Driver’s state-law claim based on lawful non-work use of alcohol revived, but not his ADA claim
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Wednesday, July 18, 2018

Driver’s state-law claim based on lawful non-work use of alcohol revived, but not his ADA claim

By Kathleen Kapusta, J.D.

Reversing the grant of summary judgment on the state-law claim of a delivery driver who, while on a light-duty assignment, was fired when he failed two breathalyzer tests administered before the start of his shift, the Ninth Circuit found fact issues as to whether his use of alcohol affected his job or the safety of others. Affirming the grant of summary judgment, however, against his ADA claim, the court found he failed to show his employer’s reason for firing him—the results of the breathalyzer tests—was pretextual. Summary judgment was also affirmed on his state-law retaliatory discharge claim. In a separate opinion, Judge Callahan dissented in part (O’Brien v. R.C. Willey Home Furnishings, July 13, 2018, per curiam, unpublished).

Placed in a light-duty position after he was injured at work, the employee primarily responded to customer phone calls. Several weeks later, he was randomly chosen to take two breathalyzer tests before beginning work. The tests showed his blood alcohol content was .067 at 7:40 a.m. and .058 at 7:58 a.m. The employee acknowledged that he had been drinking beer heavily the night before but claimed he did not have anything to drink that morning. Even though he was not scheduled to operate a commercial vehicle that day, he was terminated based on the test results.

Lower court proceedings. He then sued, asserting claims under Nev. Rev. Section 613.333, which makes it unlawful to discharge an employee because the employee engaged in the lawful use of a product outside the employer’s premises during nonwork hours, state-law retaliatory discharge, and the ADA. The district court denied the employee’s motion for partial summary judgment on his Nev. Rev. Stat. Section 613.333 claim and granted the employer’s motion for summary judgment on all claims.

Lawful use of alcohol. Reversing the lower court’s grant of summary judgment in favor of the employer on the Nev. Rev. Stat. Section 613.333 claim, the appeals court noted that neither party disputed the employer discharged the employee because he engaged in the lawful use of alcohol outside the employer’s premises during his nonworking hours. The court, however, found fact issues regarding whether the employee’s use of alcohol adversely affected his ability to perform his job or the safety of other employees. Specifically, said the court, a fact issue remained regarding whether he was actually available to drive on the day he took the breathalyzers.

As a result of his injury, the employee had been placed on light duty, was required to work at a pay rate substantially below what he was paid as a commercial driver, was prescribed narcotic and opioid pain medications, and was medically restricted from sitting for longer than he could tolerate, observed the appeals court. If he was performing only a light duty job and was not available to drive, then, said the court, there was a fact issue as to whether his alcohol use adversely affected his coworkers’ safety as a reasonable jury could find that managing paperwork and handling delivery calls, even while intoxicated, did not pose a safety risk to others. Thus, this claim was remanded for further proceedings.

ADA claim. Turning to the employee’s ADA claim, the court found the employer provided a legitimate, nondiscriminatory reason for discharging him—the failed breathalyzers and the employee’s violation of the company’s alcohol policy. Because the employee failed to provide sufficient evidence of pretext, the appeals court affirmed the grant of summary judgment as to this claim.

Retaliatory discharge. As to the employee’s state-law retaliatory discharge claim, not only did he fail to show his filing of a workers’ compensation claim was the proximate cause of his discharge, there was no genuine dispute that the employer terminated him, at least in part, for violating its alcohol policy. And because he could not maintain a retaliatory discharge claim where the filing of a workers’ comp claim was at most a motivating factor, summary judgment was affirmed as to this claim as well.

Dissent. Judge Callahan agreed that the district court properly denied the employee’s motion for partial summary judgment on his Section 613.333 claim but would reverse the district court on the ADA claim. While the majority acknowledged there was a disputed fact as to whether the employee was available to drive on the day of the breathalyzers, she argued that it “incongruously” concluded that the employer articulated a nonpretextual reason for terminating the employee: his violation of the company’s policy against having a blood alcohol level above .04% while on duty. His ability to drive, she asserted, “bears directly on whether” the company’s averred justification for his termination was pretextual.

If he could not have been dispatched to operate a commercial vehicle, then the company’s administration of the breathalyzer test was likely inconsistent with federal law, which provides that “[a] driver shall only be tested for alcohol while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions.” Noting that it was undisputed the employee told his supervisors he had been drinking at night to help with his pain, and that they administered a breathalyzer test to him in the morning, thereby increasing the likelihood the test results would be positive, the dissent argued that if he was, as he claimed, ineligible to perform safety-sensitive functions in his light duty position, then it was unclear why the company administered the breathalyzer test when doing so appeared to be inconsistent with federal law and a jury could thus find that testing him and then firing him for failing the breathalyzer was a pretext for an ulterior motive.

Section 613.333 claim. As to this claim under Section 613.333, Judge Callahan argued that the employee was terminated for violating the company’s policy against arriving at work with a blood alcohol level above .04%, not for his off-duty drinking. Asserting that he proffered no evidence showing that the company terminated him for drinking off-duty rather than for showing up to work with alcohol in his system, she would have affirmed the district court’s grant of summary judgment to the employer on this claim.

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