In McQueen v. City of New York, No. 155209/2023, 2025 WL 554518 (N.Y. Sup Ct, New York County Feb. 18, 2025), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s disability discrimination claims under the New York State and City Human Rights Laws.
After summarizing the black-letter law, the court applied it to the facts as follows:
Alcohol dependency qualifies as a disability under both the SHRL and the CHRL. See McEniry, 84 N.Y.2d at 558-59; Riddick, 4 A.D.3d at 245; Makinen v. City of N.Y., 30 N.Y.3d 81, 85-86 (2017). Under both statutes, however, only individuals who are (1) recovering or have recovered from their alcoholism and (2) not currently abusing alcohol at the time the agency takes action are protected. See Makinen, 30 N.Y.3d at 86 (“[T]he [CHRL] provides that, with respect to alcoholism, a person is considered to be disabled (so as to trigger the protections of that law) only when he or she ‘is recovering or has recovered’ and ‘currently is free of such abuse.’ ” (quoting N.Y.C. Admin Code § 8-102, “Disability” definition)); Riddick, 4 A.D.3d at 245 (“[In McEniry], the Court of Appeals interpreted the [SHRL] to protect a rehabilitated or rehabilitating substance abuser from retroactive punishment by his or her employer.” (emphasis in original)). As the Court of Appeals observed in McEniry, its “holding is not intended to create a safe haven for individuals who resort to recovery programs as a pretext for avoiding otherwise legitimate disciplinary action, nor do[es] [McEniry] imply that in every case where an alcoholic is purportedly rehabilitated all disciplinary action is prohibited.” 84 N.Y.2d at 560. As the Court of Appeals further observed in Makinen, “by its plain language, the [CHRL] does not regulate employer actions motivated by concern with respect to the abuse of alcohol. Rather, the [CHRL] covers circumstances in which employers unfairly typecast alcoholics who have sought treatment and who are not presently abusing alcohol, so as to ensure that such persons are afforded fair opportunity at recovery.” 30 N.Y.3d at 86.
Here, Petitioner fails to meet his burden to demonstrate that he was a member of a protected class–i.e., an individual with a disability recognized under the SHRL or the CHRL–when his employment was terminated. In the Verified Petition, Petitioner makes a single, conclusory allegation that he is a recovering alcoholic: “The Petitioner, a recovery [sic] alcoholic, was terminated by the [DOC], because of his alcoholic disability.” (Pet. ¶ 2) Nowhere, however, does Petitioner allege that he was a recovering alcoholic when he submitted to the April 3, 2023 breathalyzer test (his failure of such test constituting violation of the NPA) or when his employment was terminated by the DOC a few weeks later on April 14, 2023. Instead, the timing of Petitioner’s apparent self-directed admission to a substance-abuse program on April 10, 2023, appears to be exactly what the Court of Appeals cautioned against in McEniry: an attempt to resort to a treatment program “as a pretext for avoiding otherwise legitimate disciplinary action.” 84 N.Y.2d at 560. Petitioner’s own allegations fail to establish, prima facie, that Respondents’ termination of Petitioner’s employment was based on Respondents’ “unfairly typecast[ing]” Petitioner as an alcoholic despite post-recovery satisfactory job performance, as required under Makinen. 30 N.Y.3d at 86.
Even if Petitioner had satisfied his initial burden, Respondents, through submission of the PDR, satisfied their burden to demonstrate that Petitioner’s “termination was motivated by a legitimate nondiscriminatory reason.” McEniry, 84 N.Y.2d at 558. The PDR demonstrates that Petitioner’s employment was terminated due to his failure of the April 3, 2023 breathalyzer test, which constituted an express violation of the NPA.
To the extent that Petitioner’s discrimination claim is based on the DOC’s failure to afford Petitioner a reasonable accommodation for his alleged disability, Petitioner still fails to state a cognizable claim. On such a claim, an employee bears the burden of demonstrating, prima facie, that the employer knew of the alleged disability and that he or she requested a reasonable accommodation from the employer. See Pimentel v. Citibank, N.A., 29 A.D.3d 141, 145-46 (1st Dep’t 2006). Here, Petitioner neither alleges that the DOC knew of Petitioner’s alleged alcoholism or that he requested that the DOC provide him with an accommodation for his alleged alcoholism. (See generally Pet.)
The court concluded its analysis by noting that respondents “are not required to provide Petitioner with an accommodation allowing him to be intoxicated while on duty,” citing N.Y.C. Admin. Code § 8-107(15)(c) and 9 N.Y.C.R.R. § 466.11(g)(1)(iv).