2d Circuit Affirms Dismissal of Plaintiffs’ Constructive Discharge Claims Based on Perceived Alcoholism

In Makinen v. City of New York, 2018 WL 546409 (2d Cir. Jan. 25, 2018) (Summary Order), the Second Circuit, inter alia, affirmed the dismissal of plaintiffs’ constructive discharge claim under the Americans with Disabilities Act and the New York State Human Rights Law.

In sum, plaintiffs (city police officers) alleged that they suffered discrimination on the basis of their perceived alcoholism. (The New York Court of Appeals answered a certified question and determined that the State and City Human Rights Laws precluded a disability discrimination claim based solely on a perception of untreated alcoholism.)

The court held:

We also reject the plaintiffs’ contention that the District Court erred in dismissing Makinen’s constructive discharge claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq., and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq. To succeed on a constructive discharge claim, an employee must “show both (1) that there is evidence of the employer’s intent to create an intolerable environment that forces the employee to resign, and (2) that … a reasonable person would have found the work conditions so intolerable that he would have felt compelled to resign.” Shultz v. Congregation Shearith Israel of N.Y., 867 F.3d 298, 308 (2d Cir. 2017) (quotation marks omitted). Makinen did not show that the Counseling Services Unit (“CSU”) process was objectively intolerable. See Petrosino v. Bell Atl., 385 F.3d 210, 230 (2d Cir. 2004). Makinen remained on the force for several years after her initial alcoholism diagnosis and nearly a year after the imposition of her final treatment plan, retiring only after she reached her twentieth year of service and became qualified for pension benefits. Under these circumstances, we cannot conclude that Makinen’s working conditions were so intolerable that she was “compelled” to retire.

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