SEYMOUR, Circuit Judge.
Peter Karl Mauerhan, joined by the trustee of his bankruptcy estate, Roger G. Segal, brought suit against his former employer, Wagner Corporation ("Wagner"), for allegedly violating the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq., by discriminating against him because of his drug addiction. The district court granted Wagner's motion for
Mr. Mauerhan worked as a sales representative for Wagner from 1994 until June 2005. In 2004, Mr. Mauerhan voluntarily entered into an outpatient drug rehabilitation program. The program met in the evenings and did not interfere with Mr. Mauerhan's work schedule, but Wagner was aware of his participation in the program.
On June 20, 2005, Wagner asked Mr. Mauerhan to take a drug test. Mr. Mauerhan admitted that he would test positive for drugs, but also submitted to the test. He was fired that day for violating Wagner's drug policy, but was told by one of his superiors that he could return to Wagner if he could get clean. On July 6, 2005, Mr. Mauerhan entered an inpatient drug rehabilitation program. Upon entering the program, he tested positive for cocaine and THC (marijuana). He completed the program on August 4, 2005. A report issued by his rehabilitation counselor described Mr. Mauerhan's recovery prognosis at discharge as "guarded."
The day after he completed the program, Mr. Mauerhan contacted Wagner and asked to return to work. Mr. Mauerhan was told that he could return to work, but that he would not receive the same level of compensation as he had previously received or be able to service the same accounts he had prior to his discharge.
In a sworn declaration, Mr. Mauerhan represented that he has remained drug-free since entering the inpatient rehabilitation program in July 2005.
In December 2004, Mr. Mauerhan and his wife filed for Chapter 13 bankruptcy. This bankruptcy case was dismissed on July 5, 2005. In August 2005, they re-filed for bankruptcy under Chapter 7. Mr. Roger Segal was appointed trustee of the Mauerhans' bankruptcy estate. Mr. Mauerhan did not list a potential discrimination suit against Wagner as an asset of the bankruptcy estate in the initial disclosure schedules.
On December 2, 2005, the bankruptcy court granted the Mauerhans a discharge of their debts and closed the bankruptcy case.
According to Mr. Mauerhan, he was unaware that he had a potential discrimination claim against Wagner until September 2005, when he accompanied a friend to speak with an attorney about a potential claim the friend had against Wagner. During that meeting, the attorney suggested Mr. Mauerhan had a viable discrimination claim against Wagner. In October 2005, after filing for Chapter 7 bankruptcy but before that case was closed, Mr. Mauerhan filed a timely Charge of Discrimination against Wagner with the Equal Employment Opportunity Commission ("EEOC").
In 2006, Mr. Mauerhan, joined by Mr. Segal, brought suit against Wagner, alleging his former-employer violated the ADA by discriminating against him on the basis of his status as a drug addict. In response, Wagner filed two motions for summary judgment. In the first motion, Wagner argued that Mr. Mauerhan was a current drug user within the meaning of the ADA when he asked to be rehired, and, as such, was not a qualified individual with a disability as required for ADA protection. Wagner also contended that even if Mr. Mauerhan had a protected disability under the ADA, its offer to reinstate him satisfied any legal obligation it may have had to him.
In its second summary judgment motion, Wagner alleged Mr. Mauerhan and Mr. Segal failed to properly exhaust their administrative remedies. According to Wagner, Mr. Mauerhan's Charge of Discrimination was void because his discrimination claim was property of the bankruptcy estate and subject to a bankruptcy stay.
The district court granted summary judgment to Wagner under the ADA, concluding that Mr. Mauerhan was unprotected by the statute because he was a "current" drug user at the time he sought reemployment. The court denied Wagner's second motion for summary judgment on the bankruptcy issues. It found that Mr. Segal's participation in the lawsuit rectified any problems that may have existed with the charge of discrimination, and that judicial estoppel was inappropriate under the facts of this case. This appeal followed.
Summary judgment is available "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court." Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir.2005). In doing so, we view the evidence in the light most favorable to the nonmoving party. Id. We may "affirm the district court's grant of summary judgment on any ground adequately supported by the record." Johnson v. Weld Cnty., 594 F.3d 1202, 1215 (10th Cir.2010).
The ADA prevents employers from discriminating "against a qualified individual
Although the "status of being an alcoholic or illegal drug user may merit [ADA] protection," Nielsen v. Moroni Feed Co., 162 F.3d 604, 609 (10th Cir. 1998), an employee or job applicant is not "a qualified individual with a disability" if he or she "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). But the ADA also creates a "safe harbor" for those who are not currently engaging in the illegal use of drugs. The ADA specifically exempts from the exclusion of § 12114(a) an individual who:
42 U.S.C. § 12114(b); see also Nielsen, 162 F.3d at 610 (quoting 42 U.S.C. § 12114(b)).
This court has not yet defined the scope of the "currently engaging" exception to the ADA, nor the safe harbor for those who are no longer engaging in the illegal use of drugs. See 42 U.S.C. § 12114(a)-(b). The district court held that Mr. Mauerhan failed to qualify for ADA protection at the time he asked to be rehired because he had abstained from using illegal drugs for only one month when he sought reemployment with Wagner. The court determined one month of abstaining from drugs was too short as a matter of law to gain the protections of the ADA.
On appeal, Mr. Mauerhan argues the plain language of the ADA prohibits such a rule. He contends he qualified for ADA protection because, at the time he sought reemployment,
None of our sister circuits have articulated a bright-line rule for when an individual is no longer "currently" using drugs, as defined by the ADA. See Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1186 (9th Cir.2001) ("[T]he `safe harbor' provision applies only to employees who have refrained from using drugs for a significant period of time."); Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 856 (5th Cir.1999) ("Under the ADA, `currently' means that the drug use was sufficiently recent to justify the employer's recent belief that the drug abuse remained an ongoing problem."); Shafer v. Preston Mem'l Hosp. Corp., 107 F.3d 274, 278 (4th Cir.1997), abrogated on other grounds by Baird ex rel. Baird v. Rose, 192 F.3d 462 (4th Cir.1999) ("`[C]urrently' means a periodic or ongoing activity in which a person engages ... that has not yet permanently ended."); Teahan v. Metro-North Commuter R.R., 951 F.2d 511, 520 (2d Cir. 1991) (Plaintiff's "status as a current substance abuser [under the Rehabilitation Act] ... is a question of fact....").
The legislative history of the ADA indicates that a rule establishing a firm cutoff for protection would be inappropriate. In its discussion of § 12114(a), the Conference Report explains:
H.R.Rep. No. 101-596, at 69, 1990 U.S.C.C.A.N. 565, 578 (1990) (Conf.Rep.) (emphasis added); see also 29 C.F.R. pt. 1630, app. § 1630.3 (EEOC Interpretive Guidance) ("`[C]urrently engaging' ... is intended to apply to the illegal use of drugs that has occurred recently enough to indicate that the individual is actively engaged in such conduct.").
Mr. Mauerhan contends he qualifies for the "safe harbor" of the ADA because he had completed the inpatient rehabilitation program and was no longer using drugs at the time he reapplied for his job. "Mere participation in a rehabilitation program is not enough to trigger the protections of 42 U.S.C. § 12114(b)(2)...." Brown, 246 F.3d at 1188. The safe harbor provision
H.R.Rep. No. 101-596, at 64, 1990 U.S.C.C.A.N. at 573 (1990) (Conf.Rep.) (emphasis added). Thus, although participating in or completing a drug treatment program will bring an individual closer to qualifying for the safe harbor, an individual must also be "no longer engaging in" drug use for a sufficient period of time that the drug use is no longer an ongoing problem.
The Second Circuit applies a similar test. In a Rehabilitation Act case, the court explained that whether an employee was a "current substance abuser" at the time of discharge depends on whether the employer
Teahan, 951 F.2d at 520.
The Fourth Circuit uses different language to determine when people who have had a drug abuse problem may qualify for ADA protections. See Shafer, 107 F.3d at 278 (4th Cir.1997). In Shafer, the court explained that under the ADA and Rehabilitation Act,
Id. The court determined "Congress intended to exclude from statutory protection an employee who illegally uses during the weeks and months prior to her discharge, even if the employee is participating in a drug rehabilitation program and is drug-free on the day she is fired." Id. at 279. In that case, the employee was fired for diverting pharmaceutical narcotics from her hospital employer for her personal use. Id. at 275, 281 n. 6. At the time of her discharge, she had been in rehabilitation for fewer than three weeks. Id. at 275. After she was terminated, she found employment elsewhere and relapsed into drug use within two weeks of returning to work. Id. Given the facts of the case, it is not clear that the test we adopt today differs meaningfully from that used in the Fourth Circuit. After all, when an individual has not permanently ended his or her
The Ninth Circuit also employs different language to define "currently." See Brown, 246 F.3d at 1188. It has interpreted the safe harbor provision as applying "only to employees who have refrained from using drugs for a significant period of time." Id. at 1186. Again, it is not apparent that this test differs in substance from the one we adopt today. In Brown, the court determined the employee was terminated due to drug-related misconduct, not because of her status as an addict. Id. at 1187 ("[T]he evidence shows that Lucky Stores terminated her pursuant to its general policy under which three consecutive unexcused absences from work warrant termination."). The Ninth Circuit also explained that the mere six days she was sober between her arrest and termination was not a "sufficient length of time" to qualify for the protections of the ADA's safe harbor. Id. at 1188. She failed to qualify for the safe harbor provision of § 12114(b) because her "continuing use of drugs and alcohol was clearly an ongoing problem at least until [she missed work because of her drug arrest]." Id.
Wagner attempts to persuade us that an individual could never qualify for ADA protections after only thirty drug-free days. We disagree. No formula can determine if an individual qualifies for the safe harbor for former drug users or is "currently" using drugs, although certainly the longer an individual refrains from drug use, the more likely he or she will qualify for ADA protection. Instead, an individual's eligibility for the safe harbor must be determined on a case-by-case basis, examining whether the circumstances of the plaintiff's drug use and recovery justify a reasonable belief that drug use is no longer a problem. See Teahan, 951 F.2d at 520; EEOC, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act § 8.3 (1992).
"Rather than focusing solely on the timing of the employee's drug use, courts should consider whether an employer could reasonably conclude that the employee's substance abuse prohibited the employee from performing the essential job duties." Zenor, 176 F.3d at 857 (citing Teahan, 951 F.2d at 520). Among the factors that should be considered will be the severity of the employee's addiction and the relapse rates for whatever drugs were used. See id. Additionally, a court may examine "the level of responsibility entrusted to the employee; the employer's applicable job and performance requirements; the level of competence ordinarily required to adequately perform the task in question; and the employee's past performance record." Teahan, 951 F.2d at 520.
Nothing in our decision prevents an employer from terminating an individual for drug-related misconduct. "[U]nsatisfactory conduct caused by alcoholism and illegal drug use does not receive protection under the ADA or Rehabilitation Act." Nielsen, 162 F.3d at 609. An employer
42 U.S.C. § 12114(c)(4) (emphasis added); see also Nielsen, 162 F.3d at 609; Salley v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir.1998) (holding that "drug-related misconduct is a legitimate, non-discriminatory reason for termination").
If a party "fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion," and may "grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show the movant is entitled to it." Fed.R.Civ.P. 56(e). Mr. Mauerhan failed to rebut evidence that more time was required for him to reach a stable state in his recovery. Although thirty days without using drugs may in some cases be sufficient for an employee to gain the protection of the ADA, the record before us shows that in this case it was not. On this record, it is undisputed that Mr. Mauerman's recovery status was "guarded" and at least ninety days of recovery was necessary to ensure significant improvement in his condition. As a result, Mr. Mauerhan failed to raise a genuine dispute regarding whether he was currently engaging in the illegal use of drugs within the meaning of the ADA at the time he asked to be rehired.
Because Mr. Mauerhan failed to raise a genuine dispute of fact on an element of his prima facie case, summary judgment was appropriate. Accordingly, we
