        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

911
TP 14-00333
PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF GERALDINE COLES, PETITIONER,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS AND
ERIE COUNTY SHERIFF’S OFFICE, RESPONDENTS.


LAW OFFICE OF LINDY KORN, PLLC, BUFFALO (CHARLES MILLER OF COUNSEL),
FOR PETITIONER.

MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (MICHELLE M. PARKER OF
COUNSEL), FOR RESPONDENT ERIE COUNTY SHERIFF’S OFFICE.


     Proceeding pursuant to Executive Law § 298 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Donna M. Siwek,
J.], entered January 27, 2014) to review a determination of respondent
New York State Division of Human Rights. The determination rejected
petitioner’s claim that respondent Erie County Sheriff’s Office
discriminated against her based on a disability.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this proceeding pursuant to
Executive Law § 298 seeking to annul the determination that she failed
to establish that respondent Erie County Sheriff’s Office (ECSO)
discriminated against her based on a disability. Following its
investigation of petitioner’s complaint, respondent New York State
Division of Human Rights (SDHR) found that probable cause existed to
sustain the complaint, and the case was referred for a hearing before
an administrative law judge (ALJ). Based upon the ALJ’s
recommendations, the Commissioner of SDHR concluded, inter alia, that
petitioner did not establish that ECSO failed to provide her with
reasonable accommodations for her disability, as required by Executive
Law § 296 (3). We now confirm the determination.

     “Pursuant to Executive Law § 296 (3) (b), employers are required
to make reasonable accommodations to disabled employees, provided that
the accommodations do not impose an undue hardship on the employer. A
reasonable accommodation is defined in relevant part as an action that
permits an employee with a disability to perform his or her job
activities in a reasonable manner” (Matter of New Venture Gear, Inc. v
New York State Div. of Human Rights, 41 AD3d 1265, 1266 [internal
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                                                         TP 14-00333

quotation marks omitted]; see § 292 [21-e]). “In reviewing the
determination of SDHR’s Commissioner, this Court may not substitute
its judgment for that of the Commissioner . . . , and ‘we must confirm
the determination so long as it is based on substantial evidence’ ”
(New Venture Gear, Inc., 41 AD3d at 1266; see Matter of State Div. of
Human Rights [Granelle], 70 NY2d 100, 106; Matter of Mohawk Val.
Orthopedics, LLP v Carcone, 66 AD3d 1350, 1351).

     ECSO does not dispute that petitioner’s epilepsy constitutes a
disability (see Martinson v Kinney Shoe Corp., 104 F3d 683, 686).
Petitioner, a deputy sheriff assigned to the position of “inmate
escort” at ECSO’s correctional facility, does not dispute that her
epilepsy does not permit her to be assigned to duties involving direct
inmate contact, i.e., duties that require uninterrupted vigilance and
emergency response capability (see Kees v Wallenstein, 973 F Supp
1191, 1197, affd 161 F3d 1196; Martinson, 104 F3d at 687). Thus,
petitioner also does not dispute that she cannot perform the essential
functions of an “inmate escort” without presenting a direct threat to
her own safety and others in the workplace (see 42 USC § 12113 [b];
see generally McKenzie v Benton, 388 F3d 1342, 1348-1349, cert denied
544 US 1048). In order to accommodate her disability, however,
petitioner ultimately requested assignment to a light-duty position.
It is well settled that an employer is neither required to create a
new light-duty position to accommodate a disability (see 9 NYCRR
466.11 [f] [6]; see also Hardy v Village of Piermont, N.Y., 923 F Supp
604, 610), nor to assign an employee with more than a temporary
disability to a position in a light-duty program designed to
accommodate only temporary disabilities (see Kees, 973 F Supp at
1194). The fact that an employer has been lax in enforcing the
temporary nature of its light-duty policy does not convert the policy
into a permanent one (see id. at 1197; Champ v Baltimore County, 884 F
Supp 991, 999-1000, affd 91 F3d 129). Although ECSO maintained a
“light-duty” program (Policy # 03-01-07, Light Duty Assignments), the
purpose of that program is to assist employees with temporary
disabilities by modifying work assignments and duties or arranging for
a temporary transfer to a “Transitional Duty Assignment (TDA)” until
the employee is medically released to resume regular duties. The
express intent of ECSO’s “policy is not to create a permanent
Transitional Duty Assignment, nor is [the policy] to be used in cases
where an employee cannot perform the essential functions of a job with
reasonable accommodation.” Petitioner’s epilepsy seizure disorder was
described by her own treating physician as “long-term.” Thus, we
conclude that there is no basis to disturb SDHR’s determination that
petitioner’s disability was of a permanent nature and that ECSO had no
permanent light-duty police assignments available. Consequently, and
contrary to petitioner’s contention, ECSO was not required under the
Americans with Disabilities Act (42 USC § 12101 et seq.) or the New
York State Human Rights Law (see Executive Law § 296) to accommodate
petitioner by creating such a position for her (see King v Town of
Wallkill, 302 F Supp 2d 279, 292).

     We reject petitioner’s further contention that ECSO erred in
failing to engage in the interactive process. The Commissioner of
SDHR properly determined that no reasonable accommodation was
                                 -3-                           911
                                                         TP 14-00333

available for her particular condition and that she was unable to
perform the essential functions of her “inmate escort” assignment or
any other deputy sheriff assignment that petitioner identified and,
therefore, there was no duty for ECSO to engage in such interactive
process (see McElwee v County of Orange, 700 F3d 635, 642).

     We have considered petitioner’s remaining contentions and
conclude that they are without merit.




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
