Summary
employing "solely by reason of" inquiry in action under the New York State Executive Law involving an alleged disability
Summary of this case from Jones v. Associated Universities, Inc.Opinion
November 22, 1993
Adjudged that the determination is confirmed and the proceeding is dismissed, on the merits, with costs.
The petitioner was found guilty of 47 separate specifications of misconduct relating to absenteeism, tardiness, and failure to provide requested documentation for absences between March 13, 1989 and June 18, 1990. While he does not challenge this finding, he does assert that the termination of his employment must be annulled as violative of both the New York State Human Rights Law and the Federal Rehabilitation Act of 1973, because his absences were due to alcoholism and alcoholism is a disability for which he cannot be punished. We disagree.
Aside from the fact that the record does not clearly establish a connection between the petitioner's attendance abuses and his alleged alcoholism, it is well settled that the New York State Human Rights Law would not bar the dismissal of one whose disability prevents him from performing his assigned duties (see, Matter of Miller v Ravitch, 60 N.Y.2d 527, 532). Thus, while the petitioner may not be discharged solely because of his alleged alcoholism, his employment may be terminated when his alcoholism prevents him from coming to work on an inordinate number of occasions. Further, the petitioner has not demonstrated that the Federal Rehabilitation Act of 1973 is applicable here or that its application would warrant a different result.
Finally, taking into account the petitioner's prior attendance infractions and warnings, we do not find the penalty of termination of his employment excessive (Matter of Pell v Board of Educ., 34 N.Y.2d 222, 231). Thompson, J.P., Rosenblatt, Miller and Ritter, JJ., concur.