Kinneary v. City of New York

• Decision Date: 19 March 2010
• Docket Number: Docket No. 08-1330-cv(L),08-1630-cv(XAP).
• Citation: 601 F.3d 151
• Parties: Joseph KINNEARY, Plaintiff-Appellee-Cross-Appellant, v. CITY OF NEW YORK, Marsha Rothem, individually, Zoe Ann Campbell, individually, and Louis Tazzi, individually, Defendants-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

601 F.3d 151

Joseph KINNEARY, Plaintiff-Appellee-Cross-Appellant, v. CITY OF NEW YORK, Marsha Rothem, individually, Zoe Ann Campbell, individually, and Louis Tazzi, individually, Defendants-Appellants-Cross-Appellees.

Docket Nos. 08-1330-cv(L); 08-1630-cv(XAP).

United States Court of Appeals, Second Circuit.

Argued: April 3, 2009.

Decided: March 19, 2010.

Victoria Scalzo (Stephen McGrath, on the brief) for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, N.Y., for Defendants-Appellants-Cross-Appellees.

Stephen Bergstein, Bergstein & Ullrich, Chester, N.Y., for Plaintiff-Appellee-Cross-Appellant.

Before CABRANES and HALL Circuit Judges, SULLIVAN, District Judge.¹

HALL, Circuit Judge:

Defendants-Appellants-Cross-Appellees City of New York ("City"), Marsha Rothem, individually, Zoe Ann Campbell, individually, and Louis Tazzi, individually (collectively, "Appellants") appeal the October 1, 2007 judgment of the United States District Court for the Southern District of New York (Marrero, Judge) following a jury verdict for Joseph Kinneary ("Kinneary") finding discrimination under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) ("ADA"), New York State Human Rights Law (N.Y. Exec. Law § 296 et seq.) ("NYSHRL") and New York City Human Rights Law (N.Y. Admin. Code § 8-107) ("NYCHRL"). We hold that because Kinneary was offered, but failed to qualify for, his captain's license under the accommodation to which he claims he was entitled (i.e., the opportunity to have his drug test cancelled based upon a physician's evaluation), Kinneary became unqualified to perform the essential functions of his job under the ADA. In addition, in implementing the federal regulations, the Appellants could not have violated the state and local laws that were also asserted as bases for Kinneary's claims of discrimination. Accordingly, we reverse and remand.

I. BACKGROUND

Kinneary, who previously served as a sludge boat captain with the New York City Department of Environmental Protection ("DEP"), claims discrimination under the ADA, NYSHRL, and NYCHRL. He contends that: he suffers from paruresis, also known as "shy bladder syndrome;" this condition qualifies as a disability; and Appellants failed to meet their obligation to reasonably accommodate it. Kinneary asserts that he was terminated because of his paruresis.

Kinneary prevailed at a jury trial on each of his claims of discrimination. The jury awarded him $100,000 in back pay and $125,000 in non-economic damages. Appellants' Rule 50 motion for entry of judgment as a matter of law was denied. The district court, however, granted Appellants' Rule 59 motion for a new trial on the issue of non-economic damages unless Kinneary accepted a remittur of the award, reducing it to $25,000, which he did. The court denied Kinneary's motion for equitable relief, but it did award him attorneys' fees and costs as well as pre-judgment interest on back pay. Before our court, Appellants challenge the district court ruling denying their Rule 50 motion for judgment as a matter of law. Kinneary cross-appeals, contending that the court should have granted his motion for equitable relief.

The facts that are critical to this case relate to Kinneary's employment with and termination from the DEP, and the random drug tests that he was required to take in order to maintain his Captain's license. Kinneary started working for the DEP as a provisional full-time employee in 1988. He became a civil service employee in 1992, when he was appointed sludge boat captain.

It is undisputed that, because of his position as a captain, under federal regulations, Kinneary was subject to random drug testing. Kinneary had his first random drug test in late 1992. At that time, he discovered that he could not urinate on command—even after staying at the site from 9:15 a.m. to 4 p.m. and drinking water. Kinneary was directed to return to the lab the next morning but, when he did so, he could not provide a urine sample after approximately two and a half hours. Kinneary was informed that there was no other test option and, after trying to void for an additional two and a half hours, Kinneary eventually passed urine.

Kinneary had no similar troubles with drug tests between 1992 and 1996. In 1996, Kinneary was again given a random drug test. He was able to pass urine after approximately a half-hour but was told that he had not provided a sufficient quantity and that he needed to fill the cup immediately. Kinneary could not do so. He topped the cup off with tap water and returned it. The next year, Kinneary was again unable to provide a urine sample when tested, so he filled the cup with tap water. In contrast, however, at a 1998 test during which Kinneary was informed that there was a three hour limit to produce a urine sample, he was able to void within the required time period.

In December 2001, Kinneary was subject to another random drug test. He found that, despite "drinking water like crazy," he could not provide a sample within the three-hour time limit. He then was transported to a medical clinic. According to Kinneary, as he approached the clinic, he felt an urgent need to urinate. Kinneary was not allowed to give a urine sample at the clinic, although he offered to do so.

Immediately thereafter, Kinneary spoke with Peter Brucas, executive vice president at NEDPC, which does drug testing for the City. Kinneary told Brucas that he "had trouble with these tests all through the years" and asked if he could take a blood test. Brucas told Kinneary that he had to get a doctor's note, provided Kinneary with instructions to be given to his doctor (entitled "INFORMATION AND INSTRUCTIONS TO EXAMINING PHYSICIAN"), and told Kinneary to call him when he had the note. The instructions stated that: 1) Kinneary had to obtain an evaluation from a physician within five working days, 2) the physician had to make a determination of whether or not a medical condition had, or with a high probability could have, precluded Kinneary from providing a sufficient amount of urine for the test, and 3) the physician had to provide a written statement of recommendations and a basis for review by the City's Medical Review Officer ("MRO").

The next day, Kinneary's doctor wrote a note saying, "This man has `Shy Bladder Syndrome'—this is a chronic condition that can be helped by using an alpha blocker (flomax) which I have given him. He is not a substance abuser." Kinneary read the note to Brucas. Brucas indicated that the note would not be accepted, but he set up an appointment for Kinneary with the MRO. Kinneary brought the note to the MRO the next day. The following day, at a meeting with the Office of Disciplinary Counsel, Kinneary was served with misconduct charges for refusing to take a drug test.

At this point, Kinneary took a number of proactive steps. He passed a blood test and a hair test. Kinneary twice wrote a City equal employment opportunity officer about the situation, but he never received a response to his inquiries.

In January of 2002, NEDPC informed the Coast Guard that Kinneary was "unable to provide a urine sample during a three-hour time period as per 49 CFR Part 40.193(b)(4) for a federally mandated random drug test on December 27, 2001." It also told the Coast Guard that:

Mr. Kinneary was given a letter allowing him five days to produce an independent medical opinion as to his inability.... On January 3, 2002, Mr. Kinneary brought a medical note (see attached) to the Sanitation clinic. This note was then sent to Dr. Horowitz, the MRO for DEP. He reviewed the note and found no medical reason to explain the inability to void.

The Coast Guard then filed a complaint against Kinneary essentially alleging that he refused to submit to the December 2001 drug test.

In the meantime, Kinneary was unable to provide a urine sample at another drug test administered by NEDPC, but NEDPC then administered a saliva test, which came back negative. On his own accord, Kinneary also took another hair test, which he passed. Soon thereafter, the City allowed Kinneary to perform "land-based duties." Kinneary would not admit, however, that he had refused to take the December 2001 drug test, and the City's Disciplinary Counsel served him with a set of charges that stated that "since March 25, 2002, your inability to perform the duties of your title of `Captain' have rendered you incompetent."

In July 2002, a neuropsychiatrist and a urologist both submitted medical notes to the City relating to Kinneary having shy-bladder syndrome. That same month, Kinneary unsuccessfully attempted a NEDPC urine test for three hours, but he then passed a saliva test. In August of that year, Kinneary returned to captain's duties.

The Coast Guard proceeding moved forward, and an administrative law judge ruled that Kinneary had refused to take a drug test. The Coast Guard ordered a 12-month suspension of Kinneary's license, followed by a 12-month probationary period. According to Kinneary, the City's Disciplinary Counsel told him that he could return to work at the conclusion of his suspension if he acknowledged refusing to take a random drug test. Kinneary refused to do so. He was fired on June 2, 2003.

Kinneary appealed the Coast Guard ruling and, pending resolution of that appeal, he received a temporary license. He was then re-hired by the City. The temporary license was scheduled to expire, and Kinneary asked the City's Marine Superintendent to help him with his license renewal. The temporary license subsequently expired (a fact which the Marine Superintendent knew) and for a period of time Kinneary captained a boat without a license.

Kinneary's appeal of the Coast Guard's ruling was denied as untimely. A twelve month suspension, consequently, went into effect. The City terminated Kinneary for a final time on March 4, 2004. A termination letter sent from the Assistant Commissioner of the DEP to Kinneary explained...