Week Ending 11/2/12: A.D.P. vs. Exxonmobil

Alan Schorr’s Case of The Week ending November 2, 2012

A.D.P. v. Exxonmobil Research and Engineering Co., 2012 WL 5273469, Essex County, (App. Div. October 26, 2012)(approved for publication)

This week’s case of the week provides an in-depth analysis of the New Jersey Law Against Discrimination’s protection of persons suffering the disability of alcoholism. The opinion in A.D.P., Plaintiff–Appellant, v. Exxonmobil Research and Engineering Co. is remarkable for a number of reasons. First, it is a rare case where an employee is suffering from the disability of alcoholism, and there is no allegation of performance-related problems. Second, it is a rare case where a Court acknowledges that there is direct evidence of discrimination, practically assuring that the plaintiff will survive summary judgment. Third, it demonstrates that carefully formulated comprehensive corporate policies can still be facially discriminatory.

A.D.P. (Plaintiff’s name was not disclosed in the opinion) worked for Exxonmobil and its predecessor for 30 years, earning at least eight promotions to the title of Senior Research Associate. Throughout her career, she was consistently ranked as a top performer. After her husband died in 2004, her co-workers noticed that she was depressed, but she received a promotion in 2005, and her performance slipped slightly, but she remained in the middle third of employees. In August 2007, A.D.P. reported to Human Resources that she was suffering from alcoholism and intended to enter a rehabilitation program.

Although Exxonmobil had a policy assuring employees that they would not be terminated for participating in a rehabilitation program, they had a very harsh policy regarding alcoholics. She was required, upon her return, to sign a vow of abstinence, agree to participate in random testing for three years, and acknowledge that a positive test could result in her termination. Only people identified as alcoholics had to sign such a policy. On August 22, 2008, she had a breathalyzer reading of .047 and .043 - lower than the .08 that would be drunk driving under NJ law. She was immediately terminated. There were few facts in dispute. The employer admitted that there were no performance problems, and that, as a result of the test she would have been terminated even if she had been in the top 1% of performers. Non-alcoholics would not be terminated if they such a reading.

She sued, and Judge James S. Rothschild of the Essex County Superior Court granted summary judgment, finding Exxonmobil’s policy to be reasonable. The Appellate Court Panel disagreed. They found Exxonmobil’s policy to be facially discriminatory against people suffering the disability of alcoholism. Accordingly, the Court held that the policy was direct evidence of discrimination. Because there was direct evidence of discrimination, the Court applied the Price Waterhouse analysis instead of the McDonnell Douglas test. In other words, instead of the employer having the burden of production of a legitimate non-discriminatory, which then needs to be rebutted by the plaintiff, there is an assumption of discrimination, and the employer instead has the burden to demonstrate that they would have terminated the plaintiff even if she had not been alcoholic. Since it was admitted that they would not have done so, they should not have been granted summary judgment. The Court upheld the dismissal of the Pierce public policy claim because it did not find a public policy violation, and also found it was preempted by the LAD claim.

This opinion is very well-written and contains a lot of comprehensive legal analysis that can be used not only in alcoholism cases, but in all disability and discrimination cases in general. The most important lesson of this case is that well-written comprehensive policies that seem reasonable may very well violate the New Jersey Law Against Discrimination. We see this situation very often in corporate policies which terminate disabled employees after 12 weeks of FMLA, while disregarding that that the LAD requires employers to provide additional leave after FMLA as a reasonable accommodation if it can be accomplished without undue hardship. Based upon this case, an argument can be made that such a policy is direct evidence of discrimination.

As I noted above, there are not many cases I am aware of where alcoholics have actually won discrimination cases. Our Supreme Court acknowledged in Clowes v. Terminix Int'l, Inc., 109 N.J. 575 (1988) that alcoholism is a disability protected by our Law Against Discrimination. I am unaware, however, of any actual trial verdicts where an alcoholic had succeeded in recovering for alcoholic discrimination. There was a case in 2011, Velcko v. Independent Mgmt. of Props. & Communities, 2011 WL 7563812 (N.J.Super.L.), where a plaintiff won a verdict of $126,418.10 where he was placed on a random alcohol testing program, but he was not actually an alcoholic, he was only perceived to be, and the alcohol issue was a minor issue in that case. That case settled while on appeal. If you are aware of any other successful NJ verdicts in alcoholism cases, let me know and I will update this article accordingly.

This case should be carefully examined by counsel representing employers, as it provides very important guidance with regard to creating and enforcing alcoholism policies that are not facially discriminatory. It should also make it easier for future similar similarly situated employees. In any event, this is a case that should be placed in your research files for future reference.

Plaintiff’s counsel: Sarah Fern Meil, Esquire

Defendant’s counsel: John B. McCusker & Michael R. Futterman, McCusker, Anselmi, Rosen &

Carvelli, P.C., attorneys

Trial Court Judge: James S. Rothschild, J.S.C.

Appellate Division Judges: Yannotti, Espinosa, and Kennedy.

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