513 F.Supp.3d 356
S.D.N.Y.2021Background:
- Plaintiff Kenneth Frilando is profoundly deaf, primarily uses American Sign Language (ASL), and has limited English reading/writing (about a third-grade level).
- Between 2016–2018 he applied for three MTA positions (train operator, bus operator, track worker) that required passing multiple-choice civil-service exams and "to understand and be understood in English," and also had minimum hearing standards he did not meet.
- Frilando requested accommodations: extra time and ASL interpretation of oral instructions, exam questions, and answer choices. NYCTA/MaBSTOA (following DCAS policy) offered extra time and ASL interpretation of oral instructions but refused to translate or interpret the exam questions/answers into ASL.
- Frilando did not take the exams and sued under the ADA, Rehabilitation Act, NYSHRL, and NYCHRL for failure to accommodate; summary judgment narrowed the case to failure-to-accommodate claims and the case proceeded to a bench trial.
- The Court found (1) Frilando was not "otherwise qualified" because the jobs require English communication and minimum hearing, (2) the exams legitimately test written English comprehension/expression, so providing ASL interpretation of questions would defeat the skills the tests purport to measure, and (3) defendants engaged in an adequate interactive process. Judgment for defendants entered.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether refusing ASL interpretation of exam questions was a denial of a reasonable accommodation | Frilando: ASL interpretation of questions was required to accommodate his disability and allow him to take the exams | NYCTA/MaBSTOA: Translating test questions would change what the exam measures and DCAS policy prohibits translation of exams from English | Denied — interpreting questions would eliminate the exam's measurement of written English, so refusal was not unlawful |
| Whether Frilando was an "otherwise qualified" applicant for the positions | Frilando: With accommodations he could perform essential job functions | Defendants: Essential functions include English oral/written communication and hearing-based tasks; Frilando lacks requisite English and hearing ability | Held he was not otherwise qualified because essential job functions require understanding/being understood in English and minimum hearing |
| Whether the preemployment exams impermissibly tested non-job-related English skills (test selection/administration) | Frilando: Exams should be administered so results reflect true job-related skills and not impairments | Defendants: Job analyses and exam plans show tests are designed to assess written comprehension/expression necessary for the jobs | Held exams purport to and in fact do measure written English skills relevant to job duties; translation would negate that purpose |
| Whether defendants failed to engage in a good-faith interactive process | Frilando: NYCTA/MaBSTOA did not adequately engage to assess reasonable accommodations | Defendants: They corresponded for 16 months, sought documentation, clarified requests, offered alternatives and extra time | Held interactive process satisfied; failure-to-engage is not an independent cause of action and here was adequately met |
Key Cases Cited
- McMillan v. City of New York, 711 F.3d 120 (2d Cir.) (parallel ADA/NYSHRL/NYCHRL accommodation analysis)
- Bartlett v. New York State Bd. of Law Examiners, 970 F. Supp. 1094 (S.D.N.Y.) (analysis of reasonable accommodations for preemployment/professional exams)
- Shannon v. New York City Transit Auth., 332 F.3d 95 (2d Cir.) (employer may deem safety-related functions essential)
- Sheng v. M&T Bank Corp., 848 F.3d 78 (2d Cir.) (failure to engage in interactive process is evidentiary, not an independent claim)
- Noll v. Int’l Bus. Machines Corp., 787 F.3d 89 (2d Cir.) (same regarding interactive process)
- Jacobsen v. New York City Health & Hosps. Corp., 11 N.E.3d 159 (N.Y.) (NYSHRL claim cannot rest solely on interactive-process failure)
- Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir.) (elements of an adequate interactive process)
- Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178 (2d Cir.) (treating ADA and Rehabilitation Act standards as generally equivalent)