Bipolar lawyer’s “disability” does not excuse misconduct

In Hazen v. Hill Betts & Nash, 2012 WL 19388 (Jan. 5, 2012), the Appellate Division (First Dept.) applied the principle “that the New York State Human Rights Law does not immunize disabled employees from discipline or discharge for incidents of misconduct in the workplace”.

Attorney Hazen charged hotel rooms, limousines, alcohol, adult movies and calls to escort services to his corporate credit card and tried to have these charges billed to clients.  After his employer, law firm Hill Betts & Nash (“HBN”) fired him for misconduct, he filed a complaint with the New York State Division of Human Rights, alleging that his misconduct was caused by his bipolar disorder, that his employer failed to accommodate his mental illness, that his termination was discriminatory, and that his employer retaliated against him by reporting him to the First Department’s Departmental Disciplinary Committee.

In his decision annulling the NYSDHR decision, vacating the award, and dismissing Hazen’s complaint, Appellate Division Judge Catterson found no facts in the record to support Hazen’s claims.  Specifically, there was no evidence that the law firm knew, prior to terminating Hazen, that Hazen was disabled by a bipolar disorder or how that disorder limited his workplace performance.  This was despite HBN’s unsuccessful attempts to acquire information regarding Hazen’s claimed emotional illness.  Vague references to Hazen’s “emotional illness” or “mood disorder” did not reference a “disability” as defined in the State Human Rights Law.  The court observed that “all that was before HBN when it terminated the petitioner … was that he had charged more than $21,000 in hotels and other personal expenses to the corporate credit card and tried to bill HBN’s clients for personal expenses” and that “when confronted and asked for an explanation, he did not reimburse HBN and instead blamed his conduct on a ‘mood’ illness, which he still did not identify.”  The court also noted that Hazen had engaged in similar conduct years before the onset of his alleged condition.

In addition, even if “there was some evidence … that the petitioner was disabled and that his misconduct was caused by his disability, HBN was not required to excuse that misconduct as an accommodation”.  In each of the “few reported decisions examining workplace misconduct resulting from a bipolar condition … the court found that the employer was not required to endure misconduct simply because the employee is disabled.”

Here, Hazen consulted an attorney and sought a diagnosis from a psychiatrist only after he accrued the credit card expenses and was asked to account for them.  The court thus rejected Hazen’s attempt to “offer[] his disability as an ‘after-the-fact excuse.'”  The court also cited EEOC Guideline No. 30, which specifically provides that “an employer [may] discipline an individual with a disability for violating a workplace conduct standard if the misconduct resulted from a disability,” when “the workplace conduct standard is job-related for the position in question and is consistent with business necessity.”  In this case “it is undisputed that charging personal expenses to clients constitutes serious job-related misconduct.”

Finally, the court rejected Hazen’s retaliation claim, which was based on HBN’s reporting Hazen to the Departmental Disciplinary Committee the month after HBN was allegedly advised of Hazen’s condition.  It was undisputed that HBN was advised by an ethics specialist that it had an obligation to report Hazen’s misconduct to the disciplinary committee.  Thus HBN “provided a legitimate, nondiscriminatory reason demonstrating that the report was not retaliatory.”