Makinen v. City of New York, No. 16-973 (2d Cir. 2017)
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In this disability discrimination case, the Second Circuit certified the following question to the New York Court of Appeals: Do sections 8‐102(16)(c) and 8‐107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?
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16-973-cv(L) Makinen, et al. v. City of New York, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2016 (Argued: March 9, 2017 Decided: May 22, 2017) Docket Nos. 16 973 cv(L), 16 1080 cv(XAP) _____________________________________ KATHLEEN MAKINEN, JAMIE NARDINI, Plaintiffs–Appellees–Cross Appellants, v. CITY OF NEW YORK, RAYMOND W. KELLY, as Police Commissioner of the City of New York, DANIEL J. SWEENEY, individually and in his official capacity, Defendants–Appellants–Cross Appellees.* _____________________________________ Before: SACK, LIVINGSTON, and LOHIER, Circuit Judges. We consider a provision of the New York City Human Rights Law (“NYCHRL”) that defines only “recovering” or “recovered” alcoholics as having a “disability.” See N.Y.C. Admin. Code § 8 102(16)(c). The United States District Court for the Southern District of New York (Carter, J.) held that individuals regarded as untreated alcoholics may state a claim under the The Clerk of Court is directed to amend the caption as set forth above. * 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 NYCHRL because analogous claims are available under New York State and federal law. In the absence of authority from New York courts, we cannot predict with confidence how the New York Court of Appeals would reconcile the broad, remedial purpose of the NYCHRL with the specific language of section 8 102(16)(c). Accordingly, we defer decision on this appeal and cross appeal in order to certify the following question: “Do sections 8 102(16)(c) and 8 107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?” LISA F. JOSLIN, Gleason, Dunn, Walsh & O’Shea, Albany, NY, for Plaintiffs– Appellees–Cross Appellants. KATHY CHANG PARK (Richard Dearing and Devin Slack, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants–Appellants– Cross Appellees. LOHIER, Circuit Judge: 23 In this disability discrimination case we consider a provision of the 24 New York City Human Rights Law (“NYCHRL”) that, as relevant to this 25 appeal, defines the term “disability” in a way that excludes alcoholics who 26 are not “recovered” or “recovering” from the protection of the statute. See 27 N.Y.C. Admin. Code § 8 102(16)(c). Plaintiffs Kathleen Makinen and Jamie 28 Nardini brought suit under the NYCHRL and its New York State and federal 29 counterparts alleging discrimination based on a mistaken perception that they 2 1 were alcoholics. The City of New York and the individual defendants, former 2 Commissioner Raymond W. Kelly of the New York City Police Department 3 (“NYPD”) and NYPD Sergeant Daniel J. Sweeney, argued principally that the 4 plaintiffs’ claims were barred by the plain text of the NYCHRL because the 5 plaintiffs were not (and were not perceived to be) recovered or recovering 6 alcoholics. On summary judgment and again on a post trial motion after a 7 jury verdict partly in favor of the plaintiffs, the United States District Court 8 for the Southern District of New York (Carter, J.) held that individuals 9 regarded as untreated alcoholics may state a claim under the NYCHRL 10 because analogous claims are available under both the New York State 11 Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq., and the 12 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. The 13 defendants appealed, urging certification of the question to the New York 14 Court of Appeals. 15 In the absence of authority from New York courts, we cannot predict 16 with confidence how the New York Court of Appeals would reconcile the 17 broad, remedial purpose of the NYCHRL with the specific language of section 18 8 102(16)(c). Accordingly, we defer decision on this appeal and cross appeal 3 1 in order to certify the following question: “Do sections 8 102(16)(c) and 8 2 107(1)(a) of the New York City Administrative Code preclude a plaintiff from 3 bringing a disability discrimination claim based solely on a perception of 4 untreated alcoholism?” 5 6 BACKGROUND Makinen and Nardini served as NYPD officers for several years, during 7 which each was referred to the NYPD’s Counseling Services Unit (“CSU”). 8 CSU offers treatment and rehabilitation for officers struggling with substance 9 abuse. Once an officer is referred to CSU with alleged alcohol related 10 problems, a trained counselor conducts an intake interview and contacts 11 references to gather information regarding the officer’s reported alcohol use. 12 If an officer is diagnosed with an alcohol related condition, CSU staff develop 13 a personal treatment plan, potentially consisting of educational videos, 14 counseling, Alcoholics Anonymous meetings, outpatient treatment, or 15 inpatient treatment. An officer who refuses treatment is referred to the 16 NYPD’s Medical Division, which may direct the officer to undergo treatment. 17 That direction constitutes an order with which the officer must comply or face 18 disciplinary action. The officer is entitled to challenge the disciplinary action 4 1 in administrative proceedings by filing a grievance with the agency that 2 oversees CSU or through an Article 78 proceeding. Otherwise, once an officer 3 is diagnosed with an alcohol related problem, receipt by CSU of subsequent 4 evidence of alcohol consumption triggers a mandatory reassessment and, 5 potentially, further treatment. Officers Makinen and Nardini were referred to CSU by an ex husband 6 7 and an ex boyfriend, respectively. Each received an alcohol related diagnosis 8 and was directed to undergo treatment. As it turned out, the parties agree, 9 Makinen and Nardini were not actually alcoholics.1 They filed suit in New 10 York Supreme Court, claiming primarily that the defendants mistakenly 11 perceived that they were alcoholics and discriminated against them on the 12 basis of that perceived disability, in violation of the NYCHRL, NYSHRL, and 13 ADA. The defendants removed the case to federal court and moved for 14 summary judgment. The District Court granted partial summary judgment in 15 their favor, leaving for a jury trial both plaintiffs’ NYCHRL claims as well as 16 Makinen’s NYSHRL and ADA claims. Makinen v. City of New York, 53 F. The jury necessarily rejected the defendants’ affirmative defense that the plaintiffs were alcoholics and therefore unable to perform the essential duties of their jobs. See N.Y.C. Admin. Code § 8 107(15)(b). 1 5 1 Supp. 3d 676 (S.D.N.Y. 2014). A jury rejected Makinen’s State and federal 2 claims, but rendered a verdict in favor of both Makinen and Nardini on their 3 NYCHRL claims, awarding compensatory and punitive damages. The defendants moved for a new trial and for judgment as a matter of 4 5 law, arguing that the NYCHRL does not extend to untreated alcoholism. The 6 District Court denied the motions in relevant part, Makinen v. City of New 7 York, 167 F. Supp. 3d 472 (S.D.N.Y. 2016), and the defendants appealed, 8 arguing that (1) the NYCHRL does not protect an employee who is perceived 9 to be an untreated alcoholic, (2) the District Court applied an incorrect 10 adverse employment action standard, and (3) the evidence did not support 11 Commissioner Kelly’s individual liability or the imposition of punitive 12 damages against Sergeant Sweeney. In this opinion, we address only the first 13 issue relating to untreated alcoholism, on which the plaintiffs’ NYCHRL 14 claims depend.2 The plaintiffs cross appeal the partial dismissal of their State and federal claims, including Makinen’s claim under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. We reserve decision on the issues that are the subject of the cross appeal pending any response from the New York Court of Appeals on the certified issue. 2 6 DISCUSSION 1 2 3 discrimination based on an “actual or perceived . . . disability.” N.Y.C. 4 Admin. Code § 8 107(1)(a). The statute defines “disability” as “any physical, 5 medical, mental or psychological impairment, or a history or record of such 6 impairment.” Id. § 8 102(16)(a). “In the case of alcoholism,” however, the 7 NYCHRL narrows the definition of “disability” so that it “shall only apply to 8 a person who (1) is recovering or has recovered and (2) currently is free of 9 such abuse.” Id. § 8 102(16)(c). 10 Section 8 107(1)(a) of the NYCHRL prohibits employment In view of section 8 102(16)(c), we consider whether a plaintiff may 11 state a claim under section 8 107(1)(a) if she is perceived to be an untreated 12 alcoholic. The defendants urge that the plain text of section 8 102(16)(c) 13 forecloses such a claim, as only recovered or recovering alcoholics are defined 14 as having a disability. Makinen and Nardini argue that the limitation in 15 section 8 102(16)(c) applies only “in the case of alcoholism”—that is, only 16 when a plaintiff in fact suffers from alcoholism, not when she is mistakenly 17 perceived to be an alcoholic. 7 1 The original 1981 Committee Report accompanying the passage of what 2 would become section 8 102(16)(c) explains that “only an individual who ‘is 3 recovering and currently free of abuse’” is “entitled to the law’s protection.” 4 1981 N.Y.C. Legis. Ann. at 28. Under this description, an employer may take 5 appropriate action under section 8 107(1)(a) against an employee it believes, 6 rightly or wrongly, suffers from alcoholism but is neither recovered nor 7 recovering (or is not “currently free of abuse”). 8 But this construction seems in tension with the New York City 9 Council’s stated intention of affording plaintiffs who sue under the NYCHRL 10 all of the protection guaranteed by comparable provisions of State and federal 11 law. The City Council passed the Local Civil Rights Restoration Act of 2005 12 out of a concern that the NYCHRL had been “construed too narrowly to 13 ensure protection of the civil rights of all persons covered by the law.” Local 14 Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85, at § 1 (Oct. 3, 15 2005) (“Restoration Act”). The City Council therefore provided as follows: 16 17 18 19 20 21 Interpretations of New York state or federal statutes with similar wording may be used to aid in interpretation of the New York City Human Rights Law, viewing similarly worded provisions of federal and state civil rights laws as a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise. 8 1 Id. The City Council also amended Administrative Code section 8 130 to 2 emphasize the NYCHRL’s “uniquely broad and remedial purposes,” id. § 7, 3 and more recently amended the section again to clarify its intent to foster 4 jurisprudence “maximally protective of civil rights in all circumstances,” 5 N.Y.C. Local Law No. 35, at § 1 (Mar. 28, 2016). We have understood the 6 Restoration Act to create a “one way ratchet” that requires us to construe the 7 NYCHRL “more liberally” than its State and federal counterparts. Loeffler v. 8 Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009) (quotation marks 9 omitted); see also Albunio v. City of New York, 16 N.Y.3d 472, 477–78 (2011) 10 (requiring that the NYCHRL be construed “broadly in favor of discrimination 11 plaintiffs, to the extent that such a construction is reasonably possible”). 12 The relevant State and federal counterparts in this case—the NYSHRL 13 and ADA—treat alcoholism as an impairment that can form the basis of a 14 disability discrimination suit. See McEniry v. Landi, 84 N.Y.2d 554, 558–59 15 (1994) (NYSHRL); Reg’l Econ. Cmty. Action Program, Inc. v. City of 16 Middletown, 294 F.3d 35, 46 (2d Cir. 2002) (ADA), superseded by statute on 17 other grounds, ADA Amendments of 2008, Pub. L. No. 110–325, 122 Stat. 18 3553. Both statutes also prohibit discrimination on the basis of a perceived 9 1 impairment. See N.Y. Exec. Law § 292(21)(c); 42 U.S.C. § 12102(1)(C), (3)(A). 2 But neither statute is limited to recovering or recovered alcoholics. See N.Y. 3 Exec. Law §§ 292(21)(a), 296(1)(a); 42 U.S.C. §§ 12102, 12114.3 On the one hand, as the plaintiffs argue, because the NYSHRL and 4 5 ADA prescribe a floor below which employee protections may not fall, the 6 NYCHRL should not be interpreted to exclude untreated alcoholics. On the 7 other hand, we recognize that neither the NYSHRL nor the ADA contains a 8 “similarly worded provision[],”Restoration Act § 1, comparable to the 9 NYCHRL’s limitation on the definition of disability in the form of alcoholism. 10 Insofar as the text of section 8 102(16)(c) specifically differs from that of its 11 State and federal counterparts, we are arguably constrained by the text, since 12 the “one way ratchet,” Loeffler, 582 F.3d at 278, operates only “to the extent 13 that such a construction is reasonably possible,” Albunio, 16 N.Y.3d at 477–78. We recognize that both the NYSHRL and the ADA require a plaintiff to demonstrate as an element of her claim that she was able to perform the essential duties of her job with or without a reasonable accommodation. See Jacobsen v. N.Y.C. Health & Hosps. Corp., 22 N.Y.3d 824, 834 (2014) (NYSHRL); McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013) (ADA). But under the NYCHRL, whether an employee can perform the “essential duties” of her job arises only as an affirmative defense available to the employer. Jacobsen, 22 N.Y.3d at 835. Accordingly, the question here is whether a plaintiff who sues under the NYCHRL can establish a prima facie case of discrimination based only on a perception of untreated alcoholism and an employment action causally linked to that perception. 3 10 1 The defendants point us to Zakrzewska v. New School, where the New York 2 Court of Appeals construed the “unambiguous” text of section 8 107 of the 3 NYCHRL “to give effect to its plain meaning” even though the City law did 4 not “match up” with State law. 14 N.Y.3d 469, 479 (2010) (quotation marks 5 omitted). But Zakrzewska is somewhat inapposite, as it held that the 6 NYCHRL’s plain language foreclosed an employer’s affirmative defense 7 rather than a plaintiff’s cause of action. See id. The decision therefore 8 comported with the City Council’s support of employees under the “uniquely 9 broad and remedial” NYCHRL. See Restoration Act § 7. No New York court 10 decision of which we are aware, however, addresses either the specific 11 question here or an analogous provision of the NYCHRL that on its face 12 provides narrower protection for employees than is required under State or 13 federal law. 14 15 CERTIFICATION Second Circuit Local Rule 27.2 permits us to certify to the New York 16 Court of Appeals “determinative questions of New York law [that] are 17 involved in a case pending before [us] for which no controlling precedent of 18 the Court of Appeals exists.” N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(a); 11 1 see also N.Y. Const. art. VI, § 3(b)(9). “In deciding whether to certify a 2 question, we consider: (1) the absence of authoritative state court 3 interpretations of [the law in question]; (2) the importance of the issue to the 4 state, and whether the question implicates issues of state public policy; and 5 (3) the capacity of certification to resolve the litigation.” Georgitsi Realty, 6 LLC v. Penn Star Ins. Co., 702 F.3d 152, 158 (2d Cir. 2012) (quotation marks 7 omitted). Here, each factor favors certification. 8 9 First, as we have explained, no State court has addressed whether sections 8 102(16)(c) and 8 107(1)(a) permit a plaintiff to bring a disability 10 discrimination claim based solely on a perception that the plaintiff suffered 11 from untreated alcoholism. This factor weighs heavily in favor of 12 certification: “New York has a strong interest in deciding the issue certified 13 rather than having the only precedent on point be that of the federal court, 14 which may be mistaken.” Carney v. Philippone, 332 F.3d 163, 172 (2d Cir. 15 2003) (quoting Great N. Ins. Co. v. Mount Vernon Fire Ins. Co., 143 F.3d 659, 16 662 (2d Cir. 1998)). 17 18 Second, “the question identified for certification presents important issues of New York law and policy.” Doe v. Guthrie Clinic, Ltd., 710 F.3d 492, 12 1 497–98 (2d Cir. 2013) (quotation marks omitted). Both section 8 102(16)(c) and 2 the Restoration Act reflect careful policy judgments. The former arguably 3 seeks to protect only recovering alcoholics, while the latter seeks to ensure 4 that employees with disabilities do not receive less protection under City law 5 than they receive under State and federal law. A New York court should 6 determine in the first instance which of these judgments ought to prevail in 7 the event they conflict. See Chauca v. Abraham, 841 F.3d 86, 94 (2d Cir. 2016). 8 The question presented also broadly affects the viability of employer 9 sponsored rehabilitation programs in New York, has practical ramifications 10 for the NYPD in particular, and is likely to recur, see MacShane v. City of 11 New York, No. 06 CV 06024, 2015 WL 1298423, at *22 (E.D.N.Y. Mar. 23, 12 2015). 13 Finally, if on certification the New York Court of Appeals determines 14 that the plaintiffs cannot state a claim for relief based on a perception of 15 untreated alcoholism, that decision would entitle the defendants to judgment 16 as a matter of law and render moot the remaining issues in the defendants’ 17 appeal. 13 CONCLUSION 1 2 3 4 5 6 7 For the foregoing reasons, we certify the following question to the New York Court of Appeals: Do sections 8 102(16)(c) and 8 107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism? 8 In certifying this question, we understand that the New York Court of 9 Appeals may reformulate or expand the certified question as it deems 10 11 appropriate. It is hereby ORDERED that the Clerk of this Court transmit to the Clerk 12 of the New York Court of Appeals a certificate in the form attached, together 13 with a copy of this opinion and a complete set of briefs, appendices, and the 14 record filed by the parties in this Court. This panel will retain jurisdiction to 15 decide the case once we have had the benefit of the views of the New York 16 Court of Appeals or once that court declines to accept certification. Finally, 17 recognizing that the defendants have indicated their willingness to expedite 18 proceedings before the New York Court of Appeals, see N.Y. Comp. Codes R. 19 & Regs. tit. 22, § 500.17(b), we order the parties to bear equally any fees and 14 1 costs that may be requested by the New York Court of Appeals. Decision is 2 RESERVED. 3 4 CERTIFICATE The foregoing is hereby certified to the Court of Appeals of the State of 5 New York pursuant to Second Circuit Local Rule 27.2 and New York Codes, 6 Rules, and Regulations title 22, § 500.27(a), as ordered by the United States 7 Court of Appeals for the Second Circuit. 15
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