| Matter of Kibler v New York State Dept. of CorrectionalServs. |
| 2012 NY Slip Op 00433 [91 AD3d 1218] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of Jan Kibler, Petitioner, v New York StateDepartment of Correctional Services et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for New YorkState Department of Correctional Services, respondent.
Garry, J. Proceeding pursuant to Executive Law § 298 (transferred to this Court byorder of the Supreme Court, entered in Columbia County) to review a determination ofrespondent State Division of Human Rights which dismissed petitioner's claim allegingdiscrimination based on disability.
Petitioner, who suffers from multiple chemical sensitivities,[FN1]was employed between 1993 and 2006 by respondent Department of Correctional Services(hereinafter DOCS) as a teacher in the Hudson Correctional Facility in Columbia County. In thecourse of petitioner's employment, she instructed inmates in a variety of subjects in a designatedclassroom, and provided supplementary instruction in a computer room. DOCS renovated thecomputer room in 2000 or 2001 by replacing the carpet and installing new equipment. Petitionerthereafter suffered symptoms such as burning eyes and breathing difficulties when working inthat room, and so allegedly obtained informal permission from her then-supervisor to avoid it.[*2]
In January 2004, petitioner filed a written request forreasonable accommodation for her disability and provided DOCS with a physician's letter statingthat she was diagnosed with multiple chemical sensitivities and should not be exposed to"synthetic perfumes, foams, glues, chlorine and cleaning agents." This request did not reference aproblem in the computer room, but instead addressed a separate exacerbation of petitioner'ssymptoms allegedly caused in her classroom by inmates' use of a certain body oil. In response,DOCS offered to install air filters in the classroom. Petitioner objected that she did not believethat this remedy would be effective, but did not provide medical documentation for this objectionor feasible alternative suggestions when asked by DOCS to do so, and the filters weresubsequently installed.[FN2]In March 2004, petitioner's supervisor issued a written order requiring her to provide inmateswith instruction in the computer room. Petitioner responded that she could not enter the room forhealth reasons. In December 2005, petitioner was again directed to take her students into thecomputer room, and she took medical leave rather than doing so. In January 2006, the supervisoradvised petitioner that air filters would be installed in the computer room and that she waspermitted to wear a surgical mask during work hours. She was then again directed to takestudents into the computer room and, upon her refusal, was suspended and charged withinsubordination.
Petitioner sought arbitration of the disciplinary charge pursuant to the applicable collectivebargaining agreement. On the first day of the arbitration hearing, the parties agreed that petitionerwould return to work, that air filters would be placed in the computer room, and that DOCSwould assign an occupational health and safety specialist to conduct an environmental qualitysurvey of the areas where she worked.[FN3]However, on the day of her return, petitioner allegedly became ill in the computer room, left theroom, and was again suspended. The arbitration was reopened and, after a hearing, the arbitratordetermined that there was probable cause to discipline petitioner for insubordination and that theproposed penalty of discharge was justified. Petitioner was thereafter terminated from heremployment.
Petitioner filed a complaint with respondent State Division of Human Rights (hereinafterSDHR) alleging that DOCS had discriminated against her because of her disability. SDHR foundprobable cause to support the complaint. After a fact-finding hearing, an Administrative LawJudge issued recommended findings of fact and an opinion finding that petitioner had failed toestablish a prima facie case of disability discrimination because, notwithstanding attempts byDOCS to provide reasonable accommodations, she was unable to perform an essential functionof her job. After receiving petitioner's objections, SDHR adopted this determination anddismissed the complaint. Petitioner then commenced this proceeding seeking annulment of thedetermination pursuant to Executive Law § 298, and Supreme Court transferred theproceedings to this Court.[FN4][*3]
Petitioner's primary contention is that the record does notsupport SDHR's conclusions that DOCS provided her with a reasonable accommodation or thatteaching in the computer lab was an essential function of her job. DOCS responds that as theseissues were decided by the arbitrator, petitioner is precluded from relitigating them. Initially, wereject petitioner's contention that DOCS waived this defense. DOCS raised the claim in theSDHR proceeding as an affirmative defense in its verified answer to the complaint (see 9NYCRR 465.11 [a], [c] [2]); there was no requirement to do so at an earlier stage of theproceeding.[FN5]
Conclusive effect is given to quasi-judicial administrative determinations when the issueupon which collateral estoppel is sought is identical to an issue necessarily resolved in a priordecision (see Ryan v New York Tel. Co., 62 NY2d 494, 499-500 [1984]; Matter ofBartenders Unlimited [Commissioner of Labor], 289 AD2d 785, 786 [2001], lvdenied 98 NY2d 601 [2002]). The collateral estoppel doctrine applies to determinationsrendered in arbitration proceedings (seeMatter of New York State Dept. of Labor [Unemployment Ins. Appeal Bd.] v New York StateDiv. of Human Rights, 71 AD3d 1234, 1236 [2010], lv denied 15 NY3d 714[2010]; Matter of Gooshaw v City ofOgdensburg, 67 AD3d 1288, 1290 [2009]). The analysis "turn[s] on the identity of theissues involved and whether there was a full and fair opportunity to litigate the issue in the priorproceeding" (Matter of Guimarales [New York City Bd. of Educ.—Roberts], 68NY2d 989, 991 [1986]). Applying these tests, we find the doctrine applicable here.
To establish employment discrimination in the SDHR proceeding, petitioner was required todemonstrate that she suffered from a disability and that she was discharged from a position forwhich she was qualified under circumstances giving rise to an inference of discrimination (see Gill v Maul, 61 AD3d 1159,1160 [2009]; Engelman v GirlScouts-Indian Hills Council, Inc., 16 AD3d 961, 962 [2005]). Petitioner's teachingqualifications, disability and discharge were not disputed, so the sole issue remaining waswhether she could perform the essential functions of her job, either without accommodation orwith reasonable accommodation (see Gill v Maul, 61 AD3d at 1160). This factual issuewas necessarily resolved as part of the arbitrator's determination that DOCS had just cause todiscipline petitioner for refusing to teach in the computer room. In concluding that her refusalwas not justified, the arbitrator specifically found and determined that teaching in this room wasa requirement of her employment, that DOCS could not reasonably be expected to provide acompletely irritant-free environment, and that its effort to improve the room's air quality byinstalling filters was a reasonable attempt to accommodate her disability. The arbitrator furtherconcluded that although the filters were unsatisfactory to petitioner, DOCS was not obliged toalter its job requirements by exempting her from the obligation to teach in the computer room. Insum, the arbitrator determined that DOCS made reasonable accommodations and that teaching inthe computer room was an essential function of petitioner's job. We thus find that DOCS met itsburden, as the proponent of collateral estoppel, "to demonstrate the identicality and decisivenessof the issue[s]" (Ryan v New York Tel. Co., 62 NY2d at 501). Petitioner failed to satisfyher corresponding burden to demonstrate that she did not have a full and fair opportunity tolitigate the issue (see id.; Gadaniv DeBrino Caulking Assoc., Inc., 86 AD3d 689, 691 [2011]), as the record reveals thatshe requested the arbitration, was represented by union counsel at the hearing and, ascharacterized [*4]by the arbitrator, testified "at length" about herdisability, her adverse reactions to the computer room, her view that the air filters wereunhelpful, and her contention that she could teach successfully without entering the room.Accordingly, SDHR should have dismissed the petition on the ground that petitioner was barredfrom relitigating the matters decided by the arbitrator (see Matter of Guimarales [New YorkCity Bd. of Educ.—Roberts], 68 NY2d at 991; Matter of New York State Dept. ofLabor [Unemployment Ins. Appeal Bd.] v New York State Div. of Human Rights, 71 AD3dat 1236-1238), and thus failed to establish the essential elements of her claim (see Gill vMaul, 61 AD3d at 1160-1161).
In light of this determination, we do not address the parties' remaining substantive andprocedural contentions.
Peters, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote 1: The parties do not dispute thatpetitioner suffers from this condition, nor that this constitutes a disability under the HumanRights Law.
Footnote 2: As to petitioner's request thatinmates be directed not to wear the oil in her classroom, DOCS responded that use of the oil wasa religious practice that could not be prohibited.
Footnote 3: This survey was subsequentlycarried out by an industrial hygienist, who found nothing in petitioner's classroom or thecomputer room that was "outside of the generally considered 'normal' range of air quality" forsuch spaces.
Footnote 4: The proceedings against SDHRand DOCS were initially transferred separately, and later consolidated upon a motion granted bythis Court.
Footnote 5: DOCS additionally moved todismiss the SDHR complaint on the ground of collateral estoppel, but the record does notindicate that any determination was rendered on this motion.