Martin v. Barnsville

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0142P (6th Cir.)

File Name: 00a0142p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



DENNIS L. MARTIN,



Plaintiff-Appellant,





No. 99-3263

v.



>

BARNESVILLE EXEMPTED 





VILLAGE SCHOOL DISTRICT

Defendant-Appellee. 

BOARD OF EDUCATION,



1

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 97-00992—Algenon L. Marbley, District Judge.

Argued: March 14, 2000

Decided and Filed: April 21, 2000

Before: MERRITT, DAUGHTREY, and MAGILL,*

Circuit Judges.

*

The Honorable Frank J. Magill, Circuit Judge of the United States

Court of Appeals for the Eighth Circuit, sitting by designation.

1

2 Martin v. Barnsville Exempted Village No. 99-3263 No. 99-3263 Martin v. Barnsville Exempted Village 7

School District Board of Education School District Board of Education

_________________ drinking problem" based on the Last Chance Agreement he

signed after the beer drinking incident at the school. We will

COUNSEL assume without deciding that defendant does perceive that

plaintiff suffers from alcoholism, a disability, and that

ARGUED: Samuel N. Lillard, MOWERY & YOUELL, plaintiff has established a prima facie case of disability. We

Dublin, Ohio, for Appellant. John C. Albert, CRABBE, then turn to defendant's stated reason for rejecting plaintiff's

BROWN, JONES, POTTS & SCHMIDT, Columbus, Ohio, bids. Defendant stated that plaintiff was denied the jobs as a

for Appellee. ON BRIEF: Samuel N. Lillard, MOWERY & bus driver and garage worker in 1994 based on the 1991 beer

YOUELL, Dublin, Ohio, for Appellant. John C. Albert, drinking incident during work hours at an elementary school.

CRABBE, BROWN, JONES, POTTS & SCHMIDT, The defendant asserts that the law should not require it to put

Columbus, Ohio, for Appellee. a person guilty of drinking on the job in the driver's seat of a

school bus hauling children.

_________________

The ADA does not protect plaintiff from his own bad

OPINION judgment in drinking on the job. The plaintiff cannot force

_________________ defendant to hire him as a school bus driver when there is a

serious risk that he may again drink on the job, have an

MERRITT, Circuit Judge. Plaintiff Dennis L. Martin accident and kill a group of school children. Any suggestion

appeals the district court's order granting summary judgment to the contrary is absurd on its face. For a federal court to

in favor of defendant, Barnesville Exempted Village School interpret the ADA to require a school board to hire as a

District Board of Education. On appeal, plaintiff alleges that school bus driver a person guilty of drinking on the job and

defendant discriminated against him on the basis of a thereby run the risk of an accident would raise serious

perceived disability – namely alcoholism – in violation of the constitutional problems. If an accident should occur and

Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. students were injured or killed, the school board would be

and Ohio Revised Code § 4112. Because the record subject to large compensatory and punitive damages and open

demonstrates that plaintiff did not receive an assignment as a itself to the moral condemnation of the community.

school bus driver because he was caught drinking on the job, Therefore, even if we assume that plaintiff has established a

no violation of the ADA occurred. We therefore affirm the prima facie case of discrimination, defendant has articulated

judgment of the district court. a legitimate, non-discriminatory reason for its actions.

Plaintiff was hired by defendant as a bus driver in 1984. He Plaintiff has not demonstrated that this stated reason is a

is a member of the union, known as the Barnesville pretext for any unlawful discrimination.

Association of Classified Employees, OEA/NEA. In 1991 he For the foregoing reasons, we affirm the district court.

bid for and was awarded a custodial position with defendant.

Shortly after beginning his custodial duties, Robert Miller, the

president of the school board, observed plaintiff drinking beer

while on the job at an elementary school. When confronted

by Miller, plaintiff denied the allegation and left the building,

even though his shift was not over. Upon completion of an

investigation, the school board recommended that plaintiff be

6 Martin v. Barnsville Exempted Village No. 99-3263 No. 99-3263 Martin v. Barnsville Exempted Village 3

School District Board of Education School District Board of Education

42 U.S.C. § 12102(2). Plaintiff denies that he has a physical terminated for consuming alcohol at work, leaving his post

or mental impairment and instead relies on either the second and for conduct in violation of the stated "drug-free

or third criteria to establish that he is "disabled;" that is, workplace" policy. Plaintiff ultimately admitted that he had

"having a record of such impairment" or being "regarded as" been drinking a beer while on duty on school grounds. After

having such an impairment.3 The district court granted intervention by the union, plaintiff was allowed to keep his

summary judgment to defendant because it found that plaintiff position if he signed a document entitled "Last Chance

had not established that his disability -- whether perceived or Agreement." The terms of the agreement required plaintiff

real -- "substantially limits one or more major life activities." (1) to admit to an unspecified "drinking problem;" (2)

While we do not necessarily disagree with the district court's successfully to complete an approved alcohol rehabilitation

reasoning, we affirm on a different ground. program; (3) to accept a four-week suspension without pay

and (4) to submit to alcohol and drug testing upon request for

This Court has held that there is a distinction between two years. Plaintiff signed the agreement and there is no

taking an adverse job action for unacceptable misconduct and dispute that he has at all times complied with the terms of the

taking such action solely because of a disability, even if the Last Chance Agreement. (Plaintiff was never asked to submit

misconduct is "caused" by the disability. Maddox v. to a drug test during the two-year period and defendant

University of Tennessee, 62 F.3d 843, 847 (6th Cir. 1995). In acknowledges that it never had any reason to believe that

Maddox, an assistant football coach at the University of plaintiff abused alcohol during that period.)

Tennessee was fired after an arrest for driving while

intoxicated. The coach argued that his alcoholism was a In December 1994, plaintiff submitted bids for a part-time

covered disability and that his conduct of driving while bus driver position and a part-time bus garage worker

impaired resulted from his disability, thereby precluding the position. Although plaintiff was the most senior worker to

university from firing him. This court assumed without bid for the positions, defendant rejected him, citing the 1991

deciding that alcoholics may be "individuals with a disability" beer incident. Plaintiff filed a grievance with the union and

for purposes of the ADA. The court held that the ADA in August 1995, after a binding arbitration hearing in

specifically provides that an employer may hold an alcoholic compliance with the union's collective bargaining agreement

employee to the same performance and behavior standards to with defendant, plaintiff was awarded the bus driver and

which the employer holds other employees "even if any garage worker positions on which he had bid in December

unsatisfactory performance is related to the alcoholism of 1994. The arbitrator based his decision solely on the terms of

such employee," thereby clearly distinguishing the issue of the bargaining agreement between the union and defendant,

misconduct from one's status as an alcoholic. 42 U.S.C. finding that the school board had not demonstrated that

§ 12114(c)(4). plaintiff posed a safety threat and therefore the seniority

provisions of the labor agreement could not be overridden.

Maddox controls this case. Plaintiff makes much of the fact Arbitrator's Opinion and Award, Aug. 10, 1995.

that defendant represented throughout the arbitration and

Ohio state court proceedings that plaintiff had an "admitted Defendant appealed the arbitrator's decision to the Belmont

County Common Pleas Court, which reversed and vacated the

labor arbitration award. In the Matter of Barnesville

3

Plaintiff stated that he signed the Last Chance Agreement, in which Exempted Village School Dist. Bd. of Educ. v. Miller, 1997

plaintiff admitted to a "drinking problem," because it was the only way he Ohio App. LEXIS 5253 (Belmont Cty. 1997). On appeal, the

could keep his job.

4 Martin v. Barnsville Exempted Village No. 99-3263 No. 99-3263 Martin v. Barnsville Exempted Village 5

School District Board of Education School District Board of Education

Ohio Court of Appeals reversed the Court of Common Pleas awarded the positions of bus driver and garage worker is moot

and reinstated the arbitrator's award. Barnesville Exempted and the only issue before us is whether plaintiff should be

Village School Dist. Bd. of Educ. v. Barnesville Ass'n of awarded compensatory and punitive damages, including back

Classified Employees, 123 Ohio App. 3d 272, 704 N.E.2d 36 pay for the period from December 1994 to February 1998, due

(1997). The Court of Appeals reversed the Court of Common to defendant's alleged discrimination.

Pleas, holding that the arbitrator's award must be upheld

unless the decision bears "no connection" with the labor To prevail in a disability discrimination case, plaintiff must

contract. 123 Ohio App. 3d at 276, 704 N.E.2d at 38. The present either direct evidence of discrimination or present a

Court of Appeals found that the arbitrator carefully weighed prima facie case of discrimination. To establish a prima facie

the competing concerns of safety and seniority and the state case under the Americans with Disabilities Act, plaintiff must

court could not overrule the decision simply because it show: (1) he was "disabled" under the ADA; (2) he was

disagreed with the outcome. Id. Defendant appealed to the otherwise qualified to perform the essential functions of the

Ohio Supreme Court, which did not allow the discretionary job; (3) he suffered an adverse employment action and (4) a

appeal. Barnesville Exempted Village School Dist. Bd. of nondisabled person replaced him. Monette v. Electronic Data

Educ. v. Barnesville Ass'n of Classified Employees, 81 Ohio Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). Once the

St. 3d 1421, 688 N.E.2d 1046 (1998). Plaintiff was awarded plaintiff establishes a prima facie case, the burden shifts to the

the positions he sought in December 19941 and began his employer to articulate a legitimate, nondiscriminatory reason

duties in February 1998. He was not awarded back pay or for the adverse employment action. The burden then shifts

any other remuneration for lost wages or benefits. back to plaintiff to demonstrate that the employer's stated

reason is a pretext for discrimination.2 McDonnell Douglas

Plaintiff filed this suit under the federal and state disability Corp. v. Green, 411 U.S. 792 (1973).

discrimination laws in September 1997, during the pendency

of the arbitration proceedings. Both parties have filed briefs The ADA provides that "[n]o covered entity shall

asserting that the arbitration proceeding under the collective discriminate against a qualified individual with a disability

bargaining agreement does not bar our review of plaintiff's because of the disability of such individual in regard to job

federal discrimination claim. They cite Wright v. Universal application procedures, job training, and other terms,

Maritime Serv. Corp., 525 U.S. 70 (1998) (terms of collective conditions, and privileges of employment." 42 U.S.C.

bargaining agreement must contain "clear and unmistakable" § 12112(a). The term "disability" is defined as:

language waiving specific federal statutory rights) and Bratten

v. SSI Servs., Inc. 185 F.3d 625 (6th Cir. 1999)(same). We 1. a physical or mental impairment that substantially

therefore do not decide the res judicata issue. We note that limits one or more major life activities;

because plaintiff was subsequently awarded the positions he

sought in his federal complaint as a result of the arbitration 2. a record of such impairment; or

proceedings, plaintiff's request in his complaint that he be

3. being regarded as having such an impairment.

1

During the pendency of the arbitration proceedings and subsequent 2

state court proceedings, plaintiff continued to bid on available bus driver Both federal and Ohio disability discrimination actions require the

and garage worker positions when they became available. His bids were same analysis. Little Forest Med. Ctr. V. Ohio Civ. Rights Comm'n, 61

rejected each time. Ohio St. 3d 607, 575 N.E.2d 1164, 1167 (1991).