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.

Removing a public officer of a town from his or her position

Removing a public officer of a town from his or her position
Public Officers Law Section 36

Unhappy with their Town Supervisor, a number of residents of a town wrote to New York Governor David Paterson and asked him to remove the official from office.

According to a newspaper report,* Governor Paterson’s attorney, Peter J. Kiernan, Esq., advised the residents that “state law only provides the governor with power to remove some town officials, and town supervisors aren’t on the list.”

In any event, with respect to the removal of a town officer from his or her public office, §36 of the Public Officers Law, in pertinent part, provides as follows:

Any town… officer, except a justice of the peace, may be removed from office by the supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town … or by the district attorney of the county in which such town … is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town …. Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice.

* Schenectady Gazette, Saturday, September 4, 2010

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Employment-at-will status may be tempered by provisions in the employer’s policy manual or personnel handbook under certain conditions

Employment-at-will status may be tempered by provisions in the employer’s policy manual or personnel handbook under certain conditions
Pearce v Clinton Community College, 246 A.D.2d 775

New York State is an “employment-at-will” state. This means that unless there is some statutory or contractual right to due process, an employee may be terminated without notice and a hearing.

However, sometimes courts will deem the contents of an employer’s policy manual or personnel handbook a “contract” insofar as processing the termination of an employee is concerned. Lisa J. Pearce attempted to persuade the Appellate Division that the Clinton County Community College’s [CCC] Policy and Procedures Manual [Manual] was part of the employment contract between her and CCC following her termination by the College.

Pearce signed a letter appointing her assistant bursar at CCC for the period October 18, 1995 through August 31, 1996. According to the ruling, this position was “within the category of management confidential personnel.” Aside from some details concerning fringe benefits, Pearce’s letter of appointment did not include any statements concerning any other “terms and conditions of employment.”

About four months later CCC terminated Pearce. Pearce was awarded unemployment insurance benefits based on a finding by Workers’ Compensation that she “was discharged for incompetence and failure to meet the standards of her payroll specialist position.”

Subsequently Pearce sued CCC, contending that it had wrongfully terminated her and that it had “breached her contract” with respect to certain provisions in the Manual. Was the Manual part of Pearce’s contract of employment? The Appellate Division decided that it was not part of any contract of employment between the parties.

Further, while the Manual indicated that CCC “generally endorses progressive discipline” and provides that “management confidential personnel” may receive annual performance reviews, the Court commented that there was nothing in the Manual setting out a policy with respect to a termination for cause prior to the completion of a specified term of employment.

The Court decided that: (1) The letter of appointment was sufficiently specific to constitute a contract between the parties; (2) CCC’s Policy and Procedures Manual was not “engrafted upon this contract;” and (3) “it is only where a plaintiff can show the existence of an express written agreement limiting the employer’s right to summarily terminate an employee that the principles governing employment at will are inapplicable”. Accordingly, the Court sustained the Supreme Court’s order denying her motion for partial summary judgment.

Eleventh Amendment immunity lost should a state adopt the Fair Labor Standards Act as state law

Eleventh Amendment immunity lost should a state adopt the Fair Labor Standards Act as state law
Mueller v Thompson, CA7, 133 F.3d 1063

In Seminole Tribe v Florida, 517 US 44, the U.S. Supreme Court held that Congress did not have the power to void a state’s Eleventh Amendment immunity from suit in the federal courts by enacting legislation pursuant to the Commerce Clause.

In its ruling, the 7th Circuit pointed out that the Supreme Court said states were immune from FLSA under the Tenth Amendment [National League of Cities v Usery, 427 US 909] only to overrule that decision in Garcia v San Antonio Metropolitan Transit Authority [469 US 528]. However, in Garcia the Supreme Court said the FLSA applied to the states with respect to their performing “non-traditional” governmental functions, here a public transportation system.

If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, has it lost its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA? This was the question presented to the U.S. Circuit Court of Appeals, 7th Circuit, by the Mueller case.

The Court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.”

In 1971 Wisconsin copied the federal FLSA and made it part of its state law. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions.

On this legislative history, said the Court, there is “little reason” to concluded that Wisconsin waived its immunity by adopting a state FLSA applicable to public employees as Congress had not yet authorized suing states in federal court for alleged violations of the FLSA.

New York State, in contrast, adopted overtime provisions for state workers in an effort to comply with the overtime mandates of the FLSA after Congress made the FLSA applicable to the states. Accordingly, it could be argued that New York State, as an employer, “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court.

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NYS Common Retirement Fund employer contribution rates to increase in 2012

NYS Common Retirement Fund employer contribution rates to increase in 2012
Source: Office of the State Comptroller

On September 2, 2010 State Comptroller Thomas P. DiNapoli announced increases over the previous year in the 2011-12 employer contribution rates for the New York State Common Retirement Fund. At the same time DiNapoli announced that he accepted the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates.*

The average contribution rate for the Employee Retirement System will increase from 11.9 percent of salaries to 16.3 percent. The average contribution for the Police and Fire Retirement System is increasing from 18.2 percent 21.6 percent.

Comptroller DiNapoli commented that “Unfortunately, it takes the economy a lot longer to climb out of a hole than it takes to fall in it. The markets are still recovering from the 2008-09 financial meltdown, and that recovery continues to be volatile. We handled the meltdown better than most pension funds, but we’re still feeling the impact, and, as I have consistently cautioned, the employer contribution rates I’m announcing today will reflect the impact of the financial crisis.”

The Retirement System actuary by law reviews many actuarial assumptions for the Retirement System, including: the mortality rate for members and retirees, the expected investment rate of return on pension fund investments, the rate of inflation and anticipated salary scales. The actuary prepares a report with recommendations, which is presented to an independent actuarial advisory committee.

The Retirement System’s new assumption for its investment rate of return is more fiscally conservative than the national average for public pension funds and more conservative than the average for the top 100 private U.S. pension funds, according to Milliman’s 10th annual Pension Funding Study.

The Comptroller noted that a new law was enacted earlier in 2010 that will allow a political subdivision of the State to elect to participate in a program that would allow it to budget a portion of their increased pension fund payments over ten years.**

This “employer contribution payment plan” will help those localities electing to participate to mitigate the impact the increase in costs could have on local taxpayers. Those localities opting into the plan must also build reserve accounts during periods of decreasing pension contribution rates, which reserve accounts would be used to protect taxpayers from future rate spikes.

DiNapoli characterized the program as being similar to a household utility budget plan that enables homeowners to pay one level payment throughout the year rather than payments that spike at different times of the year.

* Click on "contribution rates" for the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates: contribution rates

** See Retirement and Social Security Law §19-a, Employer contributions for the two thousand ten - two thousand eleven fiscal year and subsequent fiscal years.


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A difference between judicial and administrative hearings

A difference between judicial and administrative hearings
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/

Here is another case from Patty Salkin (Albany) on her Law of the Land blog, "FL Appeals Court holds that Neighboring Landowners in a Quasi Judicial Hearing Are Not Entitled to Cross-Examine Witnesses".

Petitioners, Carillon Community Residential Association, Inc., and its President, sought second-tier certiorari review of a circuit court order upholding the approval by the County Board of County Commissioners [BCC] of an amendment to the Carillon Planned Unit Development which allows a mixed-use development, including a four-story, 600 bed University of Central Florida student housing complex, to be built on two parcels of land adjacent to Petitioners’ subdivision.

The Court concluded that the circuit court afforded Petitioners procedural due process and did not depart from the essential requirements of law when the Board denied their request to cross-examine witnesses at the quasi-judicial hearing in which the amendment was approved.

The Court said that Florida law does not require that all participants in quasi-judicial proceedings be allowed to cross-examine witnesses.

The Court states, that “land use hearings are not in the same form as traditional adversarial hearings during which opposing parties are clearly delineated and those entitled to cross-examine witnesses can be clearly identified.

Rather, land use hearings are public hearings during which any member of the public has a right to participate. At the hearing in question, in addition to the witnesses for the developers and the petitioners, twenty-five community members spoke at the hearing. It would be impractical to grant each interested party the right to cross-examine the witnesses at such a hearing, especially in light of the fact that the BCC provides a procedure by which the witnesses can be questioned.”

An administrative hearing is not a trial - not strictly speaking an adversarial procedure but rather an inquisitorial procedure. Due process does not require that the agency follow the rules of evidence or the procedures mandated by due process in litigation or criminal proceedings. Absent specific statutory requirements, we get notice and an opportunity to be heard.

Edward M. “Ted” McClure
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Fear of AIDS

Fear of AIDS
Barbara S. v Nassau County, Supreme Court, Nassau County, [Not selected for publication in the Official Reports]

Emergency service personnel who believe that they have been exposed to HIV in the course of their employment may claim to have developed a fear of Acquired Immune Deficiency Syndrome [AIDS]. The Barbara S. case summaries how New York courts treat such claims.

An emergency room nurse at the Massapequa General Hospital, Barbara S. was stuck with a needle while caring for a patient. She and her husband sued, contending that the needle, which had been allegedly used to start an IV in a patient being transported to the hospital, had been negligently and improperly left on the stretcher by the Nassau County employees.

Barbara contended that she was fearful that she would contract Acquired Immune Deficiency Syndrome (AIDS) as a result of the puncture despite the fact that she has tested negative for AIDS in three tests administered over a 12-month period. The County asked Justice Joseph dismiss her claim on the grounds that she had not shown that she had been actually exposed to blood or fluid seropositive for HIV, citing Brown v New York City Health and Hospital Corporation, 225 AD2d 36.

Justice Joseph said that New York courts have repeatedly dealt with the elements required to establish a cause of action for negligence based on the fear of contracting AIDS. In order to maintain a cause of action for damages due to the fear of contracting AIDS, an individual who has not tested positive for AIDS must offer proof of “actual exposure.” Requiring proof of actual exposure insures that there is a genuine basis for the individual’s fear of developing the disease and that the fear is not based on public misconceptions about AIDS.

The Court said that although Barbara did posit a scientifically accepted method of transmission of the virus, i.e. the needle puncture, she failed to establish with either documentary evidence or testimony that the needle had ever been in contact with any blood or fluid of the patient or that the patient had AIDS.

Justice Joseph characterized Barbara’s claims as “an unsubstantiated allegation that the needle was used for the patient’s treatment” which was not supported by the record. The Court granted the County’s motion for summary judgment, dismissing her AIDS-related claims. However, Barbara’s action concerning her claim of a physical injury resulting from the needle puncturing her hand survived, since the County conceded that she had suffered such an injury.