Opinion
November 6, 1989
Appeal from the Supreme Court, Nassau County (Lockman, J.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff Christopher Uryevick began his employment with the defendant Pepcom Industries, Inc., in September 1983. Sometime in May 1985, the plaintiff sustained a job-related injury, causing him to be out of work for approximately two months. The plaintiff was found to be fit to return to his employment on July 29, 1985, and in fact worked his regular nine-hour shift on this day. The next day, July 30, 1985, as his regular shift was coming to an end, the plaintiff was asked by his immediate supervisor to remain and work 1 to 2 hours of overtime. The plaintiff refused, claiming that he still did not feel "one hundred percent", and left after finishing his regular shift. When the plaintiff arrived at work on July 31, 1985, he was informed that he was terminated because of his refusal to comply with his supervisor's request to work overtime. In November 1985, an arbitration hearing was held pursuant to the union contract resulting in a determination that the plaintiff's discharge from employment was for just cause. Thereafter, the plaintiff commenced the instant action claiming, among other things, that he was discharged solely because of a physical impairment. In response, the defendant moved for summary judgment dismissing the complaint. The court, finding material issues of fact in need of determination, denied the motion. We affirm.
We find that contrary to the defendant's contentions, the determination of the arbitrator did not preclude the plaintiff from commencing a separate, independent action based on unlawful discrimination in employment. Although generally an arbitrator's award is given preclusive effect in a subsequent judicial proceeding (see, Clemens v Apple, 65 N.Y.2d 746; Ryan v New York Tel. Co., 62 N.Y.2d 494), arbitration is an inappropriate forum for the disposition of an employment discrimination claim (see, McDonald v City of W. Branch, 466 U.S. 284; Alexander v Gardner-Denver Co., 415 U.S. 36; Board of Educ. v New York State Human Rights Appeal Bd., 106 A.D.2d 364; see generally, Matter of W G Ltd. v Workers' Compensation Bd., 131 Misc.2d 329). In this regard it should be noted that the arbitrator's sole task is to effectuate the intent of the parties in connection with the collective-bargaining agreement, and not to consider a statutory claim of discrimination (see, Alexander v Gardner-Denver Co., supra). The violation of these contractual and statutory rights by the same factual occurrence does not vitiate their separate nature (see, Alexander v Gardner-Denver Co., supra).
The defendant did not meet its burden of demonstrating entitlement to judgment as a matter of law (Alvarez v Prospect Hosp., 68 N.Y.2d 320). While the Human Rights Law (Executive Law § 296) prohibits employers from discriminating against an individual who is disabled, a person whose condition prohibits him from performing employment duties of the position in question in a "reasonable manner" (Executive Law § 292 [c]) is not considered disabled under the statute (see, Matter of Caminiti v New York City Tr. Auth. Police Dept., 125 A.D.2d 306). As correctly noted by the Supreme Court, it is not clear from the record whether the plaintiff was able to perform his duties in a reasonable manner and therefore, summary judgment was properly denied (see, Krupp v Aetna Life Cas. Co., 103 A.D.2d 252; Zuckerman v City of New York, 49 N.Y.2d 557). Mollen, P.J., Bracken, Rubin and Sullivan, JJ., concur.