In Vuono v. Consolidated Edison of New York, Inc., 2019 WL 2433654 (S.D.N.Y. 2019), the court, inter alia, dismissed plaintiff’s disability discrimination claim, finding that allegedly “excessive” drug and alcohol tests did not qualify as adverse employment actions.
From the decision:
Requiring an employee to be tested pursuant to the On Call program does not constitute an adverse employment action. The disruption that Plaintiffs experience when they are pulled from their job assignment, without advance notice, to go to a Con Ed drug testing facility for On Call testing … is not a “materially significant disadvantage with respect to the terms of [Plaintiffs’] employment, … — it is, rather, a mere inconvenience … . Plaintiffs, just like most of the other 7,500 Con Ed employees, are required to undergo random drug and alcohol testing pursuant to DOT protocols …, and the [complaint] does not allege that Defendant’s methods of conducting random On Call tests materially differ from its methods of conducting random DOT protocol tests. The [complaint] alleges in passing that the drug and alcohol tests to which Plaintiffs were subjected as part of the On Call program were in addition to those required by Federal Drug Testing regulations. … But the [complaint] is devoid of facts suggesting that additional On Call testing is so frequent and so invasive that Plaintiffs’ continued participation in the On Call program is remotely comparable, let alone tantamount, to a demotion, a pay cut, transfer, or other typical adverse employment actions.
Nor does testing pursuant to the On Call program rise to the level of an adverse action because Plaintiffs are embarrassed and believe that their co-workers and supervisors suspect them of engaging in ongoing drug and alcohol use … . Actions that cause a plaintiff embarrassment or anxiety are insufficient to qualify as an adverse action because such intangible consequences are not materially adverse alterations of employment conditions. …
The court concluded that, since the complaint failed to allege that Con Edison took an adverse employment action against plaintiffs, they failed to alleged a prima face of discrimination under the Americans with Disabilities Act.