Labor & Employment Law Daily No ADA claim for BASF employee fired after testing positive for alcohol at work
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Wednesday, March 4, 2020

No ADA claim for BASF employee fired after testing positive for alcohol at work

By Kathleen Kapusta, J.D.

Under the ADA, the Fifth Circuit observed, “an employer can hold alcoholic employees to the same standards as other employees, even if the behavior in question is related to alcoholism.”

Rejecting an employee’s claim that his employer’s admission it fired him because he failed a breath alcohol test was direct evidence of discrimination, the Fifth Circuit explained that firing him for coming to work under the influence of alcohol is not the same as firing him because of a prejudice against alcoholics. Nor was he able, under the burden-shifting approach, to show his discharge was based on any discriminatory animus against him as an alcoholic, said the court, affirming summary judgment against his ADA claims. His challenge to various evidentiary rulings also failed (Kitchen v. BASF, February 28, 2020, Southwick, L).

Despite the fact the employee, who began working for the chemical company in 2006, was twice convicted of driving while intoxicated and also consumed alcohol at work in violation of company policy, the company allowed him to take multiple leaves in order to undergo inpatient and outpatient alcohol abuse treatment. In May 2014, while on leave, he was again arrested and convicted of driving while intoxicated. Although the company allowed him to return to work, he first had to sign a Return to Work Agreement that required him to submit to breath alcohol testing. He also signed a Final Written Warning, which provided that any further violations of company policy, testing positive for alcohol at work, or a felony conviction for driving under the influence could result in termination.

Fired. Almost a year later, he was required to submit to a breath alcohol test three hours after he arrived at work. The test showed a blood alcohol level of .014. A second test a few minutes later showed a blood alcohol level of .010. Based on these results, his supervisor determined that he came to work under the influence of alcohol in violation of company policy, his return-to-work agreement, and the final written warning. He was fired not long thereafter.

The employee subsequently sued, asserting among other things claims under the ADA and the district court granted summary judgment in favor of his employer.

No direct evidence. On appeal, the employee first argued that the company’s admission it fired him because he failed a breath alcohol test was direct evidence he was discharged because of his disability—alcoholism. Disagreeing, the court found that at most, his evidence showed the company fired him based on the test results, or that it misapplied its policy or was mistaken in his level of intoxication while at work. Explaining that firing him “for arriving to work under the influence of alcohol is not equivalent to firing [him] because of a prejudice against alcoholics,” the court noted that an “inferential leap is required to arrive at the conclusion BASF discharged [the employee] out of discriminatory animus against him as an alcoholic.”

No causal connection. Nor could the employee establish a prima facie case of disability discrimination under the burden-shifting approach, said the court, as there was no evidence of a causal connection between his discharge and his alcoholism. Rather, the evidence showed the company had a post-rehabilitation testing policy; the employee had signed a final written warning providing that a positive test result could result in termination; and his supervisor believed he had come to work under the influence of alcohol in violation of company policy and the employee’s final warning.

No pretext. And even if he had established a prima facie case, there was no evidence of pretext. Although the employee challenged the accuracy of the test, the administering technician’s credentials, and whether he actually had violated company policy, he failed to show the company did not reasonably believe its proffered nondiscriminatory reason for firing him—his positive test results and violation of company policy.

Failure to accommodate. Although the employee waived his failure-to-accommodate claim because he asserted it for the first time on appeal, the court found it nonetheless failed. He argued that after the two breath tests showed a blood alcohol content of .014 and .010, which were not levels of legal intoxication, his request for a blood alcohol test was denied. Noting that the company had already allowed him several leaves for treatment even after his driving under the influence convictions and company policy violations, the court observed that not “conducting an additional alcohol test is not evidence that BNSF failed to reasonably accommodate him.”

Evidentiary rulings. The employee also argued that the lower court erred in relying on his supervisor’s testimony that he had arrived at work under the influence of alcohol. His supervisor, he argued, had consulted with a doctor about the test results and thus his testimony was not based on his personal knowledge and was therefore hearsay. But the lower court did not rely directly on the doctor’s testimony, said the court, but rather on the supervisor’s testimony that he personally believed the employee had violated company policy and had been under the influence of alcohol while at work. Nor was the testimony offered for the truth of whether the employee was intoxicated but rather for the effect the doctor’s opinion had on the supervisor: “namely the formation of his honest belief [the employee] had been intoxicated while at work.”

Finally, he argued that medical records, which showed that the day after his positive test results he told a doctor he had been drinking heavily for the previous 10 days, should not have been admitted because they were inadmissible hearsay. Finding it was not an abuse to admit these records, the court pointed out that they fell squarely into the exception for statements made for medical diagnosis or treatment that describe medical history, past or present symptoms or sensations, their inception, or their general cause. And even if it were an abuse of discretion, it was harmless as the lower court did not rely on them in dismissing the employee’s claims.

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