Thursday, July 1, 2010
Kinneary v City of New York, ____F.3d____(2d Cir. March 19, 2010), is an interesting 2d Circuit employment discrimination case. A sludge boat captain with a shy bladder, by not providing an adequate physician's note, failed to take advantage of the accommodation he sought and thus he was unable to make out a claim under the ADA. In his position at the New York City Department of Environmental Protection (DEP), the captain was subject to federally regulated random drug testing. At the time of his first drug test, the captain could not urinate on command, even after staying at the lab a full day and drinking water. Returning to the lab the next day, he eventually provided a sample. The captain had similar problems with random drug tests throughout his employment. He asked DEP if he could instead take a blood test and was told to get a doctor's note. The DEP did not accept the note and he was ultimately discharged. The DEP gave the captain the accommodation he sought and the opportunity to have his drug test cancelled based upon his physician's evaluation. However, the captain failed to take advantage of the accommodation. The physician's note did not constitute a basis for his test to be cancelled because it did not say the captain had a medical condition that could preclude him from providing a sufficient amount of urine for the test.
Mitchell H. Rubinstein