Opinion
Index No. EF2021-129
04-19-2023
Thomas APHOLZ, Plaintiff, v. The CITY OF AMSTERDAM, Defendant.
Kevin A. Luibrand, Esq., Luibrand Law Firm, Counsel for Plaintiff April J. Laws, Esq., Johnson & Laws, LLC, Counsel for Defendant
Kevin A. Luibrand, Esq., Luibrand Law Firm, Counsel for Plaintiff
April J. Laws, Esq., Johnson & Laws, LLC, Counsel for Defendant
Rebecca A. Slezak, J. On November 4, 2022, Defendant City of Amsterdam (hereinafter "the Defendant" or "the City"), by and through its attorneys of record, Johnson & Laws, LLC, by April J. Laws, Esq., filed a motion pursuant to Civil Practice Law and Rules (hereinafter "CPLR") § 3212, seeking an Order dismissing Plaintiff's Complaint. On December 8, 2022, Plaintiff, Thomas Apholz, by and through his attorneys of record, Luibrand Law Firm, PLLC, by Kevin A. Luibrand, Esq., filed opposition to Defendant's motion. On January 9, 2023, Defendant filed a reply. FACTUAL BACKGROUND
Plaintiff had been employed by Defendant as a wastewater operator since 2017 to 2020. In 2017, Plaintiff had signed a Last Chance Agreement with the City, as a result of failing a drug test . On March 6, 2020, he was suspended with pay as a result of failing a drug test for Marijuana. On March 16, 2020, he received a letter of termination, effective March 15, 2020. Plaintiff's Complaint alleges a claim for unlawful discrimination against the City, claiming that the City unlawfully discriminated against him for being a medical marijuana certificate card holder. The Complaint also alleges that the City failed to accommodate Plaintiff's disability under the New York State Human Rights Law. Defendant claims that it was never made aware of Plaintiff's disability and could, therefore, not have discriminated against him on this basis, or accommodated, or refused to accommodate a request absent knowledge of Plaintiff's disability.
Disputed testimony exists regarding the facts surrounding the Last Chance Agreement.
Defendant's motion for summary judgment argues that Plaintiff cannot even show a prima facie case of employment discrimination since the City was never made aware of Plaintiff's disability. In addition, the Plaintiff cannot eliminate the legitimate, non-discriminatory causes for his firing — to wit, violation of the City's Zero Tolerance Policy and Last Chance Agreement.
Regarding the second cause of action, Defendant first argues that the cause of action for failure to provide an accommodation was not preserved in the Plaintiff's Notice of Claim pursuant to GOL § 50-e. Additionally, even if substantively considered, the City was never made aware of Plaintiff's disability and, further, even had it been, Plaintiff cannot show that an accommodation for the consumption of marijuana for medical purposes would have been able to be provided, given Plaintiff's safety sensitive duties.
In response, Plaintiff argues that he advised the City on numerous occasions that he possessed a medical marijuana certificate and that it was the City's responsibility to engage in conversation to determine Plaintiff's qualifying disability. Additionally, Plaintiff argues he did not have to use any specific language to request the accommodation. His communication regarding possessing a medical marijuana certificate triggered a response on the part of the City to investigate and engage in good faith interactions to determine Plaintiff's underlying condition. Further, the burden is on an employer to show that the accommodation requested could not allow Plaintiff to perform his safety sensitive job, and moreover, the performance would have had to apply to essential duties only. Plaintiff also argues that the prohibition in the zero-tolerance policy did not apply to legally prescribed medication. Lastly, Plaintiff argues that a notice of claim is not needed for human rights violations; that even if the Court deems it necessary, the notice of claim does not have to specify the actual causes of action that a plaintiff will allege, but merely put the municipality on notice of the events giving rise to the claim; and that, regardless of how the Court rules, the Defendant was not prejudiced by the addition of Plaintiff's second cause of action as it had plenty of opportunities to address and develop a factual record regarding it.
Defendant's reply argues that the City cannot be held liable without knowledge of Plaintiff's actual disability. Further, it cannot retroactively excuse Plaintiff's conduct that led to his firing, after finding out about his disability. Additionally, there were non-pretextual reasons for Plaintiff's firing such as violation of the Last Chance Agreement, and the employee was responsible to inform the City of his disability and the accommodation sought. Finally, Defendant could not "perceive" Plaintiff's disability, as Plaintiff argues, since the alleged disabilities were not readily observable — namely irritable bowel syndrome (IBS) and chronic pain.
The City's Zero Tolerance Policy applies to "every employee performing a ‘safety-sensitive function,’ " which is defined therein, in part, as "[l]oading or unloading a commercial motor vehicle, supervising or assisting in the loading or unloading, attending a vehicle being loaded or unloading, remaining in readiness to operate the vehicle, or giving or receiving receipts for shipments being loaded or unloaded" (see Zero Tolerance Policy annexed to Attorney Law's Affirmation as Exhibit A). Marijuana is included as a "prohibited drug" (see id. at p 5). The Policy also specifies,
Legal drugs: The appropriate use of legally prescribed drugs and non-prescription medications is not prohibited. However, the use of any substance which carries a warning label that indicates that mental functioning, motor skills, or judgment may be adversely affected must be reported to a city of Amsterdam supervisor and the employee is required to provide a written release from his/her doctor or pharmacist indicating that the employee can perform his/her safety-sensitive functions
(id. at p 8).
The Employee Handbook specifies
The City of Amsterdam complies with the requirements of the Americans with Disabilities Act (ADA)
as amended, the New York State Human Rights Law, and all other applicable federal, state and local laws. Consistent with those requirements, the City will reasonably accommodate qualified individuals with a disability (or pregnancy-related conditions) where such accommodation would allow the individual to perform the essential functions of the job, unless doing so would impose an undue hardship All requests for a reasonable accommodation should be made to the Director of Employee Relations
(Employee Handbook at p 4). Further, the handbook directs that City employees who use prescription medication or over the counter medication that may affect their driving ability "shall not drive City vehicles" (id. at p 14). Failure to comply with the City's drug policy is grounds for disciplinary action, including termination (id. at pp 19-20). Plaintiff signed the Employee Handbook when he commenced work for the City on July 20, 2017 (see Exhibit C to Law Affirmation).
Plaintiff was a member of the CSEA bargaining unit. In the union agreement, it is specified that the City may suspend employees without pay pending suspension or termination for reporting to work under the influence of drugs and/or alcohol (see Exhibit D to Law Affirmation at p 23).
The Last Chance Agreement (LCA) was signed by Plaintiff on March 17, 2017 (see Exhibit E to Law's Affirmation). In it, Plaintiff acknowledges he was selected for a random drug and alcohol test pursuant to the City's policies and refused to submit to the drug and alcohol test in violation of the City's policies . In consideration for the City agreeing not to terminate Mr. Apholz, he agreed to be suspended without pay for thirty calendar days; to comply with the city's recommendations and requirements of Substance Abuse Professional and execute necessary releases in order for the City to verify his compliance; and that any future violation of the City's Drug and Alcohol Testing Policies and Procedures, including a positive test or refusal o submit to a test, shall be deemed a violation of the LCA and may result in immediate termination (see id. ).
The facts are unclear regarding the incident that resulted in the LCA. Plaintiff testified he knew he would test positive and he had an anxiety attack at the testing facility, which eventually landed him in the emergency room of the hospital. There's also been reference to having attempted to use synthetic urine for the test.
The letter of termination provided to Plaintiff on March 16, 2020 references Plaintiff's failure of the drug test in coming back positive for marijuana on February 2, 2020, in violation of the City's drug policy and Last Chance Agreement (see Exhibit G to Law Affirmation).
In his 50-h deposition, Plaintiff testified that his job was dewatering the sludge — "[t]he poop that was in the tanks comes in and it goes on a press and we dewater it and load it in a truck" (Apholz 50-h hearing transcript at p 9 ¶¶ 13-16). His supervisor at the time of termination was Mike Clark, the City Engineer (id. at p 15). When asked about the first time he told anyone from the City that he was taking medicine, Plaintiff testified that it was "[t]wo weeks prior to the 16th [of March 2020], he [Mike Clark] informed [Plaintiff] that [Plaintiff] bombed [his] drug test and was being suspended with pay because Kim Brumley was on vacation" (id. at p 19 ¶¶ 6-10). Plaintiff also testified that the fist time he obtained a medical marijuana certificate was in April 2017 after a telehealth conference with a doctor, where he discussed his irritable bowel syndrome and chronic pain (id. at pp 22-23). The following exchange was also had during Plaintiff's 50-h hearing:
Q. When you were provided with a certificate for marijuana in 2017, did you notify anyone at the City that you had been provided wity a certificate for marijuana use?
A. No.
Q. Did you notify anyone in the City in 2018 that you had been provided with a certificate for marijuana use?
A. No.
Q. What about in 2019?
A. No.
Q. Okay, and you previously testified that you told Mike Clark that you had a certificate for marijuana use sometime in 2020?
A. Yes.
Q. And that was after you were informed of your drug test?
A. Yes....
Q. At that time that Mike Clark told you that you were going to have a random drug test issued by EMS support, did you tell him at that point in time that you had a valid certificate for marijuana?
A. No.
Q. And at no point in time to or from while you
were traveling with Mike did you mention that you had prescription for marijuana?
A. No.
Q. Or a valid certificate?
A. No.
(id. at pp 38-44).
Q. Have you ever presented the City with a doctor's note or a note from the pharmacist in Albany or wherever you have obtained products that contained THC or CBS, did you ever present the City with a note from either the doctor or the pharmacist demonstrating that you were receiving those products?
A. No.
Q. Just so I'm clear, you never presented the City with a letter from a doctor attesting to the fact hat you had a medical marijuana certificate?
A. No.
Q. Just so I'm clear, again, you never presented the City with a letter from a pharmacist attesting that you had a medical marijuana certificate?
A. No.
Q. Did you ever present a letter either form a doctor or pharmacist indicating that you could safely perform your job functions as a result or receiving medical marijuana?
A. No.
(id. at pp 54-55).
When asked if he has ever been diagnosed with having a disability at any time, Plaintiff responded in the negative (see id. at pp 60-61). Plaintiff's deposition transcript shows that when asked if he ever requested an accommodation in light of his medical marijuana certificate, or any of his medical or mental healthcare conditions while he was employed with the City, he answered in the negative (Apholz deposition transcript at pp 41-42).
Michael Clark was the City engineer and Plaintiff's supervisor at the time of Plaintiff's termination. He testified that part of Plaintiff's duties was to routinely operate the belt press room for dewatering sludge (Michael Clark deposition transcript at p 12). Travel by vehicle was a regular part of a wastewater treatment employee's job duties (id. at pp 16-17). On the day that Plaintiff tested positive for marijuana and Mr. Clark told him he was suspended with pay pending discipline, "[t]he only think [Plaintiff] said to [Mr. Clark] was [Plaintiff] ha[d] a medical marijuana card" (id. at p 23 ¶¶ 23-24). Mr. Clark also testified he communicated this information to Ms. Brumley, the City's director of employee relations (see id. at pp 27-27). Mr. Clark also testified that Plaintiff's position with the City was considered "safety sensitive" because "the wastewater treatment plant at which he worked had areas of confined space, there are fall hazards, there is machinery with — large machinery with moving parts, all of which require a position to be safety sensitive" (id. at p 35 ¶¶ 15-20). Plaintiff's position further required him to load or unload a commercial motor vehicle or supervise the loading or unloading of a commercial vehicle because he loaded the pressed dewatered sludge onto tractor trailers on most days (see pp 36-37).
Kim Brumley was the director of employee relations for the City of Amsterdam at the time of Plaintiff's termination. She testified that the City's policy regarding employees who possess medical marijuana cards is that "[i]t is the responsibility of the employee to notify the director of employee relations" (Kim Brumley deposition transcript at 16 ¶¶ 11-22). The decision to terminate Plaintiff was because he had tested positive for marijuana, in conjunction with his Last Chance Agreement (id. at p 21). Mr. Apholz was a safety sensitive employee because he was "responsible for the wastewater at the treatment plant. He [did] testing, he work[ed] on machinery, he [was] a — work[ed] with chemicals" (id. at pp 31-32). In fact, all the employees that worked in the wastewater treatment plant were safety sensitive and are subject to the City's zero tolerance drug and alcohol policy (id. at p 33). Further, all safety sensitive employees who possess medical marijuana certificates would still be subject to the zero drug and alcohol policy (id. at p 34). When asked what accommodation could the City offer for employees possessing medical marijuana prescriptions, Ms. Brumley testified that it would depend on their request and if their position allowed for the accommodation (id. at p 42). Even for safety sensitive employees who possess medical marijuana prescriptions, documentation would be required and "if that accommodation could be met, [the City] would try to provide it" (id. at p 45). Plaintiff never asked an accommodation from Ms. Brumley (id. at p 47). When asked if she would consider Mr. Apholz telling her he possessed a medical marijuana card after he was effectively terminated on March 16, 2020, as requesting an accommodation, Ms. Brumley answered in the negative (id. at pp 47-48; 50).
Sean Dufresne was an operator in the City wastewater plant and was in a supervisory capacity over Plaintiff for approximately two-week period (see Dufresne deposition transcript at p 14). He testified that he knew that Plaintiff had complaints of stomach problems and "he always complained of anxiety" "in passing" (id. at pp 15;17). He was not aware the Plaintiff possessed a medical marijuana prescription (id. at p 19). The only time where wastewater employees would drive a City vehicle was either from plant to plant or in the plant itself (id. at p 22).
LEGAL AUTHORITY AND ANALYSIS
On a motion for summary judgment, the movant bears the initial burden of setting forth evidentiary facts sufficient to entitle that party to judgment as a matter of law ( Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). If the moving party meets this burden, the opposing party must then produce "evidentiary proof in admissible form" to show that a question of fact exists requiring a determination by a trier of fact ( id. ). When determining a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party ( Vega v. Restani , 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ).
Executive Law § 296 makes it unlawful for an employer to discriminate against a person on the basis of his disability in compensation or in terms, conditions or privileges of employment (see NY Exec Law § 296 [a] ). Additionally, a reasonable accommodation must be provided to an employee with a disability which would enable the employee to perform in a reasonable manner the activities involved in the job or occupation sought or held, provided such actions do not impose undue hardship on the entity from which it is requested (see NY Exec Law § 296 [3] [a] ; 9 New York Administrative Code § 466.11 ). Under the Compassionate Care Act, being a certified patient (patient receiving care pursuant to New York Public Health Law § 3361 ), shall be deemed to be having a disability for purposes of human rights law ( NY Pub Health § 3369 [2] ). New York State Human Rights Law "does not immunize disabled employees from discipline or discharge for incidents of misconduct in the workforce" ( Hazen v. Hill Betts , 92 A.D.3d 162, 936 N.Y.S.2d 164, 2012 N.Y. Slip Op. 00047 [1st Dept. 2012] [internal quotations omitted]). "Nor is the employer required to retroactively excuse the misconduct as an accommodation" ( id. at 171, 936 N.Y.S.2d 164 ).
A plaintiff alleging disability discrimination must show that he was disabled and that he was terminated because of his disability or because of behavior that was caused by his disability (see Nande v. JP Morgan , 17 Misc. 3d 1103(A), 2007 N.Y. Slip Op. 51819(U), 2007 WL 2792155 [N.Y. Co., 2007] [citing State Div of Human Rights v. Xerox , 65 N.Y.2d 213, 491 N.Y.S.2d 106, 480 N.E.2d 695 [1985] [summary judgment granted for defendant where there was no evidence in the record that a jury could reasonably infer that plaintiff had been terminated because of his back injury or any behavior resulting therefrom]). To assert that he was refused an accommodation, a plaintiff would have to show that he is a person with a disability, the employer had notice of his disability, plaintiff could perform the essential functions of his job with a reasonable accommodation, and the employer refused to make the accommodation (see Gaughan v. Rubenstein , 261 F.Supp.3d 390, 2017 WL 2964818 [S.D.N.Y. 2017] ). An employer's duty to provide an accommodation does not arise absent the employee's request for one (see Nande supra , citing Pimentel v. Citibank , 29 A.D.3d 141, 811 N.Y.S.2d 381 [1st Dept. 2006] [granting summary judgment dismissing claim where the human resource department knew nothing of plaintiff's condition]).
To prevail on its summary judgment, the City must show that Plaintiff failed to establish every element of discrimination or "having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual" ( Forrest v. Jewish Guild , 3 N.Y.3d 295, 786 N.Y.S.2d 382, 819 N.E.2d 998, 2004 N.Y. Slip Op. 07620 [2004] ).
State courts’ interaction with medical marijuana statutes differs across the country. However, in sister states Massachusetts, Rhode Island, New Jersey, and Connecticut courts have found that an employee's claim of violation of human rights law in light of recent medical marijuana statutes protecting marijuana holders as disabled, does survive. In Massachusetts, the Supreme Judicial Court concluded that the state's general anti-discrimination law requires Massachusetts employers to reasonably accommodate employees’ off-site use of medically prescribed marijuana and prohibits the employers from terminating employees solely because they use medical marijuana use outside the workforce (see Barbuto v. Advantage , 477 Mass. 456, 78 N.E.3d 37 [2017] ). Further, Massachusetts employers cannot adopt blanket "zero tolerance" prohibitions on employees’ use of medical marijuana ( Id. ). However, Barbuto does not require a Massachusetts employer to accommodate an employee's medical marijuana use if such accommodation would violate the US Department of Transportation regulation prohibiting marijuana use by certain defined "safety-sensitive" employees ( id. ). In Rhode Island, the Superior court held that an employer's refusal to hire an individual based on her medical marijuana use violated Rhode Island's medical marijuana statute and the employer's conduct may have amounted to disability discrimination under Rhode Island Civil Rights Act (see Callaghan v. Darlington Fabrics , 2017 WL 2321181 [R.I.Super. Ct. 2017] ).
In New Jersey, the Supreme Court ruled that an employee may pursue a discrimination suit against his employer over claims he was fired in connection with his medical marijuana use (see Wild v. Carriage Funeral Holdings, Inc ., 458 N.J.Super. 416, 205 A.3d 1144 [App.Div. 2019] ). However, unless the statute expressly provides otherwise, the decriminalization for medical marijuana and the advent of legislation such as the Compassioned Caring Act, does not shield employees from adverse employment actions if it would impact the employee's essential job functions, or conflict with laws prohibiting operation of a motorized vehicle under the influence of marijuana ( id. ; see also , Employment Discrimination Law and Litigation, December 2022 Update, § 23:22.50).
Finally, adjudicating a case in Connecticut, the Federal court found that an employer's argument that it did not discriminate against an employee because it had terminated the employee for failing a drug test rather than based on her status as a medical marijuana user, was unconvincing and reasoned that to accept the employer's reasoning would render the equivalent of the protections of the New York Compassionate Care Act in Connecticut, a nullity (see Noffsinger v. SSC Niantic , 273 F.Supp.3d 326 ).
In New York, courts have not addressed this issue directly under the New York Human Rights Law (NYSHRL), but the ones addressing claims under the New York City's Human Rights Law (NYCHRL) have favorably distinguished the state law from the city legislation dealing with employment discrimination. Specifically, Gordon v. Consol Edison Inc ., stated that "[h]e State HRL defines status as a medical marijuana patient as protected disability, but the City HRL does not (190 A.D.3d 639, 140 N.Y.S.3d 512 [1st Dept. 2021] ; see also , Scholl v. Compass, Inc ., 2022 WL 2716950 [S.D.N.Y. 2022] [quoting Gordon supra ] [holding that under the New York City Human Rights legislation, "certification as a medical marijuana patient is a legal classification. It is not a ‘physical, medical, mental, or psychological impairment’ "]).
Secondary sources compiling a state-by-state status of employment discrimination legislation discuss the law in New York regarding medical marijuana use by confirming that a patient certified for medical marijuana use is deemed as having a disability. However, the law does not bar the enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance (see Employment Coordinator, April 2023 Update § 9:109)
Regarding the request for accommodation, "An employer who acts or fails to act without knowledge of a disability cannot be said to have discriminated based on that disability. [T]he notice requirement prevents an employee from keeping her disability a secret and suing later for failure to accommodate" ( Vitti v. Macy's Inc. , 758 Fed.Appx. 153, 157 [2d Circ. 2018] [internal quotations omitted]). However, the court in Malzberg v. New York University stated the following
An "employer is obligated to provide a reasonable accommodation when it perceives the employee to be disabled, whether or not the employee has asked for an accommodation." Miller v. McHugh , 814 F. Supp. 2d 299, 312 (S.D. N.Y. 2011) ; see also Brady v. Wal-Mart Stores, Inc. , 531 F.3d 127, 135 (2d Cir. 2008) ("[A]n employer has a duty to reasonably accommodate an employee's disability ... if the employer knew or reasonably should have known that the employee was disabled."); Lewis [v. Blackman Plumbing Supply L.L.C. ], 51 F. Supp. 3d [289] at 307 [(2014)] (stating that, once an employer is aware of an employee's disability, employer has "a duty to provide a reasonable accommodation ... regardless of whether [employee] explicitly requested a reasonable accommodation" (citations omitted)). And, regardless, a request for an accommodation need not be explicitly made with certain "formalisms"; rather, what is important is if the employer has "enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation." Goonan v. Fed. Rsrv. Bank of New York , 2014 WL 3610990, at *5 (S.D. N.Y. July 22, 2014). Here, as discussed, there are disputed facts that affect whether Defendant can be fairly said to
know of the disability. In terms of the desire for an accommodation, the record, when read in the light most favorable to Plaintiff, reflects that Plaintiff wanted to continue working for Defendant
...
"To trigger the duty to engage in the interactive accommodations process, the employer must have known, or have had sufficient notice such that the employer reasonably should have known, that the employee has a disability within the meaning of the Act , as opposed to a mere impairment." Costabile v. New York City Health & Hosps. Corp. , 951 F.3d 77, 81 (2d Cir. 2020).8 "[G]enerally, it is the responsibility of the individual with a disability to inform
the employer that an accommodation is needed." Graves v. Finch Pruyn & Co. , 457 F.3d 181, 184 (2d Cir. 2006) (internal quotation marks omitted); see also Felix [v. New York City Transit Authority ], 154 F. Supp. 2d [640] at 657 [(2001)] ("The general rule, therefore, is that the initial burden of requesting an accommodation is on the employee and it is only after such a request has been made that the employer must engage in the ‘interactive process’ of finding a suitable accommodation."). "What matters under the ADA are not formalisms about the manner of the request, but whether the employee ... provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation." Goonan , 2014 WL 3610990, at *5 (on motion to dismiss); see also Dipinto v. Westchester Cnty. , 2020 WL 6135902, at *6 (S.D. N.Y. Oct. 19, 2020) (same); Kurlender v. Ironside Grp., Inc. , 2019 WL 1317405, at *3 (E.D. N.Y. Mar. 22, 2019) (same); Quadir v. New York State Dep't of Lab. , 39 F. Supp. 3d 528, 540 (S.D. N.Y. 2014) (same).
( 2022 WL 889240, at *14 [S.D.N.Y. 2022 [emphasis added] ).
LEGAL ANALYSIS
Employment Discrimination Claim
It is important to note at the onset that, as this is Defendant's motion pursuant to CPLR § 3212, it bears the burden to show there are no issues of fact regarding Plaintiff's failure to meet all the elements for a cause of action of employment discrimination and the City's alleged failure to provide reasonable accommodation. Further, all evidence must be viewed in light most favorable to the non-moving party, here Plaintiff (see Vega supra ). The reasons given for Plaintiff's termination are the failed drug test, as well as the violation of the Last Chance Agreement, by testing positive for marijuana. While Defendant spends a considerable amount of time and effort trying to convince the Court that it was not aware of Plaintiff's underlying disabilities (IBS and chronic pain) and it could not "perceive" such disabilities, the plain language of the Compassionate Care Act state that "[b]eing a certified patient shall be deemed to be having a ‘disability’ under article fifteen of the executive law (human rights law)" ( Pub Health Law § 3369 [2] [emphasis added]). It would also appear that the limited case law in New York, as well as that of sister states, would interpret Plaintiff's certification as a medical marijuana user under the Compassionate Care Act, as a per se disability (as distinguished from the New York City Human Rights regulation which merely views it as a classification; c.f., Gordon supra at 516 [holding "The State HRL defines status as a medical marijuana patient as a protected disability, but the City HRL does not"] and Scholl supra ["Defendant s[ought] judgment only with respect to Scholl's second claim, alleging disability discrimination in violation of the [New York City Human Rights Law]"]).
It is undisputed that Plaintiff informed Michael Clark that he possessed a medical marijuana certificate immediately upon being notified of his positive drug test and being suspended with pay pending discipline for same. It is undisputed that Mr. Clark was the City Engineer and Plaintiff's supervisor. Mr. Clark testified he informed Ms. Brumley of this fact. While Plaintiff testified that he never informed his employer of his disability, the law provides that his status as a medical marijuana certificate holder is a deemed to be having a disability. Therefore, while Plaintiff may not have been aware of this legal maxim, the director of employment relations, in consultation with the City's labor attorney, should have been (see Brumley deposition transcript at pp 23, 24, 34 [discussing having consulted with the City labor attorney prior to terminating Plaintiff; testifying she would need to consult with the City labor attorney regarding whether employee possessing a medical marijuana prescription would be subject to the Zero Tolerance Policy; whether permission for legally prescribed drugs and nonprescription medication applied to medical marijuana; and whether an employee's medical marijuana prescription would violate a Last Chance Agreement]).
Although not having informed Ms. Brumley directly of his lawful use of prescribed medication as required in the Employee Handbook, Ms. Brumley was nonetheless made aware of Plaintiff's disability pursuant to the Compassionate Care Act. Despite his direct supervisor being informed that he had a disability as defined under the Compassionate Care Act, and the director of employee relations being informed of same, neither Mr. Clark nor Ms. Brumley engaged Plaintiff in communication regarding his disability, but rather, Plaintiff was terminated for testing positive for marijuana on his drug test. Since his termination was motivated by the result of Plaintiff's using medically prescribed marijuana pursuant to his certification, Defendant failed to eliminate issues of fact as to whether Plaintiff's termination, in light of his disability, was discriminatory.
Further, Defendant's second alleged reason for Plaintiff's termination does not save the day. In the Last Chance Agreement, Plaintiff agreed that any future violations of the City's Drug and Alcohol Testing Policies and Procedures, including a positive test, should be deemed to be a violation of the LCA (see Exhibit E). However, as discussed above, Defendant has failed to establish as a matter of law that Plaintiff's positive drug test for marijuana, in light of his disability and medical marijuana certification, is a violation of the City's Drug and Alcohol Testing Policies and Procedures since said policies and procedures permit him to use lawfully prescribed medicine.
It is worth noting that the City's argument regarding the distinction between a disability and a disability-caused conduct, which cites mostly alcohol related cases, is not convincing, since the holding of a medical marijuana certificate is deemed to be having a disability, a decision that can be made as a matter of law, by this Court, in light of the § 3369 of the New York Public Health Law (c.f. , Defendant's Reply Memorandum at pp 4-5).
Failure to Provide Reasonable Accommodation Claim
While it is true that Plaintiff would bear the burden to show a request was made of and refused by the employer, on the employer's motion for summary judgment, the City must eliminate all issues of fact as to whether a request was made. While the record shows Plaintiff denied having asked for an accommodation, the record also indicates that he told his supervisor he possessed a medical marijuana certificate once he was notified that he failed his drug test. This appears to be sufficient information that the City can be fairly said to know of the disability and Plaintiff's desire for an accommodation (see Malzberg supra ). The inference must be drawn in Plaintiff's favor and it can be inferred from his statement that he was requesting the accommodation be made to permit him to use medical marijuana despite the existence of the City's Zero Tolerance drug policy. No formalistic language is required (see Malzberg supra ); see also Gordon supra [holding that issues of fact existed as to whether employer should have permitted plaintiff to treat her IBD through the medical use of marijuana, as a reasonable accommodation]; Phillips v. City of New York , 66 A.D.3d 170, fn. 7, 884 N.Y.S.2d 369, 2009 N.Y. Slip Op. 05990 [1st Dept. 2009], rv'ed on other grounds by Jacobsen v. New York City , 22 N.Y.3d 824, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014], [citing Equal Employment Opportunities Commission's Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, which states that "[m]odifying workplace policies is a form of reasonable accommodation"]; Kluge v. Town of Tonawanda , 176 A.D.3d 1370, 111 N.Y.S.3d 710, 2019 N.Y. Slip Op. 07470 [3d Dept. 2019] [holding that the Worker's Compensation Board should have considered a claimant's variance request for prospective medical marijuana treatment]).
The City also bears the burden to show that the accommodation could not be made without compromising Plaintiff's essential job functions (see Louis Harris, Inc . v. deLeon , 84 N.Y.2d 698, 622 N.Y.S.2d 217, 646 N.E.2d 438 [1994] ). Similar to the facts in Gordon supra , there is no testimony in the record that Plaintiff's use of marijuana, either before or after certification, has ever affected the quality of his work or his ability to do that work, or that he has ever used marijuana, medicinal or otherwise, at the workplace ( Gordon at 516 ). In fact, both his supervisors testified that they were unaware of any disciplinary matters regarding Plaintiff's job performance or had any issues with his performance (see Clark deposition transcript at p 12; Dufresne deposition transcript at pp 14-15).
It does appear, however, that Plaintiff was a safety sensitive employee as defined in the Employee Handbook. He drove a vehicle on his job, as well as assisted and loaded a commercial vehicle as part of his daily job duties. Given that his possessing a medical marijuana certificate was not immediately recognized as a disability, although it should have at least been perceived as one, the record is devoid of any discussion as to whether a reasonable accommodation could have been provided to Plaintiff, one that would have continued to allow him to perform the essential functions of his safety sensitive job. The Court cannot decide as a matter of law that the Plaintiff's medically prescribed treatment for his disability — to wit his use of medical marijuana — could have been reasonably accommodated, even though testimony indicated that all employees of the Wastewater department were safety sensitive employees. The record is silent as to whether any reasonable accommodation could have been made for Plaintiff's prescribed medical marijuana use given his safety sensitive position. The Court is not told if Plaintiff's duties could have been limited or if his position could have been changed to accommodate the prescribed medical marijuana use. In fact, the record is silent as to whether this accommodation was considered at all.
On the record before it, the Court is required to view this failure to address the availability or unavailability of a reasonable accommodation in light most favorable to the Plaintiff and cannot decide same as a matter of law (see Jacobsen supra at 837, 988 N.Y.S.2d 86, 11 N.E.3d 159 [holding that an "employer normally cannot obtain summary judgment on a State HRL claim unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation;" but "at trial on a State HRL claim, the plaintiff employee still bears the burden of proving the existence of a reasonable accommodation that would have enabled the employee to perform the essential functions of his or her position"]).
UPON reading all the pleadings as identified herein; it is hereby
ADJUDGED that Defendant failed to eliminate all issues of fact regarding whether Plaintiff was terminated based on his disability; whether the medically prescribed treatment for his disability violated Defendant's policies and the Last Change Agreement; and whether Plaintiff's disability could have been reasonably accommodated in light of his safety sensitive position with the City; it is therefore
ORDERED that Defendant's motion is hereby denied in its entirety.
This Order shall constitute the Decision and Order of the Court.