Is Alcoholism a disability? Examining the ADA and Substance Abuse

According to the Center for Disease Control (CDC) Alcoholism is a major contributing factor for the death of more than 47,000 Americans every year.  Nearly 1 out of 4 Americans report at least one heavy drinking day per week.  Adults who suffer from chronic alcoholism suffer from depression, suicidal thoughts.  Often they become involved with legal issues such as DUI or DWI, domestic violence and other criminal charges.  Beyond the mental and legal problems, adults who suffer from chronic alcoholism also develop acute medical conditions such as damage to liver cells; inflammation of the pancreas; various cancers, including liver, mouth, throat, larynx and esophagus; high blood pressure; and psychological disorders.  Alcoholism in pregnant women may lead to future illness of their children such as Sudden Infant Death Syndrome (SIDS) and fetal alcohol spectrum disorders which may permanently impair a child’s physical heath, behavior, and/or learning abilities.  If you or someone you know suffers from alcoholism, it is strongly encouraged that you seek medical or mental health treatment from a licensed practitioner.

Alcohol and substance abuse affect millions of Americans and lead to the loss of thousands of hours in labor every year.  Some instances are isolated and have little impact on an employee’s overall job performance.  However, for many, it is a chronic problem that leads to employment issues and financial instability.

While alcoholism is recognized as a disease by most health professionals, it is not a “get out of work free” card.  State & Federal courts and statements from the Equal Employment Opportunity Commission (EEOC) have determined it does not excuse poor job performance and excessive absence from work.  Below are some questions to consider when determining if an employee’s alcoholism is a factor in making accommodations or recommendations for disciplinary action.

When dealing with persons with other substance abuse issues, such as illegal or prescription drug abuse, the law and standards become more difficult to determine.

The Employment & Labor attorneys of Massey & Duffy, PLLC are experienced in Disability Discrimination and wrongful termination cases.  Call our office at (352) 505 – 8900 to schedule a FREE CONSULTATION today!

Does an employee who is an alcoholic has a “disability” within the meaning of the ADA?

While there is no definitive threshold to determine when alcoholism is considered a disability, employees are considered to have protection under the Americans with Disabilities Act, if their employer perceives them as having a disability, even when that perception is false or unsubstantiated.   An example would be an employer firing an employee because he has stated he is a current/former alcoholic or the employer perceives him as an alcoholic due to his associations or appearance.  If no cause is determined for his termination other than stated or perceived disability, than that employee would be covered under the ADA.

Is an alcoholic employee is qualified to perform the essential functions of their position?

ADA requires that the employee still be able to perform the essential job functions of a position.  While some reasonable accommodations are often made to persons with disabilities, most employers consider regular attendance, punctuality and satisfactory job performance to all be essential job functions.  Many companies specifically state that consumption of alcohol or working under the influence is not permitted.  Employers are not required to make exemptions to such policy for employees suffering from alcoholism.

Is an employer is required to accommodate an alcoholic employee like others with disabilities?

Employers are not required to tolerate adverse behavior that results from alcoholism.  For instance, if an employee is regularly late to work due to alcoholism, and employer may take disciplinary action for the late arrival, missed work, disruptive behavior, etc.  However, and employer may be required to grant medical leave to an employee who has expressed the desire to seek treatment.

Can an employer can discipline or terminate an alcoholic employee for poor performance or misconduct?

Absolutely.  The ADA specifically states that an employee may be disciplined for poor performance and/or misconduct that is a result of their alcohol use.  However, the employer must treat all employees equally in this respect.  So if an alcoholic and non-alcoholic employee are both frequently tardy or have poor job performance, disciplinary action must be the same as not to create a discriminatory environment.  An example may be the morning after the Super Bowl, five employees call out sick or are late to work due to hangovers from a Super Bowl Party.  If only those employees perceived as alcoholics are fired or receive some other disciplinary action that would violate the ADA.

Workplace Bullying: When does Uncomfortable become Unlawful?

In most workplaces there is a fair amount of unwanted harassment and “bullying”, most corporations have strict rules in place to curb this type of behavior.  It has long been seen as bad for morale and causes unneeded tress and turnover in most occupations.  In Florida, there are no “anti-bullying laws”, however, there is a point where bullying crosses over into discrimination and harassment.

The Equal Employment Opportunity Commission (EEOC) investigates hundreds of charges of workplace discrimination and harassment each year.  In Florida, the agency often pairs with the Florida Commission on Human Relations (FCHR) to investigate these charges and determine probable cause and jurisdiction.

The most common charges that lead in lawsuits are based on workplace harassment that is based on discriminatory remarks and exclusionary practices.  Under federal law, employers may not discriminate against an employee or applicant based on race, color, religion, sex, marital status, ethnicity, age (40 or older), or disability.  Discrimination, harassment, and favoritism that is not based on these characteristics is not protected under federal or state law.

When Does Harassment Become Illegal?

Offhand remarks and general poor humor is not necessarily a base for a discrimination lawsuit.   In order to prove an employer is violating federal law, it must be proven that the employer is being abusive, threatening or hostile and enduring the harassment has become a condition of employment.

The unlawful action can be committed by the victim’s supervisor, co-workers or another employee/supervisor in a different office.  The behavior does not have to be directed towards you, but may be indirect in a way that makes you feel threatened or intimidated.  Example of this may be religiously offensive materials being posted in a break room, or circulating mass emails that are intended to harass or provoke discriminatory behavior.  Ultimately, the employer is responsible for maintaining a safe environment and may be held liable for the harassment/discrimination committed by its employees.

Many employers have been proactive in curbing harassment in the work place.  Many programs include interactive training seminars for supervisors and employees, as well as more stringent enforcement of existing policies.  Currently, only three states have anti-bullying laws on the books, but bills have been introduced in 23 others, including Florida.  The Florida “Abusive Workplace Environments” Bill was proposed in 2013, but gained no traction in the Florida State legislature.

If you believe you are a victim of workplace bullying or harassment, you can contact the law office of Massey & Duffy in Gainesville.  Our attorneys are experienced in Employment and Labor Law and known throughout North Florida as one of the top resources for employees who suffer unlawful discrimination and harassment by their employers.  We offer FREE CONSULTATIONS for all employment related cases and are available to represent you.  Please give us a call at (352) 505-8900.

Top Ten Medical Malpractice Blogs You Should Be Reading

Top Ten Medical Malpractice Blogs You Should Be Reading

  1. Florida Supreme Court Rules on Medical Malpractice Award Caps – written by Mark Kaire, a Personal Injury Attorney in Miami and member of the “Million Dollar Advocates Forum” and the “Multi Million Dollar Advocates Forum,”

  1. Wrong, Missed, Delayed Diagnosis Happens to Majority of Americans – by Bruce Sheiner, a Medical Malpractice Attorney in Fort Myers who has handled more than 200,000 cases since 1970.

  1. Middle District of Florida Holds Medical Malpractice Case against Federally Supported Hospital Must Comply With Notice Provisions in the FTCA – by Friedman, Rodman & Frank, P.A., Miami Personal Injury Attorneys

  1. Florida Psychiatrist Fined $5,000 By Board of Medicine After Jail Inmate’s Suicide – by George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

  1. Florida State Supreme Court to Decide Whether to Allow Medical Malpractice Case Based on Patient Suicide to Proceed – By Wais, Vogelstein, Forman & Offutt, a Baltimore, MD Law Firm specializing in medical malpractice suits for over 75 years.

  1. Negligence Lawsuit Over Florida Psychiatric Patient’s Death Must Comply With Pre-Suit Notice Requirements Enumerated in Medical Malpractice Reform Act – by Friedman, Rodman & Frank, P.A., Miami Personal Injury Attorneys

  1. Midwife Medical Malpractice – by Flaxman Law Group, a South Florida Personal Injury firm. Charles Flaxman has over 30 years’ experience as a trial lawyer.

  1. Birth Trauma Injuries: Have they Affected You or Your Family? – by Flaxman Law Group, a South Florida Personal Injury firm. Charles Flaxman has over 30 years’ experience as a trial lawyer.

  1. When Are Dentists Liable for Dental Malpractice? – written by Mark Kaire, a Personal Injury Attorney in Miami and member of the “Million Dollar Advocates Forum” and the “Multi Million Dollar Advocates Forum,”

  1. Retired Naval Officer in Vegetative State After Colonoscopy in Jacksonville, Florida – by Jared Green, New Hampshire Attorney and author and co-author of numerous journal articles and presenter/organizer of numerous legal education seminars on medical malpractice and products liability law and procedure.

  1. Medical Malpractice Attorneys Serving Ocala, Gainesville, Lake City and Communities Across North Florida – by Michael Massey, partner with Massey & Duffy, PLLC, resident of Gainesville, Florida and a University of Florida graduate, Mr. Massey is proud to serve the community which he loves. The attorneys at Massey & Duffy offer FREE Consultations for medical malpractice suits. Call (352) 505-8900 today!

Gainesville Drunk Driving Accident Attorney


November is in full swing and many will be getting ready to celebrate the holiday season with friends, family, and a few adult beverages.  It is not uncommon to have a few drinks during a family meal or office party, but be careful, state and local law enforcement will be watching and ready to stop intoxicated drivers.  DUIs can put a real damper on the holiday spirit and cost thousands of dollars in legal fees that will really hurt your holiday budget.  Here are a few tips to help you survive without the headaches.

  1. Know your limits. Obviously, not drinking alcohol at all is the only way to avoid a DUI. If you do choose to drink, please find a designated driver who does not drink to give you a ride home.  Two glasses of wine might be ok, but body weight, temperament and tolerance always play a factor in both your Blood Alcohol Content (BAC) and your ability to safely operate a motor vehicle.
  2. Stay overnight. The best way to truly enjoy a good holiday party is to not go home. Yes, this may be an inconvenience to your family or friends, but most loved ones would rather you spend a night on their sofa than a night in jail.  If you suspect you might be drinking at a party, bring a change of clothes or an overnight bag just in case.
  3. Know your rights. If you choose to ignore all the good advice up to this point and find yourself pulled over by Law Enforcement after you have been drinking, be familiar with your state and local laws. Do not say anything to the officer that you might regret and contact an attorney immediately.  The Law Offices of Massey & Duffy will be open throughout the holidays and are able to assist you with your case.  You may contact our office by phone (352) 505-8900 during our normal business hours or by email, 24 hours a day.

The attorneys and staff of Massey & Duffy, PLLC want to wish you a very Happy and Safe Holiday Season!

Motion to Dismiss Overcome | Plaintiff’s Response to Defendant’s Motion to Dismiss


Plaintiff responds to Defendant’s Motion to Dismiss dated October 4, 2012 as follows:

I. The Written Agreement

Footnote 1 of Plaintiff’s Complaint makes it clear that “Plaintiff is not in possession of a signed copy of this contract, however it was signed by all parties and is believed to be in the possession of the Defendant.” Thus, the allegation that a signed copy of the agreement is in the sole and exclusive possession of one or more of the defendants precludes dismissal. Sachse v. Tampa Music Co., 262 So.2d 17, 19 (Fla. 2d DCA 1972).

Moreover, according to Trawick’s Florida Practice and Procedure, 2003 Edition, Section 6-15 (Exhibits), Footnote 3, “A signed copy [of the document] is not required” to be attached under Rule 1.130. Similarly, the “attached or incorporated document does not have to be complete and may be supplemented by allegations in the pleading.” Id. at 6-15.

Finally, even if permanently lost by all parties and even if Plaintiff’s testimony could not supplement the fact that it was signed, a lost contract will not preclude a breach of contract action on the same. See, e.g., Edwards v. Rives, 35 Fla. 89, 17 So. 416 (1895)(allowing reestablishment of a lost contract for the sale of land and a specific performance claim to proceed simultaneously); Griffin v. Fries, 23 Fla. 173, 2 So. 266, 267-68 (1887)(allowing a claim for reestablishment to proceed with a claim for relief under such document in the same cause of action); Young v. Charnack, 295 So.2d 665, 667 (Fla. 3d DCA 1974)(action to reestablish and enforce lost mortgage and note). Defendant’s argument that Count I should be dismissed because a signed copy of the agreement is not attached is without merit.

II. Statute of Frauds

Defendant’s next argument is that the statute of frauds precludes Count II, the alleged breach of an oral contract. However, the statute of frauds is an affirmative defense, and cannot be asserted as a grounds for a motion to dismiss. Fletcher v. Williams, 153 So.2d 759 (Fla. 1st DCA 1963) (the statue of frauds affirmative defense may not be asserted as grounds for a motion to dismiss a complaint, even though the availability of the defense as a bar to the action may appear on the face of the complaint).

Additionally, because the contract could have been completed within a year the statute of frauds does not apply. Only if a contract could not possibly be performed within one year would it fall within the statute. See Hesston Corp. v. Roche, 599 So.2d 148 (Fla. 5th DCA 1992). Also, the statute of frauds only applies to executory contracts, not to agreements that have been fully performed. Full performance takes the agreement beyond the operation of section 725.01. See Moneyhun v. Vital Indus., Inc., 611 So.2d 1316, 1319 (Fla. 1st DCA 1993).

Finally, as identified in the attached Exhibit B, the initial term of the agreement was for February 3rd, 2004 until December 31st, 2004. See Paragraph 1(b). Thereafter, the “Agreement will be automatically renewed for additional periods of one-year each….”. Id. Thus, the initial termoftheagreementwaslessthanoneyearandthenitrenewsayearatatime. Becausethe contract renewed each year, it is not barred by the statute of frauds. As stated by the court in Rubenstein v. Primedica Healthcare, Inc., 755 So.2d 746, 748 (Fla. 4th DCA 2000):

In Rothman v. Gold Master Corp., 287 So.2d 735 (Fla. 3d DCA 1974), appellant appealed from an order granting defendant’s motion to dismiss his complaint with prejudice. In his complaint, appellant alleged that he entered into an oral contract of employment with the defendant to commence on July 1, 1965 and terminate on June 30, 1966. Further, he alleged that the oral contract was renewable each year by virtue of mutual acts and performances, that the parties annually renewed the contract and that on July 1, 1971 the contract was renewed with the understanding that appellant would relocate himself and his family to Florida. In November 1971, prior to the end of the term of the contract, appellant was dismissed from his employment without cause.

In reversing, the Third District held that where an agreement expires by its terms and without more, the parties continue to perform as before, an implication arises that they have mutually assented to a new contract containing the same provisions as the old. See id. at 736. Further, the court held that if a pleading informs the defendant of the nature of the cause against him, the pleading is sufficient. See id. at 737 (citing Weich v. Cook, 250 So.2d 281 (Fla. 1st DCA 1971)). Thus, the oral renewal of a one-year oral contract took the contract out of the statute of frauds. See id.

As in Rothman, we hold in this case that appellant sufficiently stated a cause of action for breach of an oral agreement. This does not, however, preclude appellee from raising his affirmative defense of statute of frauds at a later stage in these proceedings.

(e.s.). Similarly, simply because the agreement between Plaintiff and Defendant renewed each year does not mean the matter is barred by the statute of frauds even if that affirmative defense is ultimately pled (which Plaintiff contends would be wholly without merit).

III. Unjust Enrichment has been adequately pled.

Defendant claims that Plaintiff did not adequately plead two elements of unjust enrichment, however it fails to take into account that Plaintiff reincorporated paragraphs 1-7 of the Complaint into that count. adequately pled.

Thus, all elements of unjust enrichment have clearly been

/s/ Michael Massey Michael Massey Fla. Bar No. 153680

Deposition Notice

In both Florida and Federal cases, Plaintiffs can notice depositions with certain “areas of inquiry”.  Those can be difficult to articulate, so below is a sample.  Please seek legal advise before using such a thing, such as our lawyers.  Our attorneys serve Gaiensville, Ocala, Lake City and the surrounding areas.  The following is from an employment law case, but with modification it could easily be used to help the injured or in a divorce:

1. Each and every issue raised in Plaintiff’s first set of interrogatories.

2. The answers to Plaintiff’s first set of interrogatories.

3. The current location of each and every document requested in Plaintiff’s first request to produce.

4. Any and all issues related to allegations that the Plaintiff’s work performance was good, bad, poor and/or insufficient.

5. Any and all reasons for the Plaintiff’s termination, reprimands and/or demotion.

6. The job description and job duties of the Plaintiff.

7. Each and every one of the Defendant’s affirmative defenses.

8. The Defendant’s answer to the Plaintiff’s complaint.

9. Knowledge of factual circumstances surrounding Defendant’s answer and affirmative defenses.

10. Knowledge of factual circumstances surrounding Plaintiff’s complaint.

11. The job description and job duties of any and all of the Plaintiff’s supervisors.

12. The identify of any and all persons who’s job duties are similar to that of the Plaintiff.

13. The identity of all persons similarly situated to the Plaintiff.

14. All communications between the Plaintiff and any agent, director and/or employee of the Defendant.

15. All documents written by the Defendant (or its agents, directors and/or employees) to the Plaintiff.

16. All documents and/or letters written by the Plaintiff to the Defendant (or its agents, directors and/or employees).

17. All wages, benefits, earnings, and bonuses earned by the Plaintiff during the course of employment with the Defendant.

18. All reprimands provided (either verbally or written) by the Defendant (or its agents, directos and/or employees) to the Plaintiff.

19. All job duties of the Plaintiff’s supervisor.

20. All job duties of the person whom made (or was involved in any way) the decision to terminate the Plaintiff.

21. Any and all facts regarding those documents requested in Plaintiff’s first request to produce, including the authors of said documents and the circumstances surrounding their creation.

22. All employment policies and practices of the Defendant.