March 09, 2018

Alcoholism as a defense in a disciplinary action

Alcoholism as a defense in a disciplinary action
OATH Index No. 0005/18

A New York City correction officer admitted that he brought alcohol onto his post, drank it through his tour of duty and falsely reported in the Department’s logbook that he conducted his required tours of the inmates. The correction officer, however, argued that he should not be fired because he was an alcoholic and that this condition caused his misconduct.

OATH Administrative Law Judge Susan J. Pogoda found that the correction officer did not show that his misconduct was caused by a disability and recommended termination of correction officer’s employment. Judge Pogoda's recommendation was adopted by the appointing authority and the correction officer was dismissed from his position.

As to alcoholism as a defense in a disciplinary action, in Murolo v Safir, Appellate Division, 246 A.D.2d 653, leave to appeal denied, 91 N.Y.2d 813, David Murolo challenged his disciplinary dismissal by contending his misconduct was caused by an alcohol abuse problem that he had since overcome. He claimed that his firing violated the Human Rights Law, citing In McEniry v Landi, 84 NY2d 554.

In McEniry the Court of Appeals had held that alcoholism qualifies as a disability within the meaning of the State’s Human Rights Law [see §292.21, Executive Law].

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 terminating Murolo from his position. The Appellate Division distinguishing the situation in McEniry from Murolo’s. 

The court explained that in Murolo the disciplinary hearing officer found that Murolo called in a false alarm and while his fellow firefighters were responding to the false alarm, Murolo took $223 of “communal money” from the station house. The hearing officer determined that Murolo's 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.

In contrast, in McEniry the issue was whether alcoholism prevented the individual from satisfactorily performing the duties of his or her position.

In McEniry the Court of Appeals held that if an individual establishes a prima facie case that his or her 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.

The OATH Index No. 0005/18 decision is posted on the Internet as:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.