Plaintiff appeals from an order of the Supreme Court, New York County (Carol Robinson Edmead, J.), entered October 15, 2007, which, to the extent appealed from, granted defendants' motion to dismiss the complaint alleging employment discrimination based on a disability in violation of Executive Law § 296 and the Administrative Code of the City of New York § 8-107.
The opinion of the court was delivered by: Acosta, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Richard T. Andrias, J.P. David B. Saxe Rolando Acosta Dianne T. Renwick, JJ.
This case requires us to examine the "reasonable accommodation" provisions of the New York State and City Human Rights Laws (HRLs) in the context of a CPLR 3211 motion. We begin with the recognition of the New York City Council's mandate that courts should be sensitive to the distinctive language, purposes and liberal construction analysis required by the City HRL under Williams v New York City Hous. Auth. (61 AD3d 62, 65 ).
Plaintiff was hired by defendant Department of Homeless Services (DHS) in a noncompetitive civil service title in 1988. After 18 years of satisfactory employment, she was granted an approved medical leave extending from about July 26 to October 30, 2006, due to her meto hera serious medical condition -- of breast cancer. By letter dated August 11, 2006, plaintiff requested leave for of one full year, beginning that date. DHS denied this request byin a letter dated October 16, asserting thatinforming plaintiff's that her 12-week medical leave was granted pursuant to the Family and Medical Leave Act, and that as n of Absencethatan "employee in a non-competitive title," she was ineligible for additional unpaid medical leave, which is "only granted to permanent civil service employees, per the Rules and Regulations for Employees Covered under the Career & Salary Plan." DHS also stated that if informed plaintiff that if she failed to return to work by her anticipated already agreed upon return date of October 30, 2006, she would be "subject to disciplinary action." In her complaint, plaintiff alleged that DHS also notified her by letter dated In a separate letter dated October 27, DHS advised plaintiff that if she did not return to work by October 30, she would be subject to discharge from her employment.
On or about that same date, plaintiff modified her request for leaveaccommodation, asking a DHS employee in the Medical Assistance Unit if she could obtain any further extension of her medical leave. The City employee denied this modified request, telling plaintiff that if she failed to return to work as scheduled, her employment and medical benefits would be terminated.
Plaintiff did not return to work on October 30, 2006, and was terminated thereafter*fn1. In this action against the City and DHS, plaintiff alleged that (1) she is a disabled person within the meaning of the State and City HRLs, (2) her request for an extension of medical leave sought a reasonable accommodation under those statutes, and (3) defendants violated the statutes by denying her request and terminating her employment. She further alleged that at the time of her termination she was "unable to return to work for the respondent DHS because of her medical condition of breast cancer,." a condition that still existed on the date the complaint was verified. Plaintiff further asserted that as a result of the termination of her loss of medical benefits following termination, she had to delay her scheduled cancer surgery, adversely affecting her medical condition, which was diagnosed as stage III breast cancer. . Plaintiff sought reinstatement to her former position at DHS with full back pay retroactive to November 1, 2006, the date she was allegedly terminated, with prejudgment interest thereon, as well as compensatory and punitive damages.
Defendants moved to convert the complaint to an Article 78 proceeding,*fn2 and for judgment of dismissal on the ground that the denial of plaintiff's request for accommodation was reasonable and lawful. In support, theysubmitted their Career and Salary Plan, which provided that the two-year limit on leave without pay applies only to "permanent employees," and not those in "non-competitive" titles. In addition, defendants argued that plaintiff was not disabled within the meaning of the State and City HRLs since (1) she could not perform her job functions either with or without a reasonable accommodation, and (2) the "year long" leave of absence she requested was not a reasonable accommodation.
In opposition, plaintiff argued that the extended leave of absence she sought was a reasonable accommodation, and denial of her request and her subsequent termination because of her disability violated the State and City HRLs.
II. The Motion Court's Decision
With respect to plaintiff's causes of action for disability discrimination, the court found she had failed to allege "facts demonstrating that her cancer condition falls within the definition of the term disability' as contemplated" by the State and City HRLs. The court also determined that plaintiff "failed to set forth in her Complaint factual allegations sufficient to show that, upon the provision of reasonable accommodations, she could perform the essential functions of her job." In particular, the court found that there was no allegation that plaintiff intended to return to work at the end of the requested leave or that she would be able to perform the essential functions of her job at the end of that period. The complaint, it said, "sets forth only the untenable claim that DHS was required to accommodate plaintiff by holding her job open indefinitely," and this was insufficient under the State HRL and its "equivalent," the City HRL. In addition, the court found that there were "no allegations in the Complaint indicating that the decisions made by DHS were based on any factor other tha[n] plaintiff's noncompetitive title." Since the court found that plaintiff's discrimination claims were "insufficiently stated, and that DHS's determinations were based on its leave policies applicable to non-competitive titles," the court dismissed the claim for compensatory and punitive damages arising from DHS's denial of plaintiff's request for leave and her termination. Plaintiff argues on appeal that in dismissing her complaint, the court failed to address whether defendants had violated the State and City HRLs by denying her request for an extension of unpaid medical leave based on a uniform policy denying such leave to noncompetitive employees, without considering the feasibility of her request for a reasonable accommodation. We agree with plaintiff. .
In considering a CPLR 3211 motion to dismiss,. the court must accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference, and must determine whether "the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 ; see also Cron v Hargro Fabrics, 91 NY2d 362, 366 ), in this case, violations of the State and City HRLs.
For the reasons set forth herein, we find that defendants have failed to engage in the required individualized process when considering plaintiff's request for extended medical leave, i.e., for reasonable accommodations. We further find that plaintiff has stated causes of action for violations of the State and City HRLs with respect to defendants' alleged failure to reasonably accommodate plaintiff.
A. The Need for an Individualized Process
The need for individualized inquiry when making a determination of reasonable accommodation is deeply embedded in the fabric of disability rights law (see School Bd. of Nassau County, Fla. v Arline, 480 US 273, 287 ). Rather than operating onassumptions generalizations about people with disabilitiesin general, employers (and courts) must make a clear, fact-specific inquiry about each individual's circumstance..
As explained in Barnett v U.S. Air (228 F3d 1105, 1116 [9th Cir. 2000] [en banc], vacated on other grounds 535 US 391 ), when confronted with a disabled employee's request for reasonable accommodation, the employer is required to engage in a good faith interactive process whereby employer and employee clarify what are the individual needs of the employee and the business, and identify the appropriate reasonable accommodation,. This good faith process is "the key mechanism for facilitating the integration of disabled employees into the workplace" (228 F3d at 1116). Without it, the interactive process many employees will be unable to identify effective reasonable accommodations. Without the possibility of liability for failure to engage in the interactive process, employers would have less incentive to engage in a cooperative dialogue and to explore fully the existence and feasibility of reasonable accommodations. The result would be less accommodation and more litigation, as lawsuits become the only alternative for disabled employees seeking accommodation. This is a long way from the framework of cooperative problem solving based on open and individualized exchange in the workplace that the ADA intended. Therefore, summary judgment is available only where there is no genuine dispute that the employer has engaged in the interactive process in good faith (id.).
The State HRL is provides protections broader than the Americans s With Disabilities Act (ADA);t.*fn3 and Tthe City HRL is broader still (see Williams, 61 AD3d at 65)If as in. As Barnett advises, summary judgment is not available where there is a genuine dispute as to whether the that the employer has engaged in ea good faith interactive process. in good faith.
Similarly, dismissal would certainly not be available in athe CPLR 3211 context, (where the court must accept the allegations of the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within a cognizable legal theory) particularly where,under more protective State and City Human Rights Laws. In the instant case, however, as here, we are not faced with a dispute as to whether there was noan "interactive process," but rather a record that makes clear that there was no interactive process We hold that, for both State and City HRL purposes, engagement in an interactive process is itself anaccommodation, and the failure to so engage is an unlawful failure to make a reasonable accommodation..
Accordingly, we hold that under the broader protections afforded by the State and City HRLs, the first step in providing a reasonable accommodation is to engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested. The interactive process continues until, if possible, an accommodation reasonable to the employee and employer is reached.To be suretThe intended purpose of the State HRL simply cannot be achieved without requiring that employers, in every case, consider the requested accommodations by engaging in an individualized, interactive process (see generally Executive Law § 300). A failure to consider the accommodation, therefore, is a violation of Executive Law § 296(3)(a), since the "employer has the responsibility to investigate an employee's request for accommodation and determine its feasibility" (Pimentel v Citibank, N.A., 29 AD3d 141, 149 , lv denied 7 NY3d 707 ; cf Parker v Columbia Pictures Indus., 204 F3d 326, 338 [2d Cir 2000], an ADA case in which the court ruled that "[a]t the very least . . . an employee who proposes an accommodation while still on short-term leave . . . triggers a responsibility on the employer's part to investigate that request and determine its feasibility. An employer who fails to do so, and instead terminates the employee based on exhaustion of leave, has discriminated because of' disability within the meaning of the ADA").
An individualized interactive process is also required by the more protective City HRL, and its absence represents a violation of New York City Administrative Code § 8-107(15)(a). The City HRL's goal of preventing discrimination (which includes failures to accommodate) "from playing any role in actions relating to employment, public accommodations, and housing and other real estate" (Administrative Code § 8-101) would otherwise be undermined*fn4. This conclusion is bolstered by the fact that the 1991 amendments to the City HRL strove in a multitude of ways to maximize protection of people with disabilities.*fn5
The relief available to a plaintiff for an employer's failure to engage in the interactive process will depend on whether the process could have yielded a substantive accommodation that was reasonable*fn6. Defendants cannot avoid engaging in the interactive process contemplated by both statutes by citing their policy that employees in a "non-competitive" title, such as plaintiff, are not allowed medical leave beyond the original 12-week medical leave granted pursuant to the Family and Medical Leave Act. An employer simply cannot abrogate the requirements of the HRLs by carving out a category of employees who are not subject to an interactive process. Accordingly, defendants' policy of entertaining requests for extended medical leaves only for permanent civil service employees, pursuant to the Rules and Regulations ...