By Kathleen Kapusta, J.D.
In granting summary judgment against the Rehab Act claim of an employee with a history of alcoholism because he failed to show he had a "disability," the court below failed to properly consider the evidence as applied to all three of the Act’s alternative definitions of disability, ruled the District of Columbia Circuit. A reasonable jury could conclude both that he had a qualifying disability under all three definitions and that the employer refused to rehire him because of his disability, the appeals court stated, reversing the lower court’s decision (Alexander v. Washington Metropolitan Area Transit Authority
, June 24, 2016, per curiam
Hired in 1999 by the Washington Metropolitan Area Transit Authority, the employee was suspended in 2007 and referred to an Employee Assistance Program after his supervisor smelled alcohol on his breath and required him to take a breathalyzer, which came up positive. He returned to work several months later but in January 2009 he again tested positive for alcohol while at work and was terminated.
Told he could be rehired in one year if he completed an intensive alcohol dependency treatment program, the employee enrolled in and completed an outpatient program and sought to be rehired on several occasions. He was disqualified, however, supposedly because he falsified information on his medical form and failed to produce documentation of his treatment program. He then sued under the ADA and the Rehab Act. He subsequently dismissed his ADA claim and the district court, finding that he failed to show his alcohol dependency substantially limited at least one of his major life activities, granted summary judgment against his Rehab Act claim.
Noting that the Act expressly incorporates the liability standards set out in the ADA, the appeals court pointed out that when Congress enacted the ADAAA, it directed that the definition of disability shall be construed in favor of broad coverage. The court next pointed out that while the district court focused on the first definition of disability—an actual and substantially limiting "physical or mental impairment"—it failed to consider whether the employee met either the record-of-impairment or regarded-as-impaired definitions. Compounding this error, it also applied an outmoded statutory standard, overlooking material changes imposed by the ADAAA.
Critically, said the court, while the district court’s decision relied heavily on what it deemed to be insufficient evidence that the employee’s alcoholism substantially limited any major life activity, the 2008 amendments eliminated any such requirement for a regarded-as claim. Instead, the employee only needed to show the Authority took "a prohibited action against [him] because of an actual or perceived impairment." There was no dispute, said the court, that his alcoholism was an impairment under the ADA and there was evidence indicating that the Authority refused to rehire him because of his alcoholism. He successfully completed the treatment program and waited a year before applying to be rehired. When he did apply, however, he was told he "couldn’t come back * * * because [he] failed the [Employee Assistance] program that got [him] fired in the first place, and Metro don’t have revolving doors."
He also testified that after applying for one position, he was pulled out of the line to take the entrance exam by an HR representative, who remembered him as "the one that can’t have safety-sensitive positions." He produced evidence, however, showing that position was not a safety sensitive one.
There was also evidence that the Authority’s medical office manager who made the decision to disqualify him offered shifting reasons for the refusal to rehire him. While she initially told him he had been disqualified for lying on his medical questionnaire form, when he challenged that accusation, she claimed the real reason for the disqualification was that he needed to wait two years, not one, before he could be rehired. And when he challenged that assertion, she "got mad or upset" and upped the requirement to three years and then declared that he "can’t come back at all." The employee further testified that her boss later informed him that, despite "no policy preventing [him] from coming back," he would not be rehired "because it will open the floodgates for people like [him]."
Further, the manager admitted she was aware of his alcoholism before he was terminated and that she had no reason to believe he was drinking at the time of his rehire applications. Yet she insisted that he was nonetheless "too much of a risk for a safety sensitive positon." And, observed the court, both she and her boss conceded that they could not recall any employee who had been terminated for violating the substance abuse policy and was later rehired. As to the employer’s nondiscriminatory reason for refusing to rehire the employee, the court found a reasonable jury could conclude that his allegedly false answer on the medical questionnaire form could have been accurate as he checked "no’ for whether he had ever had "drug
The lower court also erred by enforcing too strict a definition of the "substantially limits" showing needed for the employee’s actual-disability and record-of-impairment claims, said the appeals court, pointing out that under the 2008 amendments, the substantially-limits requirement "is not meant to be a demanding standard." Further, the employee presented sufficient evidence showing that his alcoholism "substantially limit[ed]" major life activities "compared to most people in the general population." An expert medical report, which detailed his long and difficult history of alcohol dependency, explained that the employee had a "debilitating diagnosis of alcoholism" and his condition "dramatically [a]ffects major life activities, including the ability to care for himself, walking, concentrating, and communicating."