
    In the Matter of Kenneth Miller, Appellant, v Richard Ravitch, as Chairman of the New York City Transit Authority, et al., Respondents.
    Argued October 17, 1983;
    decided December 15, 1983
    
      POINTS OF COUNSEL
    
      Joel Field for appellant.
    I. The construction by the courts below that “disability” as defined by subdivision 21 of section 292 of the Executive Law, as amended to mean that a person physically unable to perform full duty in a position, was incapable of performing the functions of the position in a reasonable manner was error. (Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, 49 NY2d 234; City of New York v Cole, 48 NY2d 707.) II. Respondents’ requirement that appellant must be physically able to perform the full duties of an assistant station supervisor to be promoted has an adverse impact upon a protected class of persons — the physically disabled — respondents therefore have the burden of showing through a factual determination that it bears a rational relationship to employee job performance and does not create a barrier to employment operating to discriminate on the basis of an impermissible classification — physical disability. (State Div. of Human Rights [Ghee] v County of Monroe, 48 NY2d 727; Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, 49 NY2d 234; Matter of Sontag v Bronstein, 33 NY2d 197; City of Schenectady v State Div. of Human Rights, 37 NY2d 421.) III. The fact that appellant may have been probationary and not permanent as an assistant station supervisor does not deprive him of the protection of the Human Rights Law. (Matter of New York City Bd. of Educ. v Batista, 54 NY2d 379; Matter of Going v Kennedy, 5 AD2d 173, 5 NY2d 900; Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516.)
    
      Richard Dreyfus and Richard K. Bernard for respondents.
    L. Appellant has failed to state a cause of action and the dismissal of the petition by the courts below was proper. (Matter of Stanziale v Executive Dept., Off. of Gen. Servs., 55 NY2d 735; Matter of Holbrook v State Ins. Fund, 54 NY2d 892; James v Board of Educ., 37 NY2d 891; Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516; Jablon v City of New York, 177 Misc 838, 268 App Div 859, 1026; Matter of Susquehanna Val. School Dist. [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Matter of Albano v Kirby, 36 NY2d 526; People ex rel. Kastor v Kearny, 164 NY 64; Matter of Sanches v Town of Brookhaven, 19 AD2d 864; Matter of Avalon v Allen, 22 Misc 2d 961, 12 AD2d 480; Matter of Going v Kennedy, 5 AD2d 173, 5 NY2d 900; Matter of Talamo v Murphy, 38 NY2d 637.) II. Respondents need not apply the same rules to probationary employees as they are required to apply to permanent employees pursuant to a collective bargaining agreement. (Matter of Going v Kennedy, 5 AD2d 173; Matter of Beneky v Waterfront Comm., 42 NY2d 920, 434 US 940.) III. If the motion to dismiss is denied, respondents must be given the opportunity to answer the petition.
   OPINION OF THE COURT

Wachtler, J.

In this article 78 proceeding petitioner contends that his employer terminated his probationary appointment to a supervisory position because of a physical disability, and thus discriminated against him in violation of this State’s Human Rights Law (Executive Law, § 296). The trial court dismissed the petition without a hearing on the ground that petitioner was unable to perform “full duties” and therefore did not come within the protection contemplated by the statute (Executive Law, § 292, subd 21). The Appellate Division affirmed and petitioner has appealed by leave of this court.

In 1971 petitioner was employed as a railroad clerk by the New York City Transit Authority (Authority) after passing a competitive examination. In 1975 he passed the examination for assistant station supervisor and was placed on the eligible list. On November 10, 1979 he was appointed to the supervisory position subject to the satisfactory completion of one year on probation.

On several occasions in 1980 petitioner was hospitalized for treatment of a heart condition. As a result of this condition he was absent from work from September 20 to October 20, 1980. On the latter date he was found physically fit to return to “full duty status” by the Authority’s cardiac consultant. However on October 27, 1980 that same doctor found petitioner “not qualified to do full duty in his [supervisory] title. He is to do no excessive stair climbing. He is able to work as a railroad clerk”. On November 6, 1980 petitioner’s probation was terminated and he was demoted to his former position of railroad clerk.

In January, 1981 petitioner commenced this article 78 proceeding claiming that the Authority discriminated against him in violation of section 296 of the Executive Law by demoting him because of his physical disability. He asked that he be reinstated to his supervisory position with back pay.

The Authority did not answer the petition but instead moved to dismiss for failure to state a cause of action. The employer claimed that petitioner had been demoted because of “unsatisfactory service during his probationary period”. The Authority also urged that since its cardiac consultant had found the petitioner unfit for full duty, it could not be said that it had discriminated against him because of a disability which would not interfere with the performance of his duties. The Authority alleged that petitioner’s “specific assignment” required him to climb stairs “on a regular basis”. In opposition to the motion the petitioner contended that the doctor’s October 27 finding that he was physically unable to perform the full duties of the title was “suspect” and, in any event, did not establish his inability to perform in a “reasonable manner” as required by the antidiscrimination statute (Executive Law, § 292). He also disputed the employer’s suggestion that extensive stair climbing was actually required of assistant station supervisors.

The trial court granted the motion to dismiss, without a hearing, concluding that: “Here, the medical finding that petitioner is not qualified to do full duty means that he is not capable of ‘performing in a reasonable manner’ the functions of Assistant Station Supervisor”. The Appellate Division affirmed, without opinion.

Although the employment of a probationary appointee may be terminated without a hearing and without stated reasons, the employer may not terminate the employment for reasons prohibited by law (Matter of Talamo v Murphy, 38 NY2d 637, 639). In this State the Human Rights Law prohibits an employer from discriminating against an employee or job applicant because of a disability (Executive Law, § 296).

Prior to 1979 a disability by statutory definition, was “limited to physical, mental or medical conditions which are unrelated to the ability to engage in the activities involved in the job or occupation which a person claiming protection of this article shall be seeking” (Executive Law, § 292, former subd 21). Under that statute job relatedness was the test. An employer who denied a job opportunity to an employee or applicant because of a physical of mental impairment could not be said to have discriminated if the condition was in any way related to the duties the person was required to perform in connection with the position sought (Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, 49 NY2d 234; State Div. of Human Rights [Ghee] v County of Monroe, 48 NY2d 727; Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 46 NY2d 950). It was not necessary for the employer to go further and demonstrate that the condition also precluded the person from performing the job in a reasonable manner (Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, supra, p 237).

In 1979 the Legislature amended the statute more accurately to define disabilities as “physical, mental or medical conditions which do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought” (L 1979, ch 594, now Executive Law, § 292, subd 21). This “individualized standard” went into effect on July 10,1979 and has been held to be not retroactive (Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, supra, p 238). However it applies to this case where the allegedly discriminatory act occurred in November of 1980.

Under the current statute, then, it is not enough for the employer to show that the employee’s physical impairment is somehow related to the duties he must perform in the position sought. Nor is it sufficient to show that the impairment precludes the employee from performing the duties in a perfect manner. The statute bars discrimination against an impaired individual who is reasonably able to do what the position requires. Unless it is shown that the employee’s physical condition precludes him from performing to that extent, the disability is irrelevant to the job and can form no basis for denying him the position.

Thus at this stage of the proceeding the trial court erred in dismissing the petition. Even if it be assumed, as the Authority contends, that the restrictions imposed by petitioner’s heart condition do relate to the duties of an assistant station manager and may impair his ability to “fully” perform those duties to some unspecified extent, it does not follow that petitioner can claim no protection from the Human Rights Law. As noted, the determinative question under the amended statute is whether the petitioner is incapable of performing the duties required by the supervisory position in a reasonable manner and nothing submitted thus far by either side eliminates this as a factual question. Indeed at this stage it appears that the Authority terminated petitioner solely because of his probationary status. This it may not do if, as the petitioner contends, there was discrimination under the statute.

In sum, the motion to dismiss the petition should have been denied and the Authority should be required to submit its answer (CPLR 7804, subd [f]) addressing the discrimination issue. The court must then decide whether questions of fact exist warranting a hearing with respect to whether the petitioner’s probationary appointment was terminated because of his physical condition, and if so, whether the restrictions imposed by that condition and the nature of the activities actually required for the supervisory position would justify a conclusion that he cannot perform the job in a reasonable manner.

The order of the Appellate Division should be reversed, the motion to dismiss denied and the case remitted to the Supreme Court, Kings County, for further proceedings in accordance with this opinion.

Jasen, J.

(concurring). While I agree with the majority that the case should be remitted to the Supreme Court for further proceedings, I do so for the reasons that follow.

This case involves the provisions of the Human Rights Law (Executive Law, §§ 290-301) which prohibit employment discrimination by reason of disability. The issue presented is whether the court below erred as a matter of law in determining, without a hearing and without requiring respondents to submit an answer, that petitioner’s medical condition rendered him unable to perform his employment duties and, therefore, falls outside the statutory protections.

Several specific provisions of the statute apply here. Section 296 (subd 1, par [a]), of the Executive Law prohibits employment discrimination on the basis of disability and the recently enacted amendment to subdivision 21 of section 292 defines a covered disability as one which does “not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought.” Prior to this amendment, the statute’s protection did not apply to disabilities which were somehow related to the nature of the employment. (Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 46 NY2d 950.) But, as we'noted in Matter of Westinghouse Elec. Corp. v State Div. of Human Rights (49 NY2d 234,238), the statute’s coverage was extended by the amendment to provide protection to individuals with a wider range of disabilities, excluding from its coverage only those disabilities which would actually impair or interfere with the ability to perform the employment activities involved. Henceforth, the mere fact that a medical, mental or physical condition is related to the employment sought is no longer sufficient justification for disparate treatment of an employee or applicant. The nexus between the disability and the employment involved must be “individualized”. No mere abstract or theoretical connection is sufficient. Rather, the particular disability must be such that it prevents the particular individual from performing in a reasonable manner the particular activities involved in the job or occupation before an employer is permitted to terminate the individual employee or treat him differently than others not similarly disabled.

Nevertheless, though an applicant or employee need not be able to perform perfectly to be entitled to the statutory protections, still he must be able to perform reasonably “the activities involved” — not just some or most or a reasonable proportion of those activities. The statute bars discrimination against a disabled individual who is able to do what the job or occupation requires. It does not mandate that an employer hire an individual who cannot perform the work involved. While the amended statute surely has a remedial purpose and necessitates accommodation of the disabled, it does not require absurd results.

The statute as amended prohibits discrimination against a disabled individual who can reasonably perform the tasks required. But it does not entitle any individual, whether or not disabled, to employment which that person can perform only in part. Indeed, any other interpretation is entirely inconsistent with the unamended clarifying provision in section 296 (subd 3-a, par [c]) which unambiguously states that “nothing contained * * * in subdivision one of this section [the subdivision claimed to have been violated] shall be construed to prevent the termination of employment of any person who is physically unable to perform his duties”. (Emphasis supplied.) Hence, the relevant question is not whether petitioner can in some general sense “perform the job in a reasonable manner” — any more than it is whether he can perform it “in a perfect manner” or whether his disabling condition is “somehow related” to the ability to engage in the activities of the job. Rather, as the statute and logic dictate, the pertinent question is whether petitioner can actually perform the particular “activities involved in the job” in a reasonably acceptable manner.

Before applying the foregoing to the specific facts of this case, it is essential to recognize that petitioner here was a probationary employee and as such he was subject to the generally “unfettered right” of an employer to terminate a probationer. (James v Board of Educ., 37 NY2d 891, 892.) Indeed, an employer may discharge a probationary employee without reasons or a hearing unless the employee has demonstrated that the termination was for a constitutionally impermissible purpose or in violation of a statutory proscription. (Matter of Stanziale v Executive Dept., Off. of Gen. Servs., 55 NY2d 735, 737; Matter of Holbrook v State Ins. Fund, 54 NY2d 892, 894.) Because a probationer has no vested right to continued employment (Matter of New York City Bd. of Educ. v Batista, 54 NY2d 379, 382), he need not be afforded a hearing or a statement of reasons unless there is no lawful basis for his termination (Matter of Talamo v Murphy, 38 NY2d 637, 639; cf. Board of Regents v Roth, 408 US 564, 578) or the record discloses a genuine issue concerning the infringement of a constitutional right (cf. Perry v Sindermann, 408 US 593, 598). Moreover, as we have consistently held, judicial examination of an administrative determination should be limited to a review of the record for substantial evidence that supports a rational and lawful basis for that determination. (Matter of Pell v Board of Educ., 34 NY2d 222, 230; Matter of Howard v Wyman, 28 NY2d 434, 438.)

Here, petitioner’s probationary promotion was terminated on account of “unsatisfactory probationary period” and he was returned to his former position. In response to petitioner’s article 78 petition alleging unlawful discrimination by reason of disability, respondents explained that petitioner was physically unable to perform the work in his probationary position. In support of that determination, respondents relied upon a medical report of their cardiologist consultant which outlined petitioner’s medical problems and which concluded that he “is not qualified to do full duty in [the probationary position]. He is to do no excessive stair climbing.” Petitioner contends that he is capable of stair climbing and, more importantly, he challenges the bona fides of the medical report. He claims that it contradicts a report of the same cardiologist issued one week earlier which did not declare any disqualification but instead stated that the petitioner “is returned to a full duty status”. There being no apparent explanation for the discrepancy between the two reports, petitioner argues that the later one is too questionable to support respondents’ determination. He further insists that a hearing is warranted to determine the sufficiency of respondents’ evidence and the lawfulness of the reasons for his termination in light of the antidiscrimination provisions of the Human Rights Law.

The resolution of the issues thus presented requires a reconciliation of two seemingly competing mandates. On the one hand, as our decisions have recognized, an employer is normally entitled to discharge an employee at any time during the nonbinding probationary period without the inconvenience and cost of a formal hearing and, indeed, even without giving reasons, whenever the employer is dissatisfied with the probationer. On the other hand, a disabled employee is entitled to the safeguard of the statutorily required “individualized” test to insure that he is not discharged for discriminatory reasons. Stated another way, this is n. case in which the employer’s general authority summarily to terminate a probationary employee must be reconciled with the special protection against discrimination afforded to disabled employees.

Supreme Court dismissed the petition without first requiring respondents to answer petitioner’s complaint. While a probationer is normally subject to summary discharge without a hearing, it is necessary in a case such as this for the trial court to determine whether, indeed, there is any legitimacy to petitioner’s claim of unlawful discrimination or whether, on the other hand, there is a rational and lawful basis for respondents’ action. For that purpose, respondents should be required to answer petitioner’s complaint and therein to state more thoroughly and clearly the reasons for its determination. Not only might this procedure obviate a hearing which our decisions have repeatedly held is not usually required when probationary employment is involved, but it will also conform to the protective mandate of the antidiscrimination law which requires that its provisions “be construed liberally for the accomplishment of the purposes thereof” (Executive Law, § 300). Moreover, a detailed answer will provide a more adequate record enabling judicial review to determine whether there is any basis for petitioner’s claim of discrimination, which, if substantiated, must be enjoined. (A similar proceeding was required in Drown v Portsmouth School Dist., 435 F2d 1182; and in Olson v Regents of Univ. of Minn., 301 F Supp 1356.)

The record as it presently stands is unclear on several matters which are essential to determine whether petitioner has in fact been subject to unlawful discrimination or whether respondents do have the requisite lawful basis for terminating him. The record is unclear whether petitioner was terminated solely because of his disabling condition or whether his probationary employment period was unsatisfactory for other reasons as well. It is unclear whether the initial medical report was intended to state that petitioner was actually qualified to return to his probationary position or whether it merely stated a fact, that after an extended absence from work due to illness, he was no longer ill. Moreover, if the former was intended, it is unclear whether there is any basis for the discrepancy between the initial report and the second which stated that petitioner was then unqualified to perform his probationary position. Additionally, it is unclear whether petitioner’s disqualification from “full duty” as stated in the second report means merely that he is unable perfectly to perform all the activities involved, or whether he is actually unable to perform some of them to any reasonable extent. Finally, that report’s reference to “excessive stair climbing” is unilluminating and leaves unanswered whether petitioner is unable to perform the amount of stair climbing actually required in the performance of his duties or just some abstract excessive amount.

In order that a more complete record be developed which would permit a sufficient review of both petitioner’s claim of discrimination and respondents’ basis for its action, respondents should be required to answer petitioner’s complaint, stating more precisely and explaining more fully their reasons for terminating petitioner’s probationary employment and, thereby, clarifying the matters thus far left uncertain. Upon receiving respondents’ answer and supporting affidavits, the trial court should decide whether respondents have provided substantial evidence that the basis for their action did not disregard the “individualized test” for disability discrimination.

Chief Judge Cooke and Judges Jones, Meyer, Simons and Kaye concur with Judge Wachtler; Judge Jasen concurs in a separate opinion.

Order reversed, with costs, motion to dismiss denied and matter remitted to Supreme Court, Kings County, for further proceedings in accordance with the opinion herein. 
      
       We reject the suggestion in the concurring opinion that the reasonableness standard should be interpreted in a technical manner so as to require a parsing out and separate evaluation of each activity, as opposed to a more general consideration of the employee’s over-all ability to perform the job. When reasonableness is the test the weight to be accorded to a particular factor cannot be predicted in advance but must be considered in light of all the circumstances of the particular case. Thus in our view the suggested interpretation is inconsistent with the obvious intent of the recent amendment to shift the focus from technicalities to practicalities in cases involving claims of job discrimination on the basis of physical disability.
     
      
       The plain language of the statutory provision mandates the view expressed herein. Our interpretation certainly ought not to be governed by overtechnical construction, nor by disregard of the plain language, but, rather, by practicality, common sense and faithful adherence to the evident legislative intent.
     