Monday, June 29, 2015

An action alleging discrimination because of disability.

Practice point:  The Appellate Division reversed the granting of defendant's motion for summary judgment on this disability discrimination claim.  The Appellate Division noted that an employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested, pursuant to NYCRR 466.11[j][4], and, viewing the evidence in the light most favorable to the nonmovant, and found that  plaintiff's responses to the notice of proposed termination could reasonably have been understood as a request for accommodation, which the Department of Correctional Services rejected by terminating plaintiff's employment based on her inability to return to work within the one year permitted under Civil Service Law § 71.

The Appellate Division concluded that defendants failed to establish, prima facie, that they engaged in a good faith interactive process that assessed plaintiff's needs and the reasonableness of her requested accommodation.

Student note:  An employer normally cannot obtain summary judgment on a disability discrimination claim pursuant to Executive Law § 296 unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation. 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.

Case:  Cohen v. State of New York, NY Slip Op 05147 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Attorneys' fees and expenses for frivolous conduct.