# Amicus Curiae Brief — Raytheon Co. v. Hernandez

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 44

## Text

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
v.

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)

IV

Cases—Continued:
Harris v. Polk County, 103 F.3d 696 (8th Cir.

Page

14

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

25

(7th Cir. 1995)
Helfter v. United Parcel Serv., Inc., 115 F.3d 613
(8th Cir. 1997)

21

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)

18

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)

13

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

VI

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
v.

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)

2

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 -

3

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

/

dq

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.”

5

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-

6

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

7

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).

8

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

9

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.

10

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

1]

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

12

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

13

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-

14

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!”).

15

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

16

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

17

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).

18

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

19

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).

20

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

21

“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

22

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.”).

23

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.

24

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.”).

25

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

26

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.
Assistant Attorney General

PAUL D. CLEMENT
Deputy Soiicitor General
JOHN P. ELWooD

Assistant to the Solicitor
General

DAVID K. FLYNN
SARAH E. HARRINGTON

Attorneys

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0621%3A10. Public record. Not legal advice.