Employer's blanket exclusions from the court officer-trainee job title based on hearing loss or the use of hearing aids rejected

The Appellate Division sustained the decision of the New York State Division of Human Rights (DHR), which adopted the recommended order of the Administrative Law Judge, and determined, following a hearing, that the New York State Unified Court System, Office of Court Administration (OCA) unlawfully discriminated against an individual [Complainant] based on a disability. OCA was directed 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 and, in addition, to pay a civil fine and penalty of $30,000, and to pay Complainant $5,000 in compensatory damages.

The court found that Commissioner's finding of discrimination was supported by substantial evidence. 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 as Complainant had "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."

The Appellate Division explained that permitting court officers to wear a hearing aid is a reasonable accommodation, rejecting OCA argument that permitting court officers to wear a hearing aid would "impose undue hardship on OCA by posing a "direct threat," i.e. "a significant risk of substantial harm to the . . . safety of the employee or others."

OCA, said the court, had speculated that there was a risk that a hearing aid could become dislodged in a scuffle or fail to operate in an emergency. The court observed 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."

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. The Appellate Division's opinion  notes that absent in this case was a sufficiently individualized assessment "nor does OCA's formula take into account the ability of someone with asymmetrical hearing loss to perform the essential functions of a court officer-trainee."

The decision is posted on the Internet at:

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

Judicial review of a board's administrative decision flowing from a tie vote

In this proceeding pursuant to CPLR Article 78, an applicant [Petitioner] for accidental disability retirement benefits sought judicial review of a determination of the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund [Board] where the Board’s decision denying Petitioner’s application  for accidental disability benefits was the result of a tie vote.

The Appellate Divisions sustained the Board's decision, citing Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 NY2d 347.* The court explained that under the circumstances the Board “must retire the applicant on an ordinary disability pension, and the determination of the Board … can be set aside on judicial review only if it can be concluded as a matter of law that the Petitioner's disability was the natural and proximate result of a service-related accident."

The court’s opinion notes that the applicant has the burden of establishing that, as a matter of law, a causal relationship exists between the claimed service-related accident and the claimed disability. As long as there was any credible evidence of lack of causation before the Board, its determination must be sustained.

As the Appellate Division determined that [1] Petitioner failed to demonstrate a “casual relationship” between the alleged service-related accident and the claimed disability and [2] there was credible evidence before the Board that Petitioner's injury was not caused by the alleged accident, it concluded that the Board’s determination should not be disturbed.

* See, also, Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01497.htm

Considering a whistle blower defense in the course of a disciplinary action

The appointing authority [Authority] filed disciplinary charges against an employee [Defendant] pursuant to §75 of the Civil Service Law alleging the Defendant was guilty of excessive absence and remaining on the job site against her supervisor’s orders on 76 occasions.

Although Defendant advanced a "whistleblower defense,"* New York City Office of Administrative Trials and Hearings Administrative Law Judge Noel R. Garcia, noting that to establish a “whistleblower” defense the employee must show that the sole motivation for appointing authority's filing the disciplinary charges was to retaliate against the individual, found the Defendant had failed to prove such a defense because, upon review of all of the evidence in the record, Defendant did not establish that the disciplinary charges filed against her were motivated solely by complaints she had filed and that they were factually unconnected to the Defendant’s long periods of absence without leave.

The Administrative Law Judge opined that "much of [Defendant's] testimony regarding the claim of retaliation was uncorroborated, self-serving, and generally not credible." 

Judge Garcia also found that the Authority proved that the Defendant did not provide required medical documentation in connection with Defendant's absence, had refused to meet with her supervisor concerning her absences and had not sought medical treatment until almost four months after she commenced being absent from her position.

As to the penalty to be imposed, Judge Garcia recommended that the Defendant's be terminated from her position.

* Civil Service Law §75-b, which prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting “improper governmental action.”

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2055.pdf