Court Upholds Jury Verdict of Discrimination Based on Perceived Disability (Alcoholism)

In Makinen v. City of New York, No. 111CV07535ALCAJP, 2016 WL 880194 (S.D.N.Y. Mar. 1, 2016), the Southern District of New York upheld a jury verdict, largely in plaintiffs NYPD officers’ favor, that defendants them to discrimination based on their perceived disability (here, alcoholism). In sum, plaintiffs, who denied having issues with alcohol, were separately referred to the NYPD’s internal Counseling Services Unit to be assessed for alcoholism.

For more background on the case, here is the court’s 2014 summary judgment order.

Judge Carter initially held that a plaintiff asserting a “perceived-as alcoholism” claim under the New York City Human Rights Law need not demonstrate that they meet the definition of “alcoholism” under NYCHRL sec. 8-102(16), but “need[] only establish that they were discriminated against based on their perceived alcoholism.”

The court also explained that the NYCHRL does not require a plaintiff to demonstrate the existence of a “materially adverse employment action”, but rather “need only show differential treatment—that she is treated ‘less well’—because of a discriminatory intent.”

Plaintiff met this standard:

[Plaintiff] presented evidence that she was required to watch a course of alcohol education videos, given a label of “alcoholic” that will stay in her file for the duration of her career, and forbidden from drinking in a way that “come[s] to the attention of [her] employer” for the remainder of the career, at risk of CSU intervening and reassessing her. While the burdens placed on [plaintiff] do not amount to an adverse employment action, they do provide sufficient evidence for the jury’s determination that [plaintiff] was treated—and continues to be treated—“less well” than members of the NYPD who had not previously been perceived as suffering from alcoholism.

The court rejected defendants’ argument that plaintiffs “could only prevail if they proved that they were not in fact active alcoholics and were wrongfully perceived as such,” noting that plaintiff were only required to “establish that they were disabled or perceived as disabled” and “[d]efendants bear the burden of demonstrating that disabled employees could not satisfy the essential requisites of their jobs.”

It explained:

Plaintiffs presented ample evidence to support a finding that they were perceived as disabled. … Plaintiffs established that Defendants perceived them and treated them as if they were alcoholics. Indeed, Defendants essentially concede that they perceived Plaintiffs as alcoholics. This is all that Plaintiffs needed to show: that they were disabled or perceived as disabled under the NYCHRL. They did not need to show that Defendants wrongfully perceived them as disabled. The correctness of the perception is only relevant to Defendants’ affirmative defense, where the burden was on Defendants to show that Plaintiffs were unable to carry out the essential requisites of the job because they were, in fact, alcoholics. The jury was instructed on this. But the jury found that Plaintiffs had met their burden and Defendants had not met theirs.

The court also, e.g., upheld the jury’s verdict finding defendants Sergeant Daniel Sweeney and former Police Commissioner Raymond Kelly individually liable; that plaintiffs were entitled to punitive damages against Sweeney (but not against Kelly); and that one plaintiff was entitled emotional distress damages in the amount of $75,000.

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