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By: Thomas Paschos

Thomas Paschos & Associates, P.C.

Hassonfield, NJ

In Vandenbroek v. PSEG Power CT LLC, 2009 WL 4730427 (2nd Cir. Dec. 11, 2009), Plaintiff Bruce VandenBroek appealed from an award of summary judgment in favor of defendant PSEG on his claims that PSEG terminated him for being an alcoholic and for taking medical leave in violation of the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA).

On appeal, plaintiff relied upon the case, Teahan v. Metro-North Commuter Railroad Co., 951 F.2d 511 (2d Cir.1991), in arguing that the district court erred in concluding that he was terminated because of his violation of PSEG's no call/no show policy, rather than because of his alcoholism. The court noted that the facts of Teahan are similar; however, the Teahan holding, that an employer fires an employee because of his disability when the decision is based on conduct caused by the disability at issue, was based on the Rehabilitation Act, not the ADA. The court found that unlike the version of the Rehabilitation Act at issue in Teahan, the ADA specifically permits employers to hold an employee who is an alcoholic to the same qualification standards for employment or job performance and behavior as other employees. Regardless of the stated distinction between the two statutes, the court found that plaintiff did not produce sufficient evidence to satisfy the otherwise qualified prong to make out a prima facie case under the ADA.

The court concluded that reliable attendance at scheduled shifts was an essential function of plaintiffs job, which was why defendants employment rules made those who violate the no call/no show policy subject to discharge for the first offense. The court noted that in Teahan, it emphasized that absenteeism resulting from alcoholism is a factor that bears on whether an employee is otherwise qualified. Therefore, the court found that the plaintiff was not otherwise qualified because defendant could have concluded that he posed a risk of recurring absenteeism. Accordingly, the court affirmed the entry of summary judgment because plaintiff has not established a prima facie ADA claim.

Plaintiff also argued that his termination violated the FMLA because it followed his return from leave taken for alcoholism treatment and because the notice of his two-day disciplinary suspension referenced prior FMLA-protected leave. On this claim, the court found that defendant produced significant evidence that plaintiff was terminated for repeated violations of the no call/no show policy, and that plaintiff's prior absences for back and nasal surgery were unrelated to his termination. As such, the court held that summary judgment was properly entered in favor of defendant on plaintiff's FMLA claim.

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