Frilando v. Metropolitan Transit Authority

Background

Kenneth Frilando is profoundly deaf, cannot understand spoken English, has limited English reading and writing skills, and is fluent in American Sign Language (ASL). Between 2016 and 2018, he applied for three civil-service positions: bus operator with the Manhattan and Bronx Surface Transit Operating Authority (MaBSTOA), and train operator and track worker with the New York City Transit Authority (NYCTA).

Each position required applicants to pass a multiple-choice examination and to understand and be understood in English. The positions also had hearing requirements and job duties involving communication, hearing warnings or signals, or writing reports. Frilando requested additional time and ASL interpretation for oral instructions, exam questions, and answer choices. The NYCTA and MaBSTOA offered extra time and ASL interpretation for oral instructions and communications with staff, but did not offer interpretation or translation of the exam questions and answers. Frilando did not take any of the three exams.

Frilando sued under the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, the New York State Human Rights Law, and the New York City Human Rights Law. A prior summary-judgment ruling had already resolved his unpleaded disparate-impact claim and his claim that the English-language requirement was a discriminatory qualification standard. The claims remaining for the bench trial were his claims that the defendants failed to provide reasonable accommodations.

Legal Standards and Analysis

The court analyzed the accommodation claims together because the relevant provisions of the four laws generally use equivalent standards. An applicant generally must show that he is qualified to perform the essential functions of the position with or without a reasonable accommodation. The ADA also addresses employment tests and requires that test results accurately reflect the skills the test is designed to measure, rather than the effects of a disability, except when the impaired skill is the skill the test is intended to measure.

The court held that Frilando could prevail by proving either that he could perform the essential functions of the positions with or without an accommodation, or that the exams did not intend to measure English comprehension and expression.

Essential Functions

The court found that Frilando had not shown he could perform the essential functions of any of the three positions. For track workers, the essential functions included spoken communication about track hazards with other workers and train operators. For train operators, they included making announcements in English and responding to bells, whistles, horns, and radio conversation. For bus operators, they included writing reports, hearing horns and buzzers, and understanding verbal warnings in English.

The court found these duties were connected to passenger safety and that the NYCTA and MaBSTOA reasonably treated them as essential. Because Frilando conceded that he could not understand or be understood in spoken English, and because the evidence showed that he did not meet the minimum hearing standard for any of the positions, the court concluded that he was not qualified for them.

Purpose of the Exams

The court separately found that Frilando had not shown that the exams were unrelated to English comprehension. The exams were developed from job analyses identifying important and frequently used skills. Those analyses identified written comprehension and written expression as skills to be tested for the relevant positions. The exams included questions concerning skills such as understanding written bulletins, reading signs, writing incident reports, and using written English so that others would understand.

After reviewing the evidence and one examination, the court found that the exams both purported to measure and actually measured comprehension and expression in written English. Because the requested interpretation would remove the very English-comprehension skill that the exams were designed to measure, the court held that Frilando could not establish discrimination in the selection or administration of the tests under the ADA. The court likewise concluded that the defendants were not liable under the other disability-discrimination laws at issue.

Interactive Process

Frilando also argued that the defendants were independently liable for failing to participate in a good-faith interactive process to assess his accommodation needs. The court explained that failure to engage in that process is evidence of discrimination, not an independent claim by itself, under the relevant federal, state, and city laws.

The court nevertheless found that the defendants did engage in a good-faith interactive process to the extent reasonably required before Frilando chose not to take the exams. Over approximately sixteen months, the defendants sought information and documentation about his disability and limitations, clarified his requests, considered them, and discussed alternative accommodations. The court found that this exchange satisfied the interactive-process requirement.

Disposition

The court granted judgment in favor of the defendants, directed the Clerk to enter final judgment for them, and dismissed the case. The opinion does not add a “with prejudice” or “without prejudice” designation.