Tr. at 579, 581, 583. Thus, even if Santos was binding authority, which it is not, it is readily distinguishable from the facts of the present case.
Plaintiffs offered ample evidence to support a jury finding that all three plaintiffs were qualified to perform the essential functions of the positions for which they sought promotion. This evidence came both from testimony given by the plaintiffs and from recommendations from the plaintiffs' superiors.
(a) Plaintiff Colwell
A recommendation from Colwell's supervisor states, inter alia, that "although Lieutenant Colwell is light duty due to a back injury which occurred in 1984, I do not feel that this would hinder him in handling the duties common to the position of captain." Tr. at 218; Pl. Exh. 15. Colwell testified that he was familiar with the duties of the approximately twenty captain positions, and stated that any of those positions could be performed by someone with his physical condition. Tr. at 233-34. This evidence was sufficient to support a finding that Colwell was a "qualified individual" at the time he was denied promotion.
(b) Plaintiff Ellinger
Ellinger returned to full duty status in December of 1992, indicating his physical ability to perform the essential functions of a Lieutenant. Tr. at 288-89. Furthermore, Ellinger testified that he was familiar with the requirements of the Lieutenant position, and that he was capable of performing Lieutenant duties. Tr. at 337, 349, 352. There is, therefore, an evidentiary basis to support the jury's finding that Ellinger was a "qualified individual" at the time he was not promoted.
(c) Plaintiff Abrams
Like Colwell, Abrams received a recommendation clearly stating that he was able to perform the essential functions of the position he sought: "In conclusion, while true [that Abrams] does suffer from a line of duty back injury, it is my opinion that he can and will perform exceptionally in the capacity of lieutenant." Tr. at 497 (evaluation by Deputy Inspector Dominic Steo). Furthermore, Abrams testified that while holding the position of Sergeant, he served as Lieutenant on over 100 occasions when his supervisor was not present, and that through these experiences he became very familiar with the duties of Lieutenant. Tr. at 467, 500-02. Based on his experience, he stated that he was "definitely" capable of performing as Lieutenant despite his physical condition. Tr. at 501. Accordingly, there was sufficient evidence to support the jury's finding that Abrams was a qualified individual at the time he was passed over for promotion.
3. Intentional Discrimination
The New York State Constitution provides that "promotions in the civil service of the state and all of the civil divisions thereof . . . shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive . . . ." N.Y. Const. art. V, § 6. In accordance with this constitutional directive, New York Civil Service Law § 61(1) provides, in pertinent part, that "promotion from an eligible list . . . shall be made by the selection of one of the three persons certified by the appropriate civil service list as standing highest on such eligible list." See also Professional, Clerical, Technical Employees Assoc. v. Buffalo Bd. of Educ., 653 N.Y.S.2d 743 at *2 (4th Dep't 1997) ("the one in three rule is based upon the public policy that the appointing authority must be cloaked with the power to choose a qualified appointee who possesses all the attributes necessary for the responsible performance of his duties") (internal quotation omitted). The one-in-three rule, therefore, places a restraint on the County by requiring that it promote one of the top three candidates for each position, while simultaneously providing the County some measure of flexibility by not granting any particular candidate an absolute entitlement to a position. See Suarez v. Ward, 896 F.2d 28, 29 (2d Cir. 1990) ("[The one-in-three rule] reflects a balance between the policy of maintaining merit systems for public employees and the need of administrators to exercise control over the composition of their staffs.").
The Court must examine the sufficiency of the evidence in respect to the two jury findings relating to intentional discrimination: (1) that for each plaintiff, disability was a motivating factor in the decision not to promote him, and (2) that for each plaintiff, the County failed to prove that regardless of his disability, he would not have been promoted. The County maintains that the decisions not to promote plaintiffs were based on objective standards applied to promotions from civil service lists and hence there was no intentional discrimination. Def. Mem. at 14-18. However, the record contains sufficient evidence to support the jury's findings on these two interrelated discrimination issues.
(a) Plaintiff Colwell
At the time he was not promoted, Colwell was tied for sixth place on the applicable civil service list for promotion to Captain. Tr. at 211. The County promoted six from the list, choosing to promote the person tied with Colwell for the sixth position, James Rhoads ("Rhoads"). The County contends that the decision to promote Rhoads instead of Colwell was based solely on a traditional seniority tie-breaking practice. Def. Mem. at 16 (the tie-breaker "clearly provides a rational basis for its decision"). The County argues that the tie-breaker (1) defeats the possibility of a finding that disability was a motivating factor in the promotional decision, and (2) in any event requires a finding as a matter of law that Colwell would not have received a promotion even if disability was not taken into account.
Despite the simplistic appeal of the seniority tie-breaker argument, there was sufficient evidence offered at trial to support a finding that disability was a motivating factor in the promotional decision, and, in particular, that Cosgrove intended to depart from the traditional rules concerning promotion and to prevent persons on light duty from receiving promotions. Thus, although Cosgrove testified that in regard to Colwell he was simply "applying the traditional type of method," Tr. at 673, Cosgrove later testified that in regard to other candidates, he did not feel bound by the traditional tie-breaking practice:
PLAINTIFF: But you established that the Department has this time-honored method of separating the ties?
COSGROVE: Yes, and I broke with that. But I did not use a Civil Service method [to break ties]. There is no Civil Service method.