| Gill v Maul |
| 2009 NY Slip Op 02708 [61 AD3d 1159] |
| April 9, 2009 |
| Appellate Division, Third Department |
| Tina Marie Gill, Appellant, v Thomas A. Maul, as Commissionerof Mental Retardation and Developmental Disabilities, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondent.
Malone Jr. J. Appeal from a judgment of the Supreme Court (McDermott, J.), enteredNovember 28, 2007 in Madison County, upon a decision of the court in favor of defendant.
Plaintiff was employed by the Office of Mental Retardation and Developmental Disabilities(hereinafter OMRDD) as a developmental aide. A developmental aide assists developmentallydisabled individuals and is required to "control and restrain violent or hyperactive individuals" ifnecessary. In 1998, plaintiff sustained a work-related injury while attempting a "take-down," atype of restraint. In September 1999, plaintiff was advised that her employment would beterminated pursuant to the provisions of Civil Service Law § 71, but that she could requesta reasonable accommodation pursuant to the Federal Americans with Disabilities Act (42 USC§ 12131 et seq. [hereinafter ADA]). Plaintiff thereafter sought a return to workwith limited lifting and physical interventions. OMRDD never issued a decision on her request,apparently because there was not enough time to do so prior to the termination date.
Plaintiff thereafter commenced this action alleging that OMRDD discriminated against [*2]her on the basis of her disability in violation of Executive Law§ 296. Following a nonjury trial, Supreme Court dismissed the complaint on the groundsthat plaintiff failed to establish either that she could perform the work of a developmental aidewith a reasonable accommodation or that a reasonable accommodation existed. Plaintiff appeals.
We note at the outset that cases addressing claims asserted under the ADA are relevant toour analysis, as the ADA and Executive Law § 296 use the same legal standards toestablish discrimination (see Pimentel vCitibank, N.A., 29 AD3d 141, 147 n 2 [2006], lv denied 7 NY3d 707 [2006]; Engelman v Girl Scouts-Indian HillsCouncil, Inc., 16 AD3d 961, 962 [2005]). In order to succeed on her discriminationclaim, plaintiff was obliged to demonstrate that she suffers from a disability, was dischargedfrom a position, was qualified to hold the position, and the circumstances surrounding herdischarge gave rise to an inference of disability discrimination (see Engelman v GirlScouts-Indian Hills Council, Inc., 16 AD3d at 962). The first two elements are admittedlypresent. Assuming without deciding that plaintiff demonstrated that she was discharged undercircumstances giving rise to an inference of discrimination, she was also obliged to show that shewas qualified to hold the job. To do that, plaintiff bore the initial burden to "show that she[could] perform the essential functions of the job in spite of the handicap either (a) with no needfor accommodation, or (b) with a reasonable accommodation" (Gilbert v Frank, 949 F2d637, 642 [2d Cir 1991]; see Pembroke v New York State Off. of Ct. Admin., 306 AD2d185, 185 [2003]).
After independently reviewing the evidence presented at the nonjury trial and accordingappropriate deference to Supreme Court's credibility determinations, we agree that the complaintshould be dismissed (see Caggianelli vSontheimer, 46 AD3d 1206, 1207 [2007]). Whether a job function is essential dependson multiple factors, "including the employer's judgment, written job descriptions, the amount oftime spent on the job performing the function, the consequences of not requiring the plaintiff toperform the function, mention of the function in any collective bargaining agreement, the workexperience of past employees in the job, and the work experience of current employees in similarjobs" (Price v City of New York, 264 Fed Appx 66, 68-69 [2d Cir 2008]). The writtenjob description of a developmental aide required, and OMRDD expected, that an aide be able to"lift and move bedridden and other incapacitated individuals" and "respond appropriately tobehavioral problems, including the use of approved physical intervention techniques."OMRDD's judgment in that regard is entitled to considerable deference (see Shannon v NewYork City Tr. Auth., 332 F3d 95, 100 [2d Cir 2003]). Also, plaintiff admitted that shefrequently performed both functions. It is clear, thus, that both functions are essential to the jobof developmental aide and that plaintiff cannot perform them.
That being said, plaintiff "can still prevail by showing that she requested and was refusedreasonable accommodations" (Pimentel v Citibank, N.A., 29 AD3d at 146). Theproposed accommodation here was plaintiff's reassignment to a work location where the assistedindividuals were at a high level of function and would be less likely to need significantassistance. A reassignment can constitute a reasonable accommodation (see id. at146-147). Having said that, plaintiff would have remained a developmental aide in thoselocations. Regardless of an assisted individual's level of function, a developmental aide mayhave to lift, move or otherwise substantially assist that individual in the event of injury or anemergency such as a fire. Although infrequent, such situations have arisen and could arise again,and the consequences of a developmental aide's inability to perform the functions at issue couldbe severe (see Shannon v New York City Tr. Auth., 332 F3d at 103; Frazier vSimmons, 254 F3d 1247, 1259-1260 [10th Cir 2001]; Hoskins v Oakland CountySheriff's Dept., 227 F3d 719, 727[*3][6th Cir 2000]).Moreover, a developmental aide has few or no coworkers and must be able to perform all of thetasks required (see Alexander v Northland Inn, 321 F3d 723, 727 [8th Cir 2003]). Asplaintiff's proposed accommodation would have eliminated essential functions of the job, it wastherefore not reasonable and she failed to demonstrate that she was qualified for her original jobor any reassignment (see Gilbert v Frank, 949 F2d at 642). Accordingly, the complaintwas properly dismissed.
Cardona, P.J., Peters, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.