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Cotto v. Rochester City School District

United States District Court, Second Circuit

August 26, 2013

ANGEL L. COTTO, Plaintiff,

Angel L. Cotto, pro se, Rochester, New York, for Plaintiff.

Cara M. Briggs, Esq., Rochester City School District, Rochester, New York, for Defendant.


CHARLES J. SIRAGUSA, District Judge.


This is an action alleging employment discrimination in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. ยง 12101 et seq. Defendant terminated Plaintiff's employment after he tested positive for cocaine use, at a time when he was using cocaine on a weekly basis. Now before the Court is Defendant's motion for summary judgment (Docket No. [#15]). The application is granted.


The following are the undisputed facts of this case, viewed in the light most-favorable to Plaintiff as the non-moving party. Plaintiff was formerly employed by the defendant school district as a stock handler. In that capacity, Plaintiff was a member of a labor union, the Board of Education Non-teaching Employees, BENTE/AFSCME Local 2419, which had a collective bargaining agreement ("CBA") with the School District. During part of the time that he was employed by school district, Plaintiff was an elected officer of that union.

Plaintiff was aware that the School District had a "drug free workplace" rule, which prohibited him from using illegal drugs at work or at any time if the effects of the illegal drugs would impair the performance of his duties. In connection with that policy, the School District established an Employee Assistance Program ("EAP"), to "provide appropriate and confidential prevention, intervention, assessment, referral, support and follow-up services for district staff." Docket No. [#10] at p. 106.

On November 14, 2008, Plaintiff was working in a warehouse when his female supervisor, Myrna Matos ("Matos") directed him to turn off the radio to which he was listening. Plaintiff refused, and an argument ensued. See, Docket No. [#15-5], Pl. Dep. at 13. Matos reported the incident and indicated that she had been fearful that Plaintiff would assault her during their argument. Subsequently, Matos' supervisor, Gary Smith ("Smith"), sought to have Plaintiff suspended, and to have Plaintiff immediately tested for drug usage. On this point, the record suggests that the District's Human Resources office specifically requested that Plaintiff be tested, not based solely on the particular incident with Matos, but because Plaintiff also had a "history of being late and not calling in." See, Docket No. [#10] at p. 230. Plaintiff initially refused to take a drug test, but provided a urine sample later in the day. However, the testing laboratory indicated that the urine sample was "invalid, " because it was too small. The School District deemed Plaintiff's submission of the invalid sample to be a violation of the drug policy, and suspended Plaintiff for two weeks, without pay. To avoid the suspension, though, Plaintiff and the union worked out a "Last Chance Agreement" with the District, under which Plaintiff agreed to participate in the Employee Assistance Program ("EAP") and to submit to random drug testing for one year. Further, as part of that agreement, Plaintiff agreed that his employment could be terminated if he either tested positive for drug use or failed to comply with the testing procedures.

On September 28, 2009, Plaintiff was directed to report for drug testing at 2:30 p.m. However, Plaintiff failed to appear at that time, though he appeared later that day. Such failure was a violation of the Last Chance Agreement. See, Docket No. [#10] at p. 100.[1] The following day, the School District terminated Plaintiff's employment. As part of the aforementioned Last Chance Agreement, Plaintiff had agreed that if he violated the terms of the agreement, the termination of his employment would be "non-grievable" under the CBA. See, Docket No. [#10] at p. 100. Nevertheless, Plaintiff approached a member of the Rochester City School Board, Melisza Campos ("Campos"), and asked her to intervene for him, which she did. Thereafter, on September 28, 2009, the School District entered into a second "Last Chance Agreement" with Plaintiff, similar to the first one. Specifically, the second "Last Chance Agreement" required Plaintiff to participate in the EAP and to undergo drug testing. The agreement further indicated that Plaintiff's job performance would be closely monitored.

With regard to Plaintiff's participation in the EAP program, he executed release forms, allowing EAP to release certain information to the School District, about his attendance at EAP appointments, his willingness to participate in treatment and accept referrals, and whether the EAP counselors were recommending that he receive treatment. See, Docket No. [#10] at pp. 126-127. However, there is no indication in the record that EAP ever provided such information to the District. Consequently, there is no indication that EAP told the District anything about the fact or extent of Plaintiff's drug usage, or whether Plaintiff had a drug addiction. In any event, there is no indication in the record that Plaintiff ever told his EAP counselor that he used drugs. Instead, Plaintiff indicates that he only told his EAP counselor that he used alcohol. See, Docket No. [#15-5], Pl. Dep. at p. 47. The EAP counselor subsequently released Plaintiff from the EAP program after Plaintiff tested negative.[2] (Docket No. [#15-5], Pl. Dep. at p. 47). Plaintiff never told his EAP counselor that he needed or wanted any "additional support." Id. Nor did Plaintiff ever tell anyone else at the school district that he needed additional support to deal with a drug habit. Id. at 47-48.

In or about September, 2010, the district directed Plaintiff to report for drug testing, pursuant to the Last Chance Agreement. However, Plaintiff asked his supervisor if he could go home to avoid the testing, because he knew that he would test positive for drug use. Specifically, Plaintiff told his supervisor, "I'm dirty. Come on man. I messed around. I made some mistakes and I'm dirty. Let me go home." (Docket No. [#15-5], Pl. Dep. at 36; see also, id. at 36-38). Plaintiff told his supervisor that he was "going through a lot of stuff" in his personal life. Id. at 37. Plaintiff further told his supervisor, "I made a mistake and I have done it [used drugs] a couple times." Id. at 38. The supervisor, Ernie Pavone ("Pavone"), allegedly acceded to Plaintiff's request, and told his supervisors that Plaintiff was not at work that day. Consequently, Plaintiff avoided taking the test that day.

Thereafter, on October 12, 2010, Plaintiff was again directed to report for drug testing, at which time he gave a urine sample. However, the testing laboratory determined that the sample was diluted. Therefore, the School District required Plaintiff to appear again for testing, on October 20, 2010, at which time the laboratory collected both a urine sample and a hair sample. Plaintiff's hair sample tested positive for cocaine use. (Pl. Dep. at 37-38).

Plaintiff does not deny that the hair test result was accurate, since he was actively using cocaine at that time. Plaintiff states: "I was doing cocaine. So I was doing it maybe once a week, once every two weeks. I was going through a lot of stuff." (Pl. Dep. 39). More specifically, Plaintiff indicates that he was actively using cocaine, both before and after Defendant terminated his employment:

Q. Was your use of cocaine something that was a once-in-a-while thing?
A. Every freaking Friday - every Friday - every time when Friday came along.
Q. Do you know how many years it was that you used cocaine?
A. A few years. Eight, nine years.
Q. When did you stop using cocaine?
A. When I lost my job.
Q. In 2010?
A. (Nonverbal response.)
Q. You lost your job in October ...

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