Frilando v. Metropolitan Transit Authority

Background

Kenneth Frilando, who is legally deaf and whose first and primary language is American Sign Language, applied for Bus Operator, Train Operator, and Track Worker positions with the Manhattan and Bronx Surface Operating Authority and New York City Transit Authority. The entities used written, multiple-choice examinations in English. Frilando requested an American Sign Language interpreter for the exam instructions, questions, and answer choices, as well as additional time.

The defendants offered an interpreter for instructions and communications with staff and offered additional time, including up to twice the ordinary time, but refused to interpret the written exam questions and answer choices. Frilando did not take any of the three exams because he believed he would fail without an interpreter for the questions and answers.

Administrative exhaustion

The defendants argued that Frilando could not sue them because his Equal Employment Opportunity Commission charge named the Metropolitan Transit Authority, which was later dropped from the lawsuit. The court rejected that argument. It held that the claims concerning all three exams were reasonably related to the conduct described in the charge and that the defendants were sufficiently related to the entity named in the charge. The defendants’ summary-judgment motion on this basis was denied.

Failure-to-accommodate claim

The court analyzed the failure-to-accommodate claims under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the New York State Human Rights Law, and the New York City Human Rights Law. It held that, because Frilando sought an accommodation to take the examinations, he needed to show that he could perform the essential functions of the examinations, not at that stage the essential functions of the jobs themselves. The defendants did not dispute that he could perform the essential functions of the examinations.

The court found a genuine dispute of material fact about whether the defendants’ proposed accommodations were reasonable. Frilando presented expert evidence that he read English at approximately a third- to fourth-grade level and could not read English sufficiently to take the multiple-choice exams. The defendants presented evidence that he had read and passed multiple-choice Regents Examinations without an interpreter and had read other written material. Because the reasonableness of the accommodations depended on disputed evidence about his reading ability and the examinations’ requirements, the court denied summary judgment to both sides on this theory.

English-language requirement

Frilando argued that the requirement that applicants understand and be understood in English was a discriminatory qualification standard that screened out deaf people with limited written-English proficiency. The court granted summary judgment to the defendants on this claim. It held that Frilando had not presented evidence that the requirement actually excluded him from employment because of his disability or limited ability to read written English. He did not take the examinations, so it was unknown whether he would have failed them or passed them with the offered accommodations. He also presented no evidence that the requirement excluded a similarly situated class of people because of disability.

Disparate-impact claim

Frilando also argued that the defendants’ refusal to provide interpreters for exam questions and answer choices had a disparate impact on deaf and hard-of-hearing people. The court granted summary judgment to the defendants because this claim was not alleged in the operative complaint. The court declined to allow another amendment because Frilando was represented by counsel, had already amended the complaint twice, discovery was complete, and the proposed claim would depend heavily on statistical evidence.

Disposition

The court denied Frilando’s motion for summary judgment. It granted in part and denied in part the defendants’ motion for summary judgment. The motion was granted as to any disparate-impact claim and any claim based on the English-language requirement as a discriminatory qualification standard, and was otherwise denied. The sole surviving theory was that the defendants failed to provide reasonable accommodations for the examinations under federal, state, and municipal law.