NOT PRECDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 12-3800
                                      ____________

                                 THOMAS OSTROWSKI,

                                                    Appellant

                                            v.

                               CON-WAY FREIGHT, INC.



                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D. C. No. 3-11-cv-02050)
                       District Judge: Honorable Edwin M. Kosik


                        Submitted under Third Circuit LAR 34.1(a)
                                    on July 18, 2013

                 Before: RENDELL, SMITH and ROTH, Circuit Judges

                             (Opinion filed: October 30, 2013)


                                      OPINION


ROTH, Circuit Judge:

       Thomas Ostrowski appeals the District Court’s order granting summary judgment

in favor of Con-way Freight, Inc., on all claims. For the following reasons, we will

affirm the District Court’s order.
I.     Background

       Until November 2009, Ostrowski was employed as a Driver Sales Representative

(DSR) with Con-way. Con-way is subject to federal motor carrier safety regulations

issued by the United States Department of Transportation (DOT), which require it to

maintain strict drug and alcohol screening programs for its employees—like Ostrowski—

who are DSRs. See, e.g., 49 C.F.R. § 40.25. Pursuant to these polices, Con-way trained

Ostrowski on the company’s prohibitions regarding alcohol and drugs and its Employee

Assistance Program. In May 2009, Ostrowski requested a leave of absence pursuant to

the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (FMLA), to enter a

rehabilitation program for the treatment of alcoholism. Con-way granted Ostrowski’s

request and did not impose any discipline in connection with this leave. When Ostrowski

returned to work he did so without change to his wages, hours, or working conditions.

Con-way, however, required Ostrowski to sign a “Return to Work Agreement” (RWA) in

which he agreed to remain “free of drugs and alcohol (on company time as well as off

company time) for the duration of [his] employment.”

       On October 15, 2009, within a month of signing the RWA, Ostrowski again

admitted himself into a center for the treatment of alcohol abuse after he suffered a

relapse and resumed consuming alcohol. On November 3, 2009, Con-way terminated

Ostrowski’s employment. The sole reason articulated by Con-way for terminating

Ostrowski was that he had consumed alcohol in violation of the RWA.

       Ostrowski filed a complaint on November 3, 2011, alleging that Con-way’s

termination violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

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(ADA), the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (PHRA), and the

FMLA. Specifically, Ostrowski alleged claims of discrimination, retaliation, and failure

to accommodate a disability pursuant to the ADA and the PHRA, and claims of

retaliation, interference, and illegal denial of FMLA-protected leave.

         The District Court granted summary judgment in favor of Con-way on all claims.

Ostrowski appealed.

II.      Discussion1

         We exercise plenary review over a district court’s grant of summary judgment,

and view the facts in the light most favorable to the non-moving party. Nat’l

Amusements Inc. v. Borough of Palmyra, 

, 62 (3d Cir. 2013). A court “shall

grant summary judgment 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).

         A.    ADA and PHRA Claims

         We analyze ADA and PHRA disability claims under the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 

(1973). Shaner v.

Synthes, 

, 500 (3d Cir. 2000). This framework requires that a plaintiff first

establish a prima facie case of disability discrimination. See 

. To

do so, the plaintiff must demonstrate that he has a “disability” within the meaning of the

ADA, that he is a “qualified individual,” and that he “has suffered an adverse


1
  The District Court had jurisdiction under 28 U.S.C. §§ 1331 & 1367, and this Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
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employment action because of that disability.” Turner v. Hershey Chocolate U.S., 

, 611 (3d Cir. 2006). If the plaintiff succeeds in establishing a prima facie case,

the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory

reason” for the adverse employment action. 

. If the defendant

meets this requirement, the burden then shifts back to the plaintiff to show that the

legitimate non-discriminatory reason is a pretext for discrimination. 

plaintiff can point “to some evidence, direct or circumstantial, from which a factfinder”

could find that the articulated legitimate reasons were pretextual, the defendant is entitled

to summary judgment. See Jones v. School Dist of Phila., 

, 413 (3d Cir.

1999).

         Although the District Court held that Ostrowski failed to meet his burden to rebut

Con-way’s articulated, nondiscriminatory reason, Con-way invites us to affirm on the

alternative ground that Ostrowski did not produce sufficient evidence to establish that he

suffered from a “disability” as that term is defined by the ADA. See 42 U.S.C. §

12102(1).

         Con-way’s argument relies almost exclusively on cases that apply a definition of

“disability” that was amended by the ADA Amendments Act of 2008. See Pub. L. No.

110-325, § 4, 122 Stat. 3553, 3555–56 (2008) (codified at 42 U.S.C. § 12102). With

these amendments, Congress directed courts to interpret the term “disability” broadly “to

the maximum extent permitted by the terms of this chapter.” 42 U.S.C. § 12102(4)(A).

Drawing all reasonable inferences in Ostrowski’s favor as we are required to do for

purposes of summary judgment, Guidotti v. Legal Helpers Debt Resolution LLC, 716

                                              

, 772 (3d Cir. 2013), we agree with the District Court that Ostrowski’s

deposition testimony and record of treatment for alcoholism is sufficient to create a

factual dispute precluding summary judgment. We therefore decline to affirm on this

basis.

         We instead affirm for much the same reason articulated by the District Court: that

Ostrowski failed to submit any evidence to show that Con-way used his violation of the

RWA as a pretext for disability discrimination. Ostrowski argues that the District Court

erred in determining that the RWA could serve as a legitimate, non-discriminatory reason

for Con-way to terminate Ostrowski’s employment because the RWA was itself violative

of the ADA’s prohibition of “qualification standards, employment tests or other selection

criteria that screen out or tend to screen out an individual with a disability.” See 42

U.S.C. § 12112(b)(6). This argument fails for several reasons.

         As numerous courts have recognized, employers do not violate the ADA merely

by entering into return-to-work agreements that impose employment conditions different

from those of other employees. See, e.g., Longen v. Waterous Co., 

, 689

(8th Cir. 2003) (citing cases). Indeed, several of our sister circuits have explicitly

endorsed agreements that bar an employee from consuming alcohol—whether at the

workplace or otherwise—in circumstances highly similar to this case. See id.; Mararri v.

WCI Steel, Inc., 

(6th Cir. 1997). We find the reasoning of these cases

convincing. Although Ostrowski was subject to different standards than other Con-way

employees who did not sign an RWA, this difference results from the terms of his



                                              5
agreement rather than disability discrimination. 

; see also

.

       In addition, Ostrowski does not explain how the RWA, to which he voluntarily

agreed, tends to discriminate against him because of his alleged disability (alcoholism) as

opposed to regulating his conduct (drinking alcohol). To the contrary, the RWA does not

restrict the ability of individuals who suffer from alcoholism to work at Con-way.

Rather, it simply prohibits employees subject to its terms from consuming alcohol.

       Because the RWA was not invalid under the ADA, Ostrowski’s violation of its

terms was a legitimate, non-discriminatory reason for Con-way to terminate Ostrowski’s

employment. As the District Court noted, Ostrowski has submitted no evidence that the

breach of the RWA was a mere pretext for disability discrimination. As a result, the

District Court was correct in granting summary judgment on these claims.

       B.     FMLA Claims

       Ostrowski’s claims under the FMLA fail for much the same reason. Ostrowski

alleges that he was terminated in retaliation for his request for medical leave. Even he

acknowledges, however, that Con-way terminated his employment because of his breach

of the RWA. Ostrowski submits no evidence suggesting that Con-way would not have

discharged him had he not requested FMLA-protected leave. See Conoshenti v. Public

Serv. Elec. & Gas Co., 

, 148 (3d Cir. 2004). The District Court was

therefore correct to enter summary judgment for Con-way on Ostrowski’s claims that he

was illegally denied FMLA leave and that he was terminated in retaliation for his request

for leave.

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       Ostrowski also contends that the very imposition of the no-alcohol requirement in

the RWA was a violation of the FMLA because it has the effect of chilling and

discouraging Ostrowski from exercising his rights under the FMLA. See 29 U.S.C.

§ 601(a). Ostrowski argues that by requiring him to agree to the RWA before returning

from his initial leave, Con-way imposed an impermissible condition on his ability to take

FMLA-protected leave. We do not agree. The record reflects that Con-way requested

the RWA pursuant to its obligations under DOT regulations to maintain strict alcohol

policies for covered employees.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s order.




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