By Joseph Arshawsky, J.D.
A police officer diagnosed as an alcoholic failed to show that he received harsher treatment than similarly situated officers, based on his contention that his employer treated employees not diagnosed as alcoholics with the option to return to work, yet it refused to provide him that opportunity.
A municipal employer provided a legitimate nondiscriminatory reason for its action in not providing an alcoholic officer with the option to return to work, namely his noncompliance with his treatment plan and the conditions placed on his employment given his alcoholism, ruled a federal district court in Nebraska. Because the employee did not prove that the reason was pretextual, the employer was granted summary judgment. Similarly, he did not create a genuine issue of material fact sufficient for his retaliation claims to survive, either (Christensen v. City of Omaha, April 22, 2019, Camp, L.).
Alcohol treatment program. The employee, a City of Omaha police officer sought voluntary inpatient alcohol treatment from approximately April 26, 2015, through May 17, 2015. He did not believe the treatment was successful in treating his alcoholism. On May 21, 2015, the employee was admitted to another hospital with a blood alcohol level above .20. On that same day, the Deputy Chief of Police wrote a letter to the employee which stated per the Chief “this letter is to notify you that due to concerns about your continued abuse of alcohol, you are being ordered to comply with the recommendations of Bergan Mercy Hospital medical staff.”
On June 18, 2015, the employee received a citation for driving under the influence. As a result, he was placed on administrative leave with pay. After his DUI citation, the employee again voluntarily entered inpatient alcohol treatment at Keystone Treatment Center and was released on July 22, 2015. Upon discharge, he agreed to “[a]ttend and complete the intensive outpatient treatment.”
Noncompliance with treatment plan. The employer verified that the employee did not comply with his treatment plan, had not contacted his doctor, or shown up to any group meetings and that he rescheduled and cancelled his meeting with his counselor. On August 17, 2015, the police chief sent members of the police union to his home, and obtained his resignation on threat of termination.
On April 12, 2017, the employee filed this action, asserting claims under the ADA, and the Nebraska Fair Employment Practices Act (NFEPA). Specifically, the employee asserted claims against the employer for regarding him as disabled, subjecting him to discriminatory terms of employment, and retaliating against him. In response, the employer filed a motion for summary judgment seeking dismissal of all three claims. The court granted the motion.
ADA discrimination. The employee first claimed that he was subject to discriminatory terms and conditions of employment in violation of the ADA and NFEPA. “Christensen contends [the City] treats employees–not diagnosed as alcoholics–with the option to return to work whereas OPD refused to provide him that opportunity because he is an alcoholic and disabled.” Thus, according to the employee, the discipline he received was harsher than that of “OPD’s officers who were not disabled but driving drunk.”
An employer “may hold an employee . . . who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.” Even assuming that employee could establish a prima facie case of discrimination, the employer articulated a legitimate nondiscriminatory reason for its actions which the employee failed to demonstrate was pretextual.
Legitimate nondiscriminatory reason. The police chief’s decision to give the employee an ultimatum of retirement or termination was based on his belief that he had not followed through with alcohol treatment. The employee’s alcohol-related employment issues began almost three months before his termination. The police chief was “prepared to terminate Christensen based on the lack of follow through with his treatment program” but decided to give him the option to retire. Thus, the employer provided a legitimate nondiscriminatory reason for its actions shifting the burden to the employee to demonstrate pretext.
Pretext. A plaintiff may show pretext by demonstrating that the employer’s proffered reason for the adverse employment action had no basis in fact. Here, there was no evidence of the employee’s compliance with his treatment plan before the chief’s decision to terminate his employment. The employee’s testimony that he complied with the discharge plan and went to the intensive outpatient program demonstrates only that he complied with the plan at some point in time, but not that he complied before the decision to terminate him was made.
Most importantly, the officers who were allowed to return to work were not similarly situated. The employee argued that he was treated differently because, unlike non-disabled officers, he was required to go to treatment and not allowed to return to work. His argument fails because one of the officer’s discipline was handled by a different supervisor, and two other officers, unlike the employee, had not previously been disciplined for alcohol-related conduct. A fourth officer, who had previous alcohol-related discipline, was terminated. Thus, no other officer was similarly situated to the employee in all relevant respects, except the fourth who was also terminated.
Retaliation. The employee argued that a request for leave to attend treatment for alcohol dependency qualifies for ADA protection as a request for accommodation. The employer did not dispute that a request for leave to attend treatment constitutes a request for accommodation, but it noted that the employee’s complaint did not mention a request for leave to attend treatment as a basis for a retaliation claim. Rather, the employee requested, and was granted, leave to attend rehabilitation approximately four months before his constructive termination. Without more, temporal proximity of four months does not create a genuine issue of material fact for the jury as to causation. Further, the employee’s request to return to work did not qualify as a request for accommodation.
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