September 8, 2010

Claiming drug abuse as a disability under the Americans with Disabilities Act

Claiming drug abuse as a disability under the Americans with Disabilities Act
D’Amico v Bruno, CA2, 132 F.3d 145

Vito D’Amico, a New York City firefighter, complained that the Department violated the Rehabilitation Act of 1973 (an anti-discrimination law that applies to federally-funded employers) when it dismissed him from his position with the Fire Department of the City of New York (NYFD) because of his use of illegal drugs. The U.S. Circuit Court of Appeals affirmed the federal district court’s dismissal of D’Amico charges. In so doing the Court set out a comprehensive summary of the various factors considered by the federal courts in such cases.

D’Amico joined NYFD in 1982. In April 1988, D’Amico was arrested for assault, possession of a controlled substance, and resisting arrest. Following this arrest, the NYFD referred D’Amico to counseling within the NYFD.

In September 1988, the NYFD received an anonymous letter accusing D’Amico of using and selling cocaine. NYFD ordered D’Amico to submit to a urine test on December 13, 1988. D’Amico tested positive for cocaine and NYFD suspended him without pay. The suspension was lifted in January 1989, pending the outcome of disciplinary action taken against him. D’Amico, meanwhile, had entered an inpatient drug treatment program on April 17, 1989, which it was reported that he had successfully completed on May 15, 1989.

OATH Administrative Law Judge Ray Fleischhacker presided over the disciplinary hearing held on June 23, 1989 and found D’Amico guilty of 4 of the 5 charges filed against him. The Commissioner accepted the ALJ’s findings and recommendations and terminated D’Amico effective September 5, 1989. The Commissioner said that “[i]n light of the grave responsibilities entrusted to a firefighter, [D’Amico’s] continued employment with the Fire Department presents a significant risk, both to the general public and to his fellow firefighters.”

Under the Rehabilitation Act, the plaintiff bears the initial burden of establishing a prima facie case. In a case where the employer relies on the plaintiff’s handicap as the reason for the adverse employment decision, the employer may rebut the inference that the handicap was improperly taken into account by going forward with evidence that the handicap is relevant to qualifications for the position.

The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that he or she is qualified for the position despite his or her disability.

D’Amico had to establish a prima facie case by proving that: (1) he is an individual with a disability; (2) he was otherwise qualified for a position; (3) he was denied that position on the basis of his disability, and (4) NYFD receives federal funds.

Although it was conceded that D’Amico satisfied items (3) and (4), NYFD contended that D’Amico was neither an “individual with a disability,” nor “otherwise qualified” to be a firefighter.

Substance abuse is a recognized disability for purposes of the Rehabilitation Act, and an employer may violate the Act by taking an adverse employment action against an employee who has overcome past substance abuse problems but the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs.

According to the Circuit Court, the critical issue was whether D’Amico was a “current substance abuser” is the time of his discharge. The court said the actual date of discharge was not critical but serves “rather as a guidepost from which to determine whether the employer acted with justification.” The Court defined a “current substance abuser” as an individual whose substance abuse problem is severe and recent enough that the employer is justified in believing that the employee is unable to perform the essential duties of his job.

The employer must therefore evaluate (1) the level of responsibility entrusted to the employee, (2) the employer’s applicable job and performance requirements, (3) the level of competence ordinarily required to perform the task in question, and (4) the employee’s past performance record. Further, it must consider both the type of position for which the plaintiff claims to be otherwise qualified and the consequences of a potential mishap.

The Circuit Court pointed out with approval that in DiPompo v West Point Military Academy, 770 F. Supp. 887, Federal District Court Judge Michael B. Mukasey said “[W]hat may be a reasonable risk for a postal worker ... whose job generally does not pose great hazards to those who perform it or to the public they serve, is not necessarily a reasonable risk for a firefighter, whose job is defined at almost every turn by the potential for disaster to himself and others.”
Concluding that D’Amico’s history of cocaine addiction, together with the NYFD’s judgment as to the possibility of, and the risks inherent in, a relapse, the Circuit Court said that NYFD was justified in terminating D’Amico’s employment as a firefighter.

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