October 22, 2019

October 22, 2019

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October 21, 2019

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Employee Who Was Discharged After Failing To Disclose Criminal Convictions For Drug Possession Was Not “Regarded As Disabled”

A mental health worker at a drug addiction treatment center was not “regarded as disabled” by his employer when he was discharged for failing to disclose three felony cocaine possession convictions on his employment application, a federal court in North Carolina has held.  Rocha v. Coastal Carolina Neuropsychiatric Crisis Servs., P.A., No. 7:12-CV-2-D (E.D.N.C. Oct. 16, 2013). 

During the application process, Rocha completed an employment application that asked whether he had ever been convicted of a felony or misdemeanor, other than traffic violations.  Rocha answered “no.”  The employment application further contained a certification that all of the information provided by the applicant was “true, correct and complete.”  When Rocha was interviewed for the position as a mental health worker (interacting with patients to whom controlled substances were dispensed), he never revealed any felony convictions, or that he was a recovering drug addict.  He also did not ask for any accommodations under the Americans with Disabilities Act (“ADA”).  After the interview, Rocha received an offer of employment that was conditioned on the receipt of satisfactory results from a criminal background check.  Rocha completed an authorization/release form for purposes of the criminal background check.

Before the employer received the results of the criminal background check, Rocha revealed that he had a drug conviction when he was young.  He did not disclose additional details.  The criminal background check revealed that Rocha was convicted of three felonies related to possessing illegal drugs.  Based on the material discrepancy between Rocha’s employment application and his criminal history, the employer determined that Rocha had made a material misstatement on his employment application, and he was terminated.

Rocha filed suit under the ADA, arguing that the employer regarded him as a drug addict, among other things.  Specifically, Rocha argued that because he disclosed one of his drug convictions after his job interview, the employer mistakenly regarded him as being a drug addict and fired him for that reason.  The Court rejected this argument because Rocha only disclosed to the employer that the criminal background check would reveal a criminal conviction for drugs when he was young.  This statement would not lead to the conclusion that Rocha currently was a drug addict; indeed, Rocha conceded that not every person convicted of illegally possessing drugs is a drug addict.  Rocha then argued that his previous convictions were related to his history of drug addiction.  The Court held that even if Rocha could prove he was disabled – which he could not – his disability would not excuse his misconduct when he did not provide honest answers about his criminal history on the employment application.  Summary judgment was granted to the employer.

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About this Author

Kathryn J. Russo Disability Lawsuits Attorney Jackson Lewis Law firm Alcohol Testing Lawyer
Principal

Kathryn J. Russo is a Principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws.

Ms. Russo assists clients with workplace problems involving drugs and alcohol, and gives advice about compliance with all pertinent drug and alcohol testing laws. She prepares substance abuse policies to comply with all federal drug and alcohol testing regulations (including all agencies of the U.S....

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