463 F.Supp.3d 501
S.D.N.Y.2020Background
- Plaintiff Kenneth Frilando is deaf (primary language ASL) and applied for three NYCTA/MaBSTOA positions (Train Operator, Track Worker, Bus Operator) that require passing multiple-choice exams administered only in English.
- Plaintiff requested ASL interpretation for both oral instructions and written exam questions/answer choices; he also requested extra time and provided medical documentation for extra time.
- The Exam Unit offered an ASL interpreter for oral instructions and communications with staff plus 200% time, but refused to allow ASL interpretation of written exam questions/answers, citing an English-language requirement and that translating exam items would fundamentally alter the test.
- Plaintiff declined to take the exams, filed an EEOC charge against the MTA (not naming NYCTA or MaBSTOA), and then sued NYCTA and MaBSTOA under the ADA, Rehabilitation Act, NYSHRL and NYCHRL alleging failure to accommodate, discriminatory qualification standard (English requirement), and disparate impact.
- The court found (1) Plaintiff’s failure-to-accommodate claims could proceed against NYCTA and MaBSTOA despite the EEOC charge naming the MTA, (2) triable issues of fact exist as to whether the offered accommodations were reasonable, and (3) summary judgment for Defendants is granted on the English-language qualification claim and on an unpled disparate-impact theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff exhausted administrative remedies / may sue NYCTA and MaBSTOA despite EEOC charge naming MTA | EEOC charge described the Exam Unit conduct and identified responsible staff; Defendants are identity-of-interest affiliates and were effectively put on notice | Plaintiff sued different entities than named in EEOC and therefore claims should be dismissed for failure to exhaust | Court: Allowed suit against NYCTA and MaBSTOA — EEOC claims were "reasonably related" and identity-of-interest factors favor Plaintiff |
| Whether Plaintiff needed to show ability to perform essential functions of the jobs (vs. the exams) | Frilando: qualification inquiry should focus on ability to take the exams (he sought exam accommodations) | Defendants: Plaintiff must show he could perform essential job functions for each position | Court: For failure-to-accommodate claim about exam access, plaintiff need only be able to perform essential functions of the exam; that element is satisfied |
| Whether Defendants’ offered accommodations (interpreter for instructions + extra time) were reasonable | Plaintiff: his reading proficiency is low (expert opines 3rd–4th grade) and translation of written items was necessary for an effective accommodation | Defendants: exams are in English; they offered effective accommodations without translating items; translating would alter the test and is unnecessary because exams do not test English literacy | Court: Denied summary judgment to both sides — reasonableness is fact-specific and triable given disputed evidence about Plaintiff’s English reading ability |
| Whether the English Language Requirement and refusal-to-translate policy are discriminatory qualification standards / disparate impact | Plaintiff: the English requirement and blanket refusal to interpret written items screen out deaf applicants | Defendants: Plaintiff never took exams and offered no evidence he or a class were excluded; disparate-impact claim not pleaded | Court: Granted summary judgment to Defendants — no proof Plaintiff was excluded by the requirement and disparate-impact claim was not alleged in the complaint |
Key Cases Cited
- Soules v. Connecticut, Dep’t of Emergency Servs. & Pub. Prot., 882 F.3d 52 (2d Cir. 2018) (EEOC exhaustion and "reasonably related" claims)
- Deravin v. Kerik, 335 F.3d 195 (2d Cir. 2003) (focus on factual allegations in EEOC charge for relatedness)
- Vital v. Interfaith Med. Ctr., 168 F.3d 615 (2d Cir. 1999) (identity-of-interest test for unnamed defendants)
- Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991) (generally sue only entities named in EEOC charge absent relatedness)
- Noll v. Int’l Bus. Machines Corp., 787 F.3d 89 (2d Cir. 2015) (prima facie failure-to-accommodate framework; reasonableness inquiry)
- Wright v. New York State Dep’t of Corr., 831 F.3d 64 (2d Cir. 2016) (burden-shifting on accommodation reasonableness/undue hardship)
- U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (accommodation must be effective; employers need not provide perfect accommodation)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for summary judgment)
- McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92 (2d Cir. 2009) (analyzing ability to perform essential job functions in accommodation context)
- Romanello v. Intesa Sanpaolo, S.p.A., 998 N.E.2d 1050 (N.Y. 2013) (reasonable accommodation analysis under NY human rights law)