[*2]Petitioner brings this proceeding pursuant to Article 78 seeking to vacate his disqualification for appointment as a Police Officer with the New York City Police Department (NYPD) on the grounds of a "hearing deficiency."

Petitioner was placed on the eligible list for appointment to the position of New York City Police Officer upon passing the written portion of the civil service examination (Examination Number 4009). As part of the application process, Petitioner was required to take a pure tonal hearing test administered by the NYPD. To pass this portion of the exam, a candidate must hear a maximum of 25 decibels ("db") at a frequency of 500, 1,000, 2,000, and 3,000 Hertz ("Hz") or a maximum of 35 db at 4,000, and 6,000 Hz. Candidates who exceed these decibel requirements are disqualified. On May 31 2005, the NYPD Medical Division evaluated the Petitioner and found that he exceeded the maximum permitted hearing level on the pure tonal test. After retesting him on June 17, 2005, the test produced similar results. Petitioner was subsequently disqualified for appointment on the basis of a "hearing deficiency."

Petitioner filed a Notice of Appeal with the Civil Service Commission on July 21, 2005, challenging the NYPD's decision to disqualify him for appointment as a Police Officer. On August 15, 2005, the chairman of the New York Civil Service Commission, Stanley K. Schlein, sent Petitioner a letter stating that Petitioner was medically disqualified and that he was required to submit to the NYPD and the Civil Service Commission any medical documentation that would support his appeal.

Petitioner submitted two medical reports. The first, from Dr. Nicholas Gno, indicated that Petitioner had a "normal hearing threshold" in his right ear and "mild to moderate sensory loss in the left ear." Dr. Gno further indicated that he "didn't see any reason why [Petitioner] could not perform as a police officer." (Exhibit E to petition.) Evmorfia Tzanis, an audiologist with the United States Department of Veterans Affairs, produced a second report submitted by Petitioner in support of his appeal. This report indicated that Petitioner's speech recognition is "excellent in his right ear and fair in his left ear at conversational level and excellent binaurally at conversation level." (Exhibit G to petition.) Similarly to Dr. Gno, Ms. Tzanis affirmed that Petitioner's hearing loss "will not impede his ability to communicate in his everyday life and as a police officer." In support of Petitioner's medical disqualification, the NYPD submitted a letter providing the results of the aforementioned pure tonal tests from May and June of 2005, as well as a third tonal hearing test from November 28, 2005, which produced similar results. (Exhibit C to petition.)

On January 20, 2006, the Civil Service Commission affirmed the NYPD's decision to disqualify the Petitioner for appointment as a NYPD Police Officer, stating that it "reviewed all documentation submitted by NYPD and appellant related to this appeal. Upon careful review of the entire record, we find no reversible error." (Exhibit H to petition.)

Petitioner's allegations fall into two categories. First, petitioner argues that the pure tonal hearing test used by the NYPD is not rationally related to police officer functions. Second, Petitioner claims that his disqualification violates New York Executive Law § 296, which prohibits discrimination against a job applicant on the basis of a disability.

Rational Relationship

Petitioner argues that the Respondents do not provide any evidence that the pure tonal test alone can determine whether petitioner's level of hearing is adequate to perform the functions of a New York City Police Officer. Petitioner points to the Medical Screening Manual for California Law Enforcement to assert that pure tonal hearing tests are not "an accurate indicator of an individual's ability to hear speech or the ability to hear in real-life situations faced by a police officer." Petitioner claims that the additional tests performed by Dr. Gno and Ms. Tzanis, indicating that Petitioner is capable of performing the duties of a NYPD police officer, should also be considered as part of the NYPD's evaluation.

Despite the Petitioner's suggestion, the NYPD need not adopt the California Medical Screening Manual when setting the hearing standards for its applicants. State agencies, such as the NYPD, have "considerable latitude" when setting standards and choosing between alternative measures. See Akpan v. Koch, 75 NY2d 561, 570 (1990). Further, "courts may not substitute their judgment for that of the agency." Id. As a result, the NYPD is given significant leeway in setting the standards for its applicants. Given that the use of a pure tonal test is rationally related to police officer functions, Petitioner's claim cannot prevail on this ground.

Discrimination

Petitioner claims that his disqualification by the NYPD violates Executive Law § 296(1)(a), which prevents discrimination against job applicants based on an applicant's disability. Executive Law § 292(21) defines a "disability" as:

(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the terms shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

Contrary to the Respondent's argument, which appears to be based on the definition of "disability" included in the Americans with Disabilities Act, petitioner's hearing loss qualifies as a disability under § 296(1)(a). See, e.g. McCarthy v. Nassau County, 208 AD2d 810, 812 (2d Dept. 1994) (finding that petitioner's hearing loss constituted a disability under Executive Law § 296).

A prima facie case of discrimination is established when an employee suffers from a disability, and that disability is the cause of his termination. See McEniry v. Landi, 84 NY2d [*4]554, 558 (1994); see also Picciano v. Nassau County Civil Service Commission, 2003 NY Slip Op 50744U (holding that the failure to meet a medical standard does not sanction automatic disqualification of an application for employment). Once a prima facie case is established, the employer has the burden of demonstrating that the employee's disability prevented him from reasonably performing the duties of the job, or that the employee's termination was the result of a valid nondiscriminatory reason. McEniry, 84 NY2d at 558.

Since Petitioner's hearing loss is a "disability" under § 296(1)(a), the NYPD must prove that Petitioner's hearing loss will prevent him from "performing in a reasonable manner" the required duties of a police officer. Executive Law § 292(21). However, it is not adequate for the NYPD to show that Petitioner's disability is "merely related" to the activities of a police officer. Miller v. Ravitch, 60 NY2d 527, 532 (1983). Additionally, it is not sufficient for the NYPD to show that the Petitioner's disability precludes him from carrying out his responsibilities in a perfect manner. Id. In order to determine whether the Petitioner's disability will prevent him from reasonably performing the duties of a police officer, the NYPD must conduct an individualized test, where the "particular disability must be such that it prevents the particular individual from performing in a reasonable manner the particular activities involved in the job or occupation." Antonsen v. Ward, 77 NY2d 506, 513 (1991).

Here, the NYPD engaged in no such individualized investigation, relying solely on the results of three pure tonal hearing tests. While these tests established that Petitioner suffered from a hearing disability, they do not necessarily indicate that Petitioner would not be able to reasonably perform the duties of a New York City Police Officer. For example, Petitioner provided evidence that the hearing in his right ear was "excellent" and "fair" in his left ear. Both Dr. Gno and Ms. Tzanis stated that they saw no reason why the Petitioner's hearing would prevent him from conducting the activities of a police officer. Additionally, seven current and retired NYPD Police Officers that have first-hand knowledge of Petitioner's hearing ability have submitted sworn affidavits stating that Petitioner would be an effective Police Officer.

By relying exclusively on the results of the pure tonal hearing test, the NYPD's decision to disqualify Petitioner's application was based on an objective standard, and not an individualized examination of the Petitioner's ability to perform the duties of a New York City Police Officer. As a result, Petitioner's disqualification violated Executive Law § 296.

For the reasons stated above, the petition is granted ^[FN1]. This matter is remanded to respondent New York City Police Department to make an "individualized" determination consistent with Executive Law § 296. This constitutes the Decision and Judgment of this Court.

Dated: July 28, 2006

New York, NY [*5]

William A. Wetzel