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June 19 1997 Decided
For GEORGE L. SADLER plaintiff: John D. Saxon John D Saxon P.C. Birmingham AL.
For SOUTHWEST ALABAMA MENTAL HEALTH/RETARDATION BOARD INC. defendant: Jack Booker Weaver Esq. Monroeville AL. Albert L. Vreeland II Esq. Terry Price Lehr Middlebrooks Price & Proctor PC Birmingham AL.
Charles Butler Jr. CHIEF DISTRICT Court
The Hon. Justice Charles Butler Jr.

This matter is before Court on a motion for summary judgment filed by defendant Southwest Alabama Mental Health/Mental Retardation Board Inc. (Doc. 21). At issue in this case is whether the defendant unlawfully discriminated against plaintiff George Sadler on account of a disability in violation of the Americans with Disabilities Act 42 U.S.C. SEC. 12101 et seq. After careful consideration of the issues raised in light of the evidence and pleadings on file *fn1 Court finds that the motion for summary judgment is due to be granted.

Findings of Fact

Defendant Southwest Alabama Mental Health/Mental Retardation Board Inc. ("Southwest") is a public non-profit corporation which provides mental health mental retardation and substance abuse treatment services to more than 5 000 clients in Clarke Conecuh Monroe and Escambia Counties Alabama. Plaintiff George Sadler was first hired by Southwest in 1990 as a Substance Abuse Counselor by Barbara McMillan then Southwest's Clinical Director and Mickey Ezell Southwest's Executive Director. At the time McMillan and Ezell were aware that plaintiff was a recovering alcoholic.

Shortly after beginning work as a Substance Abuse Counselor plaintiff resigned from Southwest because he relapsed into substance abuse and eventually had to check into a hospital for substance abuse treatment. In December 1991 plaintiff was again hired as a Substance Abuse Counselor by McMillan and Ezell.

In September 1992 McMillan and Ezell promoted plaintiff from Substance Abuse Counselor to Substance Abuse Coordinator where plaintiff was responsible for supervising the Substance Abuse Counselors in Southwest's offices in Grove Hill Atmore and Monroeville. This supervisory responsibility included serving as the first step in reviewing documentation required by state regulations providing advice to Counselors on the treatment of individual clients holding weekly meetings with the Counselors and training new Counselors. In addition to these supervisory responsibilities plaintiff's duties included performing treatment assessments of some new clients in Grove Hill Atmore and Monroeville. Plaintiff also conducted Counseling sessions with his own clients which included completing the treatment progress notes required by state regulations. In July 1994 McMillan and Ezell nominated plaintiff to be recognized as the Outstanding Substance Abuse Professional of the Year a state-wide award.

In the Summer of 1994 plaintiff began experiencing stress to the point that to some plaintiff appeared as if he were in "relapse mode a condition in which he displayed some of the signs of having relapsed into alcohol abuse. At this time, plaintiff requested a leave of absence from work to seek therapy for depression and marital problems from Bradford Parkside, a treatment center in Birmingham. McMillan allowed plaintiff the requested leave of absence for treatment.

On September 20 1994 McMillan met with plaintiff to discuss certain concerns about his work performance and gave him a memorandum identifying a number of the areas of concern including her contention that plaintiff allowed unqualified employees to conduct Counseling sessions her questions about plaintiff's whereabouts and her contention that he failed to properly supervise his Counselors. In an attempt to resolve these problems McMillan gave plaintiff two weeks of leave during which he was advised to (and did) seek professional Counseling.

Upon his return from leave in October 1994 McMillan and Ezell met with plaintiff and presented him with a memorandum setting forth the conditions of his return to work. Plaintiff was required to submit a daily schedule of his whereabouts to McMillan and to provide adequate supervision to the substance abuse programs under his control.

Defendant also requested that plaintiff submit to drug testing. One of the factors McMillan considered in making drug testing a condition of employment was plaintiff's alcoholism. At first plaintiff protested. When Southwest insisted that he be tested plaintiff informed Ezell and McMillan that the test would show that he was taking diazepam a form of Valium with a doctor's prescription. Plaintiff was taking the drug for general feelings of anxiety. When plaintiff's drug test came back positive for diazepam he was instructed to take another drug test a week later. When he was tested again plaintiff tested negative for diazepam and returned to work in November 1994. In December 1994 plaintiff took another leave of absence to undergo surgery for reasons unrelated to his alcoholism or work duties. After his leave of absence plaintiff returned to work.

On Tuesday March 14 1995 McMillan pointed out to plaintiff that he had not undergone drug testing since November 1994 and requested that he submit to a test that week. Plaintiff initially agreed to be drug tested. On Friday March 17 McMillan reviewed the client files in Atmore and concluded that plaintiff's treatment progress notes and other required paperwork were incomplete. On the following day Saturday March 18 plaintiff delivered a six-page memorandum to McMillan at her home. The memorandum challenged the October 1994 conditions of employment. In the memorandum plaintiff admitted that he let personal situations interfere with his work and that prior to October 1994 he had not been doing the work he was supposed to be doing. Plaintiff also refused to take any further drug tests unless all other Southwest employees were tested under the same terms.

On Monday morning March 20 1995 Barbara McMillan consulted with Mickey Ezell concerning the results of her Friday audit and plaintiff's Saturday memorandum. When asked for her recommendation McMillan told Ezell that she saw no alternative but to fire plaintiff. When plaintiff arrived at work he stated that he was taking doctor-prescribed cough syrup with codeine. On March 20 1995 McMillan formally recommended that plaintiff's employment be terminated. Ezell accepted McMillan's recommendation and Southwest terminated plaintiff's employment. Plaintiff appealed his dismissal to the Southwest Personnel Board. After a hearing at which plaintiff was represented by Counsel and was allowed to present evidence and argument the Personnel Board upheld the decision to terminate plaintiff's employment.

Conclusions of Law

Summary judgment should be granted only if "there is no issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears "the initial burden to show the district court by reference to materials on file that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark Inc. 929 F.2d 604 608 (11th Cir. 1991). Once the moving party has satisfied his responsibility the burden shifts to the nonmoving party to show the existence of a genuine issue of material fact. Id. "If the nonmoving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof ' the moving party is entitled to summary judgment." Id. at 1438 (quoting Celotex Corp. v. Catrett 477 U.S. 317 91 L. Ed. 2d 265 106 S. Ct. 2548 (1986)) (footnote omitted). In reviewing whether the nonmoving party has met its burden, Court must not weigh the evidence or make credibility determinations and must draw all inferences in favor of the nonmoving party. Tipton v. Bergrohr GMBH-Siegen 965 F.2d 994 999 (11th Cir. 1992) cert. denied 507 U.S. 911 113 S. Ct. 1259 122 L. Ed. 2d 657 (1993).

At issue in this case is whether the defendant violated the Americans with Disabilities Act 42 U.S.C. SEC.(s) 12101 et seq. ("ADA") when it terminated plaintiff's employment. The ADA was enacted to prevent employers from discriminating on the basis of disability against a qualified individual with a disability. Harris v. H& W Contracting Co. 102 F.3d 516 519; 42 U.S.C. SEC.12112(a). The statute defines the word "discriminate" broadly to include the failure to make reasonable accommodations to the known physical or mental limitations of an individual who is otherwise qualified unless such accommodations would impose an undue hardship on the employer. Harris 102 F.3d at 519; 42 U.S.C. SEC. 12112(b)(5)(A).

Employment discrimination cases brought under the ADA are governed by the traditional burdens of proof applicable to other types of employment discrimination cases. See e.g. Leffel v. Valley Financial Services 113 F.3d 787 1997 WL 253024 (7th Cir. 1997); Willis v. Conopco Inc. 108 F.3d 282 284 (11th Cir. 1997); EEOC v. Amego Inc. 110 F.3d 135 (1st Cir. 1997); Olson v. General Electric Astrospace Inc. 101 F.3d 947 (3d Cir. 1996). In a disparate treatment case where there is no direct evidence of discrimination the McDonnell Douglas framework applies. Leffel 113 F.3d 787 1997 WL at *5. "To prove discriminatory treatment through circumstantial evidence: (1) a plaintiff must first make out a prima facie case (2) then the burden shifts to the defendant to produce legitimate nondiscriminatory reasons for the adverse employment action and (3) then the burden shifts back to the plaintiff to establish that these reasons are pre textual." Mayfield v. Patterson Pump Co. 101 F.3d 1371 (11th Cir. 1996) (citing McDonnell Douglas v. Green 411 U.S. 792 802-04 36 L. Ed. 2d 668 93 S. Ct. 1817 (1973).

The Eleventh Circuit has stated that in order to establish a prima facie case under the ADA, [plaintiff] must show that: (1) [he] has a disability; (2) [he] is a qualified individual; and (3) [he] was discriminated against because of [his] disability. Harris 102 F.3d at 519. This statement gives little guidance as to the type of evidence necessary to create an inference of discrimination. Defendant contends that plaintiff cannot meet his burden of proof on either the first or third element.

According to defendant plaintiff does not meet the statutory definition of person with a disability. The ADA defines disability as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C.A. SEC. 12102. While it is undisputed that plaintiff is a recovering alcoholic *fn2 defendant argues that plaintiff has no proof that his alcoholism substantially limited a major life activity. "'Major life activities means functions such as caring for oneself performing manual tasks walking seeing hearing speaking breathing learning and working.'" Dutcher v. Ingalls Shipbuilding 53 F.3d 723 726 (5th Cir. 1995) (quoting 29 C.F.R. SEC. 1630.2(8)). "With regard to the activity of working ...'substantially limits' means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training.'" Id. at 727 (quoting 29 C.F.R. SEC. 1630.2(j)(3)(I)).

Plaintiff does not contend that his alcoholism actually limits a major life activity. Rather he argues first that "the condition of a recovering alcoholic is covered by the ADA." Contrary to plaintiff's assertion the ADA does not establish that alcoholism even in its active stages is a per se disability. McKey v. Occidental Chemical Corp. 956 F. Supp. 1313 1317 (S.D. Tex. 1997). "The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has but rather on the effect of that impairment on the life of the individual.'" Id. (quoting 29 C.F.R. SEC. 1630.2(j) App. (1996)). Alternatively plaintiff argues that he meets the definition of disabled because defendants regarded him as having an impairment as evidenced by the fact that Ezell instructed plaintiff not to take certain prescription drugs. Plaintiff does not explain how the inability to take certain medications amounts to a substantial limit on any of the major life activities set forth above. Obviously defendant did not regard plaintiff as being limited in his ability to work since they hired him twice knowing he was a recovering alcoholic. Consequently Court finds that plaintiff has failed to prove that he is disabled within the meaning of the ADA.

Furthermore plaintiff has failed to adduce sufficient evidence to establish an inference of discrimination. The type of evidence a plaintiff must present to create an inference of discrimination and thereby satisfy the final element of his prima facie case depends upon the facts of the case. See Leffel 113 F.3d 787 1997 WL 253024 at *6. Plaintiff and defendant both argue a version of the "similarly-situated employee" test. Defendant points out that plaintiff was terminated for failing to abide by the conditions agreed to when he returned to work in October. Specifically plaintiff refused to submit to a drug screen failed to submit a work schedule and failed to keep client files current. Plaintiff does not attempt to show that non-disabled individuals who engaged in similar misconduct were treated differently.

Next plaintiff argues that an inference of discrimination arises because plaintiff refused to provide a reasonable accommodation for his disability which would allow him to take prescription drugs without the threat of termination. The plaintiff bears the burden of proving that he requested an accommodation and that the accommodation is reasonable. Willis v. Conopco Inc. 108 F.3d 282 285-86 (11th Cir. 1997). Plaintiff's argument fails for two reasons. First there is no evidence that he requested some type of accommodation for taking codeine prior to his refusal to take the drug test. According to the evidence plaintiff did not inform defendant he was taking cough syrup with codeine until two days after his initial refusal to be tested after McMillan had recommended his termination. Second there is no evidence that permitting plaintiff to use codeine would have been a reasonable accommodation.

Furthermore plaintiff's reasonable accommodation argument fails because the ADA defines the term "qualified individual with a disability" as "an individual with a disability who with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. SEC. 12111(8) (emphasis added). Thus the "reasonable accommodation" requirement relates to an individual's ability to perform his job. There is no evidence that the accommodation plaintiff allegedly sought i.e. permission to take codeine was related to plaintiff's job performance. In fact there is no dispute that the plaintiff is capable of performing his job without codeine. Whether or not he was permitted to take prescription drugs affected plaintiff's ability to remain employed not his ability to perform the essential functions of his position.

With regard to his reasonable accommodation argument plaintiff also contends that his status as a recovering alcoholic was taken into account in determining whether to require drug testing in the first place. According to plaintiff this is evidence of discrimination. To the contrary the statute allows an employer to take an employee's disability into consideration in determining whether he is qualified. Id. Otherwise an employer could never accommodate a disabled employee. The conditions of employment including drug testing were imposed on plaintiff because he was not performing the essential functions of his job. At the time there were numerous problems with plaintiff's work performance plaintiff was experiencing personal problems which he admitted had made him susceptible to relapsing into substance abuse and defendant had been told by plaintiff's wife that he was taking Valium. With these factors in mind defendant determined that plaintiff could return to his job only with certain accommodations including drug testing.

In McKey Court addressed a similar dilemma where an alcoholic plaintiff was fired for failing to comply with a Return to Work Agreement executed after plaintiff had engaged in alcohol-related misconduct.

Of course the Plaintiff would not have entered into the Return to Work Agreement had it not been for his alcoholism. However the Plaintiff was terminated because he breached that Agreement not because of [sic] he is an alcoholic. To attribute the termination to Plaintiff's alcoholism ignores an important element of this case. The Return to Work Agreement itself was a reasonable attempt to accommodate the Plaintiff's alleged disability. Refusing to recognize that would render all Return to Work Agreements meaningless as every breach simply would be attributed to the problems related to the alleged disability.

Id. 956 F. Supp. at 1319.

Even if plaintiff could establish a prima facie case of discrimination he has failed to rebut at least two of the three legitimate non-discriminatory reasons offered by defendant as grounds for plaintiff's termination. In Combs v. Plantation Patterns Inc. 106 F.3d 1519 (11th Cir.1997) the Eleventh Circuit made clear that when a defendant proffers multiple reasons for its employment decision plaintiff must present evidence from which a fact finder could find that each of defendant's reasons are pre textual. In this case defendant has asserted three reasons for plaintiff's termination: (1) refusal to submit to a drug test; (2) failure to submit and follow a written schedule and (3) failure to properly document client files. While plaintiff may arguably have presented evidence that the first of these reasons is pre textual he has offered no evidence as to pretext with respect to the two remaining grounds for his termination.

In sum Court finds that plaintiff has failed to establish a genuine issue of material fact and that defendant is entitled to judgment as a matter of law. Accordingly it is ORDERED that defendant's motion for summary judgment be and hereby is GRANTED.

DONE this the 19th day of June 1997.

Charles Butler Jr.



Pursuant to separate order entered this date granting defendant's motion for summary judgment it is hereby ORDERED ADCourtD and DECREED that plaintiff's claims against defendant in the above-styled action be and hereby are DISMISSED with prejudice.


*fn1 Plaintiff has filed a motion to strike a portion of the evidence presented by defendant as hearsay. However with one addition Court took the facts set forth below from the agreed facts set forth in the Pretrial Order submitted by the parties. The only addition was taken from evidence presented by plaintiff from the deposition of Barbara McMillan wherein she testified that plaintiff's alcoholism was one of the factors she considered when she decided to make drug testing a condition of his return to work. Consequently plaintiff's motion to strike is DENIED as moot.

*fn2 Alcoholism is recognized as an impairment under regulations promulgated by the EEOC. 28 C.F.R. SEC. 35.104(1)(B)(ii). Although both plaintiff and defendant make a distinction between an "alcoholic" and a "recovering alcoholic" neither party has cited any evidence or legal authority in this regard and Court's own research has not revealed any case law that recognizes such a distinction.