60 N.Y.2d 527 | NY | 1983
Lead Opinion
OPINION OF THE COURT
In this article 78 proceeding petitioner contends that his employer terminated his probationary appointment to a supervisory position because of a physical disability, and
In 1971 petitioner was employed as a railroad clerk by the New York City Transit Authority (Authority) after passing a competitive examination. In 1975 he passed the examination for assistant station supervisor and was placed on the eligible list. On November 10, 1979 he was appointed to the supervisory position subject to the satisfactory completion of one year on probation.
On several occasions in 1980 petitioner was hospitalized for treatment of a heart condition. As a result of this condition he was absent from work from September 20 to October 20, 1980. On the latter date he was found physically fit to return to “full duty status” by the Authority’s cardiac consultant. However on October 27, 1980 that same doctor found petitioner “not qualified to do full duty in his [supervisory] title. He is to do no excessive stair climbing. He is able to work as a railroad clerk”. On November 6, 1980 petitioner’s probation was terminated and he was demoted to his former position of railroad clerk.
In January, 1981 petitioner commenced this article 78 proceeding claiming that the Authority discriminated against him in violation of section 296 of the Executive Law by demoting him because of his physical disability. He asked that he be reinstated to his supervisory position with back pay.
The Authority did not answer the petition but instead moved to dismiss for failure to state a cause of action. The employer claimed that petitioner had been demoted because of “unsatisfactory service during his probationary period”. The Authority also urged that since its cardiac consultant had found the petitioner unfit for full duty, it could not be said that it had discriminated against him because of a disability which would not interfere with the performance of his duties. The Authority alleged that
The trial court granted the motion to dismiss, without a hearing, concluding that: “Here, the medical finding that petitioner is not qualified to do full duty means that he is not capable of ‘performing in a reasonable manner’ the functions of Assistant Station Supervisor”. The Appellate Division affirmed, without opinion.
Although the employment of a probationary appointee may be terminated without a hearing and without stated reasons, the employer may not terminate the employment for reasons prohibited by law (Matter of Talamo v Murphy, 38 NY2d 637, 639). In this State the Human Rights Law prohibits an employer from discriminating against an employee or job applicant because of a disability (Executive Law, § 296).
Prior to 1979 a disability by statutory definition, was “limited to physical, mental or medical conditions which are unrelated to the ability to engage in the activities involved in the job or occupation which a person claiming protection of this article shall be seeking” (Executive Law, § 292, former subd 21). Under that statute job relatedness was the test. An employer who denied a job opportunity to an employee or applicant because of a physical of mental impairment could not be said to have discriminated if the condition was in any way related to the duties the person was required to perform in connection with the position sought (Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, 49 NY2d 234; State Div. of Human Rights [Ghee] v County of Monroe, 48 NY2d 727; Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 46 NY2d 950). It was not necessary for the employer to go further and demonstrate that the condition also precluded
In 1979 the Legislature amended the statute more accurately to define disabilities as “physical, mental or medical conditions which do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought” (L 1979, ch 594, now Executive Law, § 292, subd 21). This “individualized standard” went into effect on July 10,1979 and has been held to be not retroactive (Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, supra, p 238). However it applies to this case where the allegedly discriminatory act occurred in November of 1980.
Under the current statute, then, it is not enough for the employer to show that the employee’s physical impairment is somehow related to the duties he must perform in the position sought. Nor is it sufficient to show that the impairment precludes the employee from performing the duties in a perfect manner. The statute bars discrimination against an impaired individual who is reasonably able to do what the position requires. Unless it is shown that the employee’s physical condition precludes him from performing to that extent, the disability is irrelevant to the job and can form no basis for denying him the position.
Thus at this stage of the proceeding the trial court erred in dismissing the petition. Even if it be assumed, as the Authority contends, that the restrictions imposed by petitioner’s heart condition do relate to the duties of an assistant station manager and may impair his ability to “fully” perform those duties to some unspecified extent, it does not follow that petitioner can claim no protection from the Human Rights Law. As noted, the determinative question under the amended statute is whether the petitioner is incapable of performing the duties required by the supervisory position in a reasonable manner and nothing submitted thus far by either side eliminates this as a factual question. Indeed at this stage it appears that the Authority terminated petitioner solely because of his probationary status. This it may not do if, as the petitioner contends, there was discrimination under the statute.
The order of the Appellate Division should be reversed, the motion to dismiss denied and the case remitted to the Supreme Court, Kings County, for further proceedings in accordance with this opinion.
We reject the suggestion in the concurring opinion that the reasonableness standard should be interpreted in a technical manner so as to require a parsing out and separate evaluation of each activity, as opposed to a more general consideration of the employee’s over-all ability to perform the job. When reasonableness is the test the weight to be accorded to a particular factor cannot be predicted in advance but must be considered in light of all the circumstances of the particular case. Thus in our view the suggested interpretation is inconsistent with the obvious intent of the recent amendment to shift the focus from technicalities to practicalities in cases involving claims of job discrimination on the basis of physical disability.
Concurrence Opinion
(concurring). While I agree with the majority that the case should be remitted to the Supreme Court for further proceedings, I do so for the reasons that follow.
This case involves the provisions of the Human Rights Law (Executive Law, §§ 290-301) which prohibit employment discrimination by reason of disability. The issue presented is whether the court below erred as a matter of law in determining, without a hearing and without requiring respondents to submit an answer, that petitioner’s medical condition rendered him unable to perform his employment duties and, therefore, falls outside the statutory protections.
Several specific provisions of the statute apply here. Section 296 (subd 1, par [a]), of the Executive Law prohibits employment discrimination on the basis of disability and the recently enacted amendment to subdivision 21 of section 292 defines a covered disability as one which does “not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation
Nevertheless, though an applicant or employee need not be able to perform perfectly to be entitled to the statutory protections, still he must be able to perform reasonably “the activities involved” — not just some or most or a reasonable proportion of those activities. The statute bars discrimination against a disabled individual who is able to do what the job or occupation requires. It does not mandate that an employer hire an individual who cannot perform the work involved. While the amended statute surely has a remedial purpose and necessitates accommodation of the disabled, it does not require absurd results.
The statute as amended prohibits discrimination against a disabled individual who can reasonably perform the tasks required. But it does not entitle any individual, whether or not disabled, to employment which that person can perform only in part. Indeed, any other interpretation is entirely inconsistent with the unamended clarifying provision in section 296 (subd 3-a, par [c]) which unambig
Before applying the foregoing to the specific facts of this case, it is essential to recognize that petitioner here was a probationary employee and as such he was subject to the generally “unfettered right” of an employer to terminate a probationer. (James v Board of Educ., 37 NY2d 891, 892.) Indeed, an employer may discharge a probationary employee without reasons or a hearing unless the employee has demonstrated that the termination was for a constitutionally impermissible purpose or in violation of a statutory proscription. (Matter of Stanziale v Executive Dept., Off. of Gen. Servs., 55 NY2d 735, 737; Matter of Holbrook v State Ins. Fund, 54 NY2d 892, 894.) Because a probationer has no vested right to continued employment (Matter of New York City Bd. of Educ. v Batista, 54 NY2d 379, 382), he need not be afforded a hearing or a statement of reasons unless there is no lawful basis for his termination (Matter of Talamo v Murphy, 38 NY2d 637, 639; cf. Board of Regents v Roth, 408 US 564, 578) or the record discloses a genuine issue concerning the infringement of a constitutional right (cf. Perry v Sindermann, 408 US 593, 598). Moreover, as we have consistently held, judicial examination of an administrative determination should be limited to a review of the record for substantial evidence that supports a rational and lawful basis for that determina
Here, petitioner’s probationary promotion was terminated on account of “unsatisfactory probationary period” and he was returned to his former position. In response to petitioner’s article 78 petition alleging unlawful discrimination by reason of disability, respondents explained that petitioner was physically unable to perform the work in his probationary position. In support of that determination, respondents relied upon a medical report of their cardiologist consultant which outlined petitioner’s medical problems and which concluded that he “is not qualified to do full duty in [the probationary position]. He is to do no excessive stair climbing.” Petitioner contends that he is capable of stair climbing and, more importantly, he challenges the bona fides of the medical report. He claims that it contradicts a report of the same cardiologist issued one week earlier which did not declare any disqualification but instead stated that the petitioner “is returned to a full duty status”. There being no apparent explanation for the discrepancy between the two reports, petitioner argues that the later one is too questionable to support respondents’ determination. He further insists that a hearing is warranted to determine the sufficiency of respondents’ evidence and the lawfulness of the reasons for his termination in light of the antidiscrimination provisions of the Human Rights Law.
The resolution of the issues thus presented requires a reconciliation of two seemingly competing mandates. On the one hand, as our decisions have recognized, an employer is normally entitled to discharge an employee at any time during the nonbinding probationary period without the inconvenience and cost of a formal hearing and, indeed, even without giving reasons, whenever the employer is dissatisfied with the probationer. On the other hand, a disabled employee is entitled to the safeguard of the statutorily required “individualized” test to insure that he is not discharged for discriminatory reasons. Stated another way, this is n. case in which the employer’s general authority summarily to terminate a probationary employee must be reconciled with the special protection against discrimination afforded to disabled employees.
The record as it presently stands is unclear on several matters which are essential to determine whether petitioner has in fact been subject to unlawful discrimination or whether respondents do have the requisite lawful basis for terminating him. The record is unclear whether petitioner was terminated solely because of his disabling condition or whether his probationary employment period was unsatisfactory for other reasons as well. It is unclear whether the initial medical report was intended to state that petitioner was actually qualified to return to his probationary position or whether it merely stated a fact, that after an extended absence from work due to illness, he was no longer ill. Moreover, if the former was intended, it is unclear whether there is any basis for the discrepancy between the initial report and the second which stated that petitioner was then unqualified to perform his probationary position. Additionally, it is unclear whether petition
In order that a more complete record be developed which would permit a sufficient review of both petitioner’s claim of discrimination and respondents’ basis for its action, respondents should be required to answer petitioner’s complaint, stating more precisely and explaining more fully their reasons for terminating petitioner’s probationary employment and, thereby, clarifying the matters thus far left uncertain. Upon receiving respondents’ answer and supporting affidavits, the trial court should decide whether respondents have provided substantial evidence that the basis for their action did not disregard the “individualized test” for disability discrimination.
Chief Judge Cooke and Judges Jones, Meyer, Simons and Kaye concur with Judge Wachtler; Judge Jasen concurs in a separate opinion.
Order reversed, with costs, motion to dismiss denied and matter remitted to Supreme Court, Kings County, for further proceedings in accordance with the opinion herein.
The plain language of the statutory provision mandates the view expressed herein. Our interpretation certainly ought not to be governed by overtechnical construction, nor by disregard of the plain language, but, rather, by practicality, common sense and faithful adherence to the evident legislative intent.