| Matter of New York State Dept. of Correctional Servs. v New York StateDiv. of Human Rights |
| 2008 NY Slip Op 09517 [57 AD3d 1057] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of New York State Department of Correctional Services,Petitioner, v New York State Division of Human Rights, on Complaint of Edward J. Rice, Respondent,et al., Respondent. |
—[*1] Caroline J. Downey, State Division of Human Rights, New York City (Michael K. Swirsky ofcounsel), for State Division of Human Rights, respondent.
Malone Jr., J. Proceeding pursuant to Executive Law § 298 (transferred to this Court byorder of the Supreme Court, entered in Albany County) to review a determination of respondent StateDivision of Human Rights which found petitioner guilty of an unlawful discriminatory practice based ondisability.
Edward J. Rice, who was employed by petitioner as a correction officer, suffered a heart attack inMarch 2004, which resulted in the implantation of stents and a defibrillator in his chest. Although Ricewas cleared for duty without restriction by his cardiologist in May 2004, petitioner placed him oninvoluntary leave until November 2005, at which time it terminated Rice's employment on the basis thathe "ha[d] been continuously absent" and "unable to perform the duties of his position for more than oneyear" as a result of a disability (Civil Service Law § 73). Rice then filed a complaint withrespondent State Division of Human Rights (hereinafter [*2]SDHR),alleging that petitioner had engaged in an unlawful discriminatory practice by terminating his employmentdue to a disability. Following an investigation, SDHR determined that probable cause existed to sustainthe complaint and a hearing was held before an Administrative Law Judge (hereinafter ALJ). In astatement of proposed findings of fact, the ALJ found that Rice had failed to establish that he was fit toperform the essential duties of a correction officer and, thus, petitioner had not improperly terminatedhis employment. Thereafter, SDHR issued an alternative proposed decision determining that petitionerhad engaged in an unlawful discriminatory practice by terminating Rice's employment. After objectionswere filed, the Commissioner of Human Rights adopted the proposed order and awarded Rice backpay, as well as damages for emotional pain and suffering. Petitioner then commenced this proceedingpursuant to Executive Law § 298 seeking to annul that determination.
The Human Rights Law prohibits employers from discriminating against employees due to adisability (see Executive Law § 296) and, here, there is no dispute by the parties thatRice is disabled as a result of suffering a heart attack. As such, petitioner could not terminate hisemployment on the basis of his disability unless it proved that the disability prevented him fromreasonably performing the functions and duties of a correction officer (see City of New York vState Div. of Human Rights, 70 NY2d 100, 106 [1987]). In reviewing the Commissioner's findingthat petitioner engaged in an unlawful discriminatory practice by terminating Rice's employment on thebasis of a disability, this Court is limited to determining whether the finding is supported by substantialevidence in the record and "may not weigh the evidence or reject [SDHR's] determination where theevidence is conflicting and room for choice exists" (City of New York v State Div. of HumanRights, 70 NY2d at 106; see Matter ofNew Venture Gear Inc. v New York State Div. of Human Rights, 41 AD3d 1265, 1266[2007]).
In support of the determination that petitioner engaged in an unlawful discriminatory practice byterminating Rice's employment on the basis of his disability, SDHR relied upon, among other things, thereports of Rice's treating cardiologists, as well as the original report of the physician who performed anindependent medical examination for petitioner, that Rice was capable of returning to work without anyrestriction. SDHR found that the reports of petitioner's medical examiner that Rice was unable tofunction as a correction officer due to the possibility of a physical confrontation with an inmatedamaging his defibrillator were insufficient to support the termination of his employment inasmuch as theidentified risk was speculative and hypothetical in nature (see Matter of Antonsen v Ward, 77NY2d 506, 515 [1991]; City of New York v State Div. of Human Rights, 70 NY2d at 107).Thus, considering that "[i]t is peculiarly within the domain of [SDHR, which] is presumed to havespecial expertise in the matter, to assess whether the facts and the law support a finding of unlawfuldiscrimination" (Matter of Club Swamp Annex v White, 167 AD2d 400, 401 [1990], lvdenied 77 NY2d 809 [1991]), it cannot be said that the determination at issue here is unsupportedby the evidence. This is so despite the existence of evidence that would reasonably support a contrarydetermination (see Matter of New York StateOff. of Mental Health v New York State Div. of Human Rights, 53 AD3d 887, 889 [2008];Matter of Pageau v Tolbert, 304 AD2d 1067, 1068 [2003]). Moreover, although petitionercontends that SDHR impermissibly rejected the proposed order of the ALJ, which found that petitionerhad not acted improperly in terminating Rice's employment, we note that SDHR is not bound by theALJ's findings of fact or credibility determinations (see Matter of R & B Autobody & Radiator, Inc. v New York State Div. ofHuman Rights, 31 AD3d 989, 990 [2006]).[*3]
Finally, contrary to petitioner's contention, Rice's applicationfor, and receipt of, Social Security disability insurance benefits subsequent to the termination of hisemployment does not, as a matter of law, preclude a finding that petitioner unlawfully discriminatedagainst Rice (see Cleveland v Policy Management Systems Corp., 526 US 795, 797 [1999];see also Engelman v Girl Scouts-Indian HillsCouncil, Inc., 16 AD3d 961, 963 [2005]).
Cardona, P.J., Spain, Rose and Stein, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.