Makinen v. City of New York, 857 F.3d 491

Plaintiffs Kathleen Makinen and Jamie Nardini, NYPD officers, were referred to the NYPD Counseling Services Unit (CSU) and diagnosed (mistakenly) with alcohol-related problems; they were directed to undergo treatment.
Both plaintiffs were not actually alcoholics; they sued alleging discrimination based on a mistaken perception they were alcoholics under the NYCHRL, NYSHRL, and ADA.
District Court denied defendants’ summary-judgment as to NYCHRL claims and a jury returned verdicts for both plaintiffs on their NYCHRL claims (state and federal claims were rejected for Makinen).
Defendants (City, Commissioner Kelly, Sgt. Sweeney) appealed, arguing NYCHRL excludes untreated alcoholics from protection, among other issues; the Second Circuit limited its review to whether NYCHRL covers perceived untreated alcoholism.
NYCHRL defines “disability” broadly but contains a specific provision for alcoholism that applies only to persons who “is recovering or has recovered” and “currently is free of such abuse” (N.Y.C. Admin. Code § 8-102(16)(c)).
The Second Circuit found no clear New York Court of Appeals precedent reconciling that specific text with the Restoration Act’s command that NYCHRL be construed more broadly than comparable state/federal laws, and therefore certified the controlling question to the New York Court of Appeals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether NYCHRL permits a claim based solely on perception of untreated alcoholism	Makinen/Nardini: §8-102(16)(c) limits apply only when plaintiff actually is an alcoholic; perceived alcoholism should be actionable under §8-107(l)(a)	City: §8-102(16)(c) unambiguously confines “disability” for alcoholism to recovered/recovering persons, so perceived untreated alcoholism is not protected	Court did not decide on the merits; certified the question to the NY Court of Appeals for authoritative state-law resolution
Whether NYCHRL must be read consistent with NYSHRL/ADA to provide equal or greater protection	Plaintiffs: Restoration Act requires NYCHRL be construed more liberally than state/federal law, so it should not exclude perceived untreated alcoholism	Defendants: The specific text narrowing alcoholism in NYCHRL differs from state/federal law and should control	Court recognized the Restoration Act’s “one-way ratchet” but found textual difference significant and thus certified the question rather than predict state court outcome

Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268 (2d Cir. 2009) (NYCHRL must be construed more liberally than comparable state or federal law)
Albunio v. City of New York, 16 N.Y.3d 472 (N.Y. 2011) (NYCHRL construed broadly in favor of discrimination plaintiffs to the extent reasonably possible)
Zakrzewska v. New School, 14 N.Y.3d 469 (N.Y. 2010) (interpreting NYCHRL text according to plain meaning where unambiguous)
McEniry v. Landi, 84 N.Y.2d 554 (N.Y. 1994) (alcoholism can be an impairment under NYSHRL)
Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35 (2d Cir. 2002) (ADA treats alcoholism as an impairment for disability claims)
Georgitsi Realty, LLC v. Penn-Star Ins. Co., 702 F.3d 152 (2d Cir. 2012) (factors guiding certification to state court)
Carney v. Philippone, 332 F.3d 163 (2d Cir. 2003) (New York should decide unsettled questions of state law when state interest is strong)
Jacobsen v. N.Y.C. Health & Hosps. Corp., 22 N.Y.3d 824 (N.Y. 2014) (NYSHRL employer affirmative defenses and essential duties standard)
McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013) (ADA plaintiff must show ability to perform essential job duties with or without reasonable accommodation)