Collings v. Longview Fibre Co.

• Citation: 63 F.3d 828
• Decision Date: 14 August 1995
• Docket Number: 94-35418,94-35417,94-35424,Nos. 94-35410,s. 94-35410
• Parties: 4 A.D. Cases 1278, 11 A.D.D. 21, 7 NDLR P 7, 95 Cal. Daily Op. Serv. 6385, 95 Daily Journal D.A.R. 10,915 Martin D. COLLINGS, Plaintiff-Appellant, v. LONGVIEW FIBRE COMPANY, Defendant-Appellee. Richard James BEAMER; James C. Banes; James Miller; Michael Shay; Guy Yeager; Billy R. Staggs; Barry J. Reeves, Plaintiffs-Appellants, v. LONGVIEW FIBRE COMPANY, Defendant-Appellee. to 94-35426, 94-35431 and 94-35434.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 828

63 F.3d 828

4 A.D. Cases 1278, 11 A.D.D. 21, 7 NDLR P 7,

95 Cal. Daily Op. Serv. 6385,

95 Daily Journal D.A.R. 10,915

Martin D. COLLINGS, Plaintiff-Appellant, v. LONGVIEW FIBRE COMPANY, Defendant-Appellee.

Richard James BEAMER; James C. Banes; James Miller;

Michael Shay; Guy Yeager; Billy R. Staggs;

Barry J. Reeves, Plaintiffs-Appellants, v. LONGVIEW FIBRE COMPANY, Defendant-Appellee.

Nos. 94-35410, 94-35417, 94-35418, 94-35424 to 94-35426,

94-35431 and 94-35434.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 8, 1995.

Decided Aug. 14, 1995.

David H. Putney, Yakima, WA, for plaintiffs-appellants.

Lewis K. Scott, Lane, Powell, Spears, Lubersky, Portland, OR, for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Washington, Fred L. Van Sickle, District Judge, Presiding.

Appeals from the United States District Court for the Eastern District of Washington; Wm. Fremming Nielsen, District Judge, Presiding.

Before: BROWNING, BOOCHEVER, and NELSON, Circuit Judges.

BOOCHEVER, Circuit Judge:

Martin Collings and seven other former employees of Longview Fibre Company ("Longview") appeal the district court's summary judgment in favor of Longview in the employees' consolidated employment discrimination action. The employees allege that Longview wrongfully terminated them for their drug addiction disability in violation of the Americans with Disabilities Act, 42 U.S.C. Secs. 12111-12117, and the Washington Law Against Discrimination, RCW 49.60.180. The district court found that Longview fired the employees, not because of their alleged drug addiction disability, but because of their drug-related misconduct at the workplace, and the court therefore dismissed their claims. We affirm.

FACTUAL BACKGROUND

Each of the eight plaintiffs in this action worked in Longview Fibre Company's box manufacturing plant in Washington. The plant contained large, fast-moving machinery which, when not handled properly, posed a risk of serious injury.

Longview imposed strict rules prohibiting employee use of drugs at the workplace. As a federal government contractor, Longview was governed by the Drug-Free Workplace Act, 41 U.S.C. Secs. 701-707. ¹

In May 1992, Longview hired the outside firm of Krout & Schneider to investigate rumors of drug activity among the employees in the plant. Stephen Murti, an undercover operative, worked at the plant for six months and recorded his daily personal observations of drug activity.

On November 10-12, 1992, after the undercover investigation was completed, eighteen employees, including the eight plaintiffs, were interviewed at the plant by representatives of Krout & Schneider. Each employee was asked to reveal candidly his own involvement with drugs at the plant and his knowledge of the involvement of others. The employees were asked to prepare sworn written statements in their own writing summarizing the statements they had made about their own drug activities and the activities of other employees. Longview management representatives then entered the room, and the employees tape-recorded their written statements in an "oral declaration" and answered further questions posed by the interviewers. The employees confirmed that the interviews had been conducted fairly and that no promises of continued employment had been made.

The investigators prepared reports on each employee which summarized the information gathered as a result of Murti's personal undercover observations, the employee's own Five of the eight plaintiffs admitted their misconduct in their sworn statements taken during the interviews. ² The three men who did not were Barry Reeves, Michael Shay, and Guy Yeager. Barry Reeves denied ever using, buying, or selling drugs, but Murti reported observing Reeves purchase marijuana at the workplace on Nov. 6, 1992, and several of the other employees indicated in their sworn statements that Reeves had been involved in drug-related activities at the plant. Michael Shay refused to make a written statement. The interviewers stated in their affidavits, however, that Shay verbally confessed his drug-related misconduct and detailed his use and sale of marijuana at work. Other employees confirmed that Shay had been involved in work-place drug activities.

admissions during the interviews, and other employees' sworn statements. After reviewing these reports, Longview decided to terminate seventeen of the eighteen employees interviewed, including the eight plaintiffs, for alleged drug-related misconduct at the workplace.

Guy Yeager did not admit any misconduct, nor was he observed by Murti to be engaged in misconduct at the plant. Yeager denied ever having used, bought, or sold drugs on company property. Several of the other employees, however, indicated in their sworn statements that Yeager had engaged in drug-related misconduct at work. Longview decided not to terminate Yeager right away and continued its investigation concerning him. Shortly thereafter, Yeager pled guilty in state court to a felony charge of possessing marijuana with intent to deliver. Because his plea was contrary to his earlier denials of drug involvement, Longview concluded that Yeager had lied about his drug activities and discharged him.

The eight plaintiffs brought this action under the Americans with Disabilities Act and the Washington Law Against Discrimination, alleging that they suffered from a drug addiction disability and that Longview wrongfully terminated them on the basis of that disability. They obtained expert opinions from a psychiatrist and a drug rehabilitation counselor who concluded that the employees met the diagnostic criteria for "substance abuse disorder" and that they probably were "disabled" as described by the statutes.

Longview moved for summary judgment, arguing that there were no genuine issues of material fact. After a hearing, the district court agreed and found that the employees were discharged because of their drug-related misconduct at work, and not because of their alleged substance abuse disability. The court therefore dismissed their claims. The employees now appeal.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Viewing the evidence in the light most favorable to the nonmoving party, the court must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994).

DISCUSSION

I. Americans with Disabilities Act

The Americans with Disabilities Act ("ADA") prohibits employment "discriminat[ion] against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. Sec. 12112(a). The term "qualified individual with a disability" does "not include 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. Sec. 12114(a). The ADA does, however, protect individuals who have successfully completed or are participating in a supervised drug rehabilitation program and are no longer using illegal In the instant case, the employees argue that they were "disabled" and entitled to protection from discrimination under the ADA. Seven of them contend that although they had drug abuse problems in the past, they were all "drug-free" at the time of their discharges and had either completed drug rehabilitation programs or were in the process of being rehabilitated. The eighth plaintiff, Barry Reeves, argues that he never engaged in any drug use and was erroneously perceived as engaging in such use. The plaintiffs thus maintain that they were qualified individuals with a disability under Sec. 12114(b) and that Longview discriminated against them by discharging them on the basis of their drug addiction disability.

drugs, as well as individuals who are erroneously regarded as using drugs when in fact they are not. See Sec. 12114(b).

Even assuming, without deciding, that the plaintiffs had such a disability, we are not persuaded by their argument. The ADA specifically provides that employers have the right to prohibit drug-related misconduct at the workplace. Section 12114(c) states that an employer:

(1) may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;

(2) may require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;

(3) may require that employees behave in conformance with the requirements established under the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq.);

(4) 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 performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee;....

The regulations accompanying the ADA indicate that employers "may discharge or deny employment to persons who illegally use drugs, on the basis of such use, without fear of being held liable for discrimination." 29 C.F.R. Sec. 1630.3 App.

Courts have recognized a distinction between termination of employment because of misconduct and termination of employment because of a disability. In Little v. FBI, 1 F.3d 255, 259 (4th Cir.1993), the court found that an alcoholic employee was discharged because of his misconduct of being intoxicated while on duty, rather than because of his alcoholism handicap, and that therefore, the discharge did not violate the Rehabilitation Act. ³ The court noted that alcoholics and drug addicts are not exempt from reasonable rules of conduct, such as prohibitions against the possession or use of alcohol or drugs in the workplace, id. at 258, and employers must be allowed to terminate their employees on account of...