Brandhorst v Crucible Materials Corp.

[*1] Brandhorst v Crucible Materials Corp. 2005 NY Slip Op 52378(U) [21 Misc 3d 1115(A)] Decided on December 23, 2005 Supreme Court, Onondaga County Greenwood, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2005
Supreme Court, Onondaga County

Kurt Brandhorst, Plaintiff,

against

Crucible Materials Corporation, Defendant,



2005-0062



APPEARANCES:

GEORGE S. MEHALLOW, ESQ.

For Plaintiff

MARGARET ARMSTRONG WEINER, ESQ. of Jackson Lewis, LLP

For Defendant

Donald A. Greenwood, J.

Defendant Crucible Materials Corporation ("Crucible") moves for summary judgment dismissing the instant complaint, wherein the plaintiff alleges race and disability discrimination. The defendant also moves for sanctions against plaintiff's counsel for utilizing confidential information in this case from another matter where counsel represented an individual in a federal court matter against the defendant. Plaintiff was hired by Crucible in 1973, and although laid off on two occasions, was re-hired by Crucible each time. In November of 2001, the plaintiff was out of work on disability leave for six months following a house fire, and he was cleared by his physician to return to work in May of 2002. Pursuant to Crucible's alcohol and drug policy, every employee who remains out of work for 45 days or more must take a drug test prior to returning. Plaintiff submitted to the drug test and failed, testing positive for cocaine use. Plaintiff admitted taking cocaine weekly or monthly. Thereafter, plaintiff completed the Employee Assistance Program Intake Assessment, and was referred to out-patient substance abuse treatment at Professional Counseling Services (PCS) to begin in June of 2002. While attending out-patient rehabilitation in July of 2002, plaintiff tested positive for cocaine use and thereafter, PCS recommended plaintiff participate in a substance abuse intensive out-patient program, which he thereafter attended. In October of 2002, PCS referred the plaintiff to in-[*2]patient treatment and then advised Crucible that plaintiff was noncompliant with its inpatient referral by failing to contact the facility for admission. Thereafter, the Crucible Manager of Labor Relations notified plaintiff by letter of his termination due to noncompliance with its drug and alcohol policy.

The first cause of action pleading race discrimination is based upon the allegation that defendant offered re-employment to African-Americans who tested positive for drug use and

completed rehabilitation. The plaintiff's answers to the defendant's First Set of Interrogatories specifically named only the individual previously represented by plaintiff's counsel as an employee who was offered reinstatement. Plaintiff's counsel represented the individual in a Federal Court matter against Crucible and executed a confidentiality agreement. Plaintiff's counsel wrote a letter to the Director of Labor Relations with Crucible, requesting plaintiff receive a reinstatement offer similar to the one offered to the other individual. Plaintiff's counsel also filed discovery documents identifying that individual as the African-American person who received a reinstatement offer. The plaintiff cannot establish a prima facie case of race discrimination because the very basis of the claim is an inadmissible settlement offer protected by a confidentiality agreement in a separate matter. Even if plaintiff could establish such a prima facie case, the defendant terminated and refused to re-hire plaintiff for a legitimate non-discriminatory reason, since plaintiff had violated company policy by refusing to comply with the substance abuse treatment requirements of PCS after testing positive for cocaine use. Defendant contends that plaintiff's non-compliance created a safety risk, and no evidence exists by which plaintiff could show defendant's legitimate non-discriminatory business reason was a pretext for discrimination.

A three step burden shifting analysis applies to claims of racial discrimination. See, Ferrante v. American Lung Association, 90 NY2d 623 (1997). First, the employee must make a prima facie showing of racial discrimination. See, id. Second, once the plaintiff has satisfied his burden, defendant must articulate a clear nondiscriminatory reason for the termination, and third, plaintiff must show that the proffered reasons are pretextual. See, id. To make a prima facie showing, plaintiff must show that he is a member of a protected class, that he was qualified to hold the position that he was terminated from employment or suffer another adverse employment action, and that the discharge occurred under circumstances giving rise to an inference of discrimination. See, Forrest v. Jewish Guild for the Blind, 3 NY3d 295 (2004). The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth through the introduction of admissible evidence, legitimate, independent and non-discriminatory reasons to support its decision. See, Ferrante v. American Lung Association, 90 NY2d 623 (1997). A plaintiff cannot satisfy his ultimate burden simply by claiming the employer's proffered reason for his termination as false and that a reason cannot be proved to be pretext for discrimination unless it is shown both that the reason was false and that discrimination was the real reason. See, St. Mary's Honor Ctr. v. Hicks, 509 US 502 (1993). In the present case, the plaintiff is unable to make such a prima facie showing since the basis of his claim is an inadmissible confidentiality agreement in a separate matter and since he cannot show that he was qualified to hold the position, or that the discharge occurred under circumstances giving rise to an inference of discrimination. The defendant has offered admissible evidence of its legitimate nondiscriminatory business reason to support its decision to terminate the plaintiff and his [*3]violation of company policy by refusing to comply with the rehabilitation program. A defendant's burden is satisfied by simply explaining why the plaintiff was discharged, or where evidence of a legitimate nondiscriminatory reason is provided. See, Texas Department of Community Affairs, 450 US248 (1981). The courts have held, in fact, that an employee who fails a drug test and fails to undergo requisite rehabilitation is unable to establish the second and fourth aforementioned elements of the prima facie case. See, Mack v. Port Authority, 225 F2d 376 (Sdny. 2002). In the present case, the alcohol and drug policy was approved by the plaintiff's union, as well as Crucible management, and plaintiff was aware of the policy. Defendant has offered evidence through affidavits that the plaintiff's termination for violating the policy constituted a legitimate nondiscriminatory business reason and that the plaintiff had the opportunity to comply with the drug treatment recommendations, cease using cocaine and obtain reinstatement, but that he failed to do so. The plaintiff has not shown that the defendant's legitimate nondiscriminatory business reason was a pretext, while the defendant has presented evidence showing that all employees were equally subjected to the drug policy and that there were numerous white employees conditionally reinstated after they had successfully completed the program. The allegation of the employee that he suffered an adverse employment action due to discrimination without more is not sufficient to survive a summary judgment where there is a showing of an adequate nondiscriminatory reason. See, Schabat v. Blue Cross Blue Shield, 92 F. Supp. 977 (WDNY 1996). Plaintiff instead relies only upon the example of one employee, the circumstances of which his employment was subject to a confidentiality agreement and thus, not admissible. Inasmuch as the plaintiff has failed to make a prima facie showing of race discrimination, the first cause of action must be dismissed.

Likewise, the second and third causes of action alleging disability discrimination due to plaintiff's status as a "rehabilitating drug user" must be dismissed as well. In order to establish a prima facie case of disability discrimination, the plaintiff must show that he suffers from a disability and the disability caused the behavior for which he was terminated. See, McElnry v. Landy, 84 NY2d 554 (1994). Once a prima facie case is established, the defendant has the burden to demonstrate either the disability prevented the employee from performing his job in a reasonable manner, or the employee's termination was motivated by a legitimate non-discriminatory reason. See, Roberts v. NYS Department of Correctional Services, 63 FSupp2d 272 (WDNY 1999). In the present case, at the time of plaintiff's termination he was a current rather than rehabilitated drug user and he was unable to perform his job duties in a reasonable manner, even with reasonable accommodation. The law is clear that an employer is legitimately entitled to discriminate against user of controlled narcotics substances. See, Doe v. Roe, Inc., 160 AD2d 255 (1st Dept. 1990). Although plaintiff relies on Executive Law §296, its purpose is to prevent discrimination against persons suffering from a disability, but who can be or are productive workers. See, Dicocco v. Capital Area Community Health Plan, Inc., 135 AD2d 308 (3d Dept. 1998). Plaintiff instead remained a safety risk. Even if plaintiff otherwise met the definition of disabled individual, the fact that Crucible afforded plaintiff the opportunity to rehabilitate himself and receive conditional reinstatement after successful completion of the rehabilitation program, constitutes a reasonable accommodation.

Nor can plaintiff establish that Defendant perceived him as disabled, as plaintiff is required to prove that defendant's perception of the disability was the motivating force behind the [*4]determination. See, Petri v. Bank of New York Co., 153 Misc 2d 426 (1992). Absent such proof, summary judgment is appropriate. See, id. Plaintiff has offered no evidence of a perception that he was disabled and that in reality, there was no perceived disability. Defendant, on the other hand, has offered evidence that plaintiff was terminated and not rehired for a legitimate nondiscriminatory reason; so even if, plaintiff met the prima facie requirements, he still fails to establish a claim. Nor can plaintiff establish that the legitimate nondiscriminatory reason for termination and subsequent failure to rehire was a pretext for discrimination. As a result, the plaintiff's complaint must be dismissed in its entirety.

Defendant also seeks sanctions against plaintiff's counsel for disclosure of information concerning another individual he represented which was protected by a confidentiality agreement. Based on a review of the record, the court, in its discretion pursuant to 22 NYCRR §130-1.1(a) denies the motion for sanctions.

NOW, therefore, for the foregoing reasons, it is

ORDERED that the defendant's motion to dismiss the petition in its entirety is granted and it is further

ORDERED that the defendant's motion for sanctions against plaintiff's counsel is denied.

ENTER

Dated: December 23, 2005

Syracuse, New YorkDONALD A. GREENWOOD

Supreme Court Justice