Ames v. Home Depot U.S.., Inc.

• Decision Date: 06 January 2011
• Docket Number: No. 09-4151,09-4151
• Citation: 629 F.3d 665
• Parties: Diane AMES, Plaintiff-Appellant, v. HOME DEPOT U.S.A., INCORPORATED, a Delaware corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

629 F.3d 665

Diane AMES, Plaintiff-Appellant,

v.HOME DEPOT U.S.A., INCORPORATED, a Delaware corporation, Defendant-Appellee.

No. 09-4151.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 22, 2010.

Decided Jan. 6, 2011.

Laura A. Balson (argued), Attorney, Margaret A. Gisch, Attorney, Golan & Christie, LLP, Chicago, IL, for Plaintiff-Appellant.

Paul E. Bateman (argued), Attorney, Littler Mendelson, Chicago, IL, Charles C. DeWitt, Jr., Attorney, Littler Mendelson, Detroit, MI, for Defendant-Appellee.

Before MANION, TINDER, and HAMILTON, Circuit Judges.

MANION, Circuit Judge.

Diane Ames sued Home Depot after she was terminated for coming to work under the influence of alcohol and failing a blood alcohol test. Ames claimed violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101. The district court granted summary judgment in favor ofHome Depot on all of her claims, and she appeals. We affirm.

I.

Ames was first hired by Home Depot in November 2001. During orientation, she received a copy of Home Depot's Code of Conduct, which listed "Major Work Rule Violations" terminable upon a first offense. One of these violations was having detectable levels of alcohol as determined by a blood alcohol test.

For almost five years, Ames worked for Home Depot without incident. On September 15, 2006, Ames spoke with the store manager, Mike Mahon, about the fact that she had an alcohol problem and needed assistance through Home Depot's Employee Assistance Program ("EAP"). At this point, Ames's alcohol problem had not yet affected her work. In accordance with Home Depot's policy, Ames was put on paid administrative leave and was notified that she could return to work once she had received a treatment plan, obtained return-to-work authorization, and passed a return-to-work drug and alcohol test. On September 23, Ames signed Home Depot's Employee Assistance Agreement, which enrolled her into Home Depot's assistance program. The agreement stated in part:

4. I will be subject to periodic drug and/or alcohol testing during the remainder of my employment at Home Depot whether the Company has reasonable suspicion or not to believe drug or alcohol abuse occurred at work or has affected my work performance....

5. If I refuse to take a required drug and/or alcohol test or fail a drug and/or alcohol test at any time during the course of my employment at Home Depot, I will be immediately terminated.

Ames admits that she read the agreement before signing and did not object to it.

On October 18, after a one-month leave of absence with pay, Ames passed a drug and alcohol test and obtained authorization to return to work. Soon thereafter, Jose Peña became the new store manager. On November 18, at 7:35 a.m., Ames was pulled over by police and arrested for driving under the influence of alcohol. Although Ames was scheduled to work that day, she called the store and took a personal leave day without penalty. After the DUI was reported in the local newspaper, Ames's case manager at Home Depot, Clark Burton, was informed of the arrest. Burton tried unsuccessfully to contact Ames by telephone to notify her that the DUI arrest put her in noncompliance with the terms of the Employee Assistance Agreement. On December 6, Burton sent Ames a letter informing her that she had until December 15 to schedule an appointment at an alcohol treatment facility for an evaluation, as required to restore her compliance with the agreement. Burton then spoke with Ames on December 7 and gave her until December 18 to schedule her evaluation.

On December 8, Ames asked Peña for help rearranging her work schedule at Home Depot so that she could attend her Alcoholics Anonymous ("AA") meetings. Peña asked Ames for documentation from her doctor and for more information regarding her AA meeting schedule. A few days later, Ames gave Peña her AA meeting schedule and a note from her primary-care physician, which stated: "Diane L. Ames has been under my care. She has been referred by me to Carol Russel, a licensed clinical social worker, for counseling, and she is seeing Dr. John Zhang for psychiatric medication management." The note did not say anything more regarding Ames's condition or whether she required medical leave.

Some time later, Ames told Burton that she had scheduled an appointment for her EAP-mandated evaluation in January.Ames stated that her delay in scheduling this appointment was due to some difficulty with her insurance plan and with finding a doctor who met the court's DUI counseling requirements.

On December 20, Ames had a conversation with Peña in which she disclosed several personal difficulties, including her marital problems and divorce, the arrest of her son on drug charges, perceived unfair treatment by previous supervisors, concerns regarding whether Home Depot would pay for the EAP-mandated evaluation, and the inadequacy of her current alcohol-treatment program. At the end of the conversation, Peña stated that he would inquire into whether Home Depot would pay for the EAP-mandated evaluation. Ames conceded in her deposition that she did not specifically ask for leave from her job during this conversation with Peña.

On December 23, Ames reported for her scheduled work shift. An assistant store manager told Peña that Ames was acting differently and smelled of alcohol. Peña observed that Ames was less responsive to conversation than normal, that she smelled of alcohol, and that she slurred her words. Peña called Gretchen Gallois, the human resources manager, who agreed that Ames should have a blood alcohol test. Ames was driven to a testing facility and had her blood drawn. A few days later, the laboratory reported that Ames's blood had tested positive for alcohol. Home Depot then decided to terminate Ames for violating its substance abuse policy. Peña scheduled a meeting for January 2 to tell Ames about her termination.

Following the December 23 blood alcohol test, Ames grew increasingly anxious that she would lose her job if the test result was positive and began drinking more. On January 1, 2007, Ames checked herself into the hospital. The next day, Ames was discharged from the hospital with instructions to start an outpatient alcohol-rehabilitation program. Because of her hospital stay, Ames did not attend her scheduled January 2 meeting with Peña. On January 10, Home Depot mailed a letter to Ames, which she received on January 11. The letter informed Ames that based on her violation of Home Depot's substance abuse policy, her employment was terminated as of December 23, 2006—the day she came to work under the influence of alcohol.

Ames filed suit in federal court claiming violations of the FMLA and the ADA. Home Depot moved for summary judgment. The district court granted Home Depot's motion on all of Ames's claims. Ames appeals.

II.

We review de novo a district court's grant of summary judgment. Winsley v. Cook Cnty., 563 F.3d 598, 602 (7th Cir.2009). Summary judgment is appropriate when there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "We view the record in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor." Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 589 (7th Cir.2008).

Under the FMLA, an eligible employee is entitled to up to 12 weeks of unpaid leave each year for a "serious health condition" that makes the employee unable to perform the functions of her job. 29 U.S.C. § 2612(a)(1)(D); Darst v. Interstate Brands Corp., 512 F.3d 903, 908 (7th Cir.2008). An employer is prohibited from interfering with an eligible employee's exercise or attempt to exercise a right under the Act. 29 U.S.C. § 2615(a)(1). To prevail on an FMLA interference claim, Ames must establish: "(1) she was eligible forthe FMLA's protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled." Caskey, 535 F.3d at 590.

The district court found that Ames had failed to establish the third element, that she was entitled to leave under the FMLA. "An employee is entitled to leave under the FMLA if (1) she is afflicted with a 'serious health condition,' and (2) that condition renders her unable to perform the functions of her job." Id. A "serious health condition" is defined as "an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11).

Here, when viewing the facts in the light most favorable to Ames, she cannot establish that she is afflicted with a serious health condition. Substance abuse can qualify as a serious health condition, if treatment for substance abuse involves "inpatient care" or "continuing treatment by a health care provider." 29 C.F.R. § 825.114(a), (d) (2006).¹ At no time before December 23, the day she was terminated, did Ames go into inpatient care for her condition; her decision to check herself into the hospital on January 1 occurred well after she violated Home Depot's policy on substance abuse. In addition, Ames cannot establish that her substance abuse was a condition requiring "continuing treatment by a health care provider." Id. Continuing treatment must involve a period of incapacity of more than three consecutive calendar days. 29 C.F.R. § 825.114(a)(2)(i) (2006).² Also, the two-sentence letter from her primary care physician simply...