Strong v. Fernandez

188 A.D.3d 1590

133 N.Y.S.3d 377

In the Matter of David STRONG, Petitioner,

v.Angela FERNANDEZ, as Commissioner of New York State Division of Human Rights and R.L.E. Corp., Doing Business as Casa Imports, Respondents.

560

TP 19-02267

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 13, 2020

LEGAL SERVICES OF CENTRAL NEW YORK, SYRACUSE (JAMES M. WILLIAMS OF COUNSEL), FOR PETITIONER.

SAUNDERS KAHLER, LLP, UTICA (MERRITT S. LOCKE OF COUNSEL), FOR RESPONDENT R.L.E. CORP., DOING BUSINESS AS CASA IMPORTS.

PRESENT: SMITH, J.P., TROUTMAN, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

Proceeding pursuant to Executive Law § 298 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Oneida County [Patrick F. MacRae, J.], entered October 11, 2019 to review a determination of respondent Angela Fernandez, as Commissioner of New York State Division of Human Rights. The determination dismissed the complaint.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this proceeding pursuant to Executive Law § 298 seeking to annul the determination of the New York State Division of Human Rights (Division) that he failed to establish that his former employer, respondent R.L.E. Corp., doing business as Casa Imports (Casa), discriminated against him based on a disability. Contrary to petitioner's contentions, we conclude that the determination is supported by substantial evidence (see generally Matter of State Div. of Human Rights [Granelle] , 70 N.Y.2d 100, 106, 517 N.Y.S.2d 715, 510 N.E.2d 799 [1987] ).

Petitioner filed a verified complaint with the Division, alleging that Casa engaged in an unlawful discriminatory practice when it discharged him rather than providing him with a reasonable accommodation after he was diagnosed with Hodgkin's lymphoma. Following a public hearing, the Administrative Law Judge (ALJ) issued a proposed decision and order, concluding that petitioner had failed to establish a prima facie case of discrimination and thus that the complaint should be dismissed. The Division adopted the ALJ's decision and order. Petitioner thereafter commenced this proceeding pursuant to Executive Law § 298 against Casa and respondent Angela Fernandez, as Commissioner of New York State Division of Human Rights (Commissioner), which was transferred to this Court pursuant to Executive Law § 298.

Petitioner began working for Casa in 2011, and was diagnosed with Hodgkin's lymphoma in February 2016. From February 25, 2016 to May 19, 2016, Casa granted petitioner leave from work pursuant to the Family Medical Leave Act. In a letter to petitioner dated May 23, 2016, Casa's Human Resources (HR) director inquired about petitioner's status and requested that petitioner respond by May 31, 2016 about whether he was able to return to work. It is undisputed that petitioner obtained a letter from his physician, dated May 27, 2016, in which the physician wrote that petitioner required five more chemotherapy treatments, with the next treatment scheduled for June 7, 2016; that petitioner could not work on the days of his chemotherapy treatments (Tuesdays) or the following days; and that, during the remainder of the week, petitioner could work part-time, up to four or five hours per day, doing moderately intense work. The physician also noted in the letter that no heavy strenuous physical activity was advised. Petitioner testified at the hearing that he personally delivered the physician's letter to Casa on May 27, 2016, leaving one copy in a mailbox attached to his supervisor's office door and hand-delivering another copy to Casa's HR director. The supervisor and the HR director, however, denied that they had received the physician's letter. Petitioner was terminated on June 3, 2016.

"Our review ‘under the Human Rights Law is extremely narrow and is confined to the consideration of whether the Division's determination is supported by substantial evidence in the record’ " ( Matter of Abram v. New York State Div. of Human Rights , 71 A.D.3d 1471, 1473, 896 N.Y.S.2d 764 [4th Dept. 2010] ). As such, "[i]n reviewing the determination of [the] Commissioner, this Court may not substitute its judgment for that of the Commissioner ..., and we must confirm the determination so long as it is based on substantial evidence" ( Matter of DiNatale v. New York State Div. of Human Rights , 77 A.D.3d 1341, 1342, 909 N.Y.S.2d 597 [4th Dept. 2010], lv denied 16 N.Y.3d 711, 923 N.Y.S.2d 415, 947 N.E.2d 1194 [2011] [internal quotation marks omitted] ). Thus, "[c]ourts may not weigh the evidence or reject the Division's determination where the evidence is conflicting and room for choice exists" ( Granelle , 70 N.Y.2d at 106, 517 N.Y.S.2d 715, 510 N.E.2d 799 ). Here, petitioner alleged that he was subject to disability discrimination because Casa discharged him rather than making reasonable accommodations, and "[i]n so-called reasonable-accommodation cases, such as this one," a petitioner has the burden of establishing that "(1) [the petitioner] is a person with a disability under the meaning of the [Americans with Disabilities Act]; (2) an employer covered by the statute had notice of his [or her] disability; (3) with reasonable accommodation, [the petitioner] could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations" ( Abram , 71 A.D.3d at 1473, 896 N.Y.S.2d 764 [internal...