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Court Rules Employee Does Not Have to Exhaust State Civil Service Law Procedures Prior to Filing Federal Disability Discrimination Lawsuit

Posted by Giovanna A. D'Orazio | Feb 13, 2018

In October 2017, D'Orazio Peterson LLP (Giovanna D'Orazio, of counsel) argued an issue of first impression in the federal district court for the Northern District of New York.  (Meaning there was no controlling case law from the Second Circuit or US Supreme Court on the issue).  The issue was whether a public employee – who is protected by the New York State Civil Service Law – is required to exhaust Civil Service Law Section 72 procedures prior to filing a federal disability discrimination lawsuit under the Americans with Disabilities Act.  The Court agreed with our position that exhausting the Section 72 procedures is not required.

NY Civil Service Law Section 72 allows a public employer to put an employee out on an involuntary disability leave because of an out of work disability that prevents the employee from doing his or her job.  Sometimes, placement on Section 72 leave is actually disability discrimination rather than a legitimate finding that the employee is unable to do his or her job.  In our case, we alleged that our client, who had been doing his job with no problems, was placed on Section 72 leave both because of discrimination based on his disability and in retaliation for making complaints of discrimination in violation of the Americans with Disabilities Act (“ADA”).

Prior to filing a disability discrimination lawsuit under the ADA, an employee has to file a charge with the Equal Employment Opportunity Commission (“EEOC”).  We did this on behalf of our client and won a probable cause finding – meaning the EEOC agreed that there was cause to believe that discrimination and retaliation occurred.  Following that determination, we filed a lawsuit in federal district court alleging violations of the ADA, the New York State Human Rights Law, the Uniformed Services Employment and Reemployment Rights Act and the New York Workers' Compensation Law. 

During the course of the lawsuit, the defendant filed a motion for summary judgment, which asks the court to dismiss the plaintiff's case, either in part or in its entirety, prior to trial.  Here, the defendant moved to dismiss the plaintiff's ADA claim, alleging that the employee failed to exhaust his administrative remedies prior to filing suit because he never challenged the decision to place him on Section 72 leave using that statute's procedures.  (Once an employee is put out on Section 72 leave, he or she can challenge that decision by requesting a hearing and medical exam, appealing the hearing decision if it doesn't go his or her way and ultimately filing an Article 78 proceeding which is similar to a lawsuit, but abbreviated).

Why would failing to exhaust your administrative remedies be a problem?  In simplest terms, this concept means that, if there is a pre-litigation procedure to resolve your issue, you need to do that prior to filing a lawsuit.  If you don't, your lawsuit can be dismissed.  

In response to the motion, we argued that the relevant administrative procedure for a federal ADA claim is filing an EEOC charge, not following the Section 72 procedures.   Because we completed the EEOC process, we exhausted the relevant administrative remedy.  We also argued that a state administrative remedy cannot be used to deprive an employee of his or her rights under a federal statute.  Finally, we argued that the Civil Service Law procedures were insufficient to resolve our client's claims because the hearing/appeals/Article 78 procedures do not deal with the same issues as an ADA disability and retaliation lawsuit, nor can the same measure of money damages be awarded.

The Court agreed with our analysis, and denied the defendant's motion for summary judgment.  The decision can be read below.

Following that decision, the parties were able to reach a mutually agreeable settlement of the case.  *prior results do not guarantee similar outcomes  

If you've made it to the end, thank you! While this isn't the sexiest topic in the world, it's always exciting for an attorney to argue an issue of first impression and make the law.

If you feel you have been the victim of employment discrimination or retaliation, give us a call.  We're happy to see if we can help. 

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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