| Matter of Regal Entertainment Group v New York State Div. of HumanRights |
| 2009 NY Slip Op 02521 [61 AD3d 1102] |
| April 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Regal Entertainment Group, Petitioner, v NewYork State Division of Human Rights et al., Respondents. (And Another RelatedProceeding.) |
—[*1] Caroline J. Downey, New York State Division of Human Rights, New York City (Arlyne R.Zwyer of counsel), for New York State Division of Human Rights, respondent.
Mercure, J. Proceeding pursuant to Executive Law § 298 (transferred to this Court byorder of the Supreme Court, entered in Broome County) to review a determination of respondentState Division of Human Rights which found petitioner guilty of an unlawful discriminatorypractice based on disability.
Respondent Doudou B. Janneh was employed at a movie theater owned by petitionerbeginning in 1999. In June 2005, Janneh became ill and failed to report for his scheduled workshifts. Subsequently, Janneh's wife presented a doctor's note to the theater manager, whoforwarded the note to petitioner's benefits administrator for a determination of whether Jannehwas eligible for leave under the Family and Medical Leave Act of 1993 (see 29 USC§ 2601 et seq.). Determining Janneh to be ineligible, the benefits administratorinformed him by letter that if he was unable to return to work, he would be considered to have"voluntarily resigned for personal reasons," but he could reapply for employment with petitionerat any time. As a result, Janneh [*2]was effectively terminated.
Subsequently, Janneh filed a verified complaint, which was later amended, with respondentState Division of Human Rights (hereinafter SDHR) charging petitioner with, among otherthings, disability discrimination in violation of Executive Law article 15. After investigation,SDHR determined that it had jurisdiction and that there was probable cause to believe thatpetitioner had engaged in an unlawful discriminatory practice. Following a hearing, anAdministrative Law Judge determined, as relevant here, that Janneh failed to establish a primafacie case of discrimination and recommended dismissal of the complaint. Thereafter, SDHRissued an alternative proposed order sustaining the complaint to the extent that it allegeddiscrimination based upon disability, but finding that Janneh sustained no damages inasmuch ashe remains unable to return to work. The Commissioner of Human Rights adopted that order,and petitioner thereafter commenced this proceeding seeking to annul the determination. SDHRcross-petitions for enforcement of its order. We now annul the determination and dismiss thecross petition.
To establish a prima facie case of disability discrimination, a complainant must "demonstratethat he [or she] suffers from a disability, he [or she] was discharged, he [or she] was qualified tohold the position, and the discharge occurred under circumstances giving rise to an inference ofdiscrimination based on his [or her] disability" (Engelman v Girl Scouts-Indian Hills Council, Inc., 16 AD3d 961,962 [2005]; see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of HumanRights, 100 NY2d 326, 330 [2003]; see also Roberts v Ground Handling, Inc., 499 FSupp 2d 340, 357 [2007]). Notably, a disability that prevents an employee from performing thejob requirements in a reasonable manner is not a protected disability within the meaning of thestatute; the Human Rights Law should not be interpreted to prevent termination of a worker whois unable to perform his or her duties even with reasonable accommodation (seeExecutive Law § 292 [21]; Staskowski v Nassau Community Coll., 53 AD3d 611, 611 [2008];McKenzie v Meridian Capital Group,LLC, 35 AD3d 676, 677 [2006]; Sherman v Kang, 275 AD2d 1016, 1016-1017[2000]; Giaquinto v New York Tel. Co., 135 AD2d 928, 929 [1987], lv denied73 NY2d 701 [1988]; McAuliffe v Taft Furniture Warehouse & Showroom, 116 AD2d774, 775 [1986], lv denied 67 NY2d 609 [1986]).
Here, Janneh testified that he was unable to return to work when he was contacted bypetitioner in June 2005 and that, indeed, he never sought medical clearance to return to work.Moreover, SDHR's order acknowledged that Janneh remained dependent upon the care of othersfor all of his needs from the date of his termination through early summer 2006, and that he wasunable to return to work through the date of the hearing. Accordingly, Janneh failed todemonstrate a prima facie case of discrimination against petitioner and, thus, the determinationby SDHR was not supported by substantial evidence (see Matter of Delta Air Lines v NewYork State Div. of Human Rights, 91 NY2d 65, 72-73 [1997]; Matter of Lindsay Park Hous. Corp. v NewYork State Div. of Human Rights, 56 AD3d 477, 478-479 [2008]; Matter of NewYork State Off. of Mental Health, Manhattan Psychiatric Ctr. v New York State Div. of HumanRights, 223 AD2d 88, 93 [1996], lv denied 89 NY2d 806 [1997]; Matter ofMilonas v Rosa, 217 AD2d 825, 828-829 [1995], lv denied 87 NY2d 806 [1996]).
The parties' remaining contentions are either rendered academic by our decision or, uponconsideration, have been found to be lacking in merit.
Cardona, P.J., Malone Jr., Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is annulled, without costs, petition granted, complaint dismissed and cross petitiondismissed.