In Regan v. City of Geneva, 136 A.D.3d 1423, 25 N.Y.S.3d 515 (N.Y. App. Div. 4th Dept. Feb. 11, 2016), the court held that plaintiff stated a claim for disability discrimination under the NYS Human Rights Law (NY Executive Law § 290 et seq.) and the federal Rehabilitation Act of 1973 (29 USC § 701 et seq.).
Here is the court’s summary of the facts:
Immediately after his arrest for driving while intoxicated, plaintiff was suspended from his position as a police officer with defendant City of Geneva Police Department. Approximately one week into his suspension, plaintiff entered a rehabilitation program, where he was diagnosed with posttraumatic stress disorder and anxiety disorder, which were related to his work as a police officer at the site of the World Trade Center in the days following the September 11, 2001 attack. Shortly after plaintiff’s release from the rehabilitation program, defendant Frank Pane, the Department’s Chief of Police, notified plaintiff that his employment was terminated.Plaintiff commenced this action alleging, inter alia, unlawful employment discrimination based upon his psychological disability.
The court held that plaintiff’s claims under the Equal Protection Clauses of the U.S. and New York Constitutions were properly dismissed.
However, as the court explained:
Plaintiff sufficiently stated a cause of action for disability discrimination under the [New York State] Human Rights Law by alleging that:  he has a disability and is therefore a member of a protected class;  he is qualified for his position;  he suffered an adverse employment action, i.e., termination of his employment; and  the termination occurred under circumstances giving rise to an inference of discrimination. Similarly, plaintiff sufficiently stated a cause of action for discriminatory termination under the Rehabilitation Act by alleging that: (1) he has a disability; (2) he is otherwise qualified to perform the job; (3) he was terminated solely because of his disability; and (4) the program or activity receives federal funds.
The court erred in concluding that plaintiff failed to allege sufficiently that his termination was based upon his disability rather than the criminal charge, and in dismissing the causes of action under the Human Rights Law and the Rehabilitation Act on that ground. In support of those causes of action, plaintiff alleged that the City did not terminate the employment of two nondisabled employees after they were arrested for criminal misconduct, thus raising an inference that his termination was based upon his disability. (Emphasis added.)
This decision contains a procedural point: While the lower court stated “that plaintiff’s allegations ‘equally support’ the conclusions that those two employees and plaintiff were similarly situated, and that they were not similarly situated”, in the context of a “motion to dismiss pursuant to CPLR 3211(a)(7), facts that equally support opposing inferences must be resolved in plaintiff’s favor.”