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Alcoholic Tested Without Cause Can Proceed With Bias Claim
New Jersey Law Journal
In a ruling that might induce some employers to re-examine their policies, a New Jersey appeals court reinstated a disability-bias suit by a worker terminated over a positive alcohol test.
The Appellate Division held that an ExxonMobil subsidiary was not entitled to summary judgment dismissing the suit under the Law Against Discrimination, which treats alcoholism as a protected disability.
The plaintiff, an admitted alcoholic, presented evidence that the sole reason for her firing was the alcohol test, not any problem with how she did her job.
Because "the basis for the testing and termination was the employee's voluntary disclosure that she was an alcoholic and not the result of inadequate job performance," imposition of testing requirements "constituted direct evidence of discrimination," the court held on Oct. 26 in A.D.P. v. ExxonMobil Research and Engineering Co., A-4806-10.
"As a result, the burden of persuasion shifted to the employer, requiring it to show that the employment actions taken would have occurred even if it had not considered plaintiff's disability, a burden it failed to satisfy as a matter of law."
The plaintiff, A.D.P., was a research technician at ExxonMobil Research and Engineering Co. in Annandale for about 30 years, garnering regular promotions and positive reviews, before she was fired on Aug. 26, 2008.
After her husband died in 2004, she developed depression and her performance fell off somewhat. But she received??a 2005 promotion to senior research associate and remained ranked in the middle third of employees.
In August 2007, she disclosed to a company nurse that she was an alcoholic and intended to check into a rehabilitation facility to address her drinking problem and her depression.
She spent nearly three weeks at the Carrier Clinic in Belle Mead, followed by outpatient treatment at Hunterdon Medical Center in Clinton.
Afterward, on Oct. 29, 2007, she signed a required "after-care" contract with the company.
The agreement required A.D.P. to abstain from alcohol and submit to at least two years of random Breathalyzer testing, followed by three years of monitoring. A positive test result or refusal to take the test would be grounds for discipline, most likely termination.
She passed the first nine tests, administered between Oct. 29, 2007, and Aug. 20, 2008. But two tests on Aug. 22, 2008, found a blood-alcohol content of .047 percent and .043 percent, which the appeals court noted was below the .08 percent threshold for drunken driving.
A.D.P. sued in Essex County Superior Court, alleging that ExxonMobil imposed a standard of conduct on her based solely on her disability -- alcoholism -- and that her termination for failing to meet that standard constituted disparate treatment under the LAD. She also claimed the company violated public policy.
Judge James Rothschild Jr. dismissed the case on summary judgment in May 2011.
In reversing on the LAD claim, the appeals court said the case was one of the less common type, involving direct rather than circumstantial evidence.
In direct-evidence cases, if a plaintiff shows hostility toward her protected class and a direct causal connection between that hostility and the challenged employment decision, the employer must prove it would have taken the same action absent any illegal bias.
Hostility was demonstrated by the requirements for total abstinence and two years of random testing imposed only on employees identified as alcoholics while the connection was supplied by human resources testimony that A.D.P.'s positive test was the reason she was fired, the appeals court said in its precedential opinion.
ExxonMobil could have argued in defense that A.D.P. was unable to perform her job, but did not do so, instead seeking to justify its actions based on the reasonableness of its policy, wrote Judge Marianne Espinosa, joined by Joseph Yannotti and John Kennedy.
Reasonableness, however, had to be measured within the context of A.D.P.'s job performance, but granting all reasonable inferences in her favor, the record indicated her job performance was not at issue.
Further, the policy standard that employees could not be "unfit for work" due to alcohol or drug use was reasonable, but it was not the standard applied to A.D.P., Espinosa said.
The appeals court pointed out that employees who were not alcoholics were not required to agree to testing except for cause and that on the date of the Aug. 22 tests, there was no evidence A.D.P. had given the company reasonable cause to believe she had been drinking at work.
The court did uphold Rothschild's decision to throw out the public policy claim, finding that A.D.P. was not seeking to vindicate interests beyond those protected by the LAD.
Milford solo Sara Fern Meil, who represents A.D.P., says the opinion shows that "no matter how big a company is, how powerful it is, it is not exempt from New Jersey discrimination laws."
She says she has seen similar policies, and ExxonMobil won a case before the U.S. Court of Appeals for the Third Circuit involving the same alcohol and drug policy.
In Cole v. ExxonMobil Corp., No. 04-2628, decided July 19, 2005, the federal appeals court said the policy was neutral because it applied to all alcoholics and its provision for after-care reflected a "recognition that relapses can be a problem."
Meil says Rothschild said he was not relying on Cole because the two-page opinion was unpublished and he was not impressed by the reasoning.
ExxonMobil's lawyer, John McCusker of McCusker, Anselmi, Rosen & Carvelli in Florham Park, referred a request for comment to the company, whose spokesman,Charlie Engelmann, says it is reviewing the opinion.
This article originally appeared in the New Jersey Law Journal.