire, resign, or remain on unpaid leave with health benefits until September 6, 2022". Petitioner elected to extend her leave without pay through September 6, 2022 and signed a release and waiver to that effect which provided, in part, "I understand that if I have not returned by September 6, 2022, I shall be deemed to have voluntarily resigned and knowingly waive my rights to challenge such resignation."

On August 19, 2022, Petitioner submitted a request for a religious exemption from the vaccine mandate which DOE denied Petitioner's  request, finding that her application failed to meet the criteria for a religious-based accommodation. The denial did not mention the waiver.

Petitioner remained on leave without pay and retained her health benefits through September 6, 2022 but as she did not return to work by September 6, 2022, DOE deemed that, pursuant to the terms of the waiver and the arbitration award, she had voluntarily resigned as of September 6, 2022.

Subsequently Petitioner commenced the instant proceeding pursuant to CPLR Article 78, challenging DOE's denial of her request for a religious exemption and seeking reinstatement to her position as a teacher and an award of back pay and attorneys' fees. Supreme Court the petition be granted and that the Petitioner be reinstated to her full employment status. In addition Supreme Court found:

a. Petitioner was entitled to a religious exemption from the vaccine mandate; and

b. Awarded Petitioner the principal of sum of $90,555.63 in back pay;  and 

c. The sum of $31,095 in attorneys' fees. 

DOE appealed from both the Supreme Court's order and the judgment.

The Appellate Division held that DOE's appeal from the order must be dismissed "as no appeal lies as of right from an intermediate order entered in a proceeding pursuant to CPLR article 78 [citing CPLR 5701[b][1])] and any possibility of taking a direct appeal therefrom terminated with the entry of the judgment in the proceeding."

Although DOE contended that the waiver expressly precludes the Petitioner's claims in this proceeding and, therefore, the proceeding should have been dismissed, the Appellate Division opined that "The waiver at issue is a contract, and its  construction is governed by contract law [and] A court's fundamental objective in interpreting a contract is to determine the parties' intent from the language employed and to fulfill their reasonable expectations".

However, as acknowledged by DOE, the Appellate Division observed Petitioner's "contractual promise not to challenge her resignation was not a waiver of her right to seek an accommodation", and thus it follows that Petitioner did waive her right to seek a religious exemption. 

The Appellate Division explained "The clear terms of the waiver, as premised on the arbitration award, permitted the [Petitioner] to comply with the vaccine mandate and return to work by September 6, 2022. One way to comply with the vaccine mandate was for the [Petitioner] to get vaccinated. Another was to successfully obtain a religious exemption and reasonable accommodation" and the amendment to the vaccine mandate earlier noted did not bar individual from seeking reasonable accommodations. 

Noting that had Petitioner had successfully obtained an exemption and concomitant accommodation during the applicable time period, she would have been in compliance with the vaccine mandate and been able to return to work. In the words of the Appellate Division, "contrary to DOE's position, the waiver did not preclude this proceeding to challenge DOE's denial of the [Petitioner's] request for a religious exemption".

In its appeal DOE did not challenge the Supreme Court's determination that DOE's denial of the petitioner's request for a religious exemption was arbitrary and capricious. Therefore, as per Supreme Court's determination, prior to September 6, 2022, the Petitioner was entitled to a religious exemption from the vaccine mandate, and DOE does not contest that determination on this appeal. Accordingly, the Appellate Division affirmed the Supreme Court's determination in this regard.

However, the Appellate Division further held that because an award of attorneys' fees was  not authorized by an agreement between the parties, by statute, or by court rule, "the Supreme Court improperly awarded attorneys' fees to the [Petitioner]."

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