Opposition Brief — Martin v. Barnesville Exempted Village School District Board of Education

(3) FILED.

No. 00-384

IN THE

Supreme Court of the Anited States

DENNIS L. MARTIN,

Petitioner,

Vv.

BARNESVILLE EXEMPTED VILLIAGE SCHOOL DISTRICT

BOARD OF EDUCATION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JOHN C. ALBERT, ESQ. (0024164)

Counsel of Record

CRABBE, BROWN, JONES, POTTS & SCHMIDT

500 S. Front Street/Suite 1200

Columbus, Ohio 43215

(614) 229-4528

Counsel for Respondent

Wright Appellate Services 1005

(215) 733-9870 @ (800) 507-9020 @ Fax (215) 733-9872

QUESTIONS PRESENTED

SHOULD THE PETITIONER BE PERMITTED TO

RAISE ISSUES FOR THE FIRST TIME BY WAY

OF HIS PETITION FOR WRIT OF CERTIORARI,

WITHOUT SAID ARGUMENTS HAVING BEEN

RAISED IN EITHER COURT BELOW?

SHOULD THIS COURT GRANT A WRIT OF

CERTIORARI TO REVIEW QUESTIONS FOR

WHICH THERE IS NO CONTROVERSY OR

CONFLICT AMONG THE CIRCUITS, BUT

RATHER ARE A MATTER OF EXPRESSED

STATUTORY LANGUAGE?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........:--s+ssssessessssssssensnssnnsnnennennsees i

TABLE OF CONTENTS ........:scsesssessssessescessseeeseneennsennesenennees li

TABLE OF AUTHORITIES ........:.-secssesssseeseeesennenensenesnnsenses v

COUNTER STATEMENT OF THE CASE.........:s:sssse+eeeeeeres l

STATEMENT OF FACTS. ......:cccscessessssesssesseesensesnnssnanensnnsess 2

ARGUMENTS IN OPPOSITION TO THE GRANTING

OF CERTIORARI ......::.c:csssssssesssesseesscesesnensssseceeensensennessnsneees 7

1. PETITIONER MARTIN SHOULD NOT BE

PERMITTED TO RAISE CERTAIN ISSUES FOR

THE FIRST TIME BY WAY OF HIS PETITION

FOR WRIT OF CERTIORARI. See, Bragdon v.

Abbott, 524 U.S. 624, 118 S.Ct 2196, 141 L.Ed.2d

540 (1998). ..ceccssscsssssssesesseseenenesssnsscneensnsaseneneensnsensnesess 9

2. CONTRARY TO PETITIONER'S ASSERTION,

APPLICATION OF THIS COURT'S DECISION

IN REEVES V. SANDERSON PLUMBING PROD-

UCTS, INC., TO THE INSTANT CASE, DOES

NOT MANDATE A JURY TRIAL BASED ON

THE EVIDENCE PRODUCED...........ccssseseseseeeenees 10

iii

A. The Rehabilitation Certificate does not sup-

port Martin's Claim. .....s-ssssessssseeerssseseeresereee 12

= Neither Court below “raised the burden of

proof” required by a plaintiff. .........-.-se+eesee+ 15

3. PETITIONER’S ARGUMENT THAT THE TERM

‘REGARDED AS’ SHOULD BE CONSTRUED

TO ALLOW ALCOHOLISM AS A PER SE DIS-

ABILITY IS A MISREADING AND MISUN-

DERSTANDING OF THE STATUTE AND

AGENCY REGULATIONS - NOT AMBIGUITY

OR CONFLICT REQUIRING THIS COURT'S

ATTENTION. ......:ocosczsosesenssssncsssosenencenensensnssnconsoee® 16

A. Petitioner's reading of the law and accom-

4. CONTRARY TO PETITIONER'S ASSERTION,

THERE IS NO CONFLICT AMONG THE CIR-

CUIT COURTS AS TO WHETHER OR NOT AL-

COHOLISM IS A PER SE DISABILITY.........--+--+ 18

iv

A. The “impairment” of alcoholism is not a per

se “disability” under the ADA. ..............++0++ 19

B. Petitioner Martin's reliance upon the Eighth

Circuit decision in Miners v. Cargill Com-

munications, Inc., is misplaced and in fact

contradicts his OWN arguMEnts. ...........10+ 23

1. Petitioner’s cite to Miners v. Cargill

Communications, Inc., is not appro-

PTIALE. ........ececececenenencsenenenenensenenenensees 23

2. Petitioner Martin’s arguments with

respect to the “misconduct excep-

tion” do not present a circuit conflict

or need for clarification by this

Court. The decisions of the lower

courts were entirely proper and do

not warrant review or clarification by

this Court. .....0..coc.ccsccscecsscsserceersesseeses 25

CONCLUSION .......-:sesseeseereees cRuinoadegscebpstapaalinasetancsevtinsneseit 30

Vv

TABLE OF AUTHORITIES

Cases

Bilodeau v. Mega Industries, 50 F.Supp.24 27, 38 (D. Me.

SOO C18 Cie) snzscssensccovaepcanncgynnonersceponsngensnnosonennne 20

Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141

L.Ed.2d 540 (1998) .......scecscessserssrsseesenseeceenssresnnenees 2 17,29

Buckley v. Consolidated Edison Co. v. New York, 127 F.3d

270 (2 Cir. 1997)...cccccccsssessssssssesssssessseecescenesnsnnsnsnscnscesses 19

Burch v. Coca-Cola Co., 119 F.3d 305, 316-17 (5™ Cir.

POT eee ow sevsscesunomppogerovenpeeszevscceerunneenere 21, 22

Byrne v. Board of Education, 979 F.2d 560, 567 (7 Cir.

TN re oa saectonencdenannevenneneoosenennnnnseccsnapregapeve 22

Deas v. River West, L.P., 152 F.3d 471 (5" Cir. 1998)........22

Forrisi v. Bowen, 794 F.2d 931 (4™ Cir. 1986) ......--ssssssseeees 21

Francis v. City of Meriden, 129 F.3d 281 (2™ Cir. 1997) ....21

Kelly v. Drexel Univ., 94 F.3d 102 (3™ Cir. 1996) ...---ssss 21

Kocsis v. Multi-Care Management, Inc., 97 F.3d 876 (6"

Cir. 1996).......scscssssssssssesesesenesensnsncssscnsncscseessnsnensansssssnsensess 22

Maddox v. Univ. of Tenn., 62 F.3d 843 (6" Cir. 1995).......2, 6

Miners v. Cargill Communications, Inc., 113 F.3d 820 (s™

Cir. 1997).....csssccssossecsercereecssecensesenees 7, 8, 19, 23, 24, 25, 26

Nielsen v. Moroni Feed Co., 162 F.3d 604 (10" Cir. 1998).22

vi

Office of the Senate Sergeant at Arms v. Office of Senate

Fair Employment Practices, 95 F.3d 1102 (Fed. Cir.

1 996) «-vev<eooesossnrcseosonnpinboncasseneneiouceveansrsansstonrertrsetlePeret 18

Pace v. Paris Maintenance Company, et al., 107 F.

Supp.2d 251 (S.D. N.Y 2000) (2° Cir.) -..-+:seseserereeereeseees 21

Reeves v. Sanderson Plumbing Products, Inc., _U.S._,

120 S.Ct. 2097 (2000)........ 8, 10, 11, 12, 14, 15, 25, 27, 30

Roush v. Weastec, Inc., 96 F.3d 840, 843 (6" Cir. 1996)..... 20

Wallin v. Minnesota Dep't of Corrections, 153 F.3d 681n.4

(8! Cir. 1998)...sscssssssssesesssersnnssssnnscnenens aia 22

Wilson v. Int’l Bhd. of Teamster, Chauffeurs and Ware-

housemen, et al., 47 F.Supp.2d 8 (D.C. D.C. 1999)........ 22

Witier v. Delta Air Lines, Inc., 138 F.3d 1366 (11™ Cir.

198) csenccncosneovrecansnsenteounerarenrseoteoussenneserornrdnneniis 22

Statutes

42. U.S.C. §12102(2) ..ossccossservneesnsecenncsensennsnecnnscsansccnnscrenseere 20

AZ U.S.C. S121 14(A)--ossservssseneecnnecrnscensecnnesnnnennneqnnnsrnnsee 10, 19

Rules

28 CER. §41.31(b)(4)(iii) (1999) ..csesssecsecensenssensennecnsesnnseens 18

29 C.F.R. §1630(1)(3) ---s-reereseeeeeeeee ssssssoscseuesscececnssscnssecnsoneees 18

29 C.E.R. §1630 App.B ©1630.2(1).....cescesereesereerenees 18, 20, 22

CIR SGT 22

29 C.F.R. §1630.3(1)(C) ...seccsssesnsseensee sidan aaliccuhcascaaso 21

re a" ag aiaenenhan eines itelbaiesmelDe lites Beak + 15

Pic | S| > SORE MRD rip satecere bes mene one uuieE EAS a 2

COUNTER STATEMENT OF THE CASE

The United States District Court for the Southern District

of Ohio correctly determined that:

Plaintiff must [show] that the ‘record of? impair-

ment, or the impairment that he is ‘regarded as’

having, is one that substantially limits a major life

activity. *** Plaintiff did not allege in his com-

plaint, nor has he argued or demonstrated in re-

sponse to Defendants Motion, that the LCA

establishes that he is substantially limited in a ma-

jor life activity, or that Defendant regarded him as

having an impairment that substantially limits a

major life activity.

R.30 Order Granting Summary Judgment, p. 9 (Emphasis

theirs).

The trial court essentially found that Martin must prove

that the alleged “record of” impairment or the “perceived”

impairment is one that substantially limits a major life activ-

ity, (or is perceived as being so limiting) and that Martin en-

tirely failed to put forth an argument and establish this

burden.

While not disagreeing with the trial court’s reasoning, the

Sixth Circuit Court of Appeals affirmed the decision of the

district court on a different ground. Instead of deciding the

case based upon the fatal errors in Martin’s prima facie case

(i.e., failing to produce evidence of a perception of alcohol-

ism and failure to even allege a perceived substantial

limitation), the court of appeals took a more rigid stance and

2

declared the case law of Maddox v. Univ. of Tenn., 62

F.3d 843 (6" Cir. 1995), controlling, holding that Martin’s

own misconduct (rather than the unproven perception of al-

coholism) was a legitimate and non-discriminatory reason

for his denial of the school bus driver position.

STATEMENT OF FACTS

Barnesville Exempted Village School District BOE

(herein after “Barnesville”), in accordance with S.Ct.R. 15

(2) with respect to the content of a Brief in Opposition,

wishes to draw this Court’s attention to the misstatements

and omissions of Petitioner Dennis L. Martin (hereinafter

“Martin”) that are directly relevant to issues presented

herein.

First, the Petition submitted by Martin is replete with mis-

characterizations, understatements, and overstatements as to

the facts and law in this case. The Petition also exhibits a

fundamental misunderstanding with respect to the law and

interpretations of law surrounding the “record of” and

“regarded as” prongs of the ADA’s prima facie showing for

a disability. There are many fatal flaws - most of which defy

common sense interpretation of the language of the statute

and the regulations or interpretive guidelines on the subject.

Many of these misunderstandings are addressed specifically

in the Law and Argument portion of this brief, as necessary

3

Second, as the Court may well have already discerned,

this case involves an incident of misconduct in 1991

whereby Petitioner Martin was caught drinking on his job as

a custodian at an elementary high school. Three years later

Martin applied for a bus driver position within the school

district. Martin was denied the bus driver position because of

his 1991 misconduct, and because the school officials (with-

out any knowledge or perceptions of any alcoholism on the

part of Martin) could simply not take the that Martin

would attempt to engage in similar misconduct while holding

the bus driver position.

With respect to the detailed facts as set forth by Martin,

there are several key omissions. While Martin admits to

having been “discovered” drinking beer while on his job asa

custodian at an elementary high school in 1991, Martin fails

to discuss the relevant circumstances surrounding the inci-

dent, Martin was caught by Robert Miller, President of Bar-

nesville’s Board of Education. Once caught, Martin RAN

from Board President Miller, HID, and attempted to throw

away the remaining six pack of beer. When confronted,

Martin LIED about the fact that he had any beer on premises,

and DENIED that Board President Miller had seen what he

claimed. It was only AFTER the other cans of beer were dis-

covered that Martin admitted bringing the beer to the ele-

mentary school. When questioned further, after the extra

beer was found, Martin walked off the job leaving the ele-

mentary school building otherwise unattended. The Super-

intendent at the time, David Wilson, recommended that

Plaintiff be terminated for reasons of:

* consuming alcohol at work

* leaving his work incomplete.

4

¢ leaving the building without adequate employee

coverage and

¢ for conduct in direct violation of the Defen-

dant’s “drug free work place” policy, constitut-

ing misfeasance and nonfeasance of duty

Thus, Martin was not disciplined because he was per-

ceived to have an impairment that substantially limited any

major life activities, or because he was perceived as an alco-

holic. Martin was disciplined because he violated Barnesville

rules, lied, and walked off the job. Ultimately, because it was

around Christmas time, Board President Miller decided to

give Martin a last chance, and the parties entered into a last

chance agreement (hereinafter “LCA”). In this agreement,

Martin accepted a suspension from employment without pay,

waived procedural irregularities, stated that he had a drinking

problem, and agreed to enter an alcohol rehabilitation pro-

gram.

It must be noted that Board President, Mr. Miller, specifi-

cally testified that he had no idea whether or not Mr. Martin

had a drinking problem, but indicated he would let the pro-

fessionals determine that at an alcohol rehabilitation pro-

gram, and that Martin would be none the worse by

completing same. (R.13 Deposition of Miller, pp 53-54).

Martin did enter and complete the alcohol program, and

upon doing so returned to his custodial position. Martin testi-

fied in his deposition that during the alcohol rehabilitation

program, he still did not believe he needed the treatment, and

after it was completed, also felt he did not need the treat-

ment. (R11 Motion for Summary Judgment, exhibit 1, Depo-

sition of Martin, pp.51-53). Martin never followed up with

any other type of rehabilitation treatment after he completed

the program. (R11 Motion for Summary Judgment, as ex-

hibit 1, Deposition of Martin, p.55).

In December of 1994, a bus garage worker position and a

bus driver position were posted. Martin bid for, and was de-

nied these positions pursuant to the “safety concern” clause

of the bargaining agreement. Martin grieved these decisions,

and the matter was appealed to State Court. The Belmont

County Court of Common Pleas upheld the actions of Bar-

nesville, as a matter of “safety” and not “seniority.” Thus,

from July 2, 1996 until October 15, 1997, Barnesville was

under that court’s decision that Martin was not entitled to the

positions. While the State Court appeal was pending, Martin

filed charges of disability discrimination with the Ohio Civil

Rights Commission in November 1996. In early 1998, Mar-

tin was awarded the December 1994 positions of bus garage

worker and bus mechanic pursuant to the finality of the Sev-

enth District Court of Appeals decision dated October 15,

1997.

Petitioner Martin instituted this action in September of

1997 claiming disability discrimination with regard to the

denied positions. Barnesville filed a Motion for Summary

Judgment which set forth numerous issues upon which

summary judgment could properly have been granted. (R. 11

Motion for Summary Judgment). Martin argued, and contin-

ues to argue, that he signed the last chance agreement, stated

therein that he had “a drinking problem,” and therefore has

“a record of” and is “perceived as” an alcoholic. As the trial

court correctly found, Martin failed to allege, argue or dem-

i th aA ie We SR

he was perceived as being substantially limited by that im-

pairment, and/or failed to identify major life activities that

6

were so limited. (R.30 Order Granting Motion for

Summary Judgment, pp.8-9). Martin did not rebut the testi-

mony of witnesses who clearly stated that they did not know

if Martin was an alcoholic, but merely that they did not want -

to take the chance that he would engage in similar acts of

misconduct while driving a school bus. (R. 11 Motion for

Summary Judgment, p.9, citing, exhibits 2- Lucas affidavit,

3- Wilson affidavit, 4- Rinehart affidavit, and 5- Miller affi-

davit).

Martin did not address the arguments advanced by

Barnesville regarding the applicable McDonnell-

Douglas/Burdine burden shifting analysis. (R. 14 Response

to Motion for Summary Judgment). Martin also did not ad-

dress Barnesville’s argument under the law of Maddox v

Univ. of Tennessee, 62 F.3d 843 (6" Cir. 1995), that Bar-

nesville did properly distinguish between Martin’s miscon-

duct and the alleged perceived “disability.” Martin entirely

skipped his proof on these issues. (R. 14 Response to Motion

for Summary Judgment). Martin simply alleged perceived

alcoholism and therefore disability.

Martin now advances theories of (1) an erroneous appli-

cation of the “regarded as” inquiry; (2) several novel theories

of recOvery, not raised in either court below (heightened

standard for a plaintiff under a burden shifting analysis and

“regarded as” equals “per se disability”) ; and (3) an alleged

conflict among the circuits with respect to the disability per

se argument as it relates to “perceived” alcoholism. All this,

while failing to produce evidence from which a reasonably

jury could find that Martin was even “perceived as” an alco-

holic; failing to even address below that Martin was “per-

ceived as” being substantially limited in a major life activity;

7

and failing to identify a major life activity perceived to be

In short, Martin asks this Court to make numerous suc-

cessive leaps in logic and inference, all of which are contrary

to express statutory language, agency interpretive regulations

and guidelines, and stated Congressional intent. Martin has

skipped the proof on many issues, not the least of which is a

prima facie showing of disability, and now asks this Court to

declare him disabled despite his own default.

ARGUMENTS IN OPPOSITION TO THE

GRANTING OF CERTIORARI

This Court should properly deny the Petition for Writ of

Certiorari submitted by Petitioner Dennis L. Martin, as it

fails to present issues in conflict among the circuit courts,

fails to set forth genuine issues in need of clarification by

this Court with respect to important federal questions, and

for reason that Petitioner Martin failed to raise many of these

issues in either court below.

Specifically, Petitioner Martin suggests that there are con-

flicts (1) between the circuit courts as to whether or not alco-

holism is a per se disability under the ADA and (2) between

Justice Department and EEOC regulations which define “te-

garded as having such an impairment.” With respect to a

conflict among the circuit courts as to alcoholism as a per se

disability, no such conflict exists, and the cases cited infra.,

in Argument No. 3, Section A, indicate as much. Petitioner’s

citation to Miners v. Cargill Communications, Inc., 113 F.3d

820 (8" Cir. 1997), as in conflict with the Sixth Circuit deci-

sion herein below is erroneous. With respect to conflict

among agency regulations, Petitioner Martin misreads and/or

8

misunderstands the express language of both statute and

regulation, thereby creating a false conflict, when in fact, it is

only Martin who perceives conflict - not the circuits. Review

of Appendices B and C indicate a plain misreading by Mar-

tin. Additionally, Petitioner Martin assigns errors with re-

spect to the Sixth Circuit Court’s ruling against him based on

his own misconduct. This is the first time Martin has even

responded to Respondent Barnesville’s arguments with re-

spect to misconduct. Martin wholly failed to address this

area in either_his Memorandum Contra Motion for Summary

Judgment, his Sixth Circuit Appellate Brief or his Sixth Cir-

cuit Reply Brief. Nonetheless, the “misconduct exception” as

it is termed, does not raise a plaintiff's burden of proof when

raised by an employer, nor does it create a non-rebuttable

non-discriminatory explanation for employer action. Ironi-

cally, it is Petitioner’s own citation to Miners v. Cargill

Communications, Inc., supra., out of the Eighth Circuit

which illustrates the fallacies in Martin’s argument with re-

spect to burden of proof in misconduct cases. Finally, Martin

assigns as error, the lower courts’ application of this Court’s

decision in Reeves v. Sanderson Plumbing Products, Inc.,

120 S.Ct. 2097 (2000). Ironically, not only did the lower

courts correctly apply the Reeves analysis, but Martin’s own

citation to Miners v. Cargill Communications, Inc., supra.,

illustrates how this is so. No further explanation is necessary

from this Court regarding the issue of burden

shifting and rebuttals of proffered employer explanations

there being no departure from the Reeves, supra, standard.

Ultimately, Petitioner Martin has asserted arguments for

which no conflict exists or no clarification is necessary from

this Honorable Court. Petitioner Martin’s own misreading or

misunderstanding of express statutory and regulatory lan-

9

guage does not represent conflict or confusion among the

circuits (or the Sixth Circuit) so as to create a necessity for

this Court’s review.

ARGUMENT NO. 1

Petitioner Martin Should Not Be Permitted To Raise

Certain Issues For The First Time By Way Of His Peti-

tion For Writ Of Certiorari. Bragdon V. Abbott, 524 U.S.

624, 118 S.Ct 2196, 141 L.Ed.2d 540 (1998).

Petitioner Martin advances several arguments or theories

upon which he contends this Court should rely to overturn

the decision of the Sixth Circuit Court of Appeals - theories

that were not raised in either court below and therefore are

not properly before this Court. See, Bragdon v. Abbott, 524

US. 624, 118 S.Ct. 2196, 2205 (1998) (“It is our practice to

decide cases on the grounds raised and considered in the

Court of Appeals,...”). Specifically, Martin has alleged:-

(1) Justice Department regulations for the Rehabilitation

Act and the EEOC regulations (and interpretive

guidelines) for the ADA are in conflict and that be-

‘. cause alcoholism is a per se disability under the Re-

habilitation Act, the same must be true under the

ADA. This argument was not advanced below and as

such, Martin’s Petition for Writ of Certiorari should

properly be denied;

(2) Applying the “misconduct exception” to disability

discrimination, without a time limitation, would give

an unrebuttable non-discriminatory reason for the

employer’s adverse action. It is interesting that Mar-

tin now seeks to challenge the Sixth Circuit’s ruling

10

tin now seeks to challenge the Sixth Circuit’s ruling

with respect to his “misconduct” and proof a “mis-

conduct exception,” when he entirely failed to ad- |

dress the issue in either his Memorandum Contra

Motion for Summary Judgment, Sixth Circuit Ap-

pellate Brief or Sixth Circuit Reply Brief. It is also

interesting that Martin relies on the McDonnell

Douglas - Burdine burden shifting analysis, when

Martin’s lower court motions and briefs entirely

avoided this argument. Martin presented no argument

to rebut the legitimate explanation of Barnesville’s

action.

(3) “As applied, the misconduct exception is against the

intent of Congress because Congress supplied a

similar the (sic) misconduct exception in 42 U.S.C.

12114(A) concerning drug uses, Congress further

limited the use of such exception concerning drug

uses, while the Sixth Circuit has not limited the

similar judge made rule as to alcoholics.”(Pet.p.25).

Martin should not properly be permitted to raise these is-

sues without having raised them in either court below.

ARGUMENT NO. 2

Contrary To Petitioner’s Assertion, Application Of This

Court’s Decision In Reeves V. Sanderson To The Instant

Case, Does Not Mandate A Jury Trial Based On The

Evidence Produced.

Petitioner Martin argues that the courts below failed to

properly apply this Court’s decision in Reeves v. Sanderson

r Plumbing Products, Inc., 120 S.Ct. 2097, 2109 (2000), and

11

particularly the analysis for burden shifting and inferences of

discrimination presented to rebut an employer’s legitimate

non-discriminatory reasons for its action. Specifically Martin

mistakenly claims: (1) he offered conflicting testimony of

pretext so as to warrant submission of the issue to a jury; and

(2) the District Court erred by requiring him to present “sig-

nificant probative evidence” of pretext, and that in doing so

the court made an improper determination of the persuasive

nature of the evidence he presented. This, Martin argues,

heightened the burden of a plaintiff attempting to prove pre-

text. These arguments are without legal and factual merit,

and do not create a significant question for this Court’s re-

view.

In Reeves, supra., this Court determined that, among other

things:

Certainly there will be instances where, although

plaintiff has established a prima facie case and set

forth sufficient evidence to reject the defendant’s

explanation, no rational fact finder could conclude

that the action was discriminatory.

Whether judgment as a matter of law is appropriate

in any particular case will depend on a number of

factors. Those include the strength of the plain-

tiffs prima facie case, the probative value of the

proof that the employer’s explanation -is false,

and any other evidence that supports the em-

ployer’s case and that properly may be consid-

ered on a motion for summary judgment.

Reeves, 120 S.Ct. at 2108. (Emphasis added).

12

{I]f the record conclusively revealed some other,

non-discriminatory reason for the employer’s deci-

sion or if the plaintiff created only a weak issue of

fact as to whether the employer’s reason was un-

true and there was abundant and uncontroverted

independent evidence that “no discrimination had

occurred,” an employer would be entitled to judg-

ment as a matter of law.

Reeves, 120 S.Ct. at 2109. (Emphasis added). A brief review

of the evidence demonstrates that the case at bar is precisely

the instance anticipated by the above quote. Further, Peti-

tioner Martin’s failure to apply the entire decision and import

of Reeves does not make this an issue which must be clari-

fied by this Court.

Martin essentially argues that he presented the LCA and

rehabilitation certificate as proof of the “record of” his dis-

ability, and of Barnesville’s pretext (i.e., that they perceived

him as being an alcoholic rather than being concerned for

school children’s safety). Martin contends this evidence re-

buts Barnesville’s proffered concerns for the safety of its

students. Review of the facts here reveal that Martin’s evi-

dence is veak, does not prove or even lend inference to dis-

criminatory intent on the part of Barnesville, and could not

properly have led a rational fact finder to conclude there was

discrimination.

A. The Rehabilitation Certificate does not support

Martin’s claim.

First, the rehabilitation certificate is only proof that Martin

attended a program. No diagnosis was made of (and the mere

13

certificate certainly does not reflect) alcoholism. No diagno-

sis was made of (and the mere certificate certainly does not

reflect) a substantial limitation of any major life activity, nor

does it show a record or perception of such.

B. The Last Chance Agreement does not support

Martin’s claim.

Martin relies on the LCA as proof that he was per-

ceived as an alcoholic. Martin alleges that “a drinking prob-

lem” equals alcoholism, and then automatically assumes

“disability.” That is not a proper showing under the ADA,

and the district court correctly concluded such. Martin did

not produce evidence that Barnesville’s board members or

employees considered the LCA terminology “a drinking

problem” the equivalent of alcoholism, or of a substantially

limiting impairment as to any major life activity.

The mere words “drinking problem” do not necessarily

equate to alcoholism or disability. In fact, as used by these

parties, “a drinking problem” was meant to convey insubor-

dination, misconduct, and a mistake by Martin involving the

use of alcohol while on the job, an offense for which Martin

should properly have been terminated. When specifically

questioned on the use of the terminology, “drinking prob-

lem,” Board President Robert Miller explained that he did

not know if Martin was an alcoholic or if he just exercised

poor judgment on that occasion. (See Deposition of Robert

Miller [excerpts], attached hereto as Appendix A).

Appellant Martin at no time presented evidence to address

or rebut this testimony. However, Martin does acknowledge

that he only signed the LCA to keep his job, not to admit any

rf

14

type of alcoholism. (R.11 Motion for Summary Judgment,

exhibit 1- Martin deposition, p. 51).

Further, no evidence was proffered by Martin that tended

to prove an improper motive on the part of Barnesville - and

how could it, as Barnesville is charged with the education

and safety of the children within the school district, from the

time they catch the morning school bus uitil the time they

are dropped off the bus at days’ end. Martin overstates and

misunderstands what this Court’s decision in Reeves requires

of the parties, and what the court below was looking for -

namely relevant probative evidence, tending to prove or dis-

prove Barnesvilie’s explanation - not merely bald assertions.

Petitioner Martin did not address the above testimony or

the fact that none of the four (4) witnesses who testified con-

sidered him to be an alcoholic. Applying Reeves, supra.,

these four (4) witnesses, plus the ultimate function and duty

of Barnesville with respect to the education and care of the

children on its buses, was abundant, independent evidence

which supported Barnesville’s explanation for denying Mar-

tin the bus driving position. The district court did properly

apply the Reeves standard for burden shifting, and Martin’s

mere disagreement or failure to recognize the difference does

not warrant this Court’s intervention or clarification.

Ultimately, what Martin refuses to understand, is that he

failed to make the required prima facie showing. Martin

failed to produce any evidence that he was perceived as an

alcoholic. Assuming arguendo that he did make such proof,

Martin entirely failed to allege, argue and/or produce evi-

dence that he was perceived as being substantially limited in

a major life activity. Martin also failed to identify said major

15 _

life activity. According to this Court's decision in Reeves,

supra., Martin did not pass the first hurdle of bringing such

an action.

C. Neither Court below “raised the burden of proof”

aquired by a plaintiff.

Specifically, Martin claims that the District Court erred by

requiring “significant probative evidence” to avoid summary

judgment. The requirement of “significant probative evi-

dence” did not create a new standard of proof for plaintiffs,

but rather was a restatement that proffered evidence should

be relevant, i.e., having the tendency to make the existence

of any fact that is of consequence to the deter-nination of the

action more or less probable, than without the evidence.

F.R.E. 401. It stands to reason that evidencc being offered to

prove a pretext, must do so, not merely raise collateral is-

sues. Martin’s evidence did not “tend to prove or disprove”

any facts of consequence in this matter. The district court

was-not presented with evidence that created a conflict or

genuine issue as to the truth or falsity of Barnesville’s expla-

nation for its denial of the school bus position to Martin.

Martin’s proffered evidence did not prove (or lend inference

to) pretext or falsity on the part of Barnesvilie with regard to

their actions or motivations. The semantics between “proba-

tive evidence” and “significant probative evidence” in no

way assists Martin, because lack of evidence does not

change: no proof of perceived alcoholism, no proof of per-

ceived substantial limitation, and no proof that Barnesville’s

concems for children’s safety were false.

16

ARGUMENT NO. 3

Petitioner’s Argument That The Term ‘Regarded As’

Should Be Construed To Allow Alcoholism As A Per Se

Disability Is A Misreading And Misunderstanding Of

The Statute And Agency Regulations Not Ambiguity Or

Conflict Requiring This Court’s Attention.

Petitioner’s Argument No.2 illustrates a misunderstanding

of the prima facie elements of a claim under the Americans

With Disabilities Act, not ambiguity or a conflict. Peti-

tioner’s argument serves only to cloud the true issue and,

coincidentally, the fatal error in Petitioner’s case, namely

that he failed to allege and/or argue or produce any evi-

dence that Petitioner was “perceived as” having an impair-

ment (alcoholism) and that he was “perceived as” being

substantially limited in a major life activity from said alco-

holism.

A. Petitioner’s reading of the law and accompanying

regulations is erroneous, and exhibits a fundamen-

tal misunderstanding of proof required for claims

of a “perceived” disability.

Petitioner advances a convoluted argument with respect to

the required showing under a “regarded as” claim under the

ADA. Specifically Martin claims that he has:

[The] impossible task of proving a negative. That

is, if the Petitioner does not have a substantial

limitation at all, how is it possible to prove that it

actually limits a major life activity? In other words,

no evidence can exist showing an employee is sub-

stantially limited in a major life activity, if the em-

17

ployee never had an impairment in the first place.

(Pet. p.23.)

This is clearly a misunderstanding of what is required un-

der a perceived disability claim.

As set forth in Barnesville Argument 4A, infra., a plaintiff

who claims to be regarded as disabled, must prove that

he/she is perceived as being substantially limited in a major

life activity as a result of a perceived impairment. This com-

ports with the general premise of the ADA, that “The statute

is not operative, and the definition [of disability] not satis-

fied, unless the impairment affects a major life activity.”

Bragdon v. Abbott, 118 S.Ct., 2196, 2204 (1998).

There is no actual limitation requirement unless the plain-

tiff is seeking to establish the claim as an actual disability

(i.e., actual impairment with actual substantial limitations).

This is not a difficult concept. If a plaintiff claims to be re-

garded as disabled, they must prove that they are regarded as

having an impairment and regarded as being substantially

_limited in a major life activity - whether or not the perception

is correct. Very simply, Petitioner Martin’s misunderstand-

ing of the showing required (i.e, a perceived substantial

limitation of a major life activity) is not shared among the

circuits and is not sufficiently compelling or in need of clari-

fication for this Court to address.

B. Contrary to Petitioner’s assertion, there is no con-

flict between agency regulations in this area.

Petitioner Martin misrepresents to this Court, a conflict

between Justice Department regulations (drafted for imple-

mentation of the Rehabilitation Act) and EEOC regulations

18

(drafted for the ADA). Specifically, on page 20 of his Peti-

tion, Martin alleges that the Justice Department regulations

and definitions do not require the showing that an employee

is perceived as being substantially limited in a major life ac-

tivity. This is clearly erroneous.

A quick reading of the Justice Department regulations, 28

C.F.R. 41.31(b)(4)(iii) (1999) (attached hereto as Appendix

B) reveals that there most certainly is the required showing

of perceived substantial limitation as to a major life activity.

Martin’s characterization of different wording between this

regulation and that set forth in the EEOC’s 29 C.F.R. '1630

(1)(3) (attached hereto as Appendix C) and 29 C.F.R. ‘1630

App.B '1630.2(1), infra., is misleading at best. Martin’s at-

tempt to create a conflict worthy of this Court’s attention is

improper. The Petition may properly be denied on this basis.

ARGUMENT NO. 4

Contrary To Petitioner’s Assertion, There Is No Conflict

Among The Circuits As To Whether Or Not Alcoholism

Is A Per Se Disability.

Martin’s Petition claims that circuits other than the Sixth

Circuit have determined that alcoholism is a disability under

the ADA. (Pet.p22). This assertion is misleading, because

there is no distinction made between an “impairment” (i.e.,

the impairment of alcoholism) and a “disability” (defined as

an “impairment that substantially limits one or more major

life activities” or is perceived as being so limiting). Further,

the cases cited in support of this proposition address other

perspectives such as the Rehabilitation Act (Office of the

Senate Sergeant at Arms v. Office of Senate Fair Employ-

19

ment Practices, 95 F.3d 1102 (Fed.Cir. 1996)), and the drug

uses section of 42 U.S.C. 12114 (AX, v. Consolidated

Edison Co. of New York, 127 F.3d 270 (2™ Cir. 1997)). Ad-

ditionally, Martin’s cite to Miners v. Cargill Communica-

tions, Inc., 113 F.3d 820 (8" Cir. 1997), is not appropriate

and actually undercuts his own arguments.

A. The “impairment” of alcoholism is not a per se

“disability” under the ADA.

The law is very clearly established by this Court and the

circuits, that “The statute [ADA] is not operative, and the

definition [of a disability] not satisfied, unless the impair-

ment affects a major life activity.” See, Bragdon v. Abbott,

118 S.Ct. 2196, 2204 (1998). So too, is this true for per-

ceived impairments, i.e., that a perception of substantial

limitation in a major life activity be shown. This is properly

so, in light of the expressed statutory language requiring this

showing, the agency regulations and guidelines (with defini-

tions) and available Congressional intent.' The Circuit

' As this Court well knows, in order to prevail on a claim under

the Americans With Disabilities Act, Plaintiff must prove that:

1. The Plaintiff suffers from a “disability” as defined by

the Act;

2. The Plaintiff was otherwise qualified for the em-

ployment; and

3. The Plaintiff either was denied a reasonable accom-

modation for his disability or was subject to an adverse

employment decision that was made solely because of

his disability.

20

Courts have articulated that alcoholism and perceived alco-

holism are only “disabilities” within the meaning of the stat-

ute if there is proof of a substantial limitation as to a major

life activity, or a perception of such limitation, as evidenced

by the following cases cited. See, Bilodeau v. Mega Indus-

Roush v. Weastec, Inc., 96 F.3d 840, 843 (6" Cir. 1996).

In order to be considered “disabled” as defined under the ADA,

the Plaintiff must suffer from one of the following:

1. A physical or mental impairment that substantially

limits one or more of the major life activities of such

individual;

2. A record of such impairment; or

3. Being regarded as having such an impairment.

42 U.S.C. '12102(2). This determination comports with the appli-

cable EEOC regulations, which state in relevant part:

There are three ways in which an individual may satisfy the defi-

nition of “being regarded as having a disability”:

(1) _ The individual may have an impairment which is

not substantially limiting but is perceived by the

employer or other covered entity as constituting

a substantially limiting impairment;

(2) The individual may have an impairment which is

only substantially limiting because of the atti-

tudes of others toward the impairment; or

(3) The individual may have no impairment at all

but is regarded by the employer as having a sub-

stantially limiting impairment.

See, 29 C.F.R. '1630, App.B '1630.2(1). (Emphasis added).

21

tries, 50 F.Supp.2d 27, 38 (D. Me. 1999) (1* Cir.) (In the

context of perceived alcoholism, ATo prevail under [29

C.F.R. 1630.3(1)(C)] Plaintiff must show that Defendant

perceived her as disabled in the sense that she had an im-

pairment that substantially limited a major life activity.”);

Pace v. Paris Maintenance Company, et al., 107 F. Supp.2d

251 (S.D. N.Y. 2000) (2™ Cir.) (AAlcoholism is not a per se

disability under the ADA..... “Pace must demonstrate that he

was regarded as having an impairment [alcoholism] that sub-

stantially limited a major life activity.”) and (“Thus, the

comment must be construed as evidence that [employer]

thought Pace had a drinking problem. Still, this evidence is

not sufficient to demonstrate that [employer] perceived

Pace’s impairment to be substantially limiting.” Pace, supra,

at 261). See also, Francis v. City of Meriden, 129 F.3d 281,

284 (2 Cir. 1997) (“To be considered disabled under the

“regarded as” prong of the statutes, therefore, a plaintiff must

allege that the employer regarded the employee to be suffer-

ing from an impairment within the meaning of the statutes,

not just that the employer believed the employee to be some-

how disabled.”); Kelly v. Drexel Univ., 94 F.3d 102, 109 (3

Cir. 1996)(“[W]e hold that the mere fact that an employer is

aware of an employee's impairment is insufficient to demon-

strate either that the employer regarded the employee as dis-

abled or that that perception caused the adverse employment

action.”); Forrisi v. Bowen, 794 F.2d 931, 935 (4™ Cir. 1986)

(“The record demonstrates that the employer's perception

accorded with these facts. Far from being regarded as having

a “substantial limitation” in employability, Forrisi was seen

as unsuited for one position in one plant--and nothing

more.”); Burch v. Coca-Cola Co., 119 F.3d 305, 316-17 (Sth

Cir. 1997) (Holding that alcoholism is not a per se disability

22

under the ADA and evidence that alcoholics, in general, are

impaired is inadequate to show the substantial limitation of

one or more major life activities), cert. denied, 522 US.

1084, 139 L. Ed. 2d 768, 118 S. Ct. 871 (1998); Kocsis v.

Multi-Care Management, Inc., 97 F.3d 876, 885 (6 Cir.

1996) (“Under that provision [29 C.F.R. '1630, App.B

'1630.2(1)], a plaintiff must show that the perceived impair-

ment is a substantial limitation on a major life activity.”). See

also, Byrne v. Board of Education, 979 F.2d 560, 567 (7"

Cir. 1992); Wallin v. Minnesota Dep't of Corrections, 153

F.3d 681, 686 n.4 (8th Cir. 1998) (citing, Burch, supra. and

requiring that a plaintiff show impairment of a major life ac-

tivity), cert. denied, 526 U.S. 1004, 119 S. Ct. 1141, 143 L.

Ed. 2d 209 (1999); Nielsen v. Moroni Feed Co., 162 F.3d

604, 608 (10th Cir. 1998) (“{I]n passing the ADA, Congress

intended to protect individuals from employment discrimi-

nation by employers on the basis of an actual or perceived

disability, provided that the disability substantially limits or

is perceived to limit substantially a major life activity.”);

Wilson v. Int’l Bhd. of Teamsters, Chauffeurs and Ware-

housemen, et al., 47 F.Supp.2d 8 (D.C. D.C. 1999) (“Alco-

holism is not, however, a per se disability... “Wilson’s

burden is thus to demonstrate that [the employer] regarded

him as being substantially limited in a major life activity.’ ”

citing, 29 C.F.R. 1630.2(j)(3); Witter v. Delta Air Lines, Inc.,

138 F.3d 1366, 1369 (11° Cir. 1998). See also, Deas v. River

West, L.P., 152 F.3d 471, 482 (5™ Cir. 1998 ) (finding no

evidence from which a reasonable jury could infer that the

employer regarded Deas as substantially limited in her abil-

ity to work).

23

B. Petitioner Martin’s reliance upon the Eighth Cir-

cuit decision in Miners v. Cargill Communications,

Inc., is misplaced and in fact contradicts his own

arguments. j

Petitioner Martin cites to Miners v. Cargill Communica-

tions, Inc., 113 F.3d 820 (8" Cir. 1997), for two proposi-

tions:

1. Alcoholism is considered a “disability” un-

der the ADA (Pet.p.22); and

2. An employer’s use of employee misconduct

as a “misconduct exception” creates an un-

rebuttable non-discriminatory explanation,

which is too difficult for a plaintiff to over-

come. (Pet.p.25).

It is interesting that Martin should cite to Miners as sup-

port when in fact Miners v. Cargill Communications, Inc. is

factually dissimilar to Martin’s case, ultimately illustrates the

fatal weaknesses in Martin’s proof, and actually disproves

Martin’s own arguments with respect to an employer’s use of

the “misconduct exception.”

1. Petitioner’s cite to Miners v. Cargill Communica-

tions, Inc., is not appropriate.

Petitioner’s cite to Miners, supra., is inappropriate be-

cause the Eighth Circuit Court did not address the main issue

raised herein, i.e., whether or not an employee must prove

their employer perceived them to be substantially limited in

? As stated above, Petitioner Martin wholly failed to address the

misconduct arguments set forth by Respondent Barnesville - IN

EITHER COURT BELOW. This Court should properly deny

Martin’s Petition for a Writ of Certiorari on this ground.

24

any major life activities, rather than simply being perceived

as being an alcoholic. As the U.S. District Court for the S.D.

Ohio correctly concluded below (and as schoed by the string

cite of cases shown above), it is not enough to show per-

ceived alcoholism. A plaintiff must also show that they are

perceived as being substantially limited. Miners does not ad-

dress this, and as such is not an appropriate citation for this

inquiry.

Additionally, Miners is factually dissimilar to the present

case. In Miners, the plaintiff was a management employee of

the defendant company. On one occasion the plaintiff in-

formed her supervisor that she was late to work because she

had been out late drinking the evening prior. The supervisor

claimed to have been concerned over plaintiff's drinking and

possible driving of a company vehicle, while intoxicated.

The supervisor hired an investigator to follow the plaintiff

after work. The investigator followed the plaintiff while

driving her company vehicle to a local bar. Later that even-

ing, the investigator observed the plaintiff exiting the bar.

The investigator stopped her, identified himself as working

for her employer, and took her keys. The investigator then

drove off with the vehicle. The plaintiff was subsequently

terminated for violating the company’s policy of driving

company vehicles, while intoxicated.

The plaintiff's employer explained that plaintiff was fired

for her misconduct, ( i.e., driving a company vehicle while

intoxicated). The Miners court concluded that plaintiff's

presentation of evidence sufficiently rebutted the employer

explanation for her termination by showing that: (1) the

company knew of other managers who drove company vehi-

25

cles while intoxicated - and did not fire those employees; (2)

the company did not actually inquire or investigate into

whether or not plaintiff had actually been drinking alcohol at

the bar; and (3) the company did not in fact have a written

policy speaking to this issue.

Obviousl:’, the plaintiff in Miners set forth more probative

evidence, than did Martin in the instant case. Further, Min-

ers’ proof spoke specifically to a possible pretext by her em-

ployer, including different treatment for other employers.

Martin offered no such probative evidence tending to dis-

prove the basis for Barnesville’s decision or its motivations.

As can be gleaned from the above analysis, Martin’s cite

to Miners only serves to illustrate the weakness (or absence)

of his proof in the face of other abundant independent evi-

dence that supports Barnesville’s decisions and its motiva-

tions. Reeves, supra., 120 S.Ct. at 2108.

2. Petitioner Martin’s arguments with respect to the

“misconduct exception” do not present a circuit

conflict or need for clarification by this Court.

The decisions of the lower courts were entirely

proper and do not warrant review or clarification

by this Court.

With respect to Martin’s argument that an employer might

utilize the “misconduct exception” as it is being referred to,

to implement discrimination against persons wrongly per-

ceived as being alcoholics and that any such showing of mis-

conduct by the employee would presumably insulate them

26

from liability, Miners clearly holds to the contrary.’ The

Miners case clearly illustrates how such explanation is prop-

erly rebutted by a plaintiff, so as to overcome summary

judgment.

A misconduct explanation, like all other explanations put

forth by an employer, is subject to rebuttal by the plaintiff. If

in fact an employer produces a misconduct explanation, both

the misconduct and the explanation can be proven or dis-

_ proved. This was precisely the case in Miners. The Miners

plaintiff produced evidence that she had not broken a written

company policy {vecause it did not exist); was treated differ-

ently from other managers; and HAD NOT EVEN BEEN

PROPERLY INVESTIGATED TO DETERMINE IF SHE

HAD ACTUALLY ENGAGED IN THE CLAIMED MIS-

CONDUCT.

Query as to whether or not misconduct is a more difficult

explanation to overcome when the plaintiff did, in fact en-

gage in the misconduct for which he was accused and possi-

* It is also worth noting that Martin makes this self serving

argument, i.e., that an employer’s use of an employee’s own

misconduct would be an unrebuttable, non-discriminatory

explanation and that it would be too difficult to disprove or

overcome in the burden shifting analysis - is ironic at best,

considering that it is an employee’s own misconduct that is

at issue. It is ironic that Martin seeks protection from em-

ployers’ actions, ... the same employers who must ultimately

be responsible for employee misconduct occurring in the

course and scope of their duties.

27

bly fired? Perhaps so, but what is an employee doing, if not

jeopardizing his job, when he knowingly undertakes miscon-

duct? What consequences does he expect, when violating

company policies? What does an employee expect when he

brings alcohol to his job at an elementary school, opens and

drinks it, and then runs, hides and lies about it when discov-

ered? These are the legitimate and non-discriminatory rea-

sons for disciplining an employee in the first place. Should

that change merely because an employee’s misconduct may

involve his or her own use of alcohol? The answer is quite

clearly no. The reason for this is simple, an employee must

properly prove his or her prima facie case to be protected by

the ADA. Most relevant to this inquiry, is the element of

perceived substantial limitation as to a major life activity.

Withor this showing, an employee’s own misconduct is just

that - and being disciplined for the same is not discrimina-

tion.

Nevertheless, when rebutting a misconduct explanation, it

is simply incumbent upon the employee to prove that either

he did not engage in the alleged misconduct, he was disci-

plined differently than others or for some reason other than

merely the misconduct, that the employer’s explanation is

false in fact or in motive, and/or that the misconduct does not

relate to the employer’s ultimate actions with respect to the

employee. This is not a new or different standard. As actu-

ally proven in Miners, a misconduct explanation is not “un-

rebuttable” and there is no conflict or need for further

clarification than that set forth in Reeves v. Sanderson.,

supra.

28

Furthermore, the above analysis may or may not involve

an “impairment” or “disability” and may or may not involve

the impairment of alcoholism. Misconduct of many kinds

(which may or may not stem from an impairment or disabil-

ity) would find an employee in trouble and subject to em-

ployer action. If it was not significant misconduct or was not

proven misconduct, then a plaintiff can more easily rebut the

allegations as a pretext. If misconduct is proven, shown to be

serious, in violation of policies, and with implications of

safety and security, then a plaintiff will need to prove with

relevant probative evidence why the proffer of a misconduct

explanation (and or the employer’s motivation or intent) is

false or a pretext for something else. This is not more diffi-

cult because of a heightened standard of proof, but because

such actions usually warrant employer intervention for pur-

poses of preventing their own liability, if nothing else.

In the instant case, the Sixth Circuit correctly concluded

that:

The ADA does not protect a plaintiff from his own

bad judgment. The plaintiff cannot force defendant

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

serious risk that he may again drink on the job,

have an accident and kill a group of school chil-

dren. Any suggestion to the contrary is absurd. ...

Therefore, even if we assume that plaintiff has es-

tablished a prima facie case of discrimination, de-

fendant has articulated a legitimate, non-

discriminatory reason for its actions. Plaintiff has

not demonstrated that this stated reason is a pretext

for any unlawful discrimination.

29

(See Court of Appeals Opinion, contained in Petitioner’s Ap-

pendix at page 8a). The Court below properly considered that

Martin must produce, and in fact failed to produce, evidence

of pretext upon which reasonable minds could find in his

favor.

30

CONCLUSION

For reasons that: Petitioner fails to raise issues of signifi-

cant conflict or confusion among the circuits; failed to raise

several issues in either court below; failed to understand and

apply this Court’s decision in Reeves, supra; failed to make

even a prima facie or baseline showing of perceived disabil-

ity, and beca..se there is no conflict with respect to a court’s

inquiry when faced with a claim for perceived alcoholism,

this Court should not grant Petitioner’s request for a Writ of

Certiorari as to the issues raised.

Respectfully submitted,

John C. Albert (0024164)

Counsel of Record

CRABBE, BROWN, JONES, POTTS

& SCHMIDT

Attorneys for Respondent

500 S. Front Street/Suite 1200

Columbus, Ohio 43215

Phone: (614) 229-4528

la

APPENDIX A — DEPOSITION OF BARNESVILLE

EXEMPTED VILLAGE SCHOOL DISTRICT BOE,

BOARD PRESIDENT ROBERT MILLER

(EXCERPTS)

Deposition of Robert Miller (excerpts)

By Mr. Lillard:

Q. Now, it has on the first page paragraph titled

No. 1, it says, “Employee Dennis Martin ad-

mits that he has a problem with consumption

of alcohol; he has a ‘drinking problem.” Do

you know who drafted that terminology?

A. Well basically the reason that sentence

was in there was Denny Martin had

denied that he ever drank that beer. It

was my word against Denny’s. The

board knew that. Chester [Kenny] had

not been a witness to it. There had

only been two people there. My integ-

rity was on the line. Mr. Atkinson, I

believe, still was on the board at the

time, as well as part of the settlement

wanted to know the truth. As part of

the settlement, he requested through

their attorneys that Mr. Martin admit

that he was drinking that night. And ~

he did so. That’s why the sentence

was there. It’s an admission that “Yes,

2a

Appendix A

Rob [Miller] was not lying that night.

He did catch me drinking.”

(R.13 Miller deposition, p.36).

By Mr. Lillard

Q. Okay. So what was the intent of that

statement?

A That was the gist of the statement, that

he was drinking that night and has

made a mistake in drinking.

(R.13 Miller deposition, p.37).

There is additional evidence that Barnesville (through

its board members and employees) did not consider the LCA

a finding of “alcoholism.” Again, Robert Miller explained:

Q. All right. Now, it [the settlement

agreement] indicates in order for him

[Martin] to keep his job, he is required

to go through a 28-day alcohol reha-

bilitation program, does it not?

A. Yes.

Q. And that’s a pretty significant program

is it not? :

Mr. Albert: Objection. Go ahead.

3a

Appendix A

Well, our reasoning was this: That

we don’t have the expertise to de-

termine whether Mr. Martin has a

problem, does not have a problem;

whether it was just a one time shot

and he screwed up. The board's po-

sition was that he made a mistake.

If the detox program, who has

trained people, was able to help him

if he did have a problem it would

correct that situation. I[f] he didn’t

have a problem, then he'd come out

a better person. But it was our- We

insisted that he had to attend this

detox program for their determina-

tion. Not only to help himself, but

because we are not -do not have the

expertise to determine whether he

does have a drinking problem or

does not have a drinking problem.

So you didn’t know whether it was a

one time incident, the first time he’s

ever done it or-

It's the only time I ever observed him

drinking.

- or whether he was a chronic alco-

holic?

4a

Appendix A

A. I had no knowledge.

(R. 13 Miller deposition, p.38). (Emphasis added).

Sa

APPENDIX B - 28 C.F.R. 41.31(b)(4)(iii)

TITLE 28 - JUDICIAL ADMINISTRATION

CHAPTER I - DEPARTMENT OF JUSTICE

PART 41- IMPLEMENTATION OF EXECUTIVE ORDER

12250, NONDISCRIMINATION OF THE BASIS OF

HANDICAP IN FEDERALLY ASSISTED PROGRAMS -

Table of Contents

Subpart B - Standards for Determining Who are

Handicapped Persons

Sec. 41.31 Handicapped person.

(a) Handicapped person means any person

who has a physical or mental impairment that sub-

stantially limits one or more major life activities,

has a record of such an impairment, or is regarded

as having such an impairment.

(b) As used in paragraph (a) of this section,

the phrase:

(1) Physical or mental impairment means:

(i) Any physiological disorder or condition,

cosmetic disfigurement, or anatomical loss affect-

ing one or more of the following body systems:

Neurological; musculoskeletal; special sense or-

gans; respiratory, including speech organs; cardio

6a

Appendix B

vascular; reproductive; digestive; genitourinary;

hemic and lymphatic; skin; and endocrine; or

(ii) Any mental or psychological disorder,

such as mental retardation, organic brain syn-

drome, emotional or mental illness, and specific

learning disabilities.

The term “physical or mental impairment” in-

cludes, but is not limited to, such diseases and con-

ditions as orthopedic, visual, speech, and hearing

impairments, cerebral palsy, epilepsy, muscular

dystrophy, multiple sclerosis, cancer, heart disease,

diabetes, mental retardation, emotional illness, and

drug addiction and alcoholism.

(2) Major life activities means functions

such as caring for one’s self, performing manual

tasks, walking, seeing, hearing, speaking, breath-

ing, learning, and working.

(3) Has a record of such an impairment

means has a history of, or has been misclassified as

having, a mental or physical impairment that sub-

stantially limits one or more major life activities.

(4) Is regarded as having an impairment

means:

Ta

Appendix B

(i) Has a physical or mental impairment that

does not substantially limit major life activities but

is treated by a recipient as constituting such a

limitation;

(ii) Has a physical or mental impairment that

substantially limits major life activities only as a

result of the attitudes of others toward such im-

pairment; or

(iii) Has none of the impairments defined in

paragraph (b) (1) of this section but is treated by a

recipient as having such an impairment.

8a

APPENDIX C — 29 C.F.R. § 1630(1)(3)

TITLE 29 - LABOR COMMISSION

PART 1630 - REGULATIONS TO IMPLEMENT THE

EQUAL EMPLOYMENT PROVISIONS OF THE AMERI-

CANS WITH DISABILITIES ACT - Table of Contents

Sec. 1630.2 Definitions. (In relevant part)

(I)Is regarded as having such an impairment

means;

(1) Has a physical or mental impairment that

does not substantially limit major life activities but

is treated by a covered entity as constituting such

limitation;

(2) Has a_ physical or mental impairment

that substantially limits major life activities only as

a result of the attitudes of others toward such im-

pairment; or

(3) Has none of the impairments defined in

paragraph (h) (1) or (2) of this section but is treated

by a covered entity as having a substantially limit-

ing impairment.