September 09, 2010

Alcoholism as a defense in a disciplinary action

Alcoholism as a defense in a disciplinary action
Murolo v Safir, Appellate Division, 246 A.D.2d 653, Leave to appeal denied, 91 N.Y.2d 813

In McEniry v Landi, 84 NY2d 554, the Court of Appeals said that alcoholism qualifies as a disability within the meaning of the State’s Human Rights Law [Section 292.21, Executive Law]. A New York City firefighter, David Murolo, challenged his disciplinary dismissal by contending his misconduct was caused by an alcohol abuse problem that he had overcome. He claimed that his firing violated the Human Rights Law, citing the McEniry decision.

Disciplinary action began after Murolo called in a false alarm. While his fellow firefighters were responding to the false alarm, Murolo took $223 of “communal money” from the station house. After admitting at a disciplinary hearing that he had called in the false alarm and had taken the money, Murolo testified that:

1. He had been drinking heavily prior to the incident and “was not thinking straight.”

2. He had entered a counseling program for his alcohol problem as directed by the Department and had begun to attend Alcoholics Anonymous meetings.

The hearing officer determined that his status as a recovering alcoholic did not shield him from discipline for misconduct and recommended his termination. The Commissioner adopted the hearing officer’s recommendation.

Although a Supreme Court justice accepted Murolo’s argument and remanded the case to the Commissioner for the imposition of a lesser penalty, the Appellate Division disagreed and reinstated the Commissioner’s original determination.

The Appellate Division distinguished the situation in McEniry from Murolo’s.

In McEniry the issue was whether alcoholism prevented the officer from satisfactorily performing his duties. The Court of Appeals held that if an individual establishes a prima facie case that his discharged was based on his or her alcoholism, the burden shifts to the employer to show either that (1) the employee was not disabled by alcoholism, (2) there was an alcoholism disability but no reasonable accommodation was possible or (3) there an alcoholism disability but termination was for other reasons than behavior stemming from alcoholism.

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