Appeals Court Dismisses Employee's ADA Claim of Denial of Accommodation during Drug Test

Reversing a jury verdict for an employee claiming that he was denied a reasonable accommodation of his “shy bladder” syndrome during a random government-mandated drug test, a federal appeals court in New York has held that because the employee was offered the opportunity but failed to qualify for his vessel’s captain’s license even with the accommodation he sought, he became unqualified to perform the essential functions of his job. Accordingly, there was no violation of the Americans with Disabilities Act. Kinneary v. City of New York, No. 08-1330-cv, 2010 U.S. App. LEXIS 5688 (2d Cir. Mar. 19, 2010). The Second Circuit has jurisdiction over Connecticut, New York, and Vermont.

The Facts

Joseph Kinneary was a sludge boat captain employed by the City of New York’s Department of Environmental Protection. As such, he was subject to drug and alcohol testing under federal Department of Transportation (“DOT”) regulations. He alleged that he suffered from paruresis, also known as “shy bladder” syndrome, which makes it difficult for an individual to urinate on demand, as required for a drug test. Kinneary claimed that this condition constituted a disability, that the City failed to reasonably accommodate his disability, and that he was terminated unlawfully because of his disability.

Kinneary discovered that he could not urinate on demand when he was first subjected to a random drug test in 1992. Although he was able to complete that test, he was unable to do so when subjected to random drug tests in 1996 and 1998. In December 2001, Kinneary was subjected to another random drug test. Despite drinking water over a three-hour period, he could not produce a urine specimen. He was then transported to a medical clinic. According to Kinneary, as he approached the clinic, he felt an urgent need to urinate. When he arrived at the medical clinic, he was not permitted to give a urine sample, although he offered to do so.

Kinneary was then instructed by the City to get a doctor’s note and was provided with specific instructions to be given to the physician. The instructions for the physician 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”).

Kinneary’s physician did not follow these instructions. Instead, the physician 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 was advised by the City that the note would not be accepted and subsequently was served with misconduct charges for refusing to take a drug test. Soon thereafter, the U.S. Coast Guard filed a complaint against Kinneary, alleging he refused to submit to the drug test. (DOT drug and alcohol testing rules apply to the Coast Guard, even though that agency is now part of the Department of Homeland Security).

Coast Guard Proceeding

An administrative law judge in the Coast Guard proceeding ruled that Kinneary had refused the drug test. The Coast Guard ordered a 12-month suspension of Kinneary’s license, followed by a 12-month probationary period. Kinneary appealed, and pending resolution of the appeal, he received a temporary license. The temporary license subsequently expired and Kinneary’s appeal was denied as untimely. Kinneary was suspended and ultimately terminated because he did not possess the required license for his position as Captain.

The Suit and Trial

Kinneary asserted in his lawsuit that the City denied him a reasonable accommodation and it was that denial that led to the loss of his license. The City argued Kinneary was not disabled within the meaning of the ADA, he was not otherwise qualified to perform the duties of a ship captain, and he was not terminated due to a disability.

Kinneary prevailed at a jury trial, asserting claims under federal, state and city disability discrimination laws. The jury awarded him $100,000 in back pay and $125,000 in non-economic damages. The district court denied the City’s motion for judgment as a matter of law, but granted a motion for a new trial on the issue of non-economic damages unless Kinneary agreed to reduce his damages to $25,000, which he did. Kinneary and the City cross-appealed.

The Appeals Court Decision

Continuing to argue he would not have lost his captain’s license if the City had offered him a reasonable accommodation, Kinneary claimed he should have received the opportunity to have his test cancelled based upon a physician’s evaluation of his “shy bladder” condition.

Under applicable DOT drug testing regulation, the employee “must obtain, within five days, an evaluation from a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the employee’s failure to provide a sufficient specimen.” 49 C.F.R. § 40.193(c). The referral physician may advise the MRO, as the City had instructed here, “A medical condition has, or with a high probability could have, precluded the employee from providing a sufficient amount of urine.” 49 C.F.R. § 40.193(d)(1).

The Court concluded that the City provided Kinneary with the accommodation he sought. The City permitted Kinneary to be evaluated by a physician and provided instructions to the physician that were consistent with the applicable DOT regulations.

The note that Kinneary’s physician provided, however, did not constitute a basis for cancelling the test because it did not say that Kinneary had a medical condition that did, or with a high probability could have, precluded Kinneary from providing a sufficient amount of urine for the test. Instead, the note simply stated the name of the condition, noted that it was chronic and could be helped by an alpha blocker that Kinneary had been given, and indicated that Kinneary was not a substance abuser.

The Court further noted that the U.S. Coast Guard also found that the doctor’s note did not meet the DOT requirements for the drug test to be cancelled. In particular, when the MRO contacted Kinneary’s physician to obtain documentation for the diagnosis of shy bladder syndrome, no supporting data was available.

Employee Received Accommodation Sought

The Court held that the evidence unequivocally demonstrated that the City gave Kinneary the accommodation he sought (the opportunity to have his drug test cancelled based upon a physician’s evaluation pursuant to 49 C.F.R. § 40.193), but Kinneary failed to comply with the regulatory requirements that would have allowed him successfully to cancel his test and save his license. Because Kinneary failed to retain his captain’s license despite receiving the accommodation, he was not otherwise qualified to perform the essential functions of his job and could not make out a successful claim under the ADA.

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