Opinion
2012-01-26
In the Matter of Jan KIBLER, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES et al., Respondents.
Timothy A. Clune, Disability Advocates, Inc., Albany, for petitioner. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for New York State Department of Correctional Services, respondent.
Timothy A. Clune, Disability Advocates, Inc., Albany, for petitioner. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for New York State Department of Correctional Services, respondent.
Before: PETERS, J.P., MALONE JR., STEIN, GARRY and EGAN JR., JJ.
GARRY, J.
Proceeding pursuant to Executive Law § 298 (transferred to this Court by order of the Supreme Court, entered in Columbia County) to review a determination of respondent State Division of Human Rights which dismissed petitioner's claim alleging discrimination based on disability.
Petitioner, who suffers from multiple chemical sensitivities, 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 the course of petitioner's employment, she instructed inmates in a variety of subjects in a designated classroom, and provided supplementary instruction in a computer room. DOCS renovated the computer room in 2000 or 2001 by replacing the carpet and installing new equipment. Petitioner thereafter suffered symptoms such as burning eyes and breathing difficulties when working in that room, and so allegedly obtained informal permission from her then-supervisor to avoid it.
The parties do not dispute that petitioner suffers from this condition, nor that this constitutes a disability under the Human Rights Law.
In January 2004, petitioner filed a written request for reasonable accommodation for her disability and provided DOCS with a physician's letter stating that 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 a problem in the computer room, but instead addressed a separate exacerbation of petitioner's symptoms 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 believe that this remedy would be effective, but did not provide medical documentation for this objection or feasible alternative suggestions when asked by DOCS to do so, and the filters were subsequently installed. In March 2004, petitioner's supervisor issued a written order requiring her to provide inmates with instruction in the computer room. Petitioner responded that she could not enter the room for health reasons. In December 2005, petitioner was again directed to take her students into the computer room, and she took medical leave rather than doing so. In January 2006, the supervisor advised petitioner that air filters would be installed in the computer room and that she was permitted to wear a surgical mask during work hours. She was then again directed to take students into the computer room and, upon her refusal, was suspended and charged with insubordination.
As to petitioner's request that inmates be directed not to wear the oil in her classroom, DOCS responded that use of the oil was a religious practice that could not be prohibited.
Petitioner sought arbitration of the disciplinary charge pursuant to the applicable collective bargaining agreement. On the first day of the arbitration hearing, the parties agreed that petitioner would return to work, that air filters would be placed in the computer room, and that DOCS would assign an occupational health and safety specialist to conduct an environmental quality survey of the areas where she worked. However, on the day of her return, petitioner allegedly became ill in the computer room, left the room, and was again suspended. The arbitration was reopened and, after a hearing, the arbitrator determined that there was probable cause to discipline petitioner for insubordination and that the proposed penalty of discharge was justified. Petitioner was thereafter terminated from her employment.
This survey was subsequently carried out by an industrial hygienist, who found nothing in petitioner's classroom or the computer room that was “outside of the generally considered ‘normal’ range of air quality” for such spaces.
Petitioner filed a complaint with respondent State Division of Human Rights (hereinafter SDHR) alleging that DOCS had discriminated against her because of her disability. SDHR found probable cause to support the complaint. After a fact-finding hearing, an Administrative Law Judge issued recommended findings of fact and an opinion finding that petitioner had failed to establish a prima facie case of disability discrimination because, notwithstanding attempts by DOCS to provide reasonable accommodations, she was unable to perform an essential function of her job. After receiving petitioner's objections, SDHR adopted this determination and dismissed the complaint. Petitioner then commenced this proceeding seeking annulment of the determination pursuant to Executive Law § 298, and Supreme Court transferred the proceedings to this Court.
The proceedings against SDHR and DOCS were initially transferred separately, and later consolidated upon a motion granted by this Court.
Petitioner's primary contention is that the record does not support SDHR's conclusions that DOCS provided her with a reasonable accommodation or that teaching in the computer lab was an essential function of her job. DOCS responds that as these issues were decided by the arbitrator, petitioner is precluded from relitigating them. Initially, we reject petitioner's contention that DOCS waived this defense. DOCS raised the claim in the SDHR proceeding as an affirmative defense in its verified answer to the complaint ( see 9 NYCRR 465.11[a], [c][2] ); there was no requirement to do so at an earlier stage of the proceeding.
DOCS additionally moved to dismiss the SDHR complaint on the ground of collateral estoppel, but the record does not indicate that any determination was rendered on this motion.
Conclusive effect is given to quasi-judicial administrative determinations when the issue upon which collateral estoppel is sought is identical to an issue necessarily resolved in a prior decision ( see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 499–500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984]; Matter of Bartenders Unlimited [Commissioner of Labor], 289 A.D.2d 785, 786, 736 N.Y.S.2d 119 [2001], lv. denied 98 N.Y.2d 601, 744 N.Y.S.2d 761, 771 N.E.2d 834 [2002] ). The collateral estoppel doctrine applies to determinations rendered in arbitration proceedings ( see Matter of New York State Dept. of Labor [Unemployment Ins. Appeal Bd.] v. New York State Div. of Human Rights, 71 A.D.3d 1234, 1236, 897 N.Y.S.2d 740 [2010], lv. denied 15 N.Y.3d 714, 2010 WL 4823840 [2010]; Matter of Gooshaw v. City of Ogdensburg, 67 A.D.3d 1288, 1290, 889 N.Y.S.2d 722 [2009] ). The analysis “turn[s] on the identity of the issues involved and whether there was a full and fair opportunity to litigate the issue in the prior proceeding” ( matter of guimarAles [neW york city bd. of educ.-rOberts], 68 n.y.2d 989, 991, 510 N.Y.S.2d 558, 503 N.E.2d 113 [1986] ). Applying these tests, we find the doctrine applicable here.
To establish employment discrimination in the SDHR proceeding, petitioner was required to demonstrate that she suffered from a disability and that she was discharged from a position for which she was qualified under circumstances giving rise to an inference of discrimination ( see Gill v. Maul, 61 A.D.3d 1159, 1160, 876 N.Y.S.2d 751 [2009]; Engelman v. Girl Scouts–Indian Hills Council, Inc., 16 A.D.3d 961, 962, 791 N.Y.S.2d 735 [2005] ). Petitioner's teaching qualifications, disability and discharge were not disputed, so the sole issue remaining was whether she could perform the essential functions of her job, either without accommodation or with reasonable accommodation ( see Gill v. Maul, 61 A.D.3d at 1160, 876 N.Y.S.2d 751). This factual issue was necessarily resolved as part of the arbitrator's determination that DOCS had just cause to discipline petitioner for refusing to teach in the computer room. In concluding that her refusal was not justified, the arbitrator specifically found and determined that teaching in this room was a requirement of her employment, that DOCS could not reasonably be expected to provide a completely irritant-free environment, and that its effort to improve the room's air quality by installing filters was a reasonable attempt to accommodate her disability. The arbitrator further concluded that although the filters were unsatisfactory to petitioner, DOCS was not obliged to alter its job requirements by exempting her from the obligation to teach in the computer room. In sum, the arbitrator determined that DOCS made reasonable accommodations and that teaching in the computer room was an essential function of petitioner's job. We thus find that DOCS met its burden, as the proponent of collateral estoppel, “to demonstrate the identicality and decisiveness of the issue[s]” ( Ryan v. New York Tel. Co., 62 N.Y.2d at 501, 478 N.Y.S.2d 823, 467 N.E.2d 487). Petitioner failed to satisfy her corresponding burden to demonstrate that she did not have a full and fair opportunity to litigate the issue ( see id.; Gadani v. DeBrino Caulking Assoc., Inc., 86 A.D.3d 689, 691, 926 N.Y.S.2d 724 [2011] ), as the record reveals that she requested the arbitration, was represented by union counsel at the hearing and, as characterized by the arbitrator, testified “at length” about her disability, her adverse reactions to the computer room, her view that the air filters were unhelpful, 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 barred from relitigating the matters decided by the arbitrator ( see matter of guimarales [new york city bd. of Educ.-ROBERTS], 68 N.Y.2D AT 991, 510 N.Y.S.2D 558, 503 n.e.2D 113; Matter of New York State Dept. of Labor [Unemployment Ins. Appeal Bd.] v. New York State Div. of Human Rights, 71 A.D.3d at 1236–1238, 897 N.Y.S.2d 740), and thus failed to establish the essential elements of her claim ( see Gill v. Maul, 61 A.D.3d at 1160–1161, 876 N.Y.S.2d 751).
In light of this determination, we do not address the parties' remaining substantive and procedural contentions.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.