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Makinen v. City of New York

United States Court of Appeals, Second Circuit

May 22, 2017

KATHLEEN MAKINEN, JAMIE NARDINI, Plaintiffs-Appellees-Cross-Appellants,
v.
CITY OF NEW YORK, RAYMOND W. KELLY, as Police Commissioner of the City of New York, DANIEL J. SWEENEY, individually and in his official capacity, Defendants-Appellants-Cross-Appellees.

          Argued: March 9, 2017

         We consider a provision of the New York City Human Rights Law ("NYCHRL") that defines only "recovering" or "recovered" alcoholics as having a "disability." See N.Y.C. Admin. Code § 8-102(16)(c). The United States District Court for the Southern District of New York (Carter, J.) held that individuals regarded as untreated alcoholics may state a claim under the NYCHRL because analogous claims are available under New York State and federal law. In the absence of authority from New York courts, we cannot predict with confidence how the New York Court of Appeals would reconcile the broad, remedial purpose of the NYCHRL with the specific language of section 8-102(16)(c). Accordingly, we defer decision on this appeal and cross- appeal in order to certify the following question: "Do sections 8-102(16)(c) and 8-107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?"

          Lisa F. Joslin, Gleason, Dunn, Walsh & O'Shea, Albany, NY, for Plaintiffs- Appellees-Cross-Appellants.

          Kathy Chang Park (Richard Dearing and Devin Slack, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellants- Cross-Appellees.

          Before: SACK, LIVINGSTON, and LOHIER, Circuit Judges. [*]

          LOHIER, Circuit Judge:

         In this disability discrimination case we consider a provision of the New York City Human Rights Law ("NYCHRL") that, as relevant to this appeal, defines the term "disability" in a way that excludes alcoholics who are not "recovered" or "recovering" from the protection of the statute. See N.Y.C. Admin. Code § 8-102(16)(c). Plaintiffs Kathleen Makinen and Jamie Nardini brought suit under the NYCHRL and its New York State and federal counterparts alleging discrimination based on a mistaken perception that they were alcoholics. The City of New York and the individual defendants, former Commissioner Raymond W. Kelly of the New York City Police Department ("NYPD") and NYPD Sergeant Daniel J. Sweeney, argued principally that the plaintiffs' claims were barred by the plain text of the NYCHRL because the plaintiffs were not (and were not perceived to be) recovered or recovering alcoholics. On summary judgment and again on a post-trial motion after a jury verdict partly in favor of the plaintiffs, the United States District Court for the Southern District of New York (Carter, J.) held that individuals regarded as untreated alcoholics may state a claim under the NYCHRL because analogous claims are available under both the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The defendants appealed, urging certification of the question to the New York Court of Appeals.

         In the absence of authority from New York courts, we cannot predict with confidence how the New York Court of Appeals would reconcile the broad, remedial purpose of the NYCHRL with the specific language of section 8-102(16)(c). Accordingly, we defer decision on this appeal and cross-appeal in order to certify the following question: "Do sections 8-102(16)(c) and 8- 107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?"

         BACKGROUND

         Makinen and Nardini served as NYPD officers for several years, during which each was referred to the NYPD's Counseling Services Unit ("CSU"). CSU offers treatment and rehabilitation for officers struggling with substance abuse. Once an officer is referred to CSU with alleged alcohol-related problems, a trained counselor conducts an intake interview and contacts references to gather information regarding the officer's reported alcohol use. If an officer is diagnosed with an alcohol-related condition, CSU staff develop a personal treatment plan, potentially consisting of educational videos, counseling, Alcoholics Anonymous meetings, outpatient treatment, or inpatient treatment. An officer who refuses treatment is referred to the NYPD's Medical Division, which may direct the officer to undergo treatment. That direction constitutes an order with which the officer must comply or face disciplinary action. The officer is entitled to challenge the disciplinary action in administrative proceedings by filing a grievance with the agency that oversees CSU or through an Article 78 proceeding. Otherwise, once an officer is diagnosed with an alcohol-related problem, receipt by CSU of subsequent evidence of alcohol consumption triggers a mandatory reassessment and, potentially, further treatment.

         Officers Makinen and Nardini were referred to CSU by an ex-husband and an ex-boyfriend, respectively. Each received an alcohol-related diagnosis and was directed to undergo treatment. As it turned out, the parties agree, Makinen and Nardini were not actually alcoholics.[1] They filed suit in New York Supreme Court, claiming primarily that the defendants mistakenly perceived that they were alcoholics and discriminated against them on the basis of that perceived disability, in violation of the NYCHRL, NYSHRL, and ADA. The defendants removed the case to federal court and moved for summary judgment. The District Court granted partial summary judgment in their favor, leaving for a jury trial both plaintiffs' NYCHRL claims as well as Makinen's NYSHRL and ADA claims. Makinen v. City of New York, 53 F.Supp.3d 676 (S.D.N.Y. 2014). A jury rejected Makinen's State and federal claims, but rendered a verdict in favor of both Makinen and Nardini on their NYCHRL claims, awarding compensatory and punitive damages.

         The defendants moved for a new trial and for judgment as a matter of law, arguing that the NYCHRL does not extend to untreated alcoholism. The District Court denied the motions in relevant part, Makinen v. City of New York, 167 F.Supp.3d 472 (S.D.N.Y. 2016), and the defendants appealed, arguing that (1) the NYCHRL does not protect an employee who is perceived to be an untreated alcoholic, (2) the District Court applied an incorrect adverse employment action standard, and (3) the evidence did not support Commissioner Kelly's individual liability or the imposition of punitive damages against Sergeant Sweeney. In this opinion, we address only the first issue relating to untreated alcoholism, on which the plaintiffs' NYCHRL claims depend.[2]

         DISCUSSION

         Section 8-107(1)(a) of the NYCHRL prohibits employment discrimination based on an "actual or perceived . . . disability." N.Y.C. Admin. Code § 8-107(1)(a). The statute defines "disability" as "any physical, medical, mental or psychological impairment, or a history or record of such impairment." Id. ยง 8-102(16)(a). "In the case of alcoholism, " however, the NYCHRL narrows the definition of "disability" so that it "shall only apply to a person who (1) is recovering or ...


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