Opinion
February 11, 1999
Appeal from the Supreme Court (Teresi, J.).
The issue before this Court is whether Supreme Court properly set aside a jury verdict finding that plaintiff was not fired because of a disability in violation of Executive Law article 15.
Plaintiff's complaint against defendants alleged that she was discharged from her position as a security guard because of her disability in violation of Executive Law article 15, commonly referred to as the Human Rights Law, despite her eligibility under Civil Service Law § 55-a Civ. Serv. to a designation of a noncompetitive position as a security guard. Her amended complaint added the additional claim that she was terminated in retaliation for bringing the action in violation of Executive Law § 296 Exec. (1) (e).
Plaintiff abandoned her claim under the Americans with Disabilities Act at trial.
A trial was held at which the following facts were educed. Plaintiff had been provisionally appointed as a security guard for defendant County of Albany in its Department of Social Services. In applying for the position in November 1991, plaintiff indicated that she had no disabilities. This contention was documented by two physicians' reports stating that she had no physical disabilities that would restrict her work activities. In March 1994 plaintiff applied for a determination under Civil Service Law § 55-a Civ. Serv. that she was disabled due to a torn ligament in her right knee and tendinitis in her left shoulder both of which injuries antedated her November 1991 application to defendant. The State Office of Vocational Rehabilitation approved said application certifying plaintiff's eligibility under Civil Service Law § 55-a Civ. Serv. with the recommended accommodations of no excessive standing, sitting or heavy lifting. A copy of the certification was forwarded to defendant Albany County Commissioner of Social Services (hereinafter the Commissioner). After an exchange of letters between the Commissioner and the County's Civil Service Commission (hereinafter the Commission) in which the Commissioner expressed reservations about plaintiffs ability to fulfill some of her job duties, he was advised by the Commission that plaintiff's certification under Civil Service Law § 55-a Civ. Serv. required no further action on its part and that any further action was the Commissioner's responsibility if he "deemed so".
Plaintiff continued in her provisional appointment. A civil service test was administered for the position in November 1994 and plaintiff was required to take it. She was subsequently terminated in October 1995 for failure to pass the test. The Commissioner testified that despite his reservations as to plaintiff's ability to fulfill the duties of the security guard position, she was terminated because of failure to pass the civil service examination. The Commissioner also testified that no security guards had been appointed by the County pursuant to Civil Service Law § 55-a Civ. Serv. and he was unaware of the County's designation of the position pursuant to the statute.
The jury responded to the questions submitted in a jury verdict sheet as follows: The jury found that plaintiff had proven by a preponderance of the evidence that she was disabled as defined in the Human Rights Law, with one juror disagreeing. The jury also found unanimously that plaintiff failed to prove by a preponderance of the evidence that she had not been appointed to a permanent security guard position because of her physical disability. Upon plaintiff's motion, Supreme Court set aside the verdict as against the weight of the evidence and granted judgment as demanded in plaintiff's complaint. The court held that the security guard position was plainly a position that the County had determined, pursuant to Civil Service Law § 55-a Civ. Serv., could be performed by a physically disabled person who performs such duties satisfactorily and that two security guards were already so employed by the county.
There should be a reversal. It is well established that in order to set aside a jury's verdict as against the weight of evidence it must appear that the evidence so preponderates in the moving party's favor that a contrary verdict could not have been reached by the jury upon any fair interpretation of the evidence ( see, Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746).
Supreme Court's determination does not withstand scrutiny under this standard. The record discloses that although plaintiff qualified under Civil Service Law § 55-a Civ. Serv. for the position of security guard on the basis of her disability and certification, the second requirement of the statute, that the Commission had to have designated a prescribed number of positions with duties which could be performed by physically disabled persons who are found qualified under the statute ( see, Civil Service Law § 55 Civ. Serv. [1]) was not established nor was there any proof in the record of the existence of an open position in this category to which plaintiff could be appointed. Plaintiff could not have been given a permanent appointment to the job of security guard without a prior determination by the County that the position of security guard qualified as a Civil Service Law § 55-a Civ. Serv. non-competitive class position ( see, Civil Service Law § 55-a Civ. Serv. [1]). Moreover, there is nothing in the record from which a trier of fact could find as a pretextual excuse for defendant's failure to appoint plaintiff. With plaintiff having failed to sustain her burden of proof, the jury could thus find that plaintiff was not discharged because of her disability.
We note that in setting aside the verdict, Supreme Court concluded that at least two other security guards obtained Civil Service Law § 55-a Civ. Serv. certification in the County. The record is totally lacking in evidence on such point and, even if such were the case the record additionally fails in disclosing any opening for a security guard in the Civil Service Law § 55-a Civ. Serv. category extant at the time of the circumstances involving plaintiff's attempt to be appointed. To the contrary, the Commissioner denied any designation of the security guard position under either Civil Service Law § 55-a Civ. Serv. or § 55-b Civ. Serv. by the County. Plaintiff also testified that she could not say that there were people with a Civil Service Law § 55-a Civ. Serv. designation in the security position which she sought. Finally, the document supplied by plaintiff from the State Office of Vocational Rehabilitation is incomplete. It fails to note approval by the local Civil Service agency.
Mercure, Crew III, Yesawich Jr. and Peters, JJ., concur.
Ordered that the order and judgment are reversed, on the law, without costs, plaintiff's motion to set aside the verdict against her denied.