Arrest for selling drugs did not cut off damages in disability failure-to-hire case
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Monday, February 8, 2016

Arrest for selling drugs did not cut off damages in disability failure-to-hire case

By Dave Strausfeld, J.D. Because a rejected job applicant was subsequently arrested for selling drugs, the Department of Sanitation requested that any damages recoverable in his action for disability discrimination be “cut off” after the date he was arrested, given that his arrest would have led him to be fired. Rejecting this argument as speculative, a federal district court in New York found it “equally possible” he would not have resorted to selling drugs if he had been hired as a sanitation worker. The court also found questions of fact on whether the employee could perform the essential functions of the job, and denied the department’s motion for summary judgment (Echeverri v. The New York City Department of Sanitation, February 3, 2016, Schofield, L.). Blood disorder. The job applicant, who lifted weights every other day and did pull-ups and push-ups, applied for a position as a sanitation worker but was ultimately disqualified for medical reasons. The medical staff felt that his blood condition, called idiopathic thrombocytopenia pupora, exposed him to a risk of “bleeding out” and difficulty healing if he were injured on the job. Several months after his appeal to the city’s civil service commission was denied, the applicant was arrested and charged with possession and intent to sell a controlled substance and criminal possession of a controlled substance. Dispute over safety. The main dispute between the parties in this case was whether the job applicant could perform the essential functions of a sanitation worker safely, that is, without unreasonable risk to himself or others. Although he submitted a letter from a hematologist clearing him for the job, the department believed the letter was unreliable because it did not elaborate on how or why the hematologist reached her conclusion. Ultimately though, the court concluded, these arguments “are akin to credibility arguments and are not a basis for granting summary judgment,” so the job applicant could take his disability discrimination claims to trial. No damages cut off. The department also argued that damages should be limited in the case. Specifically, if the job applicant had been hired, he would have been fired once he was arrested on felony drug charges, and therefore any potential damages for disability discrimination should be cut off as of the date of his arrest. However, the department had difficulty locating case law supporting this position that was directly on point. Although it cited the Supreme Court’s decision in McKennon v. Nashville Banner Publishing Co., the court found this case inapposite, as it dealt with imposing a damages cut-off date on the basis of after-acquired evidence in a situation where the individual was actually hired by the defendant company and thus subject to its rules, regulations and policies. “Completely speculative.” In contrast, the job applicant here was never hired, and thus he was never subject to the sanitation department’s rules or policies regarding sale or use of controlled substances. Also, assuming he had been hired, it was “completely speculative” that he would still have been arrested and then fired. It was “equally possible,” the court suggested, that had he been employed he would “not have resorted to possessing an illegal drug with intent to sell.” Accordingly, the department’s motion requesting a damages cut-off date was denied.

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