Plaintiff's final proposal -- a monitor whose identity would have remained unknown to him, and thus need not be revealed to the defendants or the court at this juncture -- is a deus ex machina, not a viable alternative to the three possible monitors discussed above. Plaintiff has not suggested how someone who would regularly and closely observe plaintiff's performance and behavior, and when need be would question or challenge plaintiff about his conduct, could be expected to keep his identity as plaintiff's monitor secret; nor has he explained who such a monitor would be, or how the monitor's anonymity would help matters. See Altman Dep. at 711-13.
In short, the court concludes that plaintiff would have posed a "significant risk of substantial harm" to Metropolitan's patients if defendants had restored him to his old post, and that none of the accommodations suggested by plaintiff would have eliminated that risk or reduced it to a manageable level; nor, in view of the considerable difficulties involved in monitoring a Chief of Service's performance, can the defendants be faulted for failing to devise some other scheme to safeguard patients against the possible harmful consequences of a relapse. Accordingly, the court concludes that defendants were not required to reinstate plaintiff as Chief of Medicine in January of 1993.
2. Additional Considerations
Although the discussion in the previous section is phrased in terms of a "direct threat," it should be emphasized that even if the court ignored the risk of harm to patients that would have resulted from plaintiff's reinstatement as Chief of Medicine, the court would nonetheless conclude that HHC and Metropolitan were justified in not reinstating plaintiff. The Chief of Medicine's decisions as to the proper treatment of patients have the most immediate impact on patients' welfare, and it is because the Chief must make such decisions that the "direct threat" analysis is applicable in this case. But it is also the Chief's job to make many other hard decisions which ultimately affect the quality of the care that patients receive: his responsibilities for assignment of personnel within the different areas of the Department, for evaluation of staff, and for overseeing the departmental "quality control" program, are just a few of the duties which require him to make such decisions. In making these choices, the Chief also plays a vital role in shaping the professional lives of the 150 physicians, staff members and residents in the Department.
Due to the nature of the Chief's responsibilities, if plaintiff had relapsed after being reinstated, he would have been in a position to make decisions having a significant impact on the well-being of others while his judgment was impaired; and that would have been a recipe for disaster. It is true that a monitor might, after a time, have detected a relapse and, after more time, have procured plaintiff's removal; but whatever mistakes plaintiff had made in the interim -- mishandling of departmental budget emergencies, misassignment of staff, mismanagement of disciplinary problems or feuds among staff members, misinstruction of medical students (and, of course, mistreatment of patients) -- would have been difficult, or perhaps impossible, for the hospital to undo. Moreover, it cannot be said that, three months after plaintiff had been found on the job while intoxicated, and two months after he left Smithers with that institution's final assessment of him being that he "remained in denial" and "underestimated his disease," see supra note 8, the possibility of a relapse was a speculative or remote one.
Under these circumstances, it is impossible to avoid the conclusion that plaintiff was unqualified to serve as Chief of Medicine. The policy behind the ADA is to require that an employer make "reasonable accommodations" for a disabled individual, not to force an employer to make accommodations whose costs to the employer or to the public are out of all proportion to the benefit to the individual. Vande Zande v. State of Wisconsin Dep't of Admin., 44 F.3d 538, 542-43 (7th Cir. 1995). In light of that policy, it is the court's view that HHC and Metropolitan were under no legal obligation to stake the welfare of the patients and staff of the Department of Medicine on plaintiff's uncertain recovery prospects. Rather, defendants provided a sensible and generous accommodation for plaintiff when they offered to allow plaintiff to return as an attending physician, a position in which patients would be adequately safeguarded by the Department's formal and informal mechanisms for evaluation of plaintiff's performance -- and, of course, by the Chief of Medicine's supervision of plaintiff. See Guice-Mills v. Derwinski, 967 F.2d 794, 798 (2d Cir. 1992) (offer of reassignment to alternate position, without significant loss of pay and benefits, is "a 'reasonable accommodation' virtually as a matter of law"); see also Vande Zande, 44 F.3d at 545.
3. "Administrative and Other Realities "
Plaintiff argues that defendants' apprehensions concerning a relapse, and the difficulties of monitoring plaintiff in the workplace, were not the real reasons for defendants' decision not to reinstate him as Chief of Medicine. Rather, he claims that these were "pretexts" devised by the defendants to explain their decision to remove him from a highly visible position in the hospital and the community, and thus to avoid having to confront the anti-alcoholic prejudices of staff and community members. Pl.'s Br. at 19-20, 23-25; Pl.'s Reply Br. at 9-11. In support of this argument, plaintiff notes that (1) despite defendants' asserted concern for patients' health and welfare, plaintiff returned to Metropolitan as an attending physician on June 29, 1993, with Dr. Stone as his "professional monitor", and was allowed to undertake "ward attending" duty; and (2) Dr. Jones took into account "administrative and other realities," Pl.'s Br. at 19 (quoting Stone Dep. at 26), including the community's negative reaction to the events of September 30, 1992, when he decided not to reinstate plaintiff as Chief of Medicine.
Since defendants readily admit that plaintiff's disability was the reason for their decision not to reinstate him as Chief, plaintiff's emphasis on the "pretext" analysis applicable elsewhere in discrimination law is somewhat misplaced. See Teahan v. Metro-North Commuter R.R. Co., 951 F.2d 511, 514-15 (2d Cir. 1991), cert. denied, 121 L. Ed. 2d 24, U.S. , 113 S. Ct. 54 (1992). More importantly, however, plaintiff's argument is wholly unconvincing. As to plaintiff's first point, it is true that the risk of a relapse still existed at the end of June 1993, when plaintiff returned to Metropolitan; but by that time, plaintiff had been in full compliance with his treatment and recovery program for nine months. Moreover, as noted above, see supra page 26, the Chief of Medicine's supervision of plaintiff, and the departmental mechanisms for evaluating plaintiff's performance, served to protect patients against the possible consequences of a relapse.
Nor does plaintiff advance his case in any way by emphasizing Dr. Jones' and Mr. Gowie's concerns over patients' and staff members' negative reaction to the events of September 30, 1992. Plaintiff's conduct on that date which was grounds not only for his termination from Metropolitan, but for suspension or revocation of his medical license. Neither his coworkers, nor his patients and the patient community, nor his employer were obligated to condone his actions; to the contrary, the very statute on which plaintiff now relies "clearly contemplate[s] distinguishing the issue of misconduct from one's status as an alcoholic." Maddox v. Univ. of Tennessee, 62 F.3d 843, 1995 WL 493800, at *6 (6th Cir. 1995); see 42 U.S.C. § 12114(c)(1), (2), (4). If a university is justified in firing an alcoholic assistant football coach because it is "embarrassed" by the negative publicity resulting from an off-hours drunk driving incident, see Maddox, then surely defendants were justified in taking into consideration, along with the other issues discussed above, the negative reaction of some members of the staff and patient community to plaintiff's serious breach of his professional obligations.
II. New York Executive Law
Section 296 of New York's Executive Law prohibits discrimination in employment on the basis of an individual's actual or perceived disability. Although alcoholism is a "disability" for purposes of § 296, McEniry v. Landi, 84 N.Y.2d 554, 620 N.Y.S.2d 328, 330, 644 N.E.2d 1019 (Ct. App. 1994), plaintiff can recover from the defendants only if, despite his disability, he could have performed his duties as Chief of Medicine "in a reasonable manner" had he been reinstated. N.Y. Exec. Law § 292(21). For the reasons given in Section I.B., the court concludes that, had plaintiff been restored to his old post, he could not have performed his duties in a manner which involved "reasonably" limited risk of harm to third parties. Accordingly, plaintiff's claim under § 296 is dismissed.
Summary judgment is granted in favor of defendants on all claims asserted by plaintiff, and this action is dismissed.
Dated: New York, New York
September 27, 1995
JOHN S. MARTIN, JR., U.S.D.J.