NY Volunteer Cannot Sue For Disability Discrimination Under State Law

The state law claims of a volunteer firefighter who suffered from “an ever-intensifying campaign of near-continuous hostility” on account of his Asperger’s Syndrome have been dismissed, but his federal suit brought under the Americans With Disabilities Act will continue.

That ruling was handed down last week by the US District Court for the Eastern District of New York in a suit brought by Joseph Morrone against the Island Park Fire Department and Assistant Chief Michael Whalen. Morrone claimed:

• [Chief Whelan] oversaw the probationary program, led his fellow firefighters in persistent public humiliation of Plaintiff because of his disability.
• He claims that Whalen’s campaign consisted of, among other incidents, frequently verbally harassing Plaintiff—including regularly using derogatory terminology against people with disabilities, cyberbullying Plaintiff on social media, and attempting to tie Plaintiff to a cot using plastic wrap.
• Whalen purportedly warned Plaintiff that he “would be thrown out of the IPFD if he complained about Assistant Chief Whalen’s behavior.”

Morrone brought a number of claims under federal ADA and the New York State Human Rights Law. The fire department and Chief Whelan moved to dismiss Morrone’s state law claims contending that the New York State Human Rights Law prohibits discrimination of employees on account of disability, but not volunteers.

N.Y. Exec. Law § 296(9)(a) states: “It shall be an unlawful discriminatory practice for any fire department or fire company therein, through any member or members thereof, officers, board of fire commissioners or other body or office having power of appointment of volunteer firefighters, directly or indirectly . . . to expel or discriminate against any volunteer member of a fire department or fire company therein, because of the race, creed, color, national origin, sexual orientation, military status, sex or marital status of such individual.” Noticeably absent is the term disability.

N.Y. Exec. Law § 296(1)(a) which governs employees, prohibits an “employer” from discriminating on the basis of “an individual’s age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or status as a victim of domestic violence.”

Morrone argued that he should be treated as a employee, since § 296(1)(a) offers greater protection. The district court recognized that New York courts had yet to rule on this issue. In siding with the fire department, the court reasoned as follows:

• The NYSHRL delineates in clear terms two sets of unlawful discriminatory practices: one that applies to employers in general and another that specifically addresses volunteer fire departments.
• These provisions conflict with respect to protection of discrimination based on disability.
• Defendants argue that when “there is a conflict between a general provision and a specific provision,” the generalia specialibus non derogant canon of statutory interpretation should be applied so that “the specific provision prevails.”
• The Court agrees.
• When this canon applies, “a ‘narrow, precise, and specific’ statutory provision is not overridden by another provision ‘covering a more generalized spectrum’ of issues.”
• In applying this canon of interpretation, the Court assumes that the legislature intended for the more specific provision of the NYSHRL concerning volunteer fire departments to prevail over the general provision concerning employers.
• Accordingly, the Court applies Section 296(9)(a) to conclude that—as a volunteer firefighter—Plaintiff is precluded from bringing a claim under the NYSHRL because the statute affords no protection for volunteer firefighters from discrimination on the basis of disability.
• Plaintiff’s NYSHRL discrimination claim against the IPFD is therefore dismissed

Here is a copy of the decision. The ruling has no impact on Morrone’s ADA claims.