Employment Law Daily Employee who failed drug test couldn’t show city regarded him as disabled
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Wednesday, February 27, 2019

Employee who failed drug test couldn’t show city regarded him as disabled

By Brandi O. Brown, J.D.

There was no evidence a city housing authority had reason to suspect that a maintenance supervisor who tested positive for opiates was disabled before it suspended him, and he had no property interest in continued employment.

In affirming summary judgment against an employee’s ADA claim, the Eighth Circuit held that he failed to make out a prima facie case of regarded-as disability discrimination. Even if he could show that his paid suspension was an adverse action (which the court noted was unlikely) the suspension predated information he provided that might have led the employer to suspect he was disabled. The court also agreed that the constructive discharge claim was not exhausted because it was based on actions not raised in the employee’s EEOC charge. His due process claim failed because, under Arkansas law, he could be terminated at will (Voss v. Housing Authority of the City of Magnolia, Arkansas, February 25, 2019, Grasz, L.).

Failed drug screen. After 14 years of employment with the housing authority, the maintenance supervisor resigned in May 2014. In the months preceding his resignation, the employee felt that he had been the subject of retaliation and discrimination, all stemming from a failed drug screen that had occurred in February. He tested positive for “opiates/morphine” and was suspended without pay after refusing to provide requested information regarding his use of an opiate. The next day, however, the employee relented and provided a copy of his prescription for hydrocodone.

Demands for info. Next, the employer asked him to provide a letter from his healthcare provider regarding the prescription, including an explanation of how and when he took it and any effects on the employee’s ability to perform his duties. The employer also asked for a complete list of the employee’s prescription medications in order to confirm that it was the hydrocodone that caused the positive drug test or, in the alternative, a clearance letter from his physicians that addressed that concern. The employee did not respond to those requests and remained on suspension.

Reinstatement and resignation. Eventually the employer reinstated his pay, with retroactive pay, and it kept him on health insurance during his suspension. Even though he did not provide the requested information, he was allowed to return to work in May and the employer dropped its demands.

Upon his return, the employee told his supervisor that he was still taking hydrocodone. He also said he had medical conditions, including post-traumatic stress disorder. Although he told the supervisor those conditions would not affect his ability to do his job, the supervisor informed him that he could not operate vehicles or equipment until he provided more information about the prescription from his doctor.

A few days later, the employee resigned, claiming he could not work in the retaliatory environment that had existed since the drug test. He filed charges with the EEOC and later filed suit. Following dismissal of some of his claims and discovery on the remaining ones, the federal district court in Arkansas granted summary judgment against his remaining claims of disability discrimination, due process violations, and retaliation.

No evidence he was regarded as disabled. The Eighth Circuit affirmed. The ADA claim, based on the employee’s assertion that his employer regarded him as disabled, could not be revived because, as the district court had concluded, he failed to provide evidence to support it. Even if he could show that the suspension, which was paid, was an adverse action (a very unlikely possibility, according to the appeals court), the fact remained that the suspension ended before the employee’s supervisor had any reason to suspect he might be disabled.

The court rejected the employee’s argument that the supervisor’s knowledge that he was taking hydrocodone was, alone, sufficient evidence to infer that he regarded the employee as disabled. Moreover, the employer’s request for a letter regarding the employee’s ability to safely perform his job duties was likewise inconsequential. There was nothing in the record to indicate that the employer’s request was based on a concern that he had a disability that affected his ability to perform his job, only that it was concerned about whether the medication would interfere.

Finally, the court explained that the restrictions the supervisor placed on the employee after he returned could not be considered because those acts were not included in the employee’s EEOC charge.

No property interest in job. Likewise, summary judgment was affirmed against the due process claim. The employee could not show that he possessed a property interest in his employment under state law. Under state law employers can terminate at-will employees without cause, with only two exceptions, neither of which applied.

The equal opportunity statement in the policy manual was not the “express provision against termination except for cause” required by state law. With regards to a provision covering suspensions, even if it could create legal entitlement for employees who are suspended, it only did so if they were not paid and the charges upon which the suspension was based were not substantiated. The employee was paid for his time on suspension and he was not fired because of the drug test.

Constructive discharge claim not exhausted. With regards to the employee’s constructive discharge claim, the appeals court agreed that it had not been properly exhausted. The charge did not include anything about revocation of his duties and other adverse actions that formed the basis of that claim.

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