Amicus Curiae Brief — Raytheon Co. v. Hernandez

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Supreme Coun. U*

FILED

MAY 9 - 2003 |

OFFICE OF THE CLERK |

No. 02-749

Jn the Supreme Court of the Gnited States

RAYTHEON COMPANY, PETITIONER

JOEL HERNANDEZ

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

RALPH F. BoyD, JR.

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

JOHN P. ELWOOD

Assistant to the Solicitor

General

DAVID K. FLYNN

SARAH E. HARRINGTON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether an employer’s general policy against

rehiring former employees who were discharged for

misconduct, when applied to a former drug user who

was lawfully discharged for using illegal drugs, consti-

tutes “disparate treatment” prohibited by Title I of the

Americans with Disabilities Act of 1990, 42 U.S.C.

12111-12117.

(I)

TABLE OF CONTENTS

Page

Interest of the United States 1

Statement 2

Summary of argument 10

Argument:

A. Application of a facially neutral policy pro-

hibiting the rehiring of former employees dis-

charged for misconduct does not constitute

“disparate treatment” prohibited by the ADA .......... 11

B. The court of appeals’ holding will disrupt

legitimate workplace rules designed to promote

safety and productivity 18

C. Petitioner is entitled to summary judgment ............. 21

Conclusion 26

TABLE OF AUTHORITIES

Cases:

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986) 26

Bragdon v. Abbott, 524 U.S. 624 (1998) .... 14

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 21

Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d

391 (7th Cir. 1997), cert. denied, 523 U.S. 1118

(1998) 23

Clark County Sch. Dist. v. Breeden, 532 U.S. 268

(2001) , 25

Collings v. Longview Fibre Co., 63 F 3d 828 (9th

Cir. 1995), cert. denied, 516 U.S. 1048 (1996) ..........00v0 24

Despears v. Milwaukee County, 63 F.3d 635 (7th

Cir. 1995) 10, 13, 21

Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578

(3d Cir. 1996) 25

(IIT)

Cases—Continued:

Harris v. Polk County, 103 F.3d 696 (8th Cir.

Page

1996)

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) .........

Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928

-- 12,14,

15, 17, 18

(7th Cir. 1995)

Helfter v. United Parcel Serv., Inc., 115 F.3d 613

(8th Cir. 1997)

Higgins v. New Balance Athletic Shoe, Inc., 194

. 21

F.3d 252 (1st Cir. 1999)

International Bhd. of Elec. Workers v. Hechler,

481 U.S. 851 (1987)

International Bhd. of Teamsters v. United States,

431 US. 324 (1977)

Krchnavy v. Limagrain Genetics Corp., 294 F.3d

871 (7th Cir. 2002)

Leary v. Dalton, 58 F.3d 748 (1st Cir. 1995)

Little v. FBI, 1 F.3d 255 (4th Cir. 1993)

Maddox v. University of Tenn., 62 F.3d 843 (6th

Cir. 1995)

Mararri v. WCI Steel, Inc., 130 F.3d 1180 (6th

Cir. 1997)

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ....

Michelin Tire Corp. v. Wages, 423 U.S. 276

(1976)

Newland v. Dalton, 81 F.3d 904 (9th Cir. 1996) ...........

Nielsen v. Moroni Feed Co., 162 F.3d 604 (10th

Cir. 1998)

Olmstead v. L.C., 527 U.S. 581 (1999)

Parry v. Mohawk Motors of Mich., Inc., 236 F.3d

299 (6th Cir. 2000), cert. denied, 533 U.S. 951 (2001)

Pernice v. City of Chicago, 237 F.3d 783 (7th Cir.

2001)

Personnel Adm'’r v. Feeney, 442 U.S. 256 (1979) ........

_ 14, 15

——

— ean er Oe

Cases—Continued: Page

Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133 (2000) 14, 21

Renaud v. Wyoming Dep't of Family Servs., 203

F.3d 723 (10th Cir. 2000) 16

Rowe v. Marley Co., 233 F.3d 825 (4th Cir. 2000) ............ 23

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502

(1993) 22

Salley v. Circuit City Stores, Inc., 160 F.3d 977

(3d Cir. 1998) 13, 24

Taylor v. Principal Fin. Group, 93 F.3d 155

(5th Cir.), cert. denied, 519 U.S. 1029 (1996) 25

Traynor v. Turnage, 485 U.S. 535 (1988) 11

US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) ........... 16

Union Pac. R.R. v. Sheehan, 439 U.S. 89 (1978) ............. 17

United States Postal Serv. Bd. of Governors v. Aikens,

460 U S 711 (1983) 22

Statutes and regulations:

Americans with Disabilities Act of 1990, Tit. I, 42 U.S.C. _

12111-12117 1,2

42 U.S.C. 12101(a)7) 16

42 U.S.C. 12102(2) 2,24

42 U.S.C. 12111(8) 3

42 U.S.C. 12112(a) 2, 14, 15, 25

42 U.S.C. 12112(b)\(5) 3

42 U.S.C. 12112(b)(6) 3,17

42 U.S.C. 12114(a) 3

42 U.S.C. 12114(b)\(1) 4

42 U.S.C. 12114(b)\(2) : 4

42 U.S.C. 12114(b)\(3) 4

42 U.S.C. 12114(c) 21

42 U.S.C. 12114(¢)(1)-(2) 4

42 U.S.C. 12114(c)\(4) 4, 10, 11, 13,17

42 U.S.C. 12114(d)(2) 4

Statutes and regulations—Continued: Page

Rehabilitation Act of 1973, 29 U.S.C. 701 et seg.:

29 U.S.C. 723(d) 7 2

29 U.S.C. 791’g) : 2

29 C.F.R. 1630.16(b)(4) 13

41 C.F.R. Pt. 60-741 : 2

Miscellaneous:

14A Employ. Coordinator (RIA) (2003):

{7 PM-16,103 20

7 PM-16,104 - 7 19

EEOC Compl. Man. (BNA) (2002):

Vol. 1 ; 13

Vol. 2 12, 13

EEOC, Technical Assistance Manual for the

Americans With Disabilities Act (1992) 4, 13,19

Tyler D. Hartwell et al., Workplace alcohol-testing

programs: prevalence and trends, Monthly Labor

Rev., June 1998 18-19

M.L. Holcom et al., Employee Accidents: Inflwences

of Personal Characteristics, Job Characteristics,

and Substance Use in Jobs Differing in Accident

Potential, 24 J. of Safety Research 205 (1993) ..............«. 18

Office of Applied Studies, United States Dep’t of

Health & Human Services, Worker Drug Use and

Workplace Policies and Programs: Results from

the 1994 and 1997 National Household Survey on

Drug Abuse (2002) 19

43 Op. Att’y Gen. 75 (1977) 14

Jacques Normand et al., An Evaluation of Pre-employ-

ment Drug Testing, 75 J. Applied Psychol. 629

(1990) 19

United States Dep’t of Labor, What Works: Work-

places Without Alcohol and Other Drugs (1994) ............. 19, 20

Ralph G. Wellington & Vance G. Camisa, The Trade

Association and Product Safety Standards: Of Good

Samaritans and Liability, 35 Wayne L. Rev. 37

(1988) 18

In the Supreme Court of the Anited States

No. 02-749

RAYTHEON COMPANY, PETITIONER

JOEL HERNANDEZ

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns whether an employer’s general

policy against rehiring former employees who were

discharged for misconduct, when applied to a former

drug user who was lawfully discharged for using illegal

drugs, constitutes “disparate treatment” prohibited

by Title I of the Americans with Disabilities Act of

1990 (ADA), 42 U.S.C. 12111-12117. Congress dele-

gated to the Equal Employment Opportunity Com-

mission (EEOC) and Department of Justice authority

to promulgate regulations and enforce the provisions of

the ADA. Both agencies have promulgated regulations

and interpretive guidance concerning the obligations of

employers with respect to their current and former

(1)

employees who use (or have used) illegal drugs. More-

over, because the Rehabilitation Act makes the stan-

dards of Title I of the ADA applicable to the federal

government, see 29 U.S.C. 791(g), the United States, as

the Nation’s largest employer, has a significant interest

in the protections afforded to current and former

employees who use or have used illegal drugs. See also

29 U.S.C. 793(d) (ADA standards applicable to govern-

ment contractors); 41 C.F.R. Pt. 60-741.

STATEMENT

1. Title I of the ADA prohibits an employer from

“discriminat[ing] against a qualified individual with a

disability because of the disability of such individual in

regard to job application procedures, the hiring, ad-

vancement, or discharge of employees, employee com-

pensation, job training, and other terms, conditions, and

privileges of employment.” 42 U.S.C. 1211z\a). The Act

protects persons who are currently disabled (i.e., those

who have a “physical or mental impairment that

substantially limits one or more of the[ir) major life

activities”), as well as those who have “a record of such

an impairment,” or who are “regarded as having * * *

an impairment” that substantially limits a major life

activity. 42 U.S.C. 12102(2).

“Discrimination” can take several forms under the

ADA. Most fundamentally, the term encompasses the

disparate treatment of individuals with disabilities “be-

cause of the disability.” 42 U.S.C. 12112(a). Second, it

includes so-called “disparate impact” claims, 7.e., claims

that an employer is “using qualification standards,

employment tests or other selection criteria that screen

out or tend to screen out an individual with a disability

or a class of individuals with disabilities unless the

standard, test or other selection criteria * * * is -

shown to be job-related for the position in question and

is consistent with business necessity.” 42 U.S.C.

12112(b)(6). An employer also may discriminate by

failing to provide “reasonable accommodations to the

known physical or mental limitations of an otherwise

qualified individual with a disability” or by denying

employment opportunities to an otherwise-qualified job

applicant or employee because of “the need * * * to

make reasonable accommodation to [that person’s]

physical or mental impairment.” 42 U.S.C. 12112(b)(5).

The term “qualified individual with a disability”

means “an individual with a disability who, with or

without reasonable accommodation, can perform the

essential functions of the employment positions that

such individual holds or desires.” 42 U.S.C. 12111(8).

Congress specifically provided that the term does not

encompass “any employee or applicant who is currently

engaging in the illegal use of drugs, when the covered

entity acts on the basis of such use.” 42 U.S.C. 12114(a).

In addition, the ADA expressly provides that em-

ployers

may prohibit the illegal use of drugs and the use

of alcohol at the workplace by all employees;

may require that employees shall not be under

the influence of alcohol or be engaging in the illegal

use of drugs at the workplace; [and]

* * * * *

may hold an employee who engages in the illegal

use of drugs or who is an alcoholic to the same

qualification standards for employment or job per-

formance and behavior that such entity holds other

employees, even if any unsatisfactory performance

or behavior is related to the drug use or alcoholism

of such employee.

42 U.S.C. 12114(c)(1)-(2) and (4) (subsection numbering

omitted). The ADA does not prohibit employers from

testing employees or applicants for illegal drugs “or

making employment decisions based on such test

results.” 42 U.S.C. 12114(d)(2).

The ADA does, however, “provide[] limited protec-

tion from discrimination for recovering drug addicts

and for alcoholics.” EEOC, Technical Assistance

Manual for the Americans With Disabilities Act VIII-1

(1992). An individual who is no longer engaging in

illegal drug use may be a “qualified individual with a

disability” if he or she has been successfully rehabili-

tated or is participating in a supervised rehabilitation

program. 42 U.S.C. 12114(b)(1) and (2). An individual

also may be considered a “qualified individual with a

disability” if he or she “is erroneously regarded as en-

gaging in [illegal drug use], but is not engaging in such

use” (42 U.S.C. 12114(b)(8)) and “the employer actually

perceives the [drug use] to substantially limit a major

life activity of the employee.” Parry v. Mohawk Motors

of Mich., Inc., 236 F.3d 299, 311 (6th Cir. 2000) (col-

lecting authorities), cert. denied, 533 U.S. 951 (2001).

Neither the EEOC nor the Justice Department has

issued guidance that specifically addresses the validity

under the ADA of applying blanket policies against re-

hiring employees separated for misconduct to an

individual lawfully discharged for drug use.

2. Respondent Joel Hernandez is a former employee

of Hughes Missile Systems Company.’ Pet. App. 2a.

1 Petitioner Raytheon Company acquired Hughes in 1997. For

simplicity, both Hughes and Raytheon will be referred to as “peti-

tioner.”

Petitioner came close to terminating respondent in 1986

because of excessive absenteeism. Br. in Opp. 2. When

respondent indicated that his absenteeism was caused

by his alcoholism, petitioner allowed him to avoid

discharge by enrolling in an in-patient alcohol rehabili-

tation program. [bid.; J.A. 17a.

In July 1991, respondent reported for work dis-

playing signs of substance abuse. J.A. 18a. Petitioner

administered a drug test to respondent, who tested

positive for cocaine. Pet. App. 2a. Respondent was

given a choice between being discharged or resigning in

lieu of termination. Jbid. Respondent chose to resign.

The “Employee Separation Summary” petitioner pre-

pared at the time of respondent’s resignation stated

that he had “quit in lieu of discharge” and that the

reason for his departure was “discharge for personal

conduct.” Ibid.

In January 1994, respondent applied to be rehired by

petitioner either in his former position as a Calibration

Service Technician or as a Product Test Specialist, a

position for which the company had openings. Pet.

App. 2a-3a. Respondent noted on his application that

he had been employed by petitioner previously. Id. at

3a. Respondent also attached to his application a letter

from a counselor stating that he regularly attends Alco-

holics Anonymous meetings, that he maintains his

sobriety, and that he has accepted responsibility for his

recovery. J.A. 14a-15a.

Respondent’s application was forwarded to peti-

tioner’s Labor Relations Department, where it was re-

viewed by Joanne Bockmiller. Pet. App. 3a. Bockmiller

testified in her deposition that she pulled respondent’s

personnel file and reviewed the employee separation

summary. /bid. Bockmiller testified that she concluded

respondent was ineligible for rehire based on the com-

pany’s unwritten policy against rehiring former em-

ployees who were discharged for misconduct or who

had resigned in lieu of termination. Pet. App. 4a; J.A.

57a-58a. Bockmiller stated that, at the time, she was

unaware that respondent had any history of drug or

alcohol abuse and testified that “the personnel file

would not indicate that information,” which would

instead be kept in a separate confidential file. J.A. 55a,

56a-57a, 60a; Pet. App. 4a. Petitioner rejected respon-

dent’s application. Pet. App. 3a.

3. In June 1994, respondent filed a charge with the

EEOC, claiming that petitioner’s refusal to rehire him

violated the ADA. In response to respondent’s charge,

petitioner submitted to the EEOC a statement pre-

pared and signed by a contract employee on behalf of

George Medina, petitioner’s Manager of Diversity. J.A.

67a-68a; Pet. App. 4a. Bockmiller testified that she did

not participate in preparing the statement. J.A. 51a,

64a.

The Medina statement “denied that [petitioner] was

discriminated against” and said that respondent’s “ap-

plication was rejected based on his demonstrated drug

use while previously employed and the complete lack of

evidence indicating successful drug rehabilitation.”

J.A. 19a. The statement noted that “(t]he Company

maintains it[]s right to deny re-employment to em-

ployees terminated for violation of Company rules and

regulations” (J.A. 20a), and that respondent was in-

eligible for hire because he had tested positive for

illegal drugs at work and accordingly “was discharged

for violation of Company Rule and Regulation No. 7.””

2 Rule and Regulation 7 prohibits:

Unauthorized or unlawful manufacture, distribution, dis-

pensing, sale, possession, consumption, use or being under the

Ibid. In November 1997, the EEOC District Director

issued respondent a determination finding “reasonable

cause to believe that [respondent] was denied hire to

the position of Product Test Specialist because of his

disability.” J.A. 95a. The EEOC issued a right to sue

letter in June 1998. Pet. App. 4a n.5.

4. Respondent filed suit against petitioner under the

ADA in July 1998 (Pet. App. 5a), alleging that peti-

tioner discriminated against him “because of his record

of drug addiction or because he was perceived as being

a drug addict.” Jd. at 6a. Petitiones moved for sum-

mary judgment, arguing that Bockmiller had declined

to rehire respondent based solely on petitioner’s un-

written policy of not rehiring persons who were

discharged for misconduct or who resigned in lieu of

termination, and that Bockmiller had acted without

knowing of respondent’s drug use. /d. at 5a. Petitioner

also argued that respondent had failed to present

evidence that petitioner’s reliance on the no-rehire

policy was pretextual. /bid.

Respondent argued that petitioner had refused to re-

hire him because of his record of drug use, and asserted

that its reliance on the no-rehire policy was pretextual.

C.A. E.R. Tab 7, at 10-12. Respondent also argued that

petitioner’s unwritten policy of not rehiring employees

terminated for misconduct, although “facially neutral,”

had a “disparate impact” on employees with a history of

drug or alcohol abuse. /d. at 13-14. Respondent raised

no reasonable accommodation claim. See id. at 13.

influence of alcohol, a controlled substance or illegal drug

during working time, while performing work for the Company

or at any time on Company premises; or testing positive for

alcohol or drugs on a test requested by the Company.

J.A. 20a (emphasis omitted).

After a hearing, the district court granted petitioner

summary judgment without a written opinion. Pet.

App. 16a. The district court declined to consider re-

spondent’s “disparate impact” claim, finding that re-

spondent had “fail[ed] to plead or raise the theory in a

manner consistent with” circuit precedent. Jd. at 16a

nl.

5. The court of appeals reversed the grant of sum-

mary judgment on respondent’s disparate treatment

claim and remanded, holding that there were genuine

issues of material fact about whether petitioner refused

to rehire respondent because of his perceived disability

or record of disability. Pet. App. la-13a. The court first

held that respondent had made a prima facie case of

disability discrimination, based on petitioner’s state-

ment to the EEOC that it had rejected respondent’s

application “based on his demonstrated drug use.” Jd.

at 7a. Although noting that “Bockmiller testified that

she did not know of [respondent’s] history of drug

addiction or of the reason for his leaving the company”

(ibid.), the court observed that Bockmiller had available

respondent’s “entire personnel file,” which, the court

believed, “would have included the 1991 drug test

results.” Jd. at 8a. The court also concluded “[iJt

would be reasonable to infer from the presence of th[e]

letter” respondent appended to his application from his

A.A. counselor “that Bockmiller was aware of the fact

that [respondent] was a recovering alcoholic.” Ibid.

Accordingly, the court of appeals concluded, “the bur-

den switched to Hughes to offer a legitimate nondiscri-

minatory reason for its actions.” Jd. at 10a.

The court next rejected petitioner’s claim that its

“unwritten policy against rehiring former employees

who were terminated for any violation of its misconuuct

rules” was a legitimate non-discriminatory reason for

failing to rehire respondent. Pet. App. lla. The court

concluded that the policy, “although not unlawful on its

face, violates the ADA as applied to former drug

addicts whose only work-related offense was testing

positive because of their addiction.” Jbid. Even if

Bockmiller were unaware of respondent’s past drug use

and simply denied his application because of petitioner’s

general no-rehire policy, “her lack of knowledge would

have been due solely to Hughes’s unlawful policy which

shields its employees from the knowledge that an em-

ployment decisicn may be illegal.” Jd. at 12a. The court

concluded (ibid.):

Maintaining a blanket policy against rehire of

all former employees who violated company policy

* * * may well result, as Hughes contends it did

here, in the staff member who makes the em-

ployment decision remaining unaware of the ‘dis-

ability’ and thus of the fact that she is committing an

unlawful act. Having willfully induced ignorance on

the part of its employees who make hiring decisions,

an employer may not avoid responsibility for its vio-

lation of the ADA by seeking to rely on that lack of

knowledge.

The court of appeals affirmed the district court’s rul-

ing that respondent had failed to properly raise a claim

of disparate impact. Pet. App. 13a n.20.

SUMMARY OF ARGUMENT

The court of appeals erred in holding that a com-

pany’s facially neutral policy against rehiring former

employees who have been discharged for violating

company conduct rules “violates the ADA as applied to

former drug addicts whose only work-related offense

was testing positive because of their addiction.” Pet.

App. lla. Such a policy does not constitute “disparate

treatment” on the basis of disability, because it applies

equally to all former employees discharged for mis-

conduct, regardless of the type of misconduct that was

the basis for the discharge, and regardless of whether

the former employee suffered a disability. Indeed, the

ADA explicitly permits employers to hold drug users

and alcoholics to the same standards of conduct as other

employees. See 42 U.S.C. 12114(c)(4). Accordingly, the

ADA’s prohibition on disparate treatment neither

forbids discharge for drug use nor forbids adoption of a

facially neutral policy against rehiring individuals dis-

charged for misconduct, including drug-related mis-

conduct.

The court of appeals’ decision undercuts the effec-

tiveness of workplace conduct rules, which represent a

legitimate effort by employers to promote workplace

safety and productivity. By preventing firms from

adopting blanket rules imposing permanent conse-

quences for serious misconduct, including drug-related

misconduct, the court of appeals’ decision “indirectly

but unmistakably undermine{s] the [rules] that regulate

dangerous behavior.” Despears v. Milwaukee County,

63 F.3d 635, 637 (7th Cir. 1995).

Not only must the decision below be reversed, but

petitioner is entitled to summary judgment. The evi-

dence in the record, taken in the light most favorable to

respondent, does not demonstrate that petitioner re-

fused to rehire him because of a record of disability or

perceived disability, but did so because of its neutral

no-rehire policy. Respondent has presented insufficient

evidence to support a finding that application of that

policy was a pretext for discrimination on the basis of

disability.

ARGUMENT

A. Application Of A Facially Neutral Policy Pro-

hibiting The Rehiring Of Former Employees

Discharged For Misconduct Does Not Constitute

“Disparate Treatment” Prohibited By The ADA

The court of appeals erred in holding that a com-

pany’s “blanket policy against rehir{ing] of all former

employees” (Pet. App. 12a) discharged for violating

neutral company conduct rules “violates the ADA as

applied to former drug addicts whose only work-related

offense was testing positive because of their addiction”

(id. at 1la)—even if “the staff member who makes the

employment decision [is] unaware of the ‘disability.’”

Id. at 12a. That holding conflicts with the text of the

— and with broader principles of anti-discrimination

aw.

1. The most basic feature of the ADA, and the only

one at issue here, see p. 17, infra, is the Act’s pro-

hibition on the “[u)njustified disparate treatment” of

otherwise similarly situated individuals because of their

disability. Olmstead v. L.C., 527 U.S. 581, 607 (1999)

(Stevens, J., concurring in part and concurring in the

judgment); cf. Traynor v. Turnage, 485 U.S. 535, 548

(1988) (“the central purpose of § 504 [of the Rehabili-

tation Act] * * * is to assure that handicapped in-

dividuals receive ‘evenhanded treatment’ in relation to

nonhandicapped individuals”). An employer’s neutral

policy against rehiring former employees who were dis-

charged for violating conduct rules (or who resigned in

lieu of discharge) does not facially conflict with the

ADA’s prohibition on disparate treatment of the dis-

abled.’

To begin with, such a policy does not involve

“treat[ing] some people less favorably than others” be-

cause of a protected characteristic. Hazen Paper Co. v.

Biggins, 507 U.S. 604, 609 (1993) (quoting /nternational

Bhd. of Teamsters v. United States, 431 U.S. 324, 336

n.16 (1977)); accord 2 EEOC Compl. Man. (BNA)

604:0001 (2002). Rather, as the court of appeals itself

recognized, such facially neutral policies involve a

“blanket [prohibition] against rehir{ing] of all former

employees” terminated for misconduct. Pet. App. 12a.

Such a policy applies on an equal basis to all employees

regardless of the type of misconduct that was the basis

for their discharge—whether it was for fighting, sexual

harassment, theft, or (as here) testing positive for ille-

gal drugs during work hours. Similarly, rules against

testing positive for illegal drugs or being drunk in the

workplace apply regardless of whether the employee is

addicted or is merely a casual user, an alcoholic or a

social drinker.

Moreover, the ADA textually permits employers to

hold drug addicts and alcoholics to the same standards

3 The court of appeals proceeded on the understanding that

petitioner’s no-rehire policy extended both to employees dis-

charged for misconduct and those who resigned in lieu of discharge

for misconduct. See, e.g., Pet. App. 4a n.4 (“for the purposes

here—the rehiring of former employees—there appears to be no

difference in Hughes’s treatment of employees who were termi-

nated as opposed to those who resigned under threat of termi-

nation”); id. at 12a n.17 (“There is no question that Hughes applied

this [no-rehire] policy in rejecting Hernandez’s application.”).

ASCE

as other employees: employers “may hold an employee

who engages in the illegal use of drugs or who is an

alcoholic to the same qualification standards for em-

ployment or job performance and behavior that [it]

holds other employees, even if the unsatisfactory

performance or behavior is related to the drug use or

alcoholism of such employee.” 42 U.S.C. 12114(c)(4); see

29 C.F.R. 1630.16(b)(4). Thus, if a company ordinarily

fires employees for excessive absenteeism or coming to

work under the influence of drugs or alcohol, it may do

the same when the employee is an alcoholic or addicted

to drugs. “It is well-established that an employee can

be terminated for violations of valid work rules that

apply to all employees, even if the employee’s violations

occurred under the influence of a disability. This rule is

particularly applicable to employees who violate rules

relating to drug or alcohol abuse.” Pernice v. City of

Chicago, 237 F.3d 783, 785 (7th Cir. 2001) (citation

omitted). “The refusal to excuse, or even alleviate the

punishment of, the disabled person who commits [mis-

conduct] under the influence as it were of his disability

* * * is not ‘discrimination’ against the disabled; it is a

refusal to discriminate in their favor.” Despears v.

Milwaukee County, 63 F.3d 635, 637 (7th Cir. 1995).*

* Accord, e.g., Technical Assistance Manual for the Americans

With Disabilities Act VIII-5 (1992) (“{u)nsatisfactory behavior

such as absenteeism, tardiness, poor job performance, or accidents

caused by alcohol or illegal drug use need not be accepted or

accommodated”); 2 EEOC Compl. Man. (BNA) 902:0006 n.11

(employer “does not have to excuse [employee] misconduct, even if

the misconduct results from an impairment that rises to the level

of a disability, if it does not excuse similar misconduct from its

other employees”); 1 EEOC Compl. Man. (BNA) 0:3806 (same);

Salley v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir. 1998)

(“drug-related misconduct is a legitimate, non-discriminatory rea-

By the same token, if the company ordinarily bars

former employees terminated under such circum-

stances from being rehired, it may apply the same

standard to former employees who are recovering

alcoholics or drug addicts. See, e.g., Harris v. Polk

County, 103 F.3d 696, 697 (8th Cir. 1996) (concluding

that ADA permits employer’s refusal to rehire former

employee discharged because of criminal conviction

allegedly related to mental illness, because “an em-

ployer may hold disabled employees to the same stan-

dard of law-abiding conduct as all other employees”).

Employment actions taken pursuant to such a facially

neutral policy do not represent action taken “because of

the disability of [an] individual.” 42 U.S.C. 12112(a).

In a disparate treatment case, “liability depends on

whether the protected trait * * * actually motivated

the employer’s decision * * * and had a determina-

tive inflwence on the outcome.” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (quoting

Hazen Paper, 507 U.S. at 610) (emphasis added); see

son for termination” of a drug addict); Mararri v. WCI Steel, Inc.,

130 F.3d 1180, 1182 (6th Cir. 1997) (discharge for testing positive

for alcohol at work in violation of agreement with employer was

lawful under the ADA because employee was “discharged * * *

for violating the agreement, not for being an alcoholic”). The

Rehabilitation Act—which Congress used as a model in drafting

the ADA, see Bragdon v. Abbott, 524 U.S. 624, 631 (1998)—also

permits employers to make employment decisions based on

alcohol- and drug-related misconduct. See Newland v. Dalton, 81

F.3d 904, 906 (9th Cir. 1996); Leary v. Dalton, 58 F.3d 748, 753 (1st

Cir. 1995); Little v. FBI, 1 F.3d 255, 259 (4th Cir. 1993); 43 Op.

Att’y Gen. 75, 86 (1977) (“we do not believe that section 504 [of the

Rehabilitation Act] would prevent [an alcoholic or drug-addicted

employee] from being subject: to reasonable, generally applicable

rules of conduct that are related to this condition, such as proscrip-

tions against the possession or use of drugs or alcoho!”).

Personnel Adm’r v. Feeney, 442 U.S. 256, 279 (1979)

(action must be taken “because of * * * its adverse

effects upon an identifiable [protected] group”) (em-

phasis added). Accordingly, this Court has held that it

does not constitute discrimination to make an em-

ployment decision based on a factor that is “correlated

with” a protected characteristic, so long as there is an

analytical distinction between the two.

In Hazen Paper, for example, the Court held that

terminating an employee because his pension was about

to vest, although prohibited under ERISA, did not

violate the Age Discrimination in Employment Act of

1967. The Court noted that while entitlement to pen-

sion benefits is “correlated with age” (507 U.S. at 611)

because “older employees * * * are more likely to be

‘close to vesting’ than younger employees” (id. at 612),

an employee’s age was nonetheless “analytically dis-

tinct from his years of service.” Jd. at 611.

Accordingly, the Court concluded, “it is incorrect to say

that a decision based on years of service is necessarily

‘age based.’” Jbid.; cf. Feeney, 442 U.S. at 271, 279-280

(holding that facially neutral hiring preference for

veterans did not constitute unconstitutional intentional

sex discrimination, although a “substantially greater

proportion” of beneficiaries were men).

While addiction to illegal drugs, use of illegal drugs,

and drug-related misconduct are correlated, they none-

theless are analytically distinct. Many people who test

positive for illegal drugs in the workplace are casual

drug users rather than addicts, and many recovering

addicts refrain from illegal drug use. Thus, termination

for a positive drug test—and refusal to rehire a person

terminated for drug-related misconduct—do not repre-

sent prohibited discrimination “because of the disability

of [an] individual.” 42 U.S.C. 12112(a). The courts of

appeals have recognized that fact by consistently

drawing a “distinction between discharging someone

for unacceptable [drug- or alcohol-related] misconduct

and discharging someone because of” drug addiction or

alcoholism. Maddox v. University of Tenn., 62 F.3d

843, 847 (6th Cir. 1995) (collecting authorities); accord

Renaud v. Wyoming Dep’t of Family Servs., 203 F.3d

723, 730 (10th Cir. 2000) (noting that “where the dis-

ability at issue is alcoholism, * * * the ADA

recognize([s] a dichotomy between the disability and

disability-caused misconduct” such as being intoxicated

at work); Nielsen v. Moroni Feed Co., 162 F.3d 604, 609

(10th Cir. 1998) (the ADA “clearly contemplate[s]” this

distinction).

Furthermore, when the decision not to rehire a per-

son reflects the application of a blanket policy against

rehiring former employees who were discharged for

misconduct—even when the reason for discharge was

drug use, and the person was an addict at the time—it

does not implicate the “primary purpose” of the ADA,

which is to “eliminate the stereotypical thought pro-

cesses, the thoughtless actions, and the hostile reac-

tions that far too often bar those with disabilities from

participating fully in * * * the workplace.” US

Airways, inc. v. Barnett, 535 U.S. 391, 401 (2002); cf.

Olmstead, 527 U.S. at 600. See generally 42 U.S.C.

12101(a)(7). Rather, it results from the person’s in-

dividual merit, as demonstrated by his or her confor-

mance with company rules of conduct. Accordingly,

policies against rehiring former employees who were

discharged for misconduct (or who resigned in lieu of

termination) are not inconsistent with the ADA’s pro-

hibition on disparate treatment of the disabled.

2. This is not to say that a policy that prohibited the

rehiring of employees discharged for misconduct could

not give rise to liability under the ADA. However,

such a policy would be properly analyzed as a disparate

impact claim under 42 U.S.C. 12112(b)(6), rather than as

a disparate treatment claim. For example, a policy that

barred only persons discharged for drug use from con-

sideration for rehiring might be challenged as having a

disparate impact on individuals with the disability of

addiction. Such a disparate impact challenge must

account for the ADA’s express provision that em-

ployers “may hold an employee who engages in the

illegal use of drugs * * * to the same qualification

standards for employment or job performance and

behavior that [it] holds other employees, even if the

unsatisfactory performance or behavior is related to

drug use.” 42 U.S.C. 12114(c)(4). Accordingly, a dis-

parate impact challenge to a neutral policy, like the one

at issue here that precludes the rehiring of any

employee who was discharged for any form of serious

misconduct, would be more difficult to sustain.

Respondent has not preserved a disparate impact

claim here.’ Accordingly, this case presents a situation

analogous to the one this Court confronted in Hazen

Paper. There, the Court carefully distinguished be-

ween disparate treatment and disparate impact claims,

507 U.S. at 609, noted that the employee brought only

the former, id. at 610, and concluded that a decision that

is based on a factor other than age, even if correlated

with age, does not constitute forbidden disparate treat-

® Both the district court (Pet. Avp. 16a n.1) and court of appeals

concluded that respondent had “failed to timely raise [a] claim of

disparate impact” (id. at 13a n.20), and respondent did not cross-

petition to seek review of that holding. Accordingly, the claim is

not before the Court. Union Pac. R.R. v. Sheehan, 439 U.S. 89, 92

n.2 (1978) (per curiam); Michelin Tire Corp. v. Wages, 423 U.S. 276,

279 n.2 (1976).

ment. Jd. at 611. In the same way, to the extent re-

liance on the no-rehiring policy was not pretextual, see

pp. 23-25, infra, a decision based on that policy does not

constitute disparate treatment forbidden by the ADA.

B. The Court Of Appeals’ Holding Will Disrupt

Legitimate Workplace Rules Designed To

Promote Safety And Productivity

Workplace conduct policies advance three important

interests: they help fulfill the employer’s duty, imposed

under the common law and the law of many states, to

“exercise reasonable care in providing a safe work-

place” (International Bhd. of Elec. Workers v. Hechler,

481 U.S. 851, 859 (1987); Ralph G. Wellington & Vance

G. Camisa, Trade Association and Product Safety

Standards: of Good Samaritans and Liability, 35

Wayne L. Rev. 37, 51 & n.84 (1988)); they promote com-

pany productivity, by helping to control a variety of

inappropriate workplace conduct, such as insubordina-

tion, sexual harassment, absenteeism, theft, drug or

alcohol abuse, and violence; and they help to limit a

company’s legal liability by establishing standards for

employee behavior and disciplining or discharging

those who do not comply. Workplace conduct policies

that include prohibitions on reporting for work under

the influence of alcohol or drugs may further all three

interests.® It is no surprise, then, that most companies’

6 See, e.g., M.L. Holcom et al., Employee Accidents: Influences

of Personal Characteristics, Job Characteristics, and Substance

Use in Jobs Differing in Accident Potential, 24 j. of Safety Res.

205 (1993) (drug and alcohol use correlated with increased accident

rate for high-risk jobs); Tyler D. Hartwell et al., Workplace

alcohol-testing programs: prevalence and trends, Monthly Labor

Rev., June 1998, at 27 n.6 (available at http://www.bls.gov/opub

/mlr/1998/06/art4full.pdf) (drug use associated with industrial

workplace conduct rules contain provisions addressing

drug and alcohol use.

For maximum effectiveness, workplace rules must be

tailored to the particular needs and culture of a parti-

cular company. Cf. United States Dep’t of Labor, What

Works: Workplaces Without Alcohol and Other Drugs v

(1994) (What Works) (available at http://said.dol.gov/

SAID_Attachments/553said1.pdf). Although the gov-

ernment encourages employers to create employee

assistance programs to deal with a range of workplace

problems and specifically to help rehabilitate employees

who abuse drugs or alcohol, the federal government

specifically has recognized that businesses may legiti-

mately decide to terminate employees who test positive

for drug use. See EEOC, Technical Assistance Man-

ual for the Americans With Disabilities Act VIII-5

(1992); see also 14A Employ. Coordinator (RIA) 4 PM-

16,104 (2003) (“reporting to work under the influence of

alcohol, narcotics, or other [illegal] drugs” is “almost

always viewed as grounds for automatic discharge” and

“virtually all employers consider [it] to be serious

enough to merit immediate dismissal”).

Similarly, companies may legitimately conclude that

misconduct that warrants discharge—whether related

to illegal drug use or not—should bar employees from

subsequent employment with the company. Cf. What

accidents); Office of Applied Studies, Dep’t of Health & Human

Servs., Worker Drug Use and Workplace Policies and Programs:

Results from the 1994 and 1997 National Household Survey on

Drug Abuse, Ch. 3 (2002) (available at http://www.samhsa.gov/

oas/nhsda/A-11/WrkplePlcy2-22.htm) (drug use correlated with ab-

senteeism and excessive turnover); Jacques Normand et al., An

Evaluation of Preemployment Drug Testing, 75 J. Applied

Psychol. 629, 636-637 (1990) (reducing drug use by employees could

save millions of dollars through increased productivity).

Works 23 (available at http://said.dol.gov/SAID_

Attachments/553said5.pdf) (setting forth model cor-

porate drug policy featuring bar on rehiring of em-

ployees terminated for drug use). Such a policy has

definite advantages. First, it gives employees clear

notice that some misconduct is so serious that it will not

be tolerated. Cf. 14A Employ. Coordinator (RIA)

{ PM-16,103 (2003) (discussing automatic discharge

policies). Second, and relatedly, it operates as a strong

deterrent to covered misconduct, which is a particularly

important consideration for employees in sensitive or

high-risk positions. Third, the clarity of the rule makes

it simple to administer and prevents accidental rehiring

when persons making hiring decisions lack access to

former employees’ full records. Finally, it furthers

former employees’ privacy interests, because there is

no need for the employer to keep detailed records of the

nature of employee misconduct.

The court of appeals’ rule undermines the effective-

ness of workplace conduct rules and limits on the

rehiring of discharged employees. By creating an

exemption to blanket policies prohibiting the rehiring

of employees discharged for serious misconduct for

“former drug addicts whose only work-related offense

was testing positive because of their addiction” (Pet.

App. lla), the court below undermined the certainty

and evenhandedness of such policies. By reading the

ADA’s prohibition on disparate treatment of the dis-

abled to exempt recovering drug addicts and alcoholics

from otherwise generally applicable workplace rules

prescribing the consequences for misconduct, the court

of appeals’ rule conflicts with Congress’s judgment that

the ADA should not provide special preferences to

those who use drugs or alcohol in the workplace. See,

e.g., 42 U.S.C. 12114(c). Equally important, such a rule

So ee oe PO OE

“indirectly but unmistakably undermine{s] the [rules]

that regulate dangerous behavior.” Despears, 63 F.3d

at 637.

C. Petitioner Is Entitled To Summary Judgment

For these reasons, the court of appeals clearly ap-

plied an erroneous legal standard and the judgment

below should be reversed. It also appears that under

the proper legal standard, summary judgment for

petitioner is appropriate.

Summary judgment is proper if “the nonmoving

party has failed to make a sufficient showing on an

essential element of her case with respect to which she

has the burden of proof.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). Petitioner is entitled to summary

judgment here because the evidence in the record,

taken in the light most favorable to respondent, does

not demonstrate that petitioner refused to rehire

respondent because of his record of disability or per-

ceived disability, but rather did so based on the neutral

application of its no-rehire policy.’

7 Although this Court has never addressed the issue, the courts

of appeals have applied the familiar burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), to

analyze disparate treatment claims under the ADA. See, e.g.,

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st

Cir. 1999); Helfter v. United Parcel Serv., Inc., 115 F.3d 613,

616 (8th Cir. 1997); ef. Reeves, 530 U.S. at 142 (“assum[ing],

arguendo, that the McDonnell Douglas framework” applies to

ADEA actions). Under the McDonnell Douglas framework, once

a plaintiff has established a prima facie case of discrimination, the

burden of going forward with evidence shifts to the employer to

articulate a legitimate nondiscriminatory reason for the adverse

employment action. 411 U.S. at 802. If the employer presents

evidence of a nondiscriminatory reason for its action, the plaintiff

may then show that the employer’s proffered explanation is not the

Petitioner presented the testimony of Joanne Bock- -

miller, who testified that she reviewed respondent’s

application and made the determination not to rehire

him. Pet. App. 3a. Bockmiller testified that she pulled

respondent’s personnel file and reviewed the employee

separation summary from his prior employment, and

concluded respondent was ineligible for rehire because

petitioner has an unwritten policy against rehiring its

former employees who were discharged for misconduct

or who resigned in lieu of termination. Pet. App. 4a;

J.A. 57a-62a. Bockmiller stated that, at the time, she

was “not aware” that respondent had any history of

drug or alcohol abuse and—contrary to the court of

appeals’ assumption (Pet. App. 8a)—“the personnel file

would not indicate that information.” J.A. 55a; accord

J.A. 56a, 60a; see also 88a-9la (information would be

in medical file). Bockmiller stated that she did not

“determine the specific reason as to why Mr.

Hernandez was terminated” (J.A. 56a), but that

respondent was treated “the same as we would anyone

else who had been terminated or quit in lieu of dis-

charge and was not eligible for rehire.” J.A. 59a.

true reason for the employment decision, but was “in fact a

coverup fora * * * discriminatory decision.” Jd. at 805. The

burden of persuasion remains with the plaintiff at all times. St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). This Court

need not determine whether respondent has presented a prima

facie case of discrimination, because even if he did, petitioner is

entitled to summary judgment because respondent has failed to

present evidence that petitioner’s no-rehire policy was pretextual.

Cf. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.

711, 715 (1983) (“Where the defendant has done everything that

would be required of him if the plaintiff had properly made out a

prima facie case, whether the plaintiff really did so is no longer

relevant.”).

Noting that petitioner’s response to the EEOC

complaint states that “Hernandez’s application was

rejected based on his demonstrated drug use while pre-

viously employed and the complete lack of evidence

indicating successful drug rehabilitation,” respondent

contends that the policy “was misused by Hughes as a

pretext for discriminating against [him] based on his

record of alcohol and drug addiction.” Br. in Opp. 13.

That letter is insufficient to prevent summary judg-

ment. The undisputed evidence indicates that Bock-

miller alone made the decision not to rehire respondent,

and she was not involved, years later, in writing the

letter to the EEOC. J.A. 50a-51a, 64a, 74a, 78a. Nor

was the person in whose name the EEOC response was

signed, George Medina, involved in the decision not to

rehire respondent. J.A. 62a. “Because [Bockmiller]

was the relevant decision-maker, [Medina’s] somewhat

inconsistent statement as to the factors he believed

[Bockmiller] considered is simply not probative_of

pretext, particularly where * * * there is no evidence

to discredit [Bockmiller’s] explanation of [why] [s]he

decided” not to rehire respondent. Rowe v. Marley Co.,

233 F.3d 825, 831 (4th Cir. 2000); accord Krchnavy v.

Limagrain Genetics Corp., 294 F.3d 871, 876-877 (7th

Cir. 2002); Chiaramonte v. Fashion Bed Group, Inc.,

129 F.3d 391, 402 (7th Cir. 1997), cert. denied, 523 U.S.

1118 (1998).

Moreover, petitioner’s response to the EEOC is not

inconsistent with Bockmiller’s testimony that she

rejected respondent’s application based on the no-

rehire policy without knowing the nature of his

misconduct. The EEOC response specifically mentions

the no-rehire policy and the discussion of respondent’s

prior drug use is fairly read to explain what misconduct

triggered application of the policy. See J.A. 20a; J.A.

73a (Medina stated, “essentially we argued that, hey, he

violated company policy and we just don’t bring back

people who [do that]”). Moreover, the letter does not

indicate that respondent was “regarded as” (42 U.S.C.

12102(2)) a disabled addict, merely that he had engaged

in “drug use.” J.A. 19a. See generally Salley v. Circuit

City Stores, Inc., 160 F.3d 977, 981 (3d Cir. 1998)

(employer’s awareness of drug use “is insufficient to

demonstrate either that the employer regarded the

employee as disabled or that that perception caused the

adverse employment action”); Parry v. Mohawk Motors

of Mich., Inc., 236 F.3d 299, 311 (6th Cir. 2000); Nielsen,

162 F.3d at 610.

Respondent has offered no evidence of any instances

in which petitioner permitted reapplication by a former

employee discharged for non-drug-related misconduct

(or for drug-related conduct by a non-addict), nor has he

proffered any other evidence to suggest the no-rehire

policy was a pretext for discrimination.’ The uncon-

tradicted evidence in the record indicates that peti-

tioner applied its no-rehire policy uniformly. See J.A.

57a-59a, 72a, 80a. Under the circumstances, respondent

8 Cf. Salley, 160 F.3d at 981 (summary judgment appropriate

where plaintiff “has offered no evidence to suggest that drug policy

violations were tolerated for non-addicts but used to justify firing

addicts”); Collings v. Longview Fibre Co., 63 F.3d 828, 834 (9th Cir.

1995) (“There is no indication that [plaintiffs] were treated

differently from other employees who engaged in similar conduct.

Therefore, they have not produced sufficiently specific facts of

pretext to avoid summary judgment.”), cert. denied, 516 U.S. 1048

(1996); Maddox, 62 F.3d at 848 (“There is no evidence in the record

establishing that [employers] * * * failed to reprimand or

terminate any [other employee] who they knew to have engaged in

[similar] behavior.”).

cannot carry his burden of proving causation and sum-

mary judgment is appropriate.

Moreover, the unrefuted evidence indicates that

Bockmiller was unaware of respondent’s past drug use

when she made her decision. See J.A. 54a-56a, 60a. An

employer cannot be said to have engaged in disparate

treatment “because of” an individual’s disability (42

U.S.C. 12112(a)) if it was unaware of the disability.’ Cf.

Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273

(2001) (per curiam) (retaliation claim cannot be made

under Title VII where “there is no indication that [the

employer] even knew” the plaintiff had engaged in

protected activity). Thus, the court of appeals plainly

erred by holding that a disparate treatment claim could

be made even when “the staff member who makes the

employment decision [is] unaware of the ‘disability.’”

Pet. App. 12a.

The court of appeals concluded (Pet. App. 8a) that

because Bockmiller had access to respondent’s per-

sonnel file, and because respondent attached to his

application a letter from his A.A. counselor indicating

he was a recovering alcoholic, one could infer, contrary

to Bockmiller’s sworn testimony, that “she would have

checked the personnel file to determine the reason for

his earlier termination.” Pet. App. 8a. Even assuming

such speculation were warranted, it is insufficient to

create a material issue of fact about whether the de-

cisionmaker was aware of respondent’s disability.

® See, e.g., Taylor v. Principal Fin. Group, 93 F.3d 155, 163

(5th Cir.) (“To prove discrimination, an employee must show that

the employer knew of such employee’s substantial physical or

mental limitation.”), cert. denied, 519 U.S. 1029 (1996); Geraci v.

Moody-Tottrup, Int'l, Inc., 82 F.3d 578, 581 (3d Cir. 1996); Hedberg

v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).

Bockmiller testified that

the results of respondenc’s

1991 drug test would not have been in the personnel file

she pulled (and that in any event, she did not determine

the reason for his discharge). J.A. 55a-56a. That testi-

mony was consistent with Medina’s testimony. See J.A.

88a-9la. A finding that Bockmiller knew of the results

of the drug test would require speculation that uncon-

tradicted testimony was false. This Court, however,

has held that summary judgment may not be avoided

“by merely asserting that the jury might * * * dis-

believe the defendant’s [testimony].” Anderson v. Lib-

erty Lobby, Inc., 477 U.S. 242, 256 (1985).

CONCLUSION

The decision of the court of appeals should be

reversed.

Respectfully submitted.

MAY 2003

THEODORE B. OLSON

Solicitor General

RALPH F. BoybD, JR.