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What Constitutes a Reasonable Accommodation?
Does providing side-door access to a building’s disabled resident qualify as a “reasonable accommodation” under New York City’s Human Rights Law? That was the issue considered in the case of Riverbay Corp. v. New York City Commission, in which the court decided whether to uphold a determination made by the New York City Commission on Human Rights in an action started by John Rose against Riverbay Corp. Riverbay is also known as Co-op City and is one of the largest housing cooperative developments, with about 15,000 residential units and 50,000 residents.
John Rose, a disabled resident who uses a wheelchair, contacted Riverbay in 2008, asking that he be provided with a means to independently enter and exit the front door of his building. Riverbay proposed installing a remote-control-operated automatic door on the side entrance of the building. Riverbay made the offer after it determined that it was more economical, because the front doors were older and heavier, and would have to be replaced in order to install an automatic opener.
Rose rejected the offer. He filed a complaint with the New York City Commission on Human Rights. Riverbay, for its part, installed the side-door automatic openers. An administrative law judge determined that Rose failed to demonstrate discrimination. The judge made a recommendation, finding that the applicable New York City statute did not require Riverbay to provide access through a “main” entrance or to provide the specific accommodation. The commission, however, rejected the judge’s recommendation and concluded that Riverbay discriminated against Rose. It ordered Riverbay to make the front doors accessible and required Riverbay to pay $51,000 in compensatory damages and $50,000 in administrative fines for “outrageous conduct.”
Riverbay began this action, and argued that the commission’s determination was contrary to its own precedent, statute, and case law. It argued that the statute required housing providers to make reasonable accommodations but did not set forth any specific accommodation. Riverbay argued that case law demonstrated that it was not necessary that access be through the front door of the building. Riverbay challenged the commission’s interpretation of the statute, arguing that the statute allowed for an alternate means of access to a building to ensure safe and efficient access. Riverbay insisted that its architect reviewed Rose’s initial request and determined that it was architecturally infeasible to install automatic doors in the front entrance based upon the structure of the entryway and the way in which the doors were hung.
Riverbay also argued that the commission’s decision did not include certain exhibits and did not acknowledge that Riverbay offered Rose a solution that he refused. The decision determined that Riverbay’s proposed accommodation was unsafe – a conclusion Riverbay argued was not supported by the record.
Witness testimony established that the side door was a building entrance and not a service door. Rose testified that he traveled throughout Co-op City at night and during the day and never had safety concerns. Riverbay also asserted that the statement in the decision that two-and-a-half years elapsed between Rose’s request and the accommodation was not supported in the record. Finally, Riverbay noted that the decision awarded compensatory damages exceeding what Rose had requested.
Riverbay requested, alternatively, that if the determination concerning use of the door were upheld, the penalties should be vacated as they constituted an abuse of discretion. Riverbay argued that the standard was whether the impact of the penalty was so severe that it was disproportionate to the misconduct or harm.
The commission asserted that Rose had been living at Co-op City for about 30 years and that in that time he always used the front entrance. The front door had floor-to-ceiling glass doors that allowed people to see into the vestibule. It had a push-button intercom system. The front-door vestibule was monitored by closed circuit television so that tenants could view the vestibule from their apartments.
The commission explained that its record showed that, for years, Rose had entered the building through the front door by waiting for someone to open the door and allow him access. When he arrived late at night, or outside of peak hours, he had to wait several minutes or even hours to gain access. In early 2008, Rose requested that an accommodation be made so that he could access the building through the front entrance. In May 2008, Rose contacted the commission. In June 2008, the commission con-tacted Riverbay, but Riverbay was contemplating a complex-wide reno-vation program, to be completed at some unspecified time.
That year, Riverbay engaged an architect to review the issue. The architect presented two options in July 2008. One required replacement of the front door with a handicap-use door that would cost roughly $20,000. The architect also considered installing automatic door-openers on the existing doors for about $16,000. The architect did not testify that the doors could not be installed from an architectural point of view. Indeed, he testified that the work could have been performed properly.
In September 2008, Riverbay sug-gested to the commission that Rose have access through the side entrance. Rose refused and stated that he did not feel safe at the side entrance and that it made him feel “like a second-class citizen.”
The commission claimed that no independent access had been provided to Rose between 2008 and February/March 2010, when Riverbay installed an automatic door-opener on the side door. Rose complained that the side door was “isolated,” as it was 30 to 50 feet from the main entrance, with less foot traffic. It was a metal door with a small window, and Rose could not reach up to see through it. Rose also said he could not be seen at the side door by the security guards at the main entrance. There was no intercom or video system at the side door. Video surveillance that monitored the side entrance did not capture the side hallway.
The commission explained that these were the reasons it disagreed with the findings of the administrative law judge and determined that entering through the side door was significantly different from being able to enter through the front door. Accordingly, it found that the side entrance afforded “unequal and segregated access” to the building. The commission argued that its ruling was consistent with case law.
The court explained its role in reviewing a decision of the commission or any other administrative body: the court was required to determine whether the holding was “rational, arbitrary and capricious, or an abuse of discretion.” The standard was whether the admin-istrative determination was supported by a rational basis. If the court were to find that a rational basis existed, it did not have the right to substitute its judgment for that of the commission.
Further, the court explained that an administrative agency’s construction and interpretation of its own regu-lations and the statute under which it functioned were entitled to “great deference.” In proceedings such as this (brought under Article 78 of the Civil Practice Law and Rules of New York), the courts do not have the right to review facts other than to determine if there was substantial evidence in the record to support the finding. The courts could not interfere with the administrative agency’s decision unless there was no rational basis for the decision or the decision was arbitrary and capricious. Specifically, the court explained, a decision of an administrative agency that did not follow its own precedent would be considered arbitrary and capricious, unless the agency explained why the determinations were different.
The court next discussed the New York City Administrative Code, which directed that findings of the commission were conclusive if supported by sufficient evidence.
The court determined that the commission’s ruling was supported by sufficient evidence and that it was not bound by the administrative law judge’s findings, including the credibility of witnesses. The court explained that a “reasonable accommodation” was, according to New York City statute, “such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity’s business. The covered entity shall have the burden of proving undue hardship.”
The commission interpreted this to mean that the main entrance should have been made accessible unless doing so was an undue hardship or architecturally infeasible. The court found that the commission’s position was consistent with case law. Riverbay argued that another section of the statute and other case law was applicable so that it should not have been required to install wheelchair access doors at the front entrance. The court, however, distinguished both the case law and the other provision of the statute. To sum up, the court found that Riverbay did not satisfy its burden of demonstrating that complying with Rose’s request for front door access would constitute an undue hardship.
The court then turned to a discus-sion of the fines and damages that the commission had imposed. The commission had awarded Rose compensatory damages of $1,000 for damage to his motorized scooter when using the non-compliant entrance and damages of $50,000 for “mental anguish.”
An award for mental anguish may be made and may be based solely on the testimony of the one who has complained. Here, the commission determined that Rose was wrongly denied access to the front entrance of the building for two and a half years after his initial request for an accommodation. Rose also testified that there were many instances where he was “caught in the elements for up to 45 minutes” while he waited for assistance. He asserted that he had to be aware of when he arrived home so that others would be entering or leaving the building.
The court found the award of $50,000 excessive. Even though it took two years, Riverbay looked at possible accommodations during that time. The court reduced the $50,000 award for mental anguish to $15,000.
The court also considered the commission’s requirement that Riverbay pay a fine of $50,000. The fine was imposed under the section of the New York City statute that allowed the commission to “vindicate the public interest.” The court explained that this penalty was not intended to be paid to the person who complained, but was designed to punish the violator. These penalties were typically reserved for unlawful discrimination that was the result of a willful, wanton, or malicious act. There was no indication here that Riverbay’s actions were malicious. However, some punitive fine was warranted because Riverbay’s actions affected others in Co-op City. The court reduced the fine from $50,000 to $5,000.
Comment: Our experience has been that the courts have been somewhat inconsistent in determining what constitutes a reasonable accommodation and, more to the point, who gets to determine what is “reasonable” – the person requesting the accommodation or the building owner. The court here adopted the commission’s determination that, in a circumstance where material differences were found between gaining access through the front door and the side door and where the resident objected to access through the side door, it was improper for the cooperative corporation to fail to modify the front door.
We are inclined to believe that, although it is only briefly mentioned in the decision, the statement made by Riverbay’s architect that access could have been obtained through the front entrance was an important factor in the commission’s decision to reject the administrative law judge’s recommendation and hold that Riverbay failed to provide a reasonable accommodation.
We have found that courts often give weight to the opinions of a board’s professional, and further, that boards are often protected – both in the context of reasonable accommodation matters and claims of breach of fiduciary duty – when they act in accordance with the findings of their experts. Here, it appears as if Riverbay’s architect stated that access could be available through the front entrance at a cost of approximately $20,000, yet Riverbay elected to provide side-door access notwithstanding Rose’s objection.
While case law is not entirely clear when it comes to reasonable accommodation requests, we do believe that a cooperative or condominium must consider the specific request of the resident and the advice of the building’s expert when making its determination concerning a reasonable accommodation.