New York City Office Of

Fire Dep’t v. Peltonen OATH Index No. 2101/08 (Oct. 9, 2008)

Petitioner proved that firefighter tested positive for cocaine use. Although respondent suffered from post-traumatic stress disorder (“PTSD”) related to 9/11, and his drug use was caused by his PTSD, such use was voluntary. ALJ’s recommendation of termination does not violate Human Rights Law, where respondent’s propensity to relapse is real and reassignment as a form of reasonable accommodation would not permit respondent to perform the essential functions of his job. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of FIRE DEPARTMENT Petitioner -against- PETER PELTONEN Respondent ______

REPORT AND RECOMMENDATION INGRID M. ADDISON, Administrative Law Judge This is a disciplinary proceeding referred by the petitioner, the Fire Department, pursuant to section 15-113 of the Administrative Code of the City of New York. The charges allege that during a random drug test, respondent firefighter Peter Peltonen tested positive for cocaine, in violation of his oath of office, the Department All Units Circular 202 (Oct. 12, 2005) (“AUC 202”) (Pet. Ex. 9), and sections 25.1.61 and 25.1.1 of the Rules and Regulations for the Uniformed Force (Jan. 1, 1997) (ALJ Ex. 1).2

1 Instead of section 25.1.6, petitioner inaccurately cited to section 25.1.5 of its regulations which prohibit members in uniform or on duty from indulging in or being under the influence of intoxicating liquors. This was not fatal to petitioner’s case because its notice of charges was sufficient to apprise respondent of the misconduct with which he was being charged, that is, that he tested positive for the presence of cocaine, as a result of a random drug test on February 16, 2007. 2 The allegation that respondent’s positive drug test violated AUC 202 was raised at trial with no objection from respondent, whose defense included reference to AUC 202. Accordingly, I amended the charges sua sponte to include this allegation. See Taxi & Limousine Comm’n v. Sobczak, OATH Index No 1691/08 (Apr. 7, 2008), modified on penalty, Comm’r/Chair’s Decision (May 9, 2008) (Amendment of charges in administrative 2

At a hearing before me on August 20 and 22, 2008, petitioner relied on documentary evidence of the results of the drug testing of respondent, administered by the Department’s Drug Testing Unit, on February 16, 2007. Respondent testified on his own behalf and offered testimony from four witnesses: a clinical and forensic psychologist, two character witnesses, and his wife. In his defense, respondent argued that, as the collateral effect of his involvement in the 9/11 rescue and recovery operations at Ground Zero following the terrorist attack in 2001, he suffers from post-traumatic stress disorder (“PTSD”), which caused him to become addicted to alcohol and drugs. Respondent further asserted that alcohol and drug addictions are disabilities recognized by the Human Rights Law (Exec. Law Art. 15), and that he is therefore protected from termination because he is rehabilitated. On August 26, I notified both parties, by electronic mail, that I had reopened the record for them to address the application of Executive Law section 296, which was raised but not fully developed in respondent’s closing argument. The record closed on September 2. For the following reasons, I find that petitioner has sustained its charges and recommend that respondent be terminated.

PRELIMINARY MATTERS This case was originally scheduled to be heard on May 29, 2008. Petitioner served respondent with its discovery demand on April 28, 2008. On May 27, 2008, the hearing was adjourned to June 30, because of respondent’s counsel’s actual engagement in a state court matter. Petitioner’s motion to compel respondent to comply with its discovery demand, filed on June 23, was resolved by conference call with Administrative Law Judge Kara J. Miller, during which counsel agreed to turn over discovery by June 25. On that day, counsel requested a further adjournment to obtain medical records and also sought a venue change. Over petitioner’s objections, Judge Miller adjourned the hearing to August 20, advised counsel to file a motion for a venue change, and instructed him to provide petitioner with discovery by July 9. Respondent’s counsel was warned that non-compliance may result in the preclusion of documents. Simultaneously, he indicated that respondent would stipulate to petitioner’s charges. In the interim, the case was reassigned to me.

proceedings, where pleadings serve only a notice-giving function, is freely granted absent irremediable prejudice). 3

Between July 9 and the hearing date, respondent filed a motion for a change of venue, to which petitioner objected, and petitioner moved for preclusion of discovery not yet turned over. Petitioner also sought to preclude the testimony of Dr. John McCann, one of respondent’s treating psychologists, from the COPE treatment facility.

Respondent’s Motion to Change Venue Counsel’s motion for a venue change was supported by a short note from Dr. McCann, which stated that respondent was being treated for PTSD as a consequence of his 9/11 experience, and opined that any exposure to lower Manhattan would cause him psychiatric distress. I denied counsel’s motion with leave to renew, on grounds that it lacked a sufficient basis for me to rule otherwise. Petitioner’s opposition was primarily premised on the multiple, similarly-situated cases that had been heard before this tribunal, in which none of the respondents had requested a change of venue. On July 18, counsel’s renewed request for a venue change was supported by a psychological report from Dr. McCann which supplemented his prior submission with greater detail. OATH’s Rules of Practice do not address venue changes, and this tribunal has accommodated off-site hearings solely for security reasons involving incarcerated witnesses. Accordingly, I looked to the New York Civil Practice Law and Rules (“CPLR”) and case law for guidance. Section 510 of the CPLR permits a court to change venue under specific circumstances, which include the promotion of justice. CPLR § 510(3) (Lexis 2008). The courts have held that the moving party squarely bears the burden of establishing how its witness(es) would be inconvenienced if the motion is not granted. See Andros v. Roderick, 162 A.D.2d 813, 557 N.Y.S.2d 772 (3d Dep’t 1990); Frontier Insurance Co. In Rehabilitation v. Big Apple Roofing, Inc., 50 A.D.3d 1239, 855 N.Y.S.2d 702 (3d Dep’t 2008) (lower court’s grant of defendant’s motion for a change of venue was reversed, in part, because defendant did not provide evidence to establish with specificity how his witnesses would be “inconvenienced” if a change of venue was denied); Zinker v. Zinker, 185 A.D.2d 698, 586 N.Y.S.2d 66 (4th Dep’t 1992) (reversing lower court’s grant of defendant’s motion for a venue change because the court credited defendant’s unsubstantiated back problems and failed to consider the effects of a venue change on potential witnesses). A court’s decision to grant or reject a venue change is discretionary, but the hardship on a party if it relates to the party’s health is usually a 4 consideration. O’Brien v. Vassar Brothers Hospital, 207 A.D.2d 169, 622 N.Y.S.2d 284 (2d Dep’t 1995); Pittman v. Maher, 202 A.D.2d 172, 608 N.Y.S.2d 199 (1st Dep’t 1994); Messinger v. Festa, 94 A.D.2d 792, 463 N.Y.S.2d 235 (2d Dep’t 1983). This does not appear to contemplate non-physical ailments or incapacities. Palmer v. Chrysler Leasing Corp., 24 A.D.2d 820, 263 N.Y.S.2d 884 (3d Dep’t 1965) (the lower court’s denial of plaintiff’s motion to change venue was upheld because the movant did not demonstrate any physical incapacity which would justify the change). Nonetheless, the motion may be granted if it is supported by competent evidence such as a physician’s affidavit or other medical proof. Hoyt v. Le Bel, 120 A.D.2d 973, 502 N.Y.S.2d 888 (4th Dep’t 1986). The claim that respondent would regress, were he to be exposed to ground-zero and its surrounding environment, goes to his psychological, not physical well-being. However, it was supported by Dr. McCann’s psychological report, which I found no reason to question. While it is true that similarly-situated proceedings have been held at this venue, petitioner advanced no substantive challenges to the legitimacy of respondent’s or his doctor’s claim to warrant my denial of respondent’s motion. Accordingly, I granted the motion, and the hearing was conducted in the appellate courtroom of the Tax Appeals Tribunal at One Centre Street in lower Manhattan.3

Petitioner’s Motion to Preclude Medical Records and Testimony On July 15, petitioner moved to preclude respondent’s medical records and testimony related thereto, on grounds that counsel had failed to turn over all medical records, and because of the illegibility of Dr. McCann’s records. I directed respondent to respond to petitioner’s motion by July 18, and provide petitioner with notarized copies of the COPE records, translated by the individual who prepared the documents by July 21. In response, counsel blamed his failure to turn over discovery on law office inadequacies and difficulty with staff members at treatment centers. Further, the translated medical records which petitioner received on July 21 were not notarized as I had instructed, and contained apparent differences between the original and translated records. By conference call on July 31, I granted petitioner’s motion to preclude all records that had not been turned over but denied preclusion of Dr. McCann’s testimony.

3 Counsel failed to identify an alternate venue, as required by CPLR section 511, stating instead, that he wished to place no restriction on an alternate venue other than it not be located at the World Trade Center site. Therefore, this tribunal selected the alternate venue for the hearing. 5

Rather, I granted a final extension to August 5, for the re-submission of the medical records with a notarized affidavit affirming the accuracy of the translation. By the close of business on August 5, when it still had not received the accurately translated medical records, petitioner renewed its motion to preclude the doctor’s notes and testimony, with a follow-up request on August 11. Section 1-33(e) of our rules provides for the imposition of appropriate sanctions, which may include preclusion of witnesses or evidence, where a party fails to comply with a discovery order. The state courts have stated that preclusion of records is intended to penalize the party who refuses to serve the required medical reports of doctors that [it] intends to call at trial. Sito v. Neumann, D/B/A Lydia E. Hall Hospital, 92 Misc. 2d 97, 399 N.Y.S.2d 833 (Sup. Ct. Nassau Co. 1977). Even though more frequently upheld in medical malpractice cases, the same principle is applicable here. Respondent failed to comply with my order to have Dr. McCann’s notes provided to petitioner in legible form and offered no excuse for his failure. However, courts are less concerned with the excuses offered for the failure to timely serve medical records. Rather, in the interest of justice, they are more concerned with a party’s need for medical proof, and the adverse party’s preparedness to cross-examine where the evidentiary report was not provided pursuant to the rules. Mendola v. Richmond OB/GYN Associates, 191 Misc. 2d 699, 744 N.Y.S.2d 637 (Sup. Ct. Nassau Co. 2002). Here, Dr. McCann was anticipated to testify as to his treatment and diagnosis of respondent. Therefore, the expectation that his contemporaneous notes would bolster his testimony, as well as respondent’s defense to petitioner’s charges, was not remote. As such, those notes should have been provided to petitioner on a timely basis, in legible form, to permit petitioner to evaluate the strength of respondent’s defense and to possibly formulate questions for cross-examination of Dr. McCann. Because respondent failed to do so, in spite of numerous opportunities, I granted petitioner’s motion to preclude Dr. McCann’s notes at trial. Petitioner also sought to have Dr. McCann’s testimony precluded on grounds that the doctor’s testimony would be based on his notes and therefore, as a corollary to my preclusion of the doctor’s notes, I should also preclude his testimony. I disagree. While section 1-33(e) of our rules does indeed provide for the preclusion of witness testimony, such drastic action is likely to severely limit respondent’s defense. Moreover, even in medical malpractice cases where the parties are obligated to disclose in reasonable detail the substance of the expected testimony of 6 the medical experts, courts are reluctant to preclude testimony for failure to comply “unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party.” Einheber v. Bodenheimer, 12 Misc. 3d 1177A, 820 N.Y.S.2d 842 (Sup. Ct. N.Y. Co. 2006); Busse v. Clark Equipment Co., 182 A.D.2d 525, 526, 583 N.Y.S.2d 243, 243 (1st Dep’t 1992). Petitioner did not allege that respondent’s failure to produce outstanding documents was contumacious. Nor did petitioner articulate with specificity how it would be prejudiced by such failure. Thus, given that respondent had already stated that it would stipulate to petitioner’s charges and had articulated its line of defense, I denied petitioner’s motion to preclude Dr. McCann’s testimony.4

ANALYSIS Petitioner’s submissions establish that it administered random drug testing at Ladder Company 51 on February 16, 2007. Respondent was at that location and submitted a urine sample. Gas chromatography/mass spectrometry testing confirmed the presence of cocaine metabolite at a level of 24,820 nanograms per milliliter (“ng/mL”) in respondent’s urine, well above the federally recognized cutoff level of 150 ng/mL (Pet. Exs. 1-8). Respondent, who did not challenge the validity of the test results, stipulated to petitioner’s charges. In defense, respondent argued that as a result of his involvement in the rescue and recovery efforts at ground-zero after the 9/11 terrorist attack in 2001, he suffers from PTSD, which caused him to become an alcoholic and drug addict. Respondent further argued that his addictions are recognized by the Human Rights Law and he is therefore protected from termination because he is a rehabilitated addict. Undeniably, all individuals who were at ground-zero on the day of the attack, or participated in rescue and the subsequent recovery efforts, were subjected to gruesome and traumatizing conditions. At the time, respondent had been a firefighter for just over one year and was assigned to Ladder Company 51 in the Bronx (Tr. 54). On 9/11, he served as the house watchman on Engine 38, which is located at the same firehouse. From their firehouse, he and his colleagues watched the events unfold on television with the initial excitement that firefighters get at the thought of combating a fire. Engine 38 wound up being relocated to Engine 212 in Astoria, from which he could see the burning twin towers of the World Trade Center. As they

4 At trial, respondent objected to the preclusion of Dr. McCann’s notes and petitioner renewed its motion for preclusion of the doctor’s testimony. I upheld my prior rulings. 7 sat, watching helplessly, they cried, knowing that many firefighters would die that day. The following evening, respondent was assigned to work on the rescue and recovery efforts, during which he dug through rubble and twisted metal for survivors. He did not recall how long he remained at the site on September 12, but for the following two weeks, he went there each day, even during scheduled time-off, to dig for survivors. His only respite was on September 15, when his wife persuaded him to come home for his birthday, and reminded him they had a two- year old daughter who also needed him. Respondent related uncovering human feet and shoes and became particularly emotional when he described discovering the half-body of a man who had only $7 in his pocket. He also recalled one occasion when the fires were still burning, the police rescue dogs were sniffing around and the scent of death permeated the air. He cut through the rebar (steel reinforcing rods) and found someone’s coat. This was significant to him because he just wanted to retrieve anything that could provide some form of solace to relatives of the deceased (Tr. 57-65). Respondent said that he became estranged from his family and spent more time at the firehouse. Prior to 9/11, his married life was normal, but afterwards, his job became more important (Tr. 80). He and his wife fought constantly because he wanted to be left alone, and he began to consume increasing amounts of alcohol which, he claimed, he had only consumed socially prior to 9/11, having witnessed its devastating effects on an alcoholic father (Tr. 66). However, he described himself as being in a “black hole” with such intense feelings of despair that he did not care to live. He learned that 11 to 13 members of his probationary firefighter’s class, including those who sat next to and in front of him, perished on 9/11, and he attended countless funerals of fellow firefighters (Tr. 79-80). Thus he, like many other colleagues, was consumed with grief from loss and guilt from survival, and resorted to alcohol, which he said he did not conceal from anyone. His recovery efforts at ground zero lasted one month. In April 2002, he returned to the site for the last time (Tr. 61-63, 65, 68). As his alcohol use escalated, he switched from beer to hard liquor, consuming a liter of vodka daily, and when alcohol no longer worked, he turned to cocaine (Tr. 68-69). After April 2002, he sought counseling for the first time from petitioner’s counseling services unit (“CSU”) at Lafayette Street in lower Manhattan, although that proved futile. Without conducting any kind of evaluation, the counselor told him to return the following week (Tr. 70). Respondent next sought counseling after a job-related accident in December 2002, when his fall from a rig 8 into a pothole caused serious damage to his knee and resulted in him being placed on medical leave. He had knee surgery in January 2003, and while home on medical leave, his relationship with his wife further deteriorated. Around March 2003, he sought additional medical leave from the Department’s medical unit at the written recommendation of his personal physician. Ignoring the recommendation, petitioner’s doctor instead wanted to place respondent on light duty. Respondent claimed that the attending physician referred to him as a fifth-grade firefighter when he objected.5 He perceived the doctor’s reference as an insult and reacted explosively (Tr. 71-73). As a result, he once again sought counseling from the Department’s Fort Totten counseling services in Queens (Pet. Ex. 11). At Fort Totten, he told the counselor how irate he had become at the physician’s remarks and how helpless he felt. She probed into his feelings about 9/11, which he acknowledged to be problematic but identified his domestic turmoil as primary. The Fort Totten log form, completed on April 12, 2003, indicated that respondent displayed irritability and anger. The intake form noted that the problems which led respondent to seek counseling were job-related stress, marital problems, eating disorder, depression and situational stress. The form also indicated that respondent denied having substance abuse problems (Pet. Ex. 11). According to respondent, the counselor inquired whether his sole purpose at the unit was to procure additional medical leave. He again became irate and yelled at her. In turn, she immediately ended the session and advised him to seek anger management training. He does not recall much of what happened after he left that office (Tr. 74-75). During the same year (2003), he sought private counseling for his marital problems, attending weekly sessions for a couple of months, with one Linda Puertas, whose records he was unable to procure for trial (Tr. 76-78).6 Subsequent to his knee surgery, respondent was placed on light duty for 16 months and resumed full firefighting duties in May 2004. Throughout, he consumed alcohol daily and used drugs “when things came up” (Tr. 75-76). In 2005, he again sought counseling after experiencing more painful medical problems unrelated to the prior surgery and the domestic fighting had resumed. He called Ms. Puertas, who referred him to Dr. Kevin J. Worgul, a private psychologist (Tr. 80-81). Respondent submitted the uncertified, handwritten notes of Dr. Worgul, which indicated that respondent attended two sessions in 2005 (Resp. Ex. C). During 5 A fifth-grade firefighter is one who has less than one year’s experience. By this time, respondent had been with the Department for approximately three years. 6 Respondent referred to Ms. Puertas as “Dr. Puertas.” It later became apparent, from the notes of Dr. Kevin Worgul, that Ms. Puertas is a certified social worker. 9 the first visit on August 2, 2005, Dr. Worgul recommended weekly follow-up sessions to evaluate and treat “PTSD-like symptoms.” According to the notes, respondent discontinued his visits on August 9, 2005, and resumed them in June 2006, accompanied by his wife. On June 13, 2006, the doctor noted that he was “uncertain whether combined sessions would be productive until [respondent] obtained more direct assistance for ETOH issues.”7 Again respondent stopped seeing Dr. Worgul until after his positive drug test in February 2007. According to Dr. Worgul’s notes for respondent’s March 23, 2007, visit, respondent revealed that his substance abuse problems were exacerbated following 9/11. During a follow- up session on March 30, respondent expressed the desire to be placed in petitioner’s day treatment program. Respondent’s testimony, supported by Dr. Worgul’s notes for April 20, reveal that he experienced an anxiety attack after leaving his attorney’s office in lower Manhattan, near ground zero. Respondent described this episode as a tingling sensation throughout his body, a feeling of light-headedness, and difficulty breathing. He had an overwhelming urge to consume alcohol which he resisted upon the advice of a friend (Tr. 92). Dr. Worgul’s notes indicate that respondent attended six sessions from March 23 through April 27, 2007. Respondent entered the Kenneth Peters Center (“KPC”) outpatient recovery program at the beginning of April 2007, and initially attended treatment sessions approximately twice per week simultaneously with his private treatment sessions with Dr. Worgul (Tr. 93; Resp. Ex. E). KPC’s psychosocial intake sheet, completed on April 6, reflected that respondent first used liquor when he was 18 years old and it became a problem in 1999, when he was 32 years old, thereby contradicting his previous testimony that prior to 9/11 he only drank socially. The sheet also revealed that respondent first used cocaine at age 25, and it became a problem at age 35. In addition, respondent’s current use was one pint of vodka daily and one gram of cocaine approximately twice per month, as recently as March 30. Respondent questioned the accuracy of reporting on the intake sheet because it was not in his handwriting (Tr. 112-13). A handwritten psychiatric evaluation completed at KPC on April 18, replicated the information on the intake sheet that respondent’s alcohol use commenced when he was a teenager, but characterized the use as “abuse” (Resp. Ex. E). Respondent said that during his first week at the center, he

7 Because the doctor was not present to explain his notes, I independently researched the term “ETOH” which, according to the National Institute on Alcohol Abuse and Alcoholism (NIAAA), refers to ethyl alcohol, of which ethanol is the main psychoactive ingredient. See http://etoh.niaaa.gov/dbtw-wpd/exec/dbtwpcgi.exe. 10 suggested to the counselor that he might have PTSD, the symptoms of which he had identified from a pamphlet obtained from petitioner’s Metrotech Center in Brooklyn, where he had been assigned following a one-month suspension for his positive drug test (Tr. 93-94). At KPC, he was tested twice a week, but at the end of April, he once again tested positive for cocaine. He testified that he could not recall the circumstances that triggered his twice-monthly use of cocaine (Tr. 95, 122). Neither could he recall the circumstances surrounding his drug use prior to the random test. He could recall, however, that he never paid cash. Rather, he bartered for his supply with construction work, at which he was skilled (Tr. 122-23). Consequently, respondent was discharged from KPC and referred to Marworth Treatment Center (“Marworth”), an inpatient program, to which he was admitted for four weeks and discharged on May 30, 2007 (Tr. 96-97). There, he was told that he had been diagnosed with alcohol dependence, cocaine dependence, and depressive disorder, and taught how to cope with anxiety and stress (Tr. 131-32). Page 3 of his biopsychosocial profile at Marworth reflected that respondent displayed some PTSD characteristics (Resp. Ex. D). After his discharge from Marworth, he resumed attendance at KPC. Respondent experienced a second panic attack approximately five months after his discharge from Marworth, when speaking with a fellow firefighter about the events of 9/11, as they were both leaving an Alcoholics Anonymous counseling session. At KPC, he mentioned PTSD to one of his counselors. That counselor referred him to Dr. John McCann, whom he claimed to be the first medical professional to officially diagnose him with PTSD (Tr. 98-99; 107-08). Respondent’s third panic attack occurred in January 2008, after he had commenced treatment with Dr. McCann, when another firefighter attempted suicide by stepping out onto a window sill. He testified that he wound up having flashbacks and experienced difficulty with breathing and chest pains, and was taken to St. Vincent’s Hospital, where he was detained overnight for observation (Tr. 145-46). Dr. John T. McCann is a clinical and forensic psychologist who testified that he has diagnosed and treated over 1500 individuals with PTSD, which he defined as a mental disorder caused by a person’s involvement in, or witnessing, an event that threatens his/her life or that of someone close. A specific evaluative tool is used to diagnose the disorder, which manifests itself through anger, frustration, severe sleep disturbance, emotional numbing, and nightmares and flashbacks if exposed to the original stimuli. Dr. McCann testified that a person with the disorder is usually unaware that he/she has it, but becomes withdrawn, irritable, depressed, and 11 anxious, and seeks to self-medicate. He stated that PTSD is a condition that is often misdiagnosed because it is fairly uncommon and because one has to be trained to identify the symptoms. Moreover, people with PTSD do not normally seek treatment because of impaired judgment (Tr. 163-65, 167). Dr. McCann later admitted that some of the symptoms that he identified as indicative of PTSD are also symptomatic of alcoholics and drug users (Tr. 176). Dr. McCann testified that KPC referred respondent to him because they were not trained to work with persons suffering from post-traumatic stress. He noted that his review of respondent’s medical records from previous treatment facilities, including Marworth and KPC, contained at least 11 references to PTSD (Tr. 169). He therefore conducted two objective tests (MMPI and PDS) which revealed that respondent was indeed suffering from post-traumatic stress. Dr. McCann further diagnosed respondent with major depressive disorder, which, according to him, is secondary to PTSD (Tr. 166-67). Petitioner was unable to refute Dr. McCann’s diagnosis because the results of these tests were not provided to petitioner during discovery (Tr. 177). Nor did Dr. McCann provide a reasonable explanation for the purported translation of his handwritten notes that clearly reflected differences from the originals. Dr. McCann saw respondent on 12 occasions, from November 2007 through June 2008, ultimately to assist respondent in understanding what was happening to him. He testified that PTSD may trigger alcoholism and drug use in some, not all, who are afflicted with the condition (Tr. 186). He did not diagnose respondent with alcohol or cocaine dependence but was aware that respondent was being treated for same (Tr. 180). He admitted that he was unaware that respondent had used alcohol and drugs prior to 9/11. Nor was he aware that respondent’s family history included drug and alcohol abuse and depression.8 Yet, he discounted that family history may have caused respondent’s dependencies. Even though he could not causally link respondent’s drug and alcohol abuse to it, he opined that PTSD would have operated to exacerbate respondent’s use (Tr. 180-82). Likewise, he stated that most alcoholics use a second substance which is almost inevitably illegal, because, in seeking to self-medicate, their choice of drug is generally an irrational one (Tr. 191-92). He offered no empirical data to support this opinion. He stated that it is this self-medication with alcohol and drugs that leads to addiction (Tr. 184-86). Dr. McCann reluctantly admitted that he could not affirm whether respondent was

8 Respondent testified that his father was an alcoholic and his brother was a drug addict. The handwritten notes of his psychiatric evaluation and the intake sheet at KPC also noted that respondent’s mother and maternal grandmother suffered from depression (Tr. 56, 127-28; Resp. Ex. E). 12 aware of his actions when he obtained drugs and ingested them. He stated that persons with PTSD are out of control and are not conscious of their actions. With respect to performance level, he testified that it was not extraordinary for addicts to be high-performing (Tr. 183-84, 187-88). In fact, respondent’s character witness, Jeff Parness, confirmed that respondent performed at a high level. Mr. Parness is the founder of “The New York Says Thank You Foundation,” a not-for-profit organization established to acknowledge the abundant support that New York received following 9/11, and which engages New York City firefighters and volunteers in reciprocal rebuilding efforts of disaster-stricken areas throughout the country. Mr. Parness testified that respondent first participated in the work of the foundation in 2005, and was instrumental in multiple construction projects, some of which respondent supervised because of his background in construction work. Mr. Parness lavished praise on respondent, whose insistence propelled the foundation into securing additional funding to complete, in August 2006, a home for a person afflicted with leukemia, before she passed away in December 2006. Mr. Parness stated that he had had an alcoholic stepfather and was familiar with the symptoms of alcoholism from an early age, and therefore would not have placed respondent on a project where he could have been a safety risk. However, he had never detected any outward manifestations of problems, and described respondent as more focused than other firefighters with whom he (Parness) had interacted. Mr. Parness did not reveal his stepfather’s occupation, only that he was not a firefighter, but claimed that the latter was so successful in spite of his alcoholism, that even Mr. Parness’s siblings were unaware of it (Tr. 16-25, 29-33, 35-36). Likewise, respondent’s supervisor at Ladder 51, Captain John Corcoran, testified that he was unaware of respondent’s problems because respondent always performed well and never appeared ill or incapacitated. He empathized with respondent and had no qualms about working with him again if the occasion arose (Tr. 41, 44). According to Rosemarie Peltonen, respondent’s wife of 13 years, after 9/11 their spousal relationship changed. There was a marked breakdown in communication and support, respondent became dismissive of her, and his performance as a father and husband failed. She testified that respondent became despondent, did not want to come home, and gradually became someone she did not recognize. He missed their daughter’s birthdays and special occasions (Tr. 213-14). He attended innumerable funerals between September 2001 and June 2002. When 13 home, he did not sleep in their bedroom. They had frequent angry arguments which would sometimes culminate in him punching the doors or walls. She said that she knew that he had not been trained or prepared for what he had witnessed at ground-zero and she tried to get him to seek counseling. In fact, she and respondent attended marriage counseling sessions with Linda Puertas before he attended individual sessions. She said that Ms. Puertas expressed that if respondent was not prepared to have an open discussion, marriage counseling would fail (Tr. 205-11). Ms. Peltonen never perceived that respondent had alcohol or drug problems, even after he called and informed her of the positive test, because she accepted his explanation that it was an isolated use that resulted in the positive test (Tr. 212-13). She was fully aware of his counseling sessions with petitioner’s counseling unit and with Dr. Worgul, and ruefully recalled her skepticism when respondent, after obtaining a pamphlet on PTSD from petitioner’s office at Metrotech Center, called and told her that he might be suffering from post-traumatic stress. Ms. Peltonen testified that even when respondent was at Marworth, his counselor called and spoke with her about what respondent needed to do to be successful, but never mentioned PTSD. She reported that their relationship has significantly improved since respondent’s release from Marworth because respondent is less explosive and more caring. Ms. Peltonen attributes respondent’s progress to his visits with Dr. McCann for PTSD, since late 2007, and to anti- depressants that he has been using (Tr. 215-17).

Respondent’s Alcohol and Drug Use as it Relates to Post-Traumatic Stress Disorder Respondent argued that he suffers from post-traumatic stress which caused him to be dependent on alcohol and cocaine. To be certain, stress affects individuals differently. See Fire Dep’t v. Fahey, OATH Index No. 1376/07 (Oct. 9, 2007) (respondent punched holes in the wall and cried during his sleep, and made late night, confrontational calls to relatives and friends, which he could not recall at any time following. During a three-year period, he drank to the point of blacking out, perhaps nine of ten nights); Fire Dep’t v. Kelly, OATH Index No. 804/06, at 10 (June 9, 2006), modified on penalty, Comm’r Dec. (Jan. 2, 2007) (respondent experienced hallucinations, envisioned human remains, and had recurring dreams of escaping the World Trade Center with body pieces landing on him). Here, respondent’s testimony was not as gruesome and horrific, perhaps because he was not yet willing to detail his experiences. 14

Nonetheless, even though respondent’s stressor indicators did not appear to be as marked and severe as Fahey or Kelly, I have no doubt that as a first responder to ground zero, he suffers from post-traumatic stress. Dr. McCann’s testimony, which supported such a deduction, was uncontroverted. With reason, petitioner expressed its skepticism at the doctor’s diagnosis because of the latter’s caustic criticism of petitioner for what he labeled as its inadequate efforts to assist firefighters after 9/11, and because Dr. McCann’s proffered explanation for his failure to provide accurate records to respondent’s counsel was paltry at best (Tr. 170). Notwithstanding, petitioner did not present any medical professional to refute the doctor’s testimony. Indeed, the KPC and Marworth records, and Dr. Worgul’s notes were replete with references to PTSD (Resp. Exs. C, D, E). Moreover, the records reflect that as early as 2002, respondent sought counseling from petitioner’s counseling unit. On multiple occasions, he displayed anger and anxiety problems, which, according to Dr. McCann, are characteristic of PTSD, but the diagnosis escaped the counselors either because it was a new condition, the symptoms of which appear to mimic that of alcoholism or drug use, or as Dr. McCann stated, one needed to be trained to identify it (Tr. 167). In any event, there appears to be no doubt that respondent is afflicted with PTSD. At Marworth, respondent was diagnosed with alcohol and drug addictions. I did not find respondent credible when he testified that he only drank alcohol socially prior to 9/11. The documentary evidence sufficiently established that alcohol had become a problem for respondent well before that (Pet. Ex. 11; Resp. Ex. E). Specifically, the KPC records noted that he used alcohol from his teenage years, and his alcohol use became a problem at least two years prior to 9/11. Thus, while respondent’s expert witness testified that the self-medication of persons with PTSD causes addiction, I find that in this case, respondent’s addiction to alcohol manifested itself well in advance of his PTSD and, therefore, was not causally related thereto, even though the PTSD may well have exacerbated his alcohol use. Respondent’s drug use is not as clear-cut because he gave conflicting responses to CSU in 2003, where he denied substance use, and to KPC in 2007, where he revealed that his cocaine use had become a problem in 2002, when he was 35 and prior to his CSU visit. The KPC records further revealed respondent’s response that he used cocaine twice monthly. At trial, he selectively questioned the reliability of the KPC records because they were not in his 15 handwriting, but did not question the CSU records (Tr. 112-13). I did not accord much weight to his denial at CSU because, at that time, he had not been tested, and denial was probably the only way he saw himself being able to continue his job and pursue his habit. According to Dr. McCann, denial was not unusual for persons with PTSD. However, respondent’s assertion that he could not recall how he came to ingest cocaine before the random test was not persuasive (Tr. 122). Even accepting Dr. McCann’s testimony that persons with PTSD lack control and make irrational choices because of impaired judgment, respondent failed to convince me that his cocaine use was involuntary. The defense of involuntary ingestion of illegal drugs is respondent’s burden to prove. Fahey, OATH 1376/07, at 11; Kelly, OATH 804/06, at 10; Fire Dep’t v. St. Cloud, OATH Index No. 128/05, at 5 (Apr. 7, 2005). We have held that illegal drug use is viewed as an independent voluntary act. Fahey, at 11-12; Kelly, at 11. Respondent sought to distinguish himself from Kelly, arguing that through his sporadic drug use, Kelly demonstrated an ability to discontinue his use when he wanted to, thereby undercutting the involuntary nature of a drug dependency. Respondent’s suggestion of involuntary ingestion here is self-serving and difficult to reconcile with the control that he displayed in his periodic cocaine use and his presence of mind to barter for it. Moreover, his testimony that he used cocaine “when things came up” suggested that he consciously selected the occasions on which he sought to binge, as evidenced by the results of the random test. If anything, and more so than in Kelly, respondent’s control of the frequency or infrequency of his use demonstrated that he was capable of curbing his cocaine appetite or use, and evidenced a consciousness of purpose. It therefore defeated any suggestion of involuntariness. In Fahey, we recognized that occasionally employees, in order to rationalize and defend their misconduct, claim a disability based on their alcoholism. Such was the case in Fire Dep’t v. Kirk, OATH Index No. 441/06 (Apr. 26, 2006), aff’d sub nom. Kirk v. City of New York, 47 A.D.3d 406, 848 N.Y.S.2d 169 (1st Dep’t 2008). However, we found no causal relationship between Kirk’s alcoholism and the misconduct of which he was accused. Unlike Kirk, respondent here did not claim that his alcohol addiction caused his cocaine use. Rather, he asserted that his is a cocaine addiction, a disability brought about by his 9/11-induced PTSD. The evidence in support of this argument is somewhat compelling. Respondent’s testimony was consistent with his responses at KPC, where he had revealed that when he was twenty-five years 16 old, he had used cocaine once, on an experimental basis. The KPC records reflect respondent’s recognition that his cocaine use had become a problem in 2002, and he had been using it twice monthly prior to the random test. Petitioner did not present any expert witness to refute or even challenge the diagnosis of cocaine addiction. The commencement of respondent’s regular cocaine use was critical in determining its genesis. Given that such use commenced after his experiences at ground zero, I am constrained to find that it was a function of his PTSD. Such a finding is not inconsistent with my finding that respondent’s use was voluntary. In sum, there appears to be no dispute that respondent suffers from PTSD. Nor is there dispute that respondent is an alcoholic. Contrary to his assertion, I do not find his alcohol addiction is causally related to his PTSD. The same is not true for his cocaine use. Rather, the evidence supports a finding that respondent’s occasional use of cocaine, which commenced after 9/11, was a function of his PTSD. However, I find that respondent exercised control over the frequency with which he used cocaine and that such use was a voluntary act of misconduct, which may not be excused by a diagnosis of cocaine addiction.

FINDINGS AND CONCLUSIONS

1. Petitioner established that, following a random drug test on February 16, 2007, respondent tested positive for cocaine use.

2. Respondent suffers from post-traumatic stress disorder as a result of his involvement in the rescue and recovery efforts following the 9/11 terrorist attack on the World Trade Center in 2001.

3. Respondent is addicted to alcohol but his addiction was not caused by his post-traumatic stress disorder.

4. Even though respondent established that he is addicted to cocaine as a result of his post-traumatic stress disorder, his cocaine use was not involuntary.

5. Respondent’s drug use was in violation of petitioner’s All Units Circular 202 and sections 25.1.6 and 25.1.1 of the Rules and Regulations for the Uniformed Force. 17

RECOMMENDATION After making these findings, I requested and received respondent’s personnel record. Respondent has been a firefighter since March 2000. His record reflects that he was suspended for 30 days after his positive test for cocaine. There were no other instances of disciplinary action against him. Nonetheless, petitioner maintains a zero-tolerance policy for drug use because of the inherent danger that such activity poses to its employees and the public, and seeks respondent’s termination because he tested positive for cocaine. Absent exceptional mitigating circumstances, this tribunal has invariably recommended termination for illegal drug use. Kirk, OATH 441/06; Fire Dep’t v. Benson, OATH Index No. 1638/06 (Sept. 5, 2006); Fire Dep’t v. Milano, OATH Index No. 2029/05 (July 3, 2006); Fire Dep’t v. O’Sullivan, OATH Index No. 1914/05 (Sept. 29, 2005); St. Cloud, OATH 128/05; Fire Dep’t v. Reinhard, OATH Index No. 647/05 (Oct. 21, 2004). Kelly and Fahey are exceptions. Kelly had been diagnosed with work-related PTSD well before 9/11. He had had a lengthy tenure with the Department and had displayed extreme heroism before and after 9/11. His testimony was graphic, horrific, and compelling. After 9/11, his PTSD became so severe that he experienced psychotic attacks. The expert testimony supported the gravity of his condition. Kelly, OATH 804/06. Fahey was equally compelling. With a likewise lengthy tenure, Fahey was in Tower 1 when Tower 2 of the Twin Towers collapsed. At one point, he thought that he was buried and awaited his own death. The effects of the stress were also marked and severe, with Fahey pounding holes in the wall during his sleep. Fahey, OATH 1376/07. Accordingly, the judge in each case imposed the maximum permissible penalty short of termination, that is, 10 and 20 days suspension, respectively. In a case that did not involve a firefighter, but a police officer whose PTSD was caused by his work as an undercover officer for many years, the Appellate Division found termination to be disproportionate to the offense where the officer was found guilty of refusing to submit to a drug test. The court found that the many years of undercover work that resulted “in a severe sense of disorientation” were mitigating circumstances that led to the officer’s admitted drug use. Puig v. McGuire, 121 A.D.2d 853, 856, 501 N.Y.S.2d 49, 51 (1st Dep’t 1986). Here, respondent’s tenure with the Fire Department is relatively short. This tribunal recognizes that the stress tolerance of individuals may differ such that one person may be more deeply impacted by the same or less traumatizing circumstances than another. Nonetheless, 18 respondent’s experiences at ground zero, as recounted by him, and its effect on him, as recounted by his wife, were not sufficiently compelling to warrant mitigation. Respondent argues that because he suffers from a disability, exceptional circumstances exist, thereby making this disciplinary action violative of the New York State Human Rights Law, which prohibits the discharge of an employee because of a disability. Executive Law § 296(1)(a) (Lexis 2008). Under the law, the term “disability” is limited to conditions which, “upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.” Executive Law § 292(21). In its post-hearing submission, respondent posited that while the law does not protect a current drug user from termination, it protects him because he is a recovered/recovering addict. In support, respondent cited to Gilmore v. University of Rochester Strong Memorial Hospital Division, 384 F. Supp. 2d 602, 611 (W.D.N.Y. 2005), in which the court acknowledged drug addiction as a qualifying disability under the Human Rights Law and upheld Ms. Gilmore’s termination because she was a current drug user at the time of termination. See also 9 NYCRR § 466.11(h)(1) (“[A]n individual who is currently using drugs illegally … is not protected [from employment discrimination] by the Human Rights Law. The law does protect an individual who is a recovered/recovering alcoholic or drug addict”); Burka v. New York City Transit Auth., 680 F. Supp. 590, 601 (S.D.N.Y. 1988). Respondent further argued that the relevant time for determining whether an individual is a current drug user is the time of discharge. D’Amico v. City of New York, 132 F.3d 145, 150 (2d Cir. 1998). Indeed, the Gilmore court distinguished Ms. Gilmore’s situation from D’Amico, which involved a firefighter who tested positive for cocaine on December 13, 1988, but was permitted to continue working on light duty pending the outcome of disciplinary proceedings. In the interim, the plaintiff entered an outpatient drug treatment program, which he successfully completed on May 15, 1989. At a disciplinary hearing in June 1989, an administrative law judge found the plaintiff guilty of cocaine use in December 1988 and recommended termination. The plaintiff was terminated on September 8, 1989, effective September 5. The plaintiff filed an action under the Rehabilitation Act and the United States Court of Appeals for the Second Circuit, in granting summary judgment to the Fire Department, held that the “relevant time” to assess the plaintiff’s status as a “current” abuser of alcohol or drugs was “the time of his actual 19 firing.” Id. See also Iannone v. ING Financial Services, LLC., 49 A.D.3d 391, 853 N.Y.S.2d 339 (1st Dep’t 2008) (plaintiff admitted that he could not stop using illegal drugs without professional assistance, which he had not yet received, and therefore, did not qualify for an accommodation since he was abusing drugs at the time of his termination); Riddick v. City of New York, 4 A.D.3d 242, 772 N.Y.S.2d 294 (1st Dep’t 2004) (Human Rights Law only protects employees from retroactive punishment for past substance abuse, and thus did not protect the officer who did not stop drinking until after his discharge); McEniry v. Landi, 84 N.Y.2d 554, 620 N.Y.S.2d 328 (1994) (finding that the law had been violated where, by the time the employee had been terminated, he had overcome his alcohol addiction which had caused the misconduct with which he had been charged). The goal of the protections accorded under the Human Rights Law is to preclude an employer from unjustly terminating an employee based on past substance abuse problems that the employee has overcome. Id. at 560, 620 N.Y.S.2d at 331. The McEniry court cautioned that its holding was not intended to suggest that rehabilitation precluded disciplinary action in every case. Rather, it instructed that the review must be individualized. Id. Here, there was nothing to support respondent’s self-serving testimony that he has been alcohol and drug-free since he left Marworth, such as frequent urine testing or the testimony of any of his counselors. In essence, there was nothing offered in mitigation of termination as an appropriate form of discipline for his positive drug test. Even if he were rehabilitated as he claimed, respondent, quoting the D’Amico court, acknowledged that the “likelihood of relapse is relevant to the determination of whether an individual is otherwise qualified, even if he is not a ‘current’ substance abuser.” In fact, the court gave significant consideration to the firefighter’s history of cocaine addiction, the Fire Department’s judgment as to the possibility of, and the risks inherent in a relapse, and found that these justified his termination. D’Amico, 132 F.3d at 151. Respondent insisted that his treatment has been successful and he is fit to continue as an active-duty firefighter, suggesting therefore, that the possibility of his relapse is remote. However, there is evidence to the contrary. Respondent’s expert witness, Dr. McCann, who specializes in identifying and treating patients with PTSD, testified that he had not diagnosed respondent with alcohol or drug addiction, but opined that respondent’s PTSD was a significant factor in his use of alcohol and drugs. Respondent, on the other hand, is still so scarred by the events of 9/11 and his 20 involvement in the recovery efforts, that he experienced two panic attacks within the last year, one as recently as January 2008. Respondent admitted that, on one of those occasions, he had an almost irresistible urge to drink. On another, he had to be hospitalized overnight. To compound those incidents, he was so traumatized at the thought of appearing for a hearing before this tribunal, which is located a few blocks from ground zero, that the trial had to be conducted off- site. In support of respondent’s motion for a venue change, his expert witness noted that these were reactions to respondent’s post-traumatic stress, which he had earlier identified as the possible cause of respondent’s irrational drug use. Accordingly, I find that the propensity for respondent’s relapse to drugs and alcohol as a function of his PTSD appears to be very real. The necessity for firefighters to remain alcohol and drug-free cannot be sufficiently underscored. Theirs is a job that requires clarity of mind and agility of body, both of which are impaired when an individual is under the influence. Such impairment poses inherent risks to the lives of fellow firefighters and the public, with which this tribunal is not prepared to gamble. In D’Amico, the court noted that consideration must be given to “the type of position for which [the employee] claims to be otherwise qualified, and the consequences of a potential mishap.” D’Amico, 132 F.3d at 151. It further observed that: The demands placed upon a firefighter are unique and extreme, and the job of [a] firefighter is dangerous and difficult, even without outside variables such as cocaine use. Any lapse in judgment or alertness easily could result in injury or death to the victims of the fire, to other firefighters, and to the firefighter himself. Id.

Respondent proposed that even if petitioner harbors concerns about his rehabilitation and the propensity for him to relapse, it could institute rigorous testing procedures at his expense or, in the alternative, he could be placed in a non-firefighting job that does not involve public safety concerns, as forms of reasonable accommodation for respondent’s disability. Under the Human Rights Law, a “reasonable accommodation” is an action taken by an employer that permits the disabled employee “to perform in a reasonable manner the activities involved in the job . . . provided, however that such actions do not impose an undue hardship on the business.” Executive Law § 292(21-e). To prevail on a claim of discrimination based on a known disability, an employee must establish that (1) with reasonable accommodation, the essential functions of the job for which he/she was hired can be performed, and (2) he/she requested such accommodation and was refused. Pimentel v. Citibank, N.A., 29 A.D.3d 141, 811 21

N.Y.S.2d 381 (1st Dep’t 2006) (plaintiff’s termination upheld where, even with reasonable accommodation, plaintiff could not perform the essential functions of her customer service job). In Pimentel, the court found that under state law, the employer’s obligation to provide reasonable accommodation did not arise where no request was made by the employee.9 Id. Moreover, the law “does not require an employer to find another job for the employee or to create the job, or to reassign if no position is open . . . . Nor are employers required to retrain and assign disabled employees to entirely different positions.” Pimentel, 29 A.D.3d at 148, 811 N.Y.S.2d at 386. I find respondent’s proposals to be unacceptable as forms of reasonable accommodation. First, testing, rigorous or not, will not preclude a relapse. Rather, it will only reveal whether respondent has had a relapse. Given the nature of the job and the risks involved, the propensity for loss of life, were a relapse to occur, is too great for reactive testing to be considered a reasonable accommodation. Second, reassignment to a job where public safety concerns are not involved will not permit respondent to perform the essential requisites of a firefighter’s job. This tribunal is constrained by the penalty provisions of Administrative Code section 15- 113, for firefighter misconduct, which include reprimand, forfeiture of 10 days’ pay for each instance of misconduct, and termination. This case differs starkly from Kelly and Fahey, where extreme mitigating conditions existed. Therefore, I find that even in light of respondent’s status as a recovering addict, where there still exists the propensity to relapse, and where reasonable accommodation will not permit him to perform the essential functions of his job, the appropriate penalty for his positive drug test is termination. Such a penalty is not barred by the Human Rights Law, and I so recommend.

Ingrid M. Addison Administrative Law Judge

October 9, 2008

9 In contrast, the New York City Human Rights Law imposes an affirmative obligation on employers by requiring that “any person prohibited by the provisions of this section from discriminating on the basis of a disability shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job.” Administrative Code § 8-107(15(a)). However, this does not change the analysis. 22

SUBMITTED TO:

NICHOLAS SCOPPETTA Commissioner

APPEARANCES:

MATTHEW GELLER, ESQ. Attorney for Petitioner

WATTERS & SVETKEY, LLP. Attorneys for Respondent BY: KYLE B. WATTERS