In Cooney v. City of New York Dept. of Sanitation, No. 650113/2013, 2020 WL 4391481 (N.Y. Sup Ct, New York County July 30, 2020), the court granted defendants’ motion for summary judgment dismissing plaintiff’s complaint asserting disability discrimination arising from the Department of Sanitation’s rejection of plaintiff as a candidate for employment.
In this case, plaintiff took and passed the written and physical tests for sanitation workers, and thereafter was advised that he would be hired and appeared for a pre-employment medical exam. A doctor conducted a medical examination, and reported that plaintiff displayed “erythemoatous papules of various sizes on palms, thighs, and buttocks; psoriasis treated with creams and ointments; psoriasis on exposed area, hands, still symptomatic.”
The Department of Sanitation’s Medical Director subsequently reviewed all medical documents and concluded that plaintiff was “still symptomatic”. Shortly thereafter, plaintiff received a notice of medical disqualification. Following various procedural steps – which I will not address here – plaintiff commenced the instant action.
It was undisputed that plaintiff’s psoriasis constitutes a “disability” of which defendants had notice. The issue, therefore, was whether, with reasonable accommodations, plaintiff could perform the essential functions of the job and whether defendants denied plaintiff those accommodations.
The court explained the applicable law:
If an employee has a physical impairment that prevents the employee from performing the core duties of his or her job even with a reasonable accommodation, the employee does not have a disability covered by the statute, and consequently, the employer is free to take adverse employment action against the employee based on that impairment (see Jacobsen v NY City Health & Hosps Corp, 22 NY3d 824, 834 ). The [disability discrimination] claim must be supported by substantiated allegations that upon the provision of reasonable accommodations, [the employee] could perform the essential functions of [his or her] job, and the employee bears the burden of proof on this issue at trial. [Internal quotation marks omitted.]
While plaintiff never requested a specific accommodation, the court generally agreed with plaintiff that “even in the absence of a specific request by an employee, an employer generally has an independent duty to investigate feasible accommodations.” This view, noted the court, comports with statutory and regulatory language, namely, that “[t]he employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested” as provided in NYCRR 466.11(j)(4).
However, the court noted the Dept. of Sanitation’s Medical Director’s statement that
“[s]anitation workers are exposed to germs, chemicals, stings from insects and animal bites while collecting garbage. Cuts and lacerations are a part of their everyday work. Performing this type of work with skin lesions, especially on the hands, makes one very susceptible to infections. The use of gloves will only exacerbate the condition.”
Although plaintiff had specifically suggested in his complaint that gloves would be a reasonable accommodation for his disability, this accommodation was specifically ruled out by the Medical Director and not raised by plaintiff’s expert. As such, plaintiff did not have a reasonable accommodation available for work as a sanitation worker.
The court further explained:
Because the plaintiff’s condition may prevent plaintiff from performing in a reasonable manner the activities involved in the job or occupation sought, the plaintiff’s contention that the defendant violated Executive law § 296 in denying him appointment because of a “disability,” must be disposed of summarily. There is no other legally protectable interest which flows from the passing of a civil service examination other than DSNY’s evaluation of plaintiffs fitness for the position. [Citations omitted.]
Therefore, the court concluded, since defendants “established that there is no reasonable accommodation which will allow plaintiff to fulfill the core duties of the job of sanitation worker” and plaintiff failed to raise an issue of fact to rebut this, defendants were entitled to summary judgment.