“tak[ing] the opportunity to acknowledge, as our sister circuits have, that, following the ADAAA’s passage, an impairment need not be ‘permanent or long-term’ to qualify as a disability”
How later courts described this case
- “tak[ing] the opportunity to acknowledge, as our sister circuits have, that, following the ADAAA’s passage, an impairment need not be ‘permanent or long-term’ to qualify as a disability”
- explaining that “an impairment need not be ‘permanent or long- term’ to qualify as a disability”
- reversing summary judgment in favor of employer because employee raised a genuine issue of material fact as to whether his 20 alcoholism qualified as a disability
- “To prevail on a failure-to- accommodate claim, a plaintiff must show that (1) he is a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered employer; and (3) the employer failed to make reasonable accommodations for such known limitations.” (cleaned up)
Written by the judges who cited it.
The opinion
Case: 22-50064 Document: 00516829843 Page: 1 Date Filed: 07/21/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
July 21, 2023
No. 22-50064
____________ Lyle W. Cayce
Clerk
Clint Mueck,
Plaintiff—Appellant,
versus
La Grange Acquisitions, L.P.,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-801
______________________________
Before Higginbotham, Southwick, and Higginson, Circuit
Judges.
Stephen A. Higginson, Circuit Judge:
In 2019, Plaintiff-Appellant Clint Mueck received his third citation for
Driving While Intoxicated (“DWI”). As a term of his probation, Mueck, an
alcoholic, was required to attend weekly substance abuse classes. Some of
these classes conflicted with shifts that Mueck was scheduled to work as an
operator at a plant owned by Defendant-Appellee La Grange Acquisitions,
L.P. Mueck informed his supervisors that he was an alcoholic and that several
of the court-ordered substance abuse classes would conflict with his
scheduled shifts. When Mueck was unable to find coverage for these shifts,
Case: 22-50064 Document: 00516829843 Page: 2 Date Filed: 07/21/2023
No. 22-50064
La Grange, citing this scheduling conflict, terminated Mueck. After
exhausting his administrative remedies, Mueck sued La Grange under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112 et seq., for
intentional discrimination, failure to accommodate, and retaliation. The
district court granted summary judgment in favor of La Grange on all three
claims. Mueck appeals. We AFFIRM, but our analysis takes into account
significant statutory revisions.
I. Background
Defendant La Grange Acquisition L.P. (“La Grange”) operates a
natural gas processing plant, the Fashing gas plant, in Karnes City, Texas. In
February 2015, Plaintiff Clint Mueck started working as an operator at the
plant. As an operator, Mueck was responsible for checking pipeline
equipment and recording an hourly log of various plant indicators, including
pressures, readings, flows, and temperatures. Operators at the plant worked
a seven-day-on, seven-day-off shift schedule, alternating between day and
night shifts. Under this schedule, operators would work a 12-hour day shift
(6:00 a.m. to 6:00 p.m.) for seven days, take seven days off, work a 12-hour
night shift (6:00 p.m. to 6:00 a.m.), and then take another seven days off
before restarting the rotation.
During the relevant time period, Mueck reported directly to Kevin
Pawelek, the Plant Supervisor, who reported to Jerry Frausto, the Manager
of Operations. Frausto in turn reported to Ricky Bonewald, the Director of
Operations, who in turn reported to Chad Ingalls, the Vice President of
Operations. Additionally, Raymond De La Vega, Senior Manager of Human
Resources, provided human resources support to the plant.
Mueck is an alcoholic. Mueck, who first started drinking while at
college in the late 1990s, described his alcoholism as mainly consisting of
binge drinking, that is, he has difficulty controlling his drinking once he starts.
2
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No. 22-50064
By his own account, while employed by La Grange, Mueck would have, at
most, one to two drinks in the evening on days when he worked and his
drinking never prevented him from working. Mueck, however, drank
excessively whenever he was off duty. 1 On a typical day off, Mueck would
consume twelve to eighteen beers, along with vodka drinks, until he passed
out. To treat his resulting hangover and mental fog, Mueck would begin
drinking again. This cycle would repeat until Mueck had to return to work.
When in the middle of one of his drinking binges, Mueck would
neglect basic elements of self-care. He would not shower, brush his teeth,
clean his house, or keep up with any other chores. Similarly, his ability to
concentrate, think clearly, and make decisions was greatly impaired during a
binge. Mueck tried to hide his drinking problem from everyone, including
friends, family, and his primary care physician, to the detriment of his
relationships with others. In Mueck’s own words, drinking was his priority
and his cravings made it difficult to focus on anything else.
Mueck’s drinking also led to legal consequences, including a lengthy
criminal history for alcohol-related crimes. In 1997, while in college, Mueck
was cited for Driving Under the Influence (“DUI”) and placed into a pretrial
diversion program. In 2017, while employed by La Grange, he received a
second citation for Driving While Intoxicated (“DWI”) and was placed on
pretrial diversion. In March and June 2018, he received citations for public
intoxication. Mueck was placed on deferred adjudication for one of these
citations, while the other citation was dismissed for lack of evidence. Due to
these citations, Mueck’s pretrial diversion for the 2017 DWI was revoked.
Finally, on March 3, 2019, while still under probation for the 2017 DWI for
_____________________
1
Indeed, Mueck attested that his drinking problem worsened while he was on
medical leave for a knee injury because he did not have to sober up for work.
3
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No. 22-50064
which his pretrial diversion had been revoked, Mueck was cited for a third
DWI.
On March 6, 2019, Mueck disclosed to Pawelek his most recent DWI,
as well the fact that he had a prior DUI and public intoxication charges. At
the meeting, Mueck promised to keep Pawelek apprised of his legal situation.
According to Mueck, he told Pawelek that he was an alcoholic and had a
drinking problem, that he wanted to turn his life around, and that he was
going to seek help. Mueck also claims that, around the same time, he told
Frausto that he was an alcoholic and had a drinking issue. Pawelek, however,
claims that Mueck never informed him that he was an alcoholic, and
Bonewald and De La Vega similarly deny being informed by Pawelek or
Frausto that Mueck had an alcohol problem. 2
That morning, Frausto emailed De La Vega and Bonewald (with
Pawelek copied on the email) a summary of a prior discussion about Mueck’s
situation. Frausto noted that—as far as he was aware—this was Mueck’s
second DWI offense and that Mueck had hired a lawyer to help him deal with
the most recent offense. Frausto further wrote that Mueck had reached out
to the Employee Assistance Program (“EAP”), a confidential hotline that is
designed to provide employees assistance with a variety of personal
problems. Mueck states that while he did call the hotline, he did not end up
receiving help from the EAP.
That spring, Mueck continued to work at the plant. During this
period, Mueck started taking independent steps to address his alcoholism.
_____________________
2
Bonewald and De La Vega were forwarded an email originally sent from Pawelek
to Frausto on May 17, 2019, in which Pawelek reported that Mueck was 60 days sober and
had been attending Alcoholics Anonymous meetings four to five times a week. De La Vega
explained, however, he did not feel that he could speculate, on these facts, that Mueck was
an alcoholic or disabled.
4
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No. 22-50064
He began attending Alcoholics Anonymous (“AA”) meetings four to five
times per week and, on May 9, 2019, disclosed to his primary care physician
that he needed help with his drinking. His doctor prescribed medication to
help with his cravings and advised Mueck to seek counseling and a support
group. As of October 2021, Mueck was still attending AA meetings multiple
days per week.
Meanwhile, Mueck’s legal proceedings were ongoing. Because of his
most recent DWI, as well as the public intoxication charges, the State moved
to revoke Mueck’s probation for the 2017 DWI. To avoid revocation of his
probation, on May 16, 2019, Mueck agreed to an extension of his probation.
This extension came with certain conditions, including a requirement that
Mueck carry a personal breathalyzer to work and use it three times per day,
and that Mueck install a breathalyzer in his truck. Mueck was also ordered to
participate in the 81st District Court Substance Abuse Intensive Outpatient
Program.
On May 17, 2019, Mueck notified Pawelek of these conditions and
provided Pawelek with a copy of the court order. Mueck and Pawelek briefly
spoke about the breathalyzer requirement and Mueck’s participation in the
substance abuse program, details about which Mueck promised to provide
shortly. Following the meeting, Pawelek wrote to Frausto (who then
forwarded the email to Bonewald and De La Vega) that he had asked Mueck
how he was doing, to which Mueck had responded that he had been sober for
sixty days and was attending AA meetings four to five times per week. Mueck
claims that he also told Pawelek that he needed the substance abuse program
because his drinking was affecting every aspect of his life, which had fallen
apart.
Soon after this meeting, Mueck received more details about the
substance abuse program. The program would consist of weekly one-on-one
5
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No. 22-50064
sessions with a substance abuse counselor as well as weekly group sessions.
This group class included other individuals referred through the court system
as well as private paying clients. Although the individual counseling sessions
could be scheduled at Mueck’s discretion, the group sessions met every
Monday from 6 p.m. to 8 p.m. The class, for which Mueck needed to plan for
around an hour of travel time, was intended to run for three months.
Mueck’s participation in this program would impact the end of some
of his day shifts and the beginning of four of his night shifts over the relevant
three-month period. Mueck independently arranged for a coworker to cover
the days on which he would need to leave early from his day shift to attend
the class but could not find coverage for the night shifts for which he would
have to arrive late. On May 24, Pawelek, who told Mueck that the
opportunity for overtime had to be offered to everyone, sent out an email to
operators not on Mueck’s rotation asking if anyone would be willing to trade
shifts for the necessary dates. No one responded to the email. Pawelek
confirmed that the co-worker Mueck had identified was still willing to cover
on days when Mueck would have to leave early to make his class.
Although Mueck and Pawelek had resolved the scheduling conflict for
his day shifts, he still needed coverage for his night shifts. Pawelek stated he
was willing to help facilitate a voluntary shift swap but would not force
another employee to cover for Mueck. On May 28, Pawelek notified Frausto,
Bonewald, and De La Vega that no one had volunteered to cover for Mueck
when he was to work the night shift. La Grange suspended Mueck for a week
while it reviewed the situation. Frausto called Mueck to notify him of the
suspension, telling him only that he was suspended “pending investigation.”
Neither Pawelek nor any other La Grange employee discussed options
other than shift swaps to resolve the conflict. According to Bonewald, “it was
[Mueck’s] job to find coverage,” especially where he was not planning to take
6
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No. 22-50064
vacation or sick leave. Mueck, however, claims that he was never told that he
could use vacation time or time under the company’s “Personal Leave”
policy to attend the classes. Bonewald confirmed that La Grange would have
accommodated Mueck if he had requested time off as “vacation,” but
reiterated that Mueck did not want to use his vacation time—an assertion
Mueck denies. Bonewald also explained that had La Grange’s EAP
recommended that Mueck attend substance-abuse classes, La Grange would
have covered his shifts.
Moreover, although La Grange would approve voluntary shift swaps,
Pawelek explained that employer-mandated shift swaps at the plant were
uncommon and were typically done only on a permanent basis.
Nonpermanent swaps could result in extended hours for employees already
working twelve-hour shifts, leading to safety concerns and overtime costs to
the business. That said, according to Mueck, La Grange would regularly find
coverage for other employees, sometimes on short notice. One of the lead
operator’s job functions was to substitute for absent operators, and Pawelek
noted that one potential solution would have been for him to fill in for Mueck.
Ultimately, Bonewald recommended to Ingalls that Mueck’s
employment be terminated. After consulting with human resources, Ingalls
decided to terminate Mueck. On June 4, Mueck was informed of his
termination and told that the decision was based on the conflict between the
substance-abuse classes and his shift schedule.
After exhausting his administrative remedies through the EEOC,
Mueck sued La Grange under the ADA for intentional discrimination, failure
to provide reasonable accommodation, and retaliation. Following the close of
discovery, La Grange moved for summary judgment on each of these claims.
The district court granted the motion in its entirety, first finding that Mueck
failed to provide sufficient evidence from which a jury could conclude that
7
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No. 22-50064
his alcoholism was a disability under the ADA as required by his intentional
discrimination and failure-to-accommodate claims. Additionally, the district
court held that Mueck had failed to show that he requested an
accommodation as required for both his failure-to-accommodate claim and
retaliation claim. Mueck appeals.
II. Discussion
We review a district court’s grant of summary judgment de novo.
EEOC v. Agro Distrib., LLC, 555 F.3d 462, 469 (5th Cir. 2009). Summary
judgment is proper when the moving party can demonstrate that, viewing the
evidence in the light most favorable to the non-moving party, there is no issue
of material fact and that the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). “A genuine dispute as to a material fact exists ‘if
the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Rogers v. Bromac Title Servs., LLC, 755 F.3d 347, 350
(5th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). Moreover, we may affirm on “any ground supported by the record,
even if it is different from that relied on by the district court.” Reed v. Neopost
USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012) (quoting Moss v. BMC Software,
Inc., 610 F.3d 917, 928 (5th Cir. 2010)).
Mueck raises four issues on appeal: (1) whether, as a threshold matter,
the district court erred in finding that he failed to produce evidence that his
alcoholism is a disability under the ADA, (2) whether the district court
therefore erred in granting summary judgment as to his intentional
discrimination claim, (3) whether the district court erred in granting
summary judgment as to his failure-to-accommodate claim, including on the
alternate basis that he had not requested an accommodation, and (4) whether
the district court similarly erred in granting summary judgment as to his
8
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No. 22-50064
retaliation claim on the ground that he had not engaged in a protected
activity. We address each in turn.
A. Disability
First, Mueck contends that the district court erred in finding that he
did not present evidence showing that he is disabled under the ADA. 3
The ADA defines “disability” as, with respect to an individual, “a
physical or mental impairment that substantially limits one or more major life
activities of such individual.” 42 U.S.C. § 12102(1)(A). “Merely having an
impairment” is not enough to qualify as disabled under the ADA—a plaintiff
“also need[s] to demonstrate that the impairment substantially limits a major
life activity.” E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 614 (5th
Cir. 2009). The ADA defines a “major life activity” as including “caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working,” 42 U.S.C.
§ 12102(2)(A), as well as “the operation of a major bodily function,
including . . . neurological [and] brain . . . functions,” id. § 12102(2)(B).
For a limitation on a major life activity to be substantial, an individual
must be “unable to perform a major life activity that the average person in
the general population can perform, or . . . be significantly restricted in the
ability to perform it.” Chevron Phillips, 570 F.3d at 614. Determining whether
_____________________
3
To succeed on both his intentional discrimination and failure-to-accommodate
claims, Mueck must show that he has a disability under the ADA. See, e.g. EEOC v. LHC
Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014) (explaining that to establish a prima facie case
of discrimination under the ADA, a plaintiff must first demonstrate that he has a disability);
Feist v. La. Dep’t of Just., 730 F.3d 450, 452 (5th Cir. 2013) (explaining that to prevail on a
failure-to-accommodate claim, a plaintiff must first establish that he is a “qualified
individual with a disability”).
9
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No. 22-50064
a plaintiff has a disability therefore requires an individualized assessment of
the impact of the impairment on an individual’s major life activities. 4 Griffin
v. United Parcel Serv., Inc., 661 F.3d 216, 223 (5th Cir. 2011) (“Neither the
Supreme Court nor this court has recognized the concept of a per se disability
under the ADA, no matter how serious the impairment; the plaintiff still
must adduce evidence of an impairment that has actually and substantially
limited the major life activity on which he relies.” (cleaned up)).
Courts initially construed the definition of disability narrowly,
particularly in the context of determining whether an impairment
substantially limited a major life activity. See Chai R. Feldblum, Definition of
Disability Under Federal Anti-Discrimination Law: What Happened? Why? And
What Can We Do About It?, 21 Berkeley J. Empl. & Lab. L. 91, 93
(2000). In response, Congress enacted the ADA Amendments Act of 2008
(“ADAAA”) with the goal of “reinstating a broad scope of protection to be
available under the ADA.” Pub. L. No. 110-325, § 2(a), 122 Stat. 3554; see
generally Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th
Cir. 2016) (“[The 2008] amendments ‘make it easier for people with
disabilities to obtain protection under the ADA.’” (quoting 29 C.F.R.
§ 1630.1(c)(4))). Put another way, Congress directed that courts, in assessing
whether an impairment substantially limits a major life activity, “interpret[]
and appl[y]” the term “substantially limits” “to require a degree of
functional limitation that is lower than the standard . . . applied prior to the
ADAAA.” 5 29 C.F.R. § 1630.2(j)(1)(iv).
_____________________
4
The EEOC itself does not recognize any per se disabilities, although it does
recognize that “the individualized assessment of some types of impairments will, in
virtually all cases, result in a determination of coverage” under the ADA. 29 C.F.R.
§ 1630.2(j)(3).
5
See also Alex B. Long, Introducing the New and Improved Americans with Disabilities
Act: Assessing the ADA Amendments Act of 2008, 103 Nw. L. Rev. Colloquy 217, 218-
10
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No. 22-50064
Additionally, the ADAAA explicitly provided that “[a]n impairment
that is episodic or in remission is a disability if it would substantially limit a
major life activity when active.”42 U.S.C. § 12102(4)(D). Consequently,
courts have recognized numerous episodic conditions—including
depression, post-traumatic stress disorder, and other mental health
conditions where an individual may experience flare-ups—as disabilities. See,
e.g., Hostettler v. Coll. of Wooster, 895 F.3d 844, 854 (6th Cir. 2018)
(depression and severe separation anxiety).
Relying primarily on case law that failed to account for the impact of
the ADAAA, however, the district court held that Mueck had failed to
establish that his alcoholism was an impairment which substantially limited a
major life activity, in large part because the impairments Mueck suffered
during a drinking binge were short-term and not permanent. 6 Specifically, in
reaching this conclusion, the district court turned to Burch v. Coca-Cola Co.,
119 F.3d 305 (5th Cir. 1997), a case in which we found that a plaintiff could
not show that his alcoholism rose to the level of a disability. Id. at 314-317
_____________________
23 (2008) (explaining that the ADAAA rejected much of the restrictive view courts had
taken of the “substantially limits” requirement and expanded the list of major life activities
that may be considered).
6
The district court limited its discussion to Mueck’s specific factual
circumstances—it did not adopt a blanket rule that alcoholism can never be a disability
under the ADA. This was proper—as we and other circuits have recognized, both before
and after the ADAAA, alcoholism can, without a doubt, rise to the level of a disability. See
Burch v. Coca-Cola Co., 119 F.3d 305, 316 n.9 (5th Cir. 1997) (“This is not to say that an
alcoholic can never demonstrate a substantially limiting impairment.”); Sullivan v. Neiman
Marcus Grp., Inc., 358 F.3d 110, 114-15 (1st Cir. 2004) (recognizing that “there is no
question that alcoholism is an impairment under the ADA” that may, if it substantially
limits a major life activity, qualify as a disability) (cleaned up); Makinen v. City of New York,
857 F.3d 491, 495 (2d Cir. 2017) (noting that the ADA “treat[s] alcoholism as an
impairment that can form the basis of a disability discrimination suit”); Mararri v. WCI
Steel, Inc., 130 F.3d 1180, 1185 (6th Cir. 1997) (“There is no dispute that alcoholism is a
disability within the protection of the ADA.”).
11
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No. 22-50064
(discussing why, based on the evidence presented, the plaintiff’s alcoholism
did not make him a qualified individual with a disability under the ADA). The
district court treated Burch as controlling both as to the governing law and its
applicability to the facts presented by Mueck. We find, however, that Burch
is distinguishable on both grounds.
To begin, the district court cited Burch for the proposition that
“[p]ermanency, not frequency, is the touchstone of a substantially limiting
impairment.” Id. at 316. In Burch, we noted that even if the plaintiff’s
underlying alcoholism was a permanent condition, and even though the
plaintiff’s bouts of inebriation were frequent, the impairments caused by his
drinking were temporary. Id. Accordingly, we “rejected [the] attempt[] to
transform [a] temporary affliction[] into [a] qualifying disabilit[y].” Id.
Yet, critically, Burch predates the ADAAA. And not only did the
ADAAA generally seek to make it easier for plaintiffs to establish that they
have a disability, but it plainly stated that an “episodic” impairment—that
is, an impairment that is not always active—can still qualify as a disability.
See 42 U.S.C. § 12102(4)(D). Other circuits have recognized that the
ADAAA directly abrogated prior case law requiring that an impairment be
“permanent” or “long term” to qualify as a disability. See, e.g., Shields v.
Credit One Bank, N.A., 32 F.4th 1218, 1222-26 (9th Cir. 2022) (holding that
the district court erred in relying on case law and regulations that failed to
account for the ADAAA to hold that an impairment is not substantially
limiting unless it involves permanent or long-term effects); Hamilton v.
Westchester Cnty., 3 F.4th 86, 92-94 (2d Cir. 2021) (joining other circuits in
recognizing that the ADAAA overrode previous case law indicating that
temporary impairments could not qualify as disabilities under the ADA);
Summers v. Altarum Inst., Corp., 740 F.3d 325, 330 (4th Cir. 2014) (noting
that while the district court’s ruling that an injury was not a disability because
it was “temporary” was “entirely reasonable” under prior case law, the
12
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No. 22-50064
plaintiff nonetheless “unquestionably alleged a ‘disability’ under the
ADAAA”).
We have not yet explicitly joined other circuits in repudiating the
“permanent or long-term” requirement. Although the issue was raised in
Moore v. Centralized Management Services, LLC, 843 F. App’x 575 (5th Cir.
2021), we expressly declined to address whether the district court had erred
in determining that the plaintiff failed to show that his alcoholism was a
disability under the ADA because his drinking was episodic, not permanent,
Moore v. Centralized Mgmt. Servs., LLC, No. 19-1592, 2020 WL 972711, at *4
(E.D. La. Feb. 28, 2020), reconsideration denied, 2020 WL 2037191 (E.D. La.
Apr. 28, 2020); 843 F. App’x at 578-79. Specifically, because we found that
the district court had not erred in finding that the plaintiff was terminated for
poor performance, not on account of his alcoholism, we determined that we
did not need to decide whether the plaintiff’s alcoholism was a disability.
Moore, 843 F. App’x at 579. And while we have approvingly cited precedent
that requires courts to consider the “permanent or long-term impact” of an
impairment when assessing whether it “substantially limits” a major life
activity in other cases decided after the ADAAA, see, e.g., Milton v. Texas
Dep’t of Crim. Just., 707 F.3d 570, 573 (5th Cir. 2013); Agro Distr., 555 F.3d
at 470; Chevron Phillips, 570 F.3d at 615, these cases applied pre-ADAAA case
law and are therefore inapposite, see Milton, 707 F.3d at 573 n.2 (explaining
that it applied pre-ADAAA law because the events giving rise to the
plaintiff’s claim arose before the enactment of the ADAAA and the ADAAA
does not apply retroactively); Agro Distr., 555 F.3d at 469 n.8 (same); Chevron
Phillips, 570 F.3d at 619 (relying on a prior version of 29 C.F.R. § 1630.2(j)
and pre-ADAAA precedent).
We now take the opportunity to acknowledge, as our sister circuits
have, that, following the ADAAA’s passage, an impairment need not be
“permanent or long-term” to qualify as a disability.
13
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No. 22-50064
In the alternative, the district court viewed Burch as standing for the
proposition that the mere fact that an individual is unable to perform
activities of daily living while inebriated or hungover is not enough to
demonstrate that the individual has a substantially limiting impairment. On
this point, however, Burch can be distinguished on its facts. In Burch, the
plaintiff’s primary evidence as to the limitations imposed by his alcoholism
was his own testimony that that his “ability to walk, talk, think, and sleep
were affected when he drank too much,” and that he “had hangovers in the
morning that affected his memory.” 7 119 F.3d at 316. This testimony,
however, showed only that the plaintiff had suffered the “natural result of
overindulgence,” namely “the temporary impairment of senses, dulled
reactions, and the prospect of a restless sleep followed by an unpleasant
morning.” Id. In other words, the plaintiff suffered from the same ill effects
of too much alcohol as any individual who drank too much.
Mueck, however—unlike the plaintiff in Burch—provided evidence
demonstrating that the “the effects of his alcoholism-induced inebriation
were qualitatively different than those achieved by an overindulging social
drinker.” Id. When he drank, he drank excessively, either to the point of
passing out or to where he was too sick to drink any more. Mueck further
testified that, during these binges, his major life activities of thinking,
_____________________
7
The plaintiff in Burch also pointed to testimony from his treating physician that
alcoholics as a class, not the plaintiff individually, were disabled under the ADA. 119 F.3d
at 315. However, as discussed, the ADA requires an individualized inquiry. Fatally, in
Burch, the only testimony specific to the plaintiff from the physician concerned the
plaintiff’s ability to function without limitation, that is, the physician “acknowledged that
Burch’s status as a recovering alcoholic did not affect his ability to walk, sit, hear, work, or
participate in any ‘usual activities.’” Id. at 315 n.8. Additionally, the Burch plaintiff pointed
to the fact that he was voluntarily admitted to a hospital to treat his alcoholism as evidence
that his alcoholism substantially limited a major life activity. Id. at 312, 316. In rejecting this
argument, we noted that the “mere existence of a hospital stay” was not enough, on its
own, to demonstrate that an impairment is substantially limiting. Id. at 317.
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No. 22-50064
concentrating, and caring for himself would be substantially impacted—he
would not shower, brush his teeth, clean, eat healthily, or follow a consistent
sleep schedule, and would often drink to the point of unconsciousness. 8 See,
e.g., Chevron Phillips, 570 F.3d at 617 (finding that a plaintiff had submitted
sufficient evidence to demonstrate that she was substantially limited in the
major life activity of caring for herself where she attested that she often did
not shower for days, was unable to shop for food, cook, or even zip up her
clothes). Put simply, the level of impairment described by Mueck far exceeds
that which is typically experienced by a casual drinker, even one who
overindulges.
_____________________
8
As an alternative ground on which to grant summary judgment in favor of La
Grange, the district court stated that Mueck had failed to specify in his complaint which
specific major life activities were impacted by his alcoholism. Relying on Mora v. Univ. of
Tex. Ws. Med. Ctr., 469 F. App’x 295, 297 (5th Cir. 2012), the district court found that this
failure was fatal to his claims. Mora, however, was decided in the context of a motion to
dismiss, not a motion for summary judgment. Id. at 297. And typically a deficiency in the
pleadings results in the dismissal of the case—and an opportunity to amend—not a decision
on the merits in favor of the defendant. See, e.g., Great Plains Trust Co. v. Morgan Stanley,
313 F.3d 305, 329 (5th Cir. 2002) (noting that, “unless it is clear that the defects are
incurable” or the plaintiffs are “unwilling or unable to amend in a manner that will avoid
dismissal,” courts “often afford plaintiffs at least one opportunity to cure pleading
deficiencies” in an attempt to “decide cases on the merits rather than on the sufficiency of
pleadings”). Moreover, in his response to the motion for summary judgment, Mueck both
articulated the major life activities in which he was substantially limited and provided
evidence demonstrating that he was so limited. We thus find that any deficiency in the
complaint did not warrant summary judgment on the merits in favor of La Grange.
To the extent that the district court’s judgment for La Grange depended on the
observation that Mueck did not present evidence showing that his alcoholism impacted his
major life activity of “work,” we note that Mueck himself never asserted that his impacted
major life activity was his work. Nor must a condition interfere with an individual’s job in
order to qualify as a disability. See, e.g., Cannon, 813 F.3d at 591 n.3 (explaining that the fact
that a plaintiff could perform work tasks “[did] not undermine the evidence indicating that
his injury substantially limit[ed] his ability to lift, which [was] all that [was] required to
establish a disability”).
15
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No. 22-50064
Moreover, these binges were of substantial duration. As Mueck
explained, he would not simply overindulge for a night at a time—rather, he
would drink non-stop whenever he was off work, which could be a full week
(or, as when he was on FMLA leave, months) at a time. In Burch, however,
there was no evidence that the plaintiff (who worked an office job), engaged
in such lengthy or debilitating binges. See 119 F.3d at 310 (describing how the
plaintiff in Burch, although he would drink heavily in the evenings, would still
report to work the next morning, albeit with a hangover).
Other out-of-circuit cases to which La Grange cites are inapposite. For
instance, La Grange cites Ames v. Home Depot U.S.A., Inc., 629 F.3d 665 (7th
Cir. 2011), in which the Seventh Circuit affirmed summary judgment in favor
of the defendant on the basis that the plaintiff could not show that her
alcoholism substantially limited major life activities. In that case, however,
the plaintiff “presented no evidence that her alcohol problem substantially
limited her activities at home” and “insisted that her alcohol problem did not
affect her work performance.” Id. at 670. Yet here, while Mueck claims that
his alcoholism did not affect his work, he does provide evidence that he was
substantially limited whenever he was off the clock. Cullen v. Verizon
Communications, No. 14-464, 2015 WL 4508711 (W.D.N.Y. July 24, 2015), is
similarly unhelpful for La Grange, as Mueck has done more than vaguely
assert that his alcoholism “merely ‘affected’ certain abilities.” Id. at *3. He
has described, in detail, the exact ways in which his alcoholism impacted his
life.
Accordingly, Mueck has put forth evidence raising a triable issue of
fact as to whether his alcoholism amounts to a disability. Therefore, the
district court erred in granting summary judgment to La Grange on both the
intentional-discrimination and failure-to-accommodate claims on the basis
that Mueck had failed to establish that he was a qualified individual with a
disability under the ADA.
16
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No. 22-50064
B. Intentional Discrimination
Having determined that Mueck’s alcoholism may qualify as a
disability under the ADA, we address whether Mueck has raised a triable
issue of fact as to his intentional discrimination claim. 9
The ADA prohibits “discriminat[ion] against a qualified individual on
the basis of disability” by employers. 42 U.S.C. § 12112(a). An employee
bringing a claim for disability discrimination under the ADA “may either
present direct evidence that []he was discriminated against because of [his]
disability or alternatively proceed under the burden-shifting analysis first
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” EEOC
v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014). Mueck does not argue
that he has presented direct evidence of discrimination: accordingly, the
McDonnell Douglas burden-shifting framework applies.
Under this framework, the plaintiff must first establish a prima facie
case of discrimination. Delaval v. PTech Drilling Tubulars, LLC, 824 F.3d
476, 479 (5th Cir. 2016). “To establish a prima facie discrimination claim
under the ADA, a plaintiff must prove: (1) that he has a disability; (2) that he
was qualified for the job; and (3) that he was subject to an adverse
employment decision on account of his disability.” Clark v. Champion Nat’l
Sec., Inc., 952 F.3d 570, 582 (5th Cir. 2020) (citation omitted). Once he has
done so, “the burden shifts to the employer to ‘articulate a legitimate,
nondiscriminatory reason’ for its actions,” after which the plaintiff bears
“the burden to prove that the employer’s explanation was a pretext for
discrimination.” Thompson v. Microsoft Corp., 2 F.4th 460, 470 (5th Cir.
_____________________
9
The district court granted summary judgment to La Grange on this claim solely
because it found that Mueck failed to establish that he had a disability. We may, however,
affirm on “any ground supported by the record, even if it is different from that relied on by
the district court.” Reed, 701 F.3d at 438.
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No. 22-50064
2021) (citation omitted). To carry the burden of showing pretext, “[t]he
plaintiff must put forward evidence rebutting each of the nondiscriminatory
reasons the employer articulates.” Wallace v. Methodist Hosp. Sys., 271 F.3d
212, 220 (5th Cir. 2001). A plaintiff may demonstrate pretext by presenting
“evidence of disparate treatment or by showing that the employer’s
proffered explanation is false or unworthy of credence.” Gosby v. Apache
Indus. Servs., Inc., 30 F.4th 523, 527 (5th Cir. 2022) (internal quotation marks
and citation omitted).
We have already found that Mueck has met his burden as to the
existence of a disability, and there is no dispute that Mueck was both qualified
for his position and that the termination of his employment constituted an
adverse employment action. Mueck, however, must also show that he was
terminated on account of his disability—his alcoholism—to establish his prima
facie case. For judicial economy, we assume without deciding that he has
done so.
La Grange, however, has produced a legitimate, non-discriminatory
reason for Mueck’s termination: the conflict between his court-ordered
substance abuse classes and his shift schedule. Mueck does not contest that
this is a legitimate, non-discriminatory reason for an adverse action.
The burden therefore shifts to Mueck to establish that this legitimate,
non-discriminatory reason is pretextual. Mueck contends that he has done so
by providing evidence of disparate treatment—that is, evidence showing that
he was treated differently, and worse, than non-disabled employees.
Specifically, Mueck points to evidence showing that La Grange covered
absences for other employees, even on short notice. For example, Mueck
notes that a plant supervisor had filled in for him when he had to miss work
due to a spider bite in 2017, and that the supervisor had covered for other
employees (none of whom La Grange had reason to believe were alcoholics
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No. 22-50064
or otherwise disabled) when they were ill. Mueck also claims, more generally,
that La Grange would accommodate other operators who needed time off for
a variety of reasons, including vacation, sickness, injury, doctor
appointments, family issues, and drug testing, even when the request for
leave was on short notice.
In the context of discrimination claims, “we [have] require[d] that an
employee who proffers a fellow employee as a comparator demonstrate that
the employment actions at issue were taken under nearly identical
circumstances.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir.
2009) (internal quotation marks omitted). Some of the examples Mueck
provides are easily distinguishable from his own circumstances: employees
who cannot come into work because of an unplanned and unavoidable
absence—such as illness or injury—are not similarly situated to employees
who will need to miss work on a known, regular basis in the future. And while
Mueck contends that his situation is akin to an employee who requests time
off to attend a doctor’s appointment, he fails to proffer any evidence that
such requests were actually made under comparable circumstances. For
instance, Mueck does not provide any detail as to who made these coverage
requests, how they went about requesting time off, when they requested time
off, or how the request was handled. Instead, he simply asserts that coverage
was granted. These details matter, however, because employees who have
different work responsibilities or different supervisors are not considered
“similarly situated.” Id. at 259-60. In fact, La Grange has provided evidence
that those similarly situated to Mueck—that is, other employees who were
unable to make their shifts because of court sanctions—have not been granted
coverage and have instead been disciplined and terminated.
Alternatively, Mueck argues that evidence in the record shows that “a
discriminatory motive more likely motivated [La Grange’s] decision.”
Wallace, 271 F.3d at 220 (international quotation marks omitted). First, he
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No. 22-50064
points to Bonewald’s admission that La Grange would have viewed Mueck’s
request for time off differently and found coverage had he sought time off on
the recommendation of the EAP, as opposed to a court order. Similarly,
Mueck notes that although La Grange now states that he could have taken
the time off with his vacation, he was never informed that this was an option
to cover his shifts. 10 According to Mueck, because La Grange admits that it
would have found coverage had Mueck phrased his request differently, it
necessarily admits that a shift-schedule conflict cannot be the real reason for
his termination.
Yet this evidence does not create a triable issue of fact as to whether
the given reason for his termination was pretextual, that is, “false or
unworthy of credence.” LHC Grp., 773 F.3d at 702. Simply stated, nothing
in the record supports such a finding. There is no dispute that, while La
Grange may have been able to do more to find coverage for the shifts Mueck
needed to miss, La Grange did attempt to coordinate coverage for him and,
while partially successful, eventually these efforts failed. It was only at this
point, when some of Mueck’s shifts were left uncovered, that La Grange
dismissed Mueck. Given this context, no reasonable jury could find that La
Grange’s legitimate, non-discriminatory reason—the shift conflict—for
Mueck’s suspension and termination was pretext for discrimination.
We therefore AFFIRM the district court’s grant of summary
judgment in favor of La Grange on Mueck’s intentional discrimination claim.
_____________________
10
Bonewald appeared confused as to why Mueck did not explore this option, saying
that he thought Mueck did not want to use his vacation time. Pawelek testified that he did
not think that Mueck had sufficient vacation time to cover his missed shifts. Mueck
disputes both accounts, stating that he had vacation time and would have used it had he
known it was a possibility.
20
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No. 22-50064
C. Failure to Accommodate
We now address the district court’s grant of summary judgment in
favor of La Grange as to Mueck’s failure-to-accommodate claim.
The ADA requires employers to “mak[e] reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A). To prevail
on a failure-to-accommodate claim, a plaintiff “must show that (1) [he] is a
qualified individual with a disability; (2) the disability and its consequential
limitations were known by the covered employer; and (3) the employer failed
to make ‘reasonable accommodations’ for such known limitations.” Jennings
v. Towers Watson, 11 F.4th 335, 343 (5th Cir. 2021) (internal quotation marks
and citation omitted).
As a threshold matter, the employee who “needs an accommodation
because of a disability has the responsibility of informing [his] employer.”
Chevron Phillips, 570 F.3d at 621; see also Jenkins v. Cleco Power, LLC, 487
F.3d 309, 315 (5th Cir. 2007) (“It is the plaintiff’s burden to request
reasonable accommodations.”). Failure to request an accommodation,
particularly where an employee’s disability is not obvious, will doom a claim.
Clark, 952 F.3d at 587 (holding that a plaintiff’s failure-to-accommodate
claim failed on a “fundamental level” where he did not request an
accommodation); see also Griffin, 661 F.3d at 224 (“However, an employer
cannot be found to have violated the ADA when responsibility for the
breakdown of the ‘informal interactive process’ is traceable to the employee
and not the employer.” (internal quotation marks and citation omitted)). In
making this request, “[s]pecial words, like ‘reasonable accommodation,’
need not be uttered, but the employee ‘must explain that the [proposed]
adjustment in working conditions . . . is for a medical condition-related
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No. 22-50064
reason.” Delaval, 824 F.3d at 481 (second and third alterations in original)
(quoting Chevron Phillips, 570 F.3d at 621).
The district court found that Mueck had failed to present evidence
showing that he had requested an accommodation for his disability of
alcoholism. Mueck disagrees. In his view, he presented evidence
demonstrating that, in his conversations with Pawelek, he generally
acknowledged struggling with a medical condition (alcoholism) and needed
time off to address that condition (via the court-ordered substance abuse
classes). Thus, Mueck maintains that in ruling against him, the district court
improperly imposed a “magic word” requirement.
The facts presented here, however, do not show that La Grange was
informed by Mueck that his request for time off was for a disability. Rather,
La Grange reasonably viewed his request as one for time off to deal with the
legal consequences of his most recent DWI. Here, both of Mueck’s
discussions with Pawelek were set up to discuss his DWI and the associated
court case. Indeed, the second meeting on May 17, 2019, specifically
concerned the conditions of his probation. And these conditions included not
just Mueck’s court-ordered participation in the substance abuse program,
but also breathalyzer requirements that posed a possible interference with his
work. 11 This context matters. Mueck referred to his struggles with drinking
only when discussing how criminal sanctions traceable to his drinking would
impact his work. Indeed, Mueck himself confirmed that he had always met
his work obligations, despite his alcoholism. We do not think it reasonable,
_____________________
11
Specifically, Mueck was ordered to carry a personal breathalyzer that had a
camera to capture an image when he blew into the device. Plant employees, however, were
prohibited from taking photos inside the plant.
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No. 22-50064
on these facts, to expect an employer to view Mueck’s statements as him
claiming to have a disability which required accommodation.
Moreover, Mueck would have needed to request time off regardless
of whether he had a disability. Mueck maintains that the court-ordered nature
of the substance abuse classes has no impact on the analysis, suggesting that,
because the court-ordered counseling was intended to treat his underlying
disability, any request for time off to attend must be understood as a
requested accommodation. 12 But we cannot disregard the circumstances
surrounding an employee’s alleged request for accommodation when
determining whether an employee made the requisite request. Here, no
reasonable juror could have found that Mueck, by notifying La Grange that
his court-ordered classes would conflict with his shift schedule and informing
his supervisors that he was attempting to resolve this conflict by finding
coverage, was requesting an accommodation for his disability of alcoholism.
We emphasize that this is not to say that Mueck’s alcoholism is not a
disability—we have already discussed, in detail, why Mueck has raised a
triable issue of fact as to that matter. Instead, we find only that Mueck has
not shown that he made his employer aware that his alcoholism was the reason
why he was requesting accommodation. 13
_____________________
12
We note that the EEOC, which has submitted an amicus brief in this appeal,
appears to suggest that where a court orders counseling, as opposed to another condition
of probation such as community service, employers must assume that, because the purpose
of court-ordered substance abuse counseling is always to treat the underlying disability, any
request to comply with such a court order is necessarily a request for an accommodation.
We decline this broad invitation because Mueck did not convey to La Grange that the court-
ordered counseling was a product of his disability.
13
To the extent that Mueck contends that self-identifying as an alcoholic was
enough, on its own, to put La Grange on notice that he was seeking an accommodation, we
disagree. As discussed, an impairment (here, alcoholism) must substantially limit a major
life activity to be considered a disability. An individual may identify as an alcoholic, or even
23
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No. 22-50064
In the alternative, Mueck argues that, even if he did not clearly request
an accommodation for a disability, because his statements raised the
possibility that he could be requesting an accommodation, La Grange bore the
burden of clarifying the nature of Mueck’s request. Put another way, Mueck
contends that La Grange failed to engage in the required interactive process
by failing to ask follow-up questions about whether he was requesting an
accommodation. See Agro Distr., LLC, 555 F.3d at 471 (noting that once a
qualified employee requests a reasonable accommodation, “the employer
and employee should engage in flexible, interactive discussions to determine
the appropriate accommodation”). But the duty to engage in the interactive
process is only triggered after the employee has requested an
accommodation. Id.; Chevron Phillips, 570 F.3d at 621.
To support his position, Mueck cites to several out-of-circuit cases for
the proposition that an employer, when faced with an ambiguous request,
bears the burden of confirming whether an employee has, in fact, requested
an accommodation. See Colwell v. Rite Aid Corp., 602 F.3d 495, 507 (3d Cir.
2010) (“[C]ircumstances will sometimes require the employer to meet the
employee half-way, and if it appears that the employee may need an
accommodation but doesn’t know how to ask for it, the employer should do
what it can to help.” (quoting Conneen v. MBNA Am. Bank, N.A., 334 F.3d
318, 332 (3d Cir. 2003))). These cases emphasize that the initial burden still
rests upon the employee to put the employer on notice that they both have a
disability and require some accommodation for it. See Conneen v, 334 F.3d at
332 (emphasizing that “circumstances must at least be sufficient to cause a
_____________________
be clinically diagnosed as one, without that impairment substantially limiting a major life
activity. See, e.g., Ames, 629 F.3d at 670 (noting that the plaintiff was unable to show that
her alcoholism was an ADA disability where there was no evidence that her alcoholism
substantially limited her activities at home or at work).
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No. 22-50064
reasonable employer to make appropriate inquiries about the possible need
for an accommodation”). 14
Furthermore, even accepting, without deciding, that Mueck’s
proposed burden-shifting framework applies, Mueck must initiate the
dialogue. Here, the facts suggest only that a reasonable employer might have
found that Mueck might have been seeking an accommodation for his
disability. To hold that La Grange was required to determine whether Mueck
had a disability and needed accommodation in this situation would place the
initial burden of identifying an accommodation request on the employer, not
the employee. We cannot find that Mueck’s terse references to his struggles
with drinking and self-identification as an alcoholic, made while discussing
the legal implications of a recent DWI, were enough to place a legal
responsibility on La Grange to probe whether Mueck was requesting a
disability accommodation.
For the reasons discussed above, we AFFIRM the district court’s
grant of summary judgment as to Mueck’s failure-to-accommodate claim. 15
_____________________
14
Similarly, the EEOC cites to EEOC v. Sears, Roebuck, & Co., 417 F.3d 789, 804
(7th Cir. 2005) for the proposition that if notice of a disability is “ambiguous” but
nonetheless raises the possibility that the employee may need accommodation, the
employer has the duty to ask for clarification. Sears addresses a situation where an
employee has given notice “sufficient to notify the employer that the employee may have
a disability that requires accommodation,” but that “notice is ambiguous as to the precise
nature of the disability or desired accommodation.” Id. Like Mueck’s cited cases, Sears
makes clear, however, that the “initial duty” still requires that an employee “indicate to
the employer that [he] has a disability and desires an accommodation.” Id. at 804. Here,
Mueck did not do so.
15
Because we hold that Mueck failed to request a disability accommodation, we
need not address the district court’s alternative holding that his claim was barred by 42
U.S.C. § 12114(c), which states that an employer “may hold an employee who . . . is an
alcoholic to the same qualification standards for employment or job performance and
behavior that such entity holds other employees, even if any unsatisfactory performance or
behavior is related to the . . . alcoholism of such employee.” Id. § 12114(c)(4). Nonetheless,
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No. 22-50064
D. Retaliation
Finally, Mueck challenges the district court’s grant of summary
judgment in favor of La Grange on his retaliation claim.
The ADA prohibits retaliation against an individual who “has
opposed any act or practice made unlawful by this chapter.” 42 U.S.C.
§ 12203(a). As with the other claims under the ADA, a retaliation claim not
supported by direct evidence is evaluated under the McDonnell Douglas
burden-shifting framework. Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122
(5th Cir. 1998). Accordingly, a plaintiff must first establish a prima facie case
of unlawful retaliation, which requires a plaintiff to show that “(1) [he]
participated in an activity protected under the statute; (2) [his] employer
took an adverse employment action against [him]; and (3) a causal connection
exists between the protected activity and the adverse action.” Feist v. La.
Dep’t of Just., 730 F.3d 450, 454 (5th Cir. 2013) (citations omitted).
Mueck contends that he engaged in protected activity by requesting a
reasonable accommodation for his alcoholism. See Jenkins, 487 F.3d at 316-
17 (holding that the plaintiff had established a prima facie case for retaliation
where he alleged that his employer retaliated against him by terminating him
for requesting reasonable accommodations). Because we find that Mueck did
_____________________
we take this opportunity to caution that § 12114(c) should not be read to bar
accommodations, such as time off, for an alcoholic employee. Instead, § 12114(c) merely
allows an employer to discipline or discharge an employee for workplace misconduct even
if that misconduct is attributable to the employee’s disability of alcoholism. See, e.g.,
Humphrey v. Mem’l Hosp. Ass’n, 239 F.3d 1128, 1139 n.18 (9th Cir. 2001) (“The text of the
ADA authorizes discharges for misconduct or inadequate performance that may be caused
by a ‘disability’ in only one category of cases—alcoholism and illegal drug use.”); see also
McElwain v. Boeing Co., 244 F. Supp. 3d 1093, 1099 (W.D. Wash. 2017) (denying a failure-
to-accommodate claim where the employee sought time off for his incarceration for a DUI
and holding that while the employee’s conviction may have been related to his alcoholism,
the ADA did not require the employer to accommodate infractions of the law).
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No. 22-50064
not request a reasonable accommodation for his disability, his retaliation
claim must also fail.16
We thus AFFIRM the district court’s grant of summary judgment as
to Mueck’s retaliation claim.
III. Conclusion
For the foregoing reasons, we AFFIRM.
_____________________
16
We note that, even if we had found that Mueck requested an accommodation,
his retaliation claim would fail for the same reason as his intentional discrimination claim:
his failure to provide sufficient evidence from which a reasonable jury could find that La
Grange’s proffered legitimate, non-discriminatory reason for his termination—the shift
conflict—was pretextual.
27