In Gordon v. Consolidated Edison Inc., 2021 NY Slip Op 00492 (App. Div. 1st Dept. Jan. 28, 2021), the court held that plaintiff presented sufficient evidence to proceed on her failure-to-accommodate-disability discrimination claim under the New York State Human Rights Law.
In sum, plaintiff, who worked for defendant as a financial analyst, suffered from irritable bowel disease (IBD).
The court summarized the following timeline of events:
[I]n December 2016, she consulted a physician about whether medical marijuana would help with her IBD symptoms. The physician told plaintiff that she would be a suitable medical marijuana patient. On December 17, 2016, plaintiff tried marijuana to see if it would alleviate her IBD symptoms, and, plaintiff alleged, the drug worked “instantaneously” to relieve her symptoms. The next day, plaintiff contacted a physician registered with the New York State Department of Health’s Medical Marijuana Program (MMP) to certify patients for medical marijuana treatment, and made an appointment to see the doctor on December 27, 2016.
In the meantime, on December 21, 2016, plaintiff was randomly selected for a drug test in accordance with defendant’s standing policy, and she provided a urine sample and tested positive for marijuana. On December 27, 2016, plaintiff saw the MMP-registered physician, who certified that plaintiff was likely to benefit from treatment with medical marijuana. On December 29, 2016, the MMP website stated that she was approved as a medical marijuana patient.
On that same day, defendant’s Human Resources (HR) department informed plaintiff that she had tested positive for marijuana use. Plaintiff responded that she was a medical marijuana patient, and that she had used marijuana to treat her IBD symptoms. The HR officer scheduled an appointment for plaintiff to meet defendant’s in-house medical review officer (MRO), a physician, on January 5, 2017.
On January 5, plaintiff saw the MRO, who ascertained that when plaintiff used marijuana on December 17 she was not yet a certified medical marijuana patient. The MRO concluded that plaintiff’s use violated defendant’s drug use policy, and referred plaintiff back to the HR department for action. The HR department decided that, because plaintiff was still a probationary employee, she was not eligible for accommodation and should be terminated. The HR department arranged to meet with plaintiff on January 11, 2017, to inform her of the decision.
On January 9, 2017, the MMP issued plaintiff’s Registry ID card. On January 10 and 11, 2017, plaintiff reiterated to the HR department and her supervisor that she was a certified medical marijuana patient. At the meeting on January 11, defendant terminated plaintiff’s employment.
Applying the law, the court explained:
The foregoing timeline establishes that [*2]there are issues of fact, for purposes of plaintiff’s claim for failure to accommodate under the State Human Rights Law (HRL), as to whether defendant adequately engaged in a cooperative dialogue with plaintiff (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 834 ; Phillips v City of New York, 66 AD3d 170, 176 [1st Dept 2009]) to determine whether it could reasonably accommodate her status as a medical marijuana patient (see PHL 3369). Notably, questions of fact exist as to whether defendant improperly cut the dialogue process short when it discovered that plaintiff was a probationary employee, and refused to consider accommodating her — as it regularly did for permanent employees — by, for example, giving her discipline short of termination, or simply overlooking the one-time technical violation in light of her contemporaneously acquired status as a medical marijuana patient[.]
The court noted that this case was distinguishable from cases involving a claim that the employer should excuse disability-related misconduct:
Here, plaintiff did not here seek certification for medical marijuana use after testing positive for its use. Instead, her pre-certification marijuana use was the beginning of a process which ended with her certification for medicinal use. Plaintiff began the certification process before she tested positive at work. Nor is there any allegation that plaintiff’s use of marijuana, either before or after certification, has ever affected the quality of her work or her ability to do that work, or that she has ever used marijuana, medicinal or otherwise, at the workplace.
In addition, while the New York State Human Rights Law defines status as a medical marijuana patient as a protected disability, the New York City Human Rights Law does not.
That said, the court noted that plaintiff’s IBD “is a physical impairment and thus a disability under the City HRL” and, therefore, “issues of fact exist as to whether defendant should have permitted plaintiff to treat her IBD through the medical use of marijuana, as a reasonable accommodation” and also “as to whether the accommodation would reasonably extend to excusing the single pre-certification use of marijuana, and whether defendant fulfilled its duty to engage in an interactive dialogue with plaintiff aimed at reaching a reasonable accommodation for her disabling condition.”
As to plaintiff ‘s claim of disability discrimination, the court held that plaintiff raised an issue of fact as to whether defendant’s proffered reason for terminating plaintiff – her violation of the company’s drug policy by using marijuana prior to her certification as a medical marijuana patient – was a “pretext” for unlawful discrimination.