A.D.P. v. ExxonMobil Research & Eng. Co., 428 N.J. Super. 518 (App. Div. 2012). Plaintiff had worked for defendant (“Exxon”) for over 29 years. Exxon required her to sign an agreement that required her to abstain from alcohol and to submit to random breathalyzer testing as a condition of continued employment. Plaintiff was not the subject of any pending or threatened employment or disciplinary action, and one of Exxon’s managers testified that the imposition of that agreement was unrelated to plaintiff’s job performance.
As Judge Espinosa stated in her opinion for the Appellate Division, “[t]he evidence therefore supports a conclusion that A.D.P. was subject to these requirements and fired when a breathalyzer test revealed alcohol use because she voluntarily disclosed she was an alcoholic and enrolled in an inpatient rehabilitation program.” Plaintiff had become depressed after her husband died. She used alcohol, but there was no evidence that she had imbibed or was intoxicated at work, or that she was “unfit for work” due to her alcohol use. Her admission about her alcoholism, and her participation in treatment, triggered Exxon’s Alcohol and Drug Use Policy, which stated that “[b]eing unfit for work due to use of drugs or alcohol is strictly prohibited and is grounds for termination of employment,” although the Policy also said that “[n]o employee with alcohol or drug dependency will be terminated due to [a] request for help … or because of involvement in a rehabilitation effort.”
Plaintiff was subjected to nine random breathalyzer tests, all of which she passed. Exxon then required additional tests, on a day when no evidence provided reasonable cause for a test. The test showed alcohol in plaintiff’s, with blood alcohol concentration readings of .043 and .047, significantly less than the .08 reading that is the statutory minimum for driving while intoxicated.
Plaintiff sued Exxon, alleging violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, and New Jersey public policy. The Law Division granted summary judgment for Exxon. Plaintiff appealed, and the Appellate Division reversed as to the NJLAD claim but upheld the Law Division’s rejection of the public policy theory.
Judge Espinosa found Exxon’s policy to be “facially discriminatory,” since (on the record before the panel) only alcoholics were subjected to random testing, and Exxon’s own testimony was that plaintiff had been fired solely because she had failed the test, not due to her job performance. Since the policy was facially discriminatory, Exxon bore the burden of showing that plaintiff could not adequately or safely perform her job duties, a protection for employers that is provided by the NJLAD. However, since an Exxon witness conceded that there was no performance issue, Exxon had not carried that burden. Exxon asserted that there was other evidence of poor performance, but whether that evidence sufficed was for the jury, not summary judgment.
Exxon argued that its policy was reasonable and well-intentioned, but that did not avail. “Notwithstanding its benign purpose, ExxonMobil’s Policy plainly imposed additional conditions upon plaintiff’s employment that were not imposed upon other employees who were not alcoholics.” Exxon’s focus on the “blanket” reasonableness of its Policy failed to consider its effect on plaintiff in her particular circumstances.