Dan Buckley v. Consolidated Edison Company of New York, Inc.

Citations: 127 F.3d 270; 7 Am. Disabilities Cas. (BNA) 794; 1997 U.S. App. LEXIS 27631; 1997 WL 616686Docket: 1224

Court: Court of Appeals for the Second Circuit; October 8, 1997; Federal Appellate Court

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Dan Buckley, the plaintiff, appealed a judgment from the United States District Court for the Southern District of New York, which dismissed his complaint against Consolidated Edison Company (Con Edison) for failing to state a claim under the Americans with Disabilities Act (ADA). The case highlights two types of discrimination: one that is not federally prohibited and another that is, with the district court mistakenly focusing only on the former. The appeals court vacated the district court's judgment and remanded for further proceedings.

Buckley, a recovering drug and alcohol addict employed by Con Edison from 1976 to 1994, was required to undergo random drug testing due to his history as a substance abuser. He also suffers from a medical condition, a neurogenic bladder, which complicates his ability to provide a urine sample on demand. On June 24, 1994, when ordered to provide a urine sample, he was unable to do so in the required timeframe despite asking for more time. He subsequently obtained a urine sample independently and submitted it to Con Edison. However, he was terminated on July 1, 1994, for failing to provide a sample within the allotted time.

Buckley claimed that his termination violated the ADA and the New York Human Rights Law. Con Edison moved to dismiss his complaint, which the district court granted, resulting in the dismissal of Buckley's federal claims and a subsequent refusal to consider his state law claims. Buckley is now appealing this dismissal.

The ADA prohibits discrimination against qualified individuals with disabilities, requiring a plaintiff to demonstrate two key elements: (1) they are a qualified individual with an ADA-covered disability, and (2) discrimination occurred due to their disability. The ADA defines 'disability' as a significant physical or mental impairment, a record of such an impairment, or being regarded as having one. Although Buckley admits that his neurogenic bladder condition does not qualify as a disability, he asserts that being a recovering drug addict does.

While the ADA excludes individuals currently using illegal drugs from its protections, it does include those who have completed rehabilitation and are no longer using drugs. Recovering addicts must still prove they have a disability under the ADA, which includes showing that their impairment substantially limits major life activities. However, mere status as a recovering addict may not suffice for this demonstration.

Importantly, under the ADA, a plaintiff may also establish a disability by proving a record of impairment. Therefore, if drug or alcohol addiction is considered an impairment, recovering addicts who are not currently using drugs qualify under this definition. Other judicial circuits have recognized drug and alcohol addiction as impairments that substantially limit major life activities, affirming their status as disabilities under the ADA. The document also cites previous rulings that support the notion that substance abuse is considered a disability, relevant to interpreting the ADA in conjunction with the Rehabilitation Act standards.

The legislative history of the Americans with Disabilities Act (ADA) confirms its applicability to recovering addicts, explicitly stating that "physical or mental impairment" encompasses drug addiction and alcoholism. Reports indicate that while the law removes protections for current illegal drug users, it preserves coverage for individuals with a past drug problem or those perceived as currently using. The Equal Opportunity Employment Commission (EEOC) asserts that individuals who are no longer using drugs illegally and are undergoing treatment or have been rehabilitated are protected from discrimination due to past drug addiction. Importantly, a claim under the ADA requires demonstrating past addiction, not just past use; casual drug use does not qualify as a disability. To succeed in his claim, Buckley must prove he was addicted to drugs or alcohol in the past and that this addiction substantially limited his major life activities. His references to a history of "dependence" on drugs and alcohol suggest he may have established this basis for a claim under Rule 12(b)(6).

Regarding discrimination, Buckley must allege sufficient facts to support a claim of discrimination based on his disability. While the ADA permits employers to implement drug testing policies, including requiring more frequent testing for employees with a history of addiction, any differential treatment must include reasonable accommodations for known limitations associated with the disability. In the absence of such accommodations, the increased frequency of drug testing for recovering addicts compared to non-addicts may constitute a violation of the ADA.

Con Edison's urine test requirement results in two discriminatory outcomes. The first outcome, which does not violate the ADA, differentiates between employees with neurogenic bladders and those without; the former may be terminated due to their inability to provide urine samples, while the latter are not at risk of termination if they test negative. Since neurogenic bladders are not classified as a disability under the ADA, this differential treatment is permissible. 

The second outcome, however, does constitute a prima facie violation of the ADA. Employees with neurogenic bladders who are also recovering drug addicts face more frequent testing—approximately once a month—compared to non-addicts, who are tested every five years. This results in recovering addicts being dismissed sooner solely due to their status as addicts, which is an ADA-covered disability. Although employers are not required to accommodate if it imposes undue hardship, the plaintiff suggests reasonable alternatives, such as allowing additional time to urinate or permitting blood tests instead of urine samples.

These accommodations address the plaintiff's condition related to his bladder, but they fundamentally accommodate his disability as a recovering addict, which is protected under the ADA. Thus, Con Edison’s refusal to make such accommodations constitutes a violation of the ADA. While Buckley may not recover for damages resulting from his eventual dismissal after five years, he can seek damages related to his premature termination. Consequently, the district court's dismissal of Buckley's complaint is vacated, and the case is remanded for further proceedings.

Circuit Judge Kearse dissents from the majority's decision to reinstate Dan Buckley's amended complaint against Consolidated Edison Company of New York under the Americans with Disabilities Act (ADA). Kearse contends that the majority misapplies the ADA by allowing a claim based on a condition that does not qualify as a disability under the Act. The ADA prohibits discrimination against qualified individuals with disabilities, but Kearse emphasizes that Buckley must show discrimination was due to a disability. 

Kearse highlights two significant flaws in the majority's reasoning: first, the plaintiff must allege discrimination 'because of the disability'; and second, the ADA does not require accommodations for impairments that do not meet the definition of a disability. In this case, Buckley, a recovering substance abuser, was terminated for failing to provide a urine sample during a drug test, which he attributes to a neurogenic bladder condition. However, he explicitly states that this condition is not claimed as a disability under the ADA. 

Kearse notes that Buckley's inability to produce a urine sample is unrelated to his status as a recovering addict and does not arise from a disability covered by the ADA. Therefore, Buckley has not established a valid claim under the Act, as the condition he seeks accommodation for is not recognized as a disability, leading to his termination not being a violation of the ADA.

Con Edison is accused of discriminating against Buckley, a recovering substance abuser, by subjecting him to more frequent drug testing compared to employees with neurogenic bladder conditions who are not recovering addicts. The ADA permits reasonable drug testing policies for former substance abusers to ensure they are not using illegal drugs, which means it is not inherently discriminatory for an employer to require more frequent testing of these individuals. The majority's ruling suggests that Con Edison discriminated against recovering addicts due to the disparity in testing frequency—once a month for recovering addicts versus once every five years for non-addicts—resulting in a quicker termination for the former. However, the argument overlooks that frequent testing of recovering addicts is allowed under the ADA. The complaint fails to assert that Buckley was fired due to his status as a recovering addict or that Con Edison did not accommodate his neurogenic bladder condition, which is not classified as a disability under the ADA. The judge concludes that the dismissal of the case should be affirmed as the claims do not meet the criteria for relief under the Act. Additionally, the testing frequency of non-addict employees remains unclear, complicating the discrimination argument further.