Second Circuit Court of Appeals Finds That Employer Did Not Discriminate
In Firing Sludge Boat Captain Who Lost His United States Coast Guard License
In Kinneary v. City of New York, the Second Circuit Court of Appeals reviewed a judgment of the United States District Court for the Southern District of New York after a jury found that the Plaintiff-Appellee, Joseph Kinneary, a former sludge boat captain with the New York City Department of Environment Protection, had been wrongfully discriminated against under the Americans with Disabilities Act ("ADA"), New York State Human Rights Law ("NYSHRL") and New York City Human Rights Law ("NYCHRL"). Docket No. 08-1330-cv (2d Cir. Mar. 19, 2010). The Court found that there was no violation of the ADA, NYSHRL, and/or NYCHRL and reversed and remanded the case with instructions to the district court to enter judgment for the Appellants.
Plaintiff-Appellee Kinneary had served as a sludge boat captain with the New York City Department of Environmental Protection, a position which required him to maintain a Captain's license from the United States Coast Guard ("USCG"). Pursuant to federal regulations, Kinneary was required to take and pass random drug tests in order to maintain his Captain's license. Between 1992 and 2001, Kinneary was subject to random drug testing on numerous occasions and repeatedly found that he was unable to produce urine samples on command. Kinneary was advised by the City's drug testing company that he could be excused from taking the test if he (1) obtained a physician's evaluation within five (5) working days; (2) the physician made a determination of whether or not a medical condition had, or with a high probability could have, precluded Kinneary from providing a sufficient amount of urine for the test; and (3) the physician provide a written statement of recommendations and a basis for review by the City's Medical Review Office ("MRO"). Although Kinneary obtained a doctor's note advising that he had a condition known as "Shy Bladder Symdrome", Kinneary was advised that the note was insufficient to comply with the applicable Federal Regulations, and the Coast Guard charged Kinneary with misconduct for failing to take the drug test.
Following a determination by the Coast Guard that Kinneary had refused to take a drug test, the Coast Guard ordered a twelve (12) month suspension of Kinneary's license, and Kinneary was fired. Thereafter, he appealed the Coast Guard's ruling; received a temporary license; and returned to work for the City. Upon expiration of Kinneary's temporary license; denial of his appeal of the Coast Guard's ruling; and a subsequent twelve (12) month suspension, Kinneary was terminated by the city for the final time. The termination letter from the City provided that Kinneary's termination was because he did not possess a License issued by the United States Coast Guard, as required for his position as Captain. Kinneary argued that urinating is a "major life activity" under the ADA and that he was substantially limited in this major life activity but otherwise qualified to perform the essential functions of his job with a reasonable accommodation. He further argued hat he was terminated because of his condition. The jury agreed, and Kinneary prevailed at trial on each of his claims of discrimination.
On appeal, the Second Circuit noted that to show discrimination under the ADA, a Plaintiff must prove that:
- the defendant is covered by the ADA;
- plaintiff suffers from or is regarded as suffering from a disability within the meaning of the ADA;
- plaintiff was qualified to perform the essential functions of the job, with or without reasonable accommodation; and
- plaintiff suffered an adverse employment action because of his disability or perceived disability.
(quoting Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005). The Court assumed for the purposes of the appeal that Kinneary was disabled under the ADA. Notwithstanding, the Court concluded that there was no discrimination under the federal, state, or local regulations. The Court noted that the "essential function" of Kinneary's job was to act as a captain, which would only be done if he held the proper license. The Court found that the City had provided Kinneary with the accommodation he sought, i.e. - a basis for which his test could be canceled under the applicable regulations. Kinneary failed to comply with these regulatory requirements despite this accommodation. Accordingly, the Court found that because he failed retain his captain's license despite reasonable accommodation, he was not qualified to perform the essential functions of his job, and there was no violation of the ADA, NYSHRL and NYCHRL.
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