Makinen v. City of New York, 53 F. Supp. 3d 676

Background

Plaintiffs Kathleen Makinen, Jamie Nardini, and Angel Torres are former/active NYPD officers who were referred to the NYPD Counseling Services Unit (CSU) and diagnosed with alcohol dependence or abuse; CSU is an OASAS-certified outpatient program without on‑site physicians.
CSU diagnoses led to recommended inpatient/outpatient treatment, removal of gun/shield, modified duty, and restrictions on overtime; some officers complied under threat of suspension/termination.
Plaintiffs challenge CSU’s diagnostic process and high rates of positive alcohol diagnoses; Dr. Richard Frances (plaintiffs’ expert) opined the plaintiffs did not meet DSM-IV criteria and criticized CSU’s methods.
Defendants moved for summary judgment; plaintiffs cross‑moved for partial summary judgment on discrimination, FLSA and negligence claims. Court must decide (a) if plaintiffs’ perceived‑disability ADA/NYSHRL/NYCHRL claims are cognizable, (b) whether CSU’s determinations were reasonable individualized medical judgments (direct‑threat defense), (c) whether mandated treatment time is compensable under the FLSA, and (d) state tort claims re: confidentiality and defamation.
The Court dismissed claims against the NYPD as a non‑suable agency, denied plaintiffs’ cross‑motion, denied summary judgment to defendants on discrimination claims (genuine issues remain), granted summary judgment to defendants on FLSA (treatment not compensable) and on state tort claims (authorizations, qualified privilege, and legal justification), and granted immunity to Sgt. Sweeney on state tort claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are claims based on being "regarded as" disabled cognizable under ADA/NYSHRL/NYCHRL?	Plaintiffs: yes — liability can rest on innocent misperception of impairment.	Defendants: argued limits of statute; challenged applicability.	Held: Cognizable; court follows Deane and Nelson reasoning — perceived disability claims proceed.
Were plaintiffs subjected to adverse employment actions?	Makinen/Torres: inpatient/monitoring, loss of overtime, modified duty, removal of shield/gun are materially adverse; Nardini: argues adverse treatment.	Defendants: Nardini’s minor schedule change not adverse; others consented to treatment.	Held: Makinen and Torres faced materially adverse actions; Nardini did not (but NYCHRL claim left unresolved).
Was CSU’s diagnosis an individualized, reasonable medical judgment (direct‑threat defense)?	Plaintiffs: Dr. Frances shows CSU methodology was flawed and diagnoses unreasonable.	Defendants: CSU acted reasonably; Dr. Frances’ opinions unreliable/inadmissible.	Held: Genuine issues of material fact exist; Dr. Frances’ testimony admissible; summary judgment denied on discrimination claims.
Is time spent in employer‑mandated alcohol treatment compensable work under the FLSA?	Plaintiffs (Makinen/Torres): required programs/meetings are work/time for which they should be paid.	Defendants: treatment primarily benefits employee, not integral to patrol duties; not compensable.	Held: Granted for defendants — treatment is not compensable under FLSA (not pursued primarily for employer nor integral to principal activities).

Key Cases Cited

Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden on moving party)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (genuine issue for trial standard)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (framework for discrimination cases; noted but not applied here)
Deane v. Pocono Med. Ctr., 142 F.3d 138 (3d Cir. 1998) (perceived‑disability claims cognizable under ADA)
Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161 (2d Cir. 2006) (direct‑threat standard and individualized assessment)
Brennan v. N.Y.C. Police Dep’t, 141 F.3d 1151 (2d Cir. 1998) (police officers with alcohol dependence unqualified; deference to department safety judgments)
Holzapfel v. Town of Newburgh, 145 F.3d 516 (2d Cir. 1998) (court decides as a matter of law whether activities could be "work" under FLSA)