Dan Buckley v. Consolidated Edison Company of New York, Inc.

155 F.3d 150, 8 Am. Disabilities Cas. (BNA) 847, 1998 U.S. App. LEXIS 22114, 1998 WL 603242
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 11, 1998
DocketDocket 96-9039
StatusPublished
Cited by50 cases

This text of 155 F.3d 150 (Dan Buckley v. Consolidated Edison Company of New York, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dan Buckley v. Consolidated Edison Company of New York, Inc., 155 F.3d 150, 8 Am. Disabilities Cas. (BNA) 847, 1998 U.S. App. LEXIS 22114, 1998 WL 603242 (2d Cir. 1998).

Opinions

Judge CALABRESI concurs in a separate opinion.

KEARSE, Circuit Judge:

Plaintiff Dan Buckley appealed from a final judgment of the United states District Court for the Southern District of New York, Barrington D. Parker, Jr., Judge, dismissing his amended complaint which alleged that defendant Consolidated Edison Company of New York, Inc. (“Con Edison” or the “company”), violated his rights under the Americans with Disabilities Act of 1990 (“ADA” or the “Act”), 42 U.S.C. §§ 12101-12213 (1994), and the New York State Human Rights Law, N.Y. Exec. Law § 296 (McKinney 1993 & Supp.1998), in terminating his employment because he was unable to provide a urine sample for a company-administered drug test due to a neurogenic bladder condition, a condition not regarded as a disability under the ADA. The district court dismissed the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6), ruling that Buckley had failed to state a claim on which relief can be granted under the ADA, and declining to exercise supplemental jurisdiction over his state-law claims. See Buckley v. Consolidated Edison Co., 934 F.Supp. 104 (1996) (“Buckley /”). On appeal, a divided panel of this Court reversed, holding that, in suggesting that Con Edison had available an alternative means of drug testing that would have accommodated the neurogenic bladder condition, the amended complaint stated a claim on which relief can be granted under the ADA. See Buckley v. Consolidated Edison Co., 127 F.3d 270 (1997) (“Buckley II”). On en banc reconsideration, we conclude that an employer’s administration of generally accepted substance-abuse urine tests for the illegal use of drugs, pursuant to 42 U.S.C. § § 12114(b), to employees identified as recovering substance abusers more frequently than to other employees, without making accommodation for neurogenic bladders, a condition not alleged to be or to result from an ADA-covered disability, does not violate the ADA. We therefore vacate the decision of the panel and affirm the judgment of the district court dismissing the amended complaint.

I. BACKGROUND

Buckley was employed by Con Edison from February 1976 until the company terminated his employment in July 1994. He commenced the present action in 1995. As amended, the complaint, whose allegations are taken as true for purposes of reviewing the Rule 12(b)(6) dismissal, described the following events.

A. The Amended Complaint and the Decision of the District Court

Con Edison ordinarily subjects its employees who have not been identified as former alcohol or substance abusers to random drug/alcohol testing approximately once every five years. In 1991, Buckley was identified as an alcohol/substance abuser, and he underwent treatment at a residential facility. [152]*152In 1993, he suffered a relapse and received additional treatment. As a result of his identification as an aicohol/substanee abuser, Con Edison required Buckley to submit to random drug/alcohol testing approximately once every 25 days.

For that testing, Buckley “was required to provide a urine specimen under observation and, on occasion, to strip naked to provide said urine specimen.” (Amended Complaint ¶ 6.) Buckley suffers from a “medical condition known as neurogenic bladder, which is not a disability pursuant to the statutory definition contained within the Americans with Disabilities Act” (id. ¶ 2), which causes “an inability to urinate, particularly in public or on command” (id. ¶ 11). On June 24, 1994, Buckley was ordered to report to Con Edison’s medical facility for a drug test. Although he provided a blood sample, he was “unable to produce a urine specimen in the time allotted to him.” (Id. ¶ 12.) His request for additional time to provide a urine sample was denied. Thereafter, Buckley went on his own to a hospital, paid to have a urine sample taken, and had the results forwarded to Con Edison. Nonetheless, on July 1, 1994, his employment “was terminated because he was unable to urinate on command and supply a sample to defendant’s drug testing doctor” (id. ¶ 7).

Buckley commenced the present action, asserting claims under the ADA and the New York Human Rights Law. Following a challenge by Con Edison to the sufficiency of the original complaint, Buckley filed the amended complaint that is the subject of this appeal. The amended complaint, although emphasizing that Buckley’s neurogenic bladder condition “is not claimed as a disability pursuant to the Americans with Disabilities Act” (id. ¶ 11 (emphasis in original)), alleged that Con Edison discriminated against Buckley because of his disability through (a) its administration of a test that was “not ‘reasonable’ ” within the meaning of 42 U.S.C. § 12114(b) (id. ¶ 7; see also id. ¶¶ 13,18,19), and (b) its “failure ... to reasonably accommodate him by extending the time allowed for him to urinate” (id. ¶ 10; see also id. ¶ 16).

Con Edison moved to dismiss the amended complaint on the principal ground that it failed to state a claim under the ADA. In Buckley I, the district court granted the motion, stating in part as follows:

In his amended complaint, Buckley has not alleged that Con Edison’s drug testing procedures unreasonably failed to accommodate his disability as an alcohol/substance abuser. Rather, he continues to allege that, in requiring a urine sample within a specified period of time, Con Edison’s procedures unreasonably failed to accommodate his bladder condition. Because Buckley concedes that his bladder condition is not a disability under the ADA, however, Con Edison’s failure to accommodate it cannot constitute a violation of the ADA.

934 F.Supp. at 106. Having determined that Buckley’s federal claims must be dismissed, the district court declined to exercise supplemental jurisdiction over his state law claim. Judgment was entered dismissing the complaint, and Buckley appealed.

B. The Panel Decision

In Buckley II, a divided panel vacated the judgment, ruling that the amended complaint stated a valid claim under the ADA. Noting that Con Edison subjects recovering substance abusers such as Buckley to testing about once a month but subjects employees who are not former substance abusers to testing only about once every five years, the panel majority concluded that the amended complaint stated a valid claim under the ADA because it alleged that, under Con Edison’s policy, recovering addicts are tested more frequently than nonaddicts and hence likely to be fired sooner than nonaddicts:

Con Edison’s policy treats those employees who have neurogenic bladders and who are recovering drug addicts differently from those employees who have neurogenic bladders and who are not recovering drug addicts.

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Bluebook (online)
155 F.3d 150, 8 Am. Disabilities Cas. (BNA) 847, 1998 U.S. App. LEXIS 22114, 1998 WL 603242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dan-buckley-v-consolidated-edison-company-of-new-york-inc-ca2-1998.