A.D.P. v. ExxonMobil Research and Engineering Company, A-4806-10T4; Appellate Division; opinion by Espinosa, J.A.D.; decided and approved for publication October 26, 2012. Before Judges Yannotti, Espinosa and Kennedy. On appeal from the Law Division, Essex County, L-2237-09. [Sat below: Judge Rothschild.] DDS No. 25-2-8087 [35 pp.]

Plaintiff A.D.P., a long-term employee of defendant ExxonMobil Research and Engineering Company (ExxonMobil), voluntarily disclosed to her employer that she was an alcoholic and was entering an inpatient rehabilitation program. At the time of her disclosure, plaintiff’s job performance was satisfactory and she was not the subject of any pending or threatened employment or disciplinary action. On her return, the employer required her to agree to conditions, including total abstinence and random alcohol testing for a minimum of two years, as a condition of employment. These conditions were not imposed pursuant to a “last chance agreement” but, rather, were required by ExxonMobil’s alcohol and drug use policy. Plaintiff’s employment was terminated nearly one year later when a Breathalyzer test revealed alcohol use.

Plaintiff filed suit, alleging (1) defendant violated the New Jersey Law Against Discrimination (LAD) by discriminating against her because of her disability; and (2) that her termination violated public policy under Pierce v. Ortho Pharm. Corp.

Summary judgment was granted to ExxonMobil on plaintiff’s claims.

Held: Summary judgment dismissing plaintiff’s disability discrimination claim was inappropriate. 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, the imposition of conditions of employment and the termination of plaintiff’s employment pursuant to the employer’s policy constituted direct evidence of discrimination. 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.

Plaintiff argues that the motion judge erred in dismissing her LAD claim because ExxonMobil admittedly subjected her to additional terms and conditions of employment because of her disability in violation of the LAD and that no legally justifiable basis was provided for such disparate treatment.

The policy’s requirements of total abstinence and a minimum of two years of random testing were only imposed on employees who were identified as alcoholics, demonstrating “hostility toward members of the employee’s class.” Proof of the “direct causal connection between that hostility and the challenged employment decision” was provided by testimony that A.D.P.’s employment was terminated solely because she had violated the policy and not because of any deficiency in her job performance. Based on this record, an employee’s status as an alcoholic is the lone trigger for requirements of total abstinence and random testing without cause. And although the use of alcohol alone would not be grounds for terminating the employment of other employees, alcoholics like A.D.P. could be fired for one “slip” even if their job performance was not affected. ExxonMobil’s policy is therefore facially discriminatory.

In light of this direct evidence of discrimination, the McDonnell Douglas burden-shifting framework is inapplicable. Instead, the Price Waterhouse analysis applies and the burden of persuasion shifts to ExxonMobil, “to prove that even if it had not considered the proscribed factor, the employment action would have occurred.” However, ExxonMobil has chosen to defend its actions based only on the “reasonableness” of its policy. Even if well-intentioned and rational, the reasonableness of a policy must be measured within the context of the specific employee’s job performance. Granting plaintiff all legitimate inferences, the record supports the conclusion that plaintiff’s job performance played no role in either the imposition of the conditions in the after-care contract or in her termination.

ExxonMobil argues that it was entitled to summary judgment under either a McDonnell Douglas analysis or a direct-evidence Price Waterhouse analysis because either permits it to justify its actions by presenting a legitimate nondiscriminatory justification for the policy and its required conditions. It argues that its justification was twofold: (1) there was a legitimate business reason for its actions; and (2) the policy constitutes a reasonable accommodation of plaintiff’s alcoholism. ExxonMobil fails to acknowledge the burden of persuasion to prove its affirmative defense under the direct-evidence analysis applicable here. Moreover, neither proffered reason provides a basis for summary judgment.

The “business necessity” defense available in disparate-impact cases is inapplicable to disparate-treatment cases, and ExxonMobil has not proved a “safety” defense as a matter of law. The policy draws no distinction between alcohol abuse and use and fails to justify a conclusion that any alcohol use by plaintiff would pose such a safety risk in the absence of its actions. Most notably, there was no individualized assessment of the risk posed by plaintiff to justify a policy-driven period of random testing or termination based on one incident of alcohol use. The state of evidence precludes a conclusion that ExxonMobil established a “safety” defense as a matter of law.

Defendant’s characterization of its policy as a “reasonable accommodation” also fails. Plaintiff did not allege a cause of action based on a failure to accommodate her disability. And defendant has conceded both plaintiff’s ability to do her job and that her job performance played no role in her termination.

The appellate panel concludes that the trial court erred by granting summary judgment in favor of ExxonMobil on the disability claim. The order granting summary judgment is affirmed as to the dismissal of the Pierce wrongful-termination claim, reversed as to the LAD claim, and remanded for further proceedings.

For appellant — Sara Fern Meil. For respondent — John B. McCusker (McCusker, Anselmi, Rosen & Carvelli; McCusker and Michael R. Futterman on the brief).