NYPD Employee’s Medical Marijuana-Related Discrimination Claims Survive Dismissal

In Cascalenda v. City of New York, No. 157807/2020, 2021 WL 1156597 (N.Y. Sup Ct, New York County Mar. 26, 2021), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claims of disability discrimination, hostile work environment, and constructive discharge.

The facts, as summarized by the court:

Plaintiff began his employment with the New York City Police Department (NYPD) in 2008. Before and during his employment with the NYPD, plaintiff suffered with multiple physical and mental health issues. As a result of plaintiff’s medical issues, plaintiff was prescribed multiple medications including opioids and medical marijuana. Plaintiff alleges that he was a certified medical marijuana user and NYPD District Surgeon Joseph Hedderman approved his medical marijuana use.

Plaintiff was subjected to random drug testing because of his employment and failed three tests because of his medical marijuana use. Plaintiff was told that he could not use medical marijuana and was disciplined as a result of the failed drug tests. Plaintiff admits that he did not formally request a reasonable accommodation for his disabilities through the Equal Employment Opportunity Division (EEOD).

Plaintiff alleges he was subjected to surveillance by the Internal Affairs Bureau as a result of his medical marijuana use. Plaintiff also alleges he was held in custody at IAB offices overnight and was harassed by IAB officers. Plaintiff alleges the harassment included allegations that plaintiff was faking his illness as well as opening the restroom door when he was in the bathroom and pointing and laughing.

In March 2020, plaintiff’s application for disability retirement was approved and plaintiff retired from the NYPD on September 17, 2020.

Applying the law, the court explained:

Under the NYCHRL, the focus is on “unequal treatment based on [a protected characteristic] . . ..” Williams v New York City Housing Auth., 61 AD3d 62, 79 [1st Dept 2009]. “Thus, even assuming that a plaintiff could not prove that she[/he] was dismissed for a discriminatory reason, she[/he] could still recover for other differential treatment based on her[/his] [disability].” Suri v Grey Global Group, Inc., 164 AD3d 108, 120 [1st Dept 2018] (internal citation omitted). Accordingly, to establish a discrimination claim under the NYCHRL, plaintiff has to prove by a “preponderance of the evidence that she[/he] has been treated less well than other employees because of her[/his] [protected characteristic].” Williams v New York City Housing Auth., 61 AD3d at 78.

Given the liberal pleading standards, the court finds that plaintiff has sufficiently alleged that he was treated less well than other employees because of his disability. See e.g. Boncimino v N.Y. State Unified Court Sys., 2018 WL 2225004, *10, 2018 US Dist LEXIS 82024, *30 (SD NY 2018) (internal quotation marks and citation omitted) (Court held that at the motion to dismiss stage, “name-calling, posting of pictures, and mocking alleged in the Amended Complaint create a plausible claim for discrimination under the NYCHRL”); see also EBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005] (“Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss”).

A plaintiff may sufficiently allege a violation of the NYCHRL by an employer’s failure to engage in the required individualized process to accommodate and also separately allege causes of action for disability discrimination. See e.g. Phillips v City of New York, 66 AD3d at 178 (“Separate and apart from the City’s failure to engage in an individualized interactive process in evaluating plaintiff’s request for accommodation, plaintiff has sufficiently pleaded causes of action for disability discrimination under both statutes”). Accordingly, at this stage, defendants’ motion is denied with respect to plaintiff’s failure to accommodate and discrimination claims.

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