Hernandez v. Hughes Missile Systems Co.

• Decision Date: 23 March 2004
• Docket Number: No. 01-15512.,01-15512.
• Parties: Joel HERNANDEZ, Plaintiff-Appellant, v. HUGHES MISSILE SYSTEMS COMPANY, an Arizona corporation; Hughes Aircraft Company, a Delaware corporation; Raytheon Company, a Delaware corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 564

362 F.3d 564

Joel HERNANDEZ, Plaintiff-Appellant, v. HUGHES MISSILE SYSTEMS COMPANY, an Arizona corporation; Hughes Aircraft Company, a Delaware corporation; Raytheon Company, a Delaware corporation, Defendants-Appellees.

No. 01-15512.

United States Court of Appeals, Ninth Circuit.

March 23, 2004.

Stephen G. Montoya, Montoya Jumenez, P.A., Phoenix, AZ, for the appellant.

Paul Grossman, Paul, Hastings, Janofsky & Walker, LLP, Los Angeles, CA, for the appellees.

On Remand from the United States Supreme Court. D.C. No. CV-98-00319-JMR.

Before: REINHARDT, MAGILL,^* and FISHER, Circuit Judges.

OPINION

REINHARDT, Circuit Judge.

The Supreme Court has remanded this case for our consideration of one question, whether there was "sufficient evidence from which a jury could conclude that [Raytheon] did make its employment decision based on [Joel Hernandez's] status as disabled" despite its proffered explanation.¹ Raytheon Co. v. Hernandez, 540 U.S. 44, ___, 124 S.Ct. 513, 520, 157 L.Ed.2d 357 (2003). Because viewing the record in the light most favorable to Hernandez, it gives rise to a genuine issue of material fact as to whether the decision not to re-hire him was based on his disability, we again reverse the district court's grant of summary judgment.

I

Joel Hernandez worked for Hughes Missile Systems, which has since been purchased by Raytheon Company, for 25 years, beginning in 1966.² In 1986, his drug and alcohol problem began affecting his conduct at work. In August of that year, rather than face termination for absenteeism as a result of this problem, Hernandez accepted Raytheon's offer to enter a treatment program. Upon finishing the treatment program, Hernandez went back to work for the company.

In 1991, Hernandez's attendance problems recurred. On July 11, 1991, he arrived at work demonstrating signs of drug or alcohol impairment. He submitted to a drug test pursuant to company policy. After testing positive for cocaine, he resigned in lieu of being discharged for violating the company's workplace code of conduct. The "Employee Separation Summary" noted the reason for Hernandez's separation only as "discharge for personal conduct (quit in lieu of discharge)."

Since being fired, Hernandez has worked consistently as a maintenance worker for Marathon Resource, Inc., earning substantially less than he made at Raytheon. From July of 1992 through at least the time of the summary judgment proceedings in January of 2001, Hernandez was "clean and sober."

On January 24, 1994, Hernandez applied with Raytheon for the same position that he held prior to his discharge, stating on his application that he had previously been employed and attaching letters from his pastor about his active church participation and his Alcoholics Anonymous ("AA") sponsor/counselor about his regular attendance at meetings and his commitment to the program. In his April 26th letter, Hernandez's AA sponsor, John Lyman wrote:

Gentleman:

I have known Mr. Hernandez for almost a year. I have seen him occasionally at his place of employment and frequently at meetings of Alcoholics Anonymous.

I have worked with recovering alcoholics for ten years and have screened people for the New Hampshire Department of Motor Vehicles and referrals from state and federal parole boards, among my other duties.

I volunteered to write you in behalf of Joel Hernandez as I have seen steady and consistent progress in his recovery from this disease.

Joel attends A.A. regularly, participates in discussion when appropriate, is maintaining his sobriety and is all in all a good and active member.

Alcoholics Anonymous has clearly been demonstrated as the best recovery tool for alcoholics and Joel's commitment to the program demonstrates to me his willingness to accept responsibility for his recovery.... Sincerely, John Lyman

Joanne Bockmiller, in Raytheon's Labor Relations Department, reviewed Hernandez's application and rejected it. Bockmiller stated that as part of the initial screening of applicants, the company's practice was to determine if the applicant had previously worked at the company. If, as here, the employee indicated that he had, then it was Raytheon's practice to provide the person reviewing the application with the former employee's entire personnel file and everything the applicant had submitted, presumably so the reviewer could consider this information before making a determination. Bockmiller testified that she received Hernandez's application, including the attached letters, and his personnel file. The file would have revealed Hernandez's prior misconduct, the drug test and results, and evidence of his continuous "alcohol dependence," "cannabis dependence," and "cocaine abuse," and of his referral to a treatment program.

When asked whether she had reviewed the entire personnel file, Bockmiller first testified: "I don't recall specifically if I would have reviewed every document, but I did have access to the file." When asked on a separate occasion what information in the file she had reviewed, she answered, "I remember reviewing the Employee Separation Summary." Bockmiller insisted that once she reviewed the Employee Separation Summary and saw that Hernandez had been discharged for violating workplace conduct rules, she rejected his application outright on the basis of the company's unwritten policy of not rehiring former employees whose employment ended due to violations of company personnel conduct rules. She testified that she was not told "specifically" about this policy but learned about it "through the process of working within Human Resources."

After being informed that his application was rejected, Hernandez filed charges with the Equal Employment Opportunity Commission ("EEOC"). In its response to these charges, Raytheon, through its Manager of Diversity Development, George Medina, took the following position:

The ADA specifically exempts from protection individuals currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use. Contrary to Complainant's unfounded allegation, his non-selection for rehire is not based on any legitimate disability. Rather, Complainant's application was rejected based on his demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation.

The Company maintains it's [sic] right to deny re-employment to employees terminated for violation of Company rules and regulations ... Complainant has provided no evidence to alter the Company's position that Complainant's conduct while employed by [petitioner] makes him ineligible for rehire.

Section 1630.3(b) of the ADA provides that the term "disability" may not exclude an individual who: has successfully completed a supervised drug rehabilitation program and is no longer engaging in illegal use of drugs; or an individual who is participating in a supervised rehabilitation program and is no longer engaging in such use. However, this provision is not applicable in this situation as Complainant has provided no evidence to demonstrate he has either successfully completed or is currently undergoing drug rehabilitation.

When questioned at his deposition, Medina affirmed that the information contained in this position statement was factually correct. Medina admitted, however, that, at the time he wrote the letter, he did not have any information that would have suggested that Hernandez was not in full recovery from his addiction. Despite his written statement, which did not include any mention of the company's alleged uniform policy of not rehiring individuals who violated workplace conduct rules, Medina testified that it was his understanding that Hernandez's application had been rejected on the basis of this policy.

Raytheon had promulgated an extensive set of written personnel policies covering various subjects, including substance abuse. It did not include the purported uniform policy of not rehiring anyone fired for misconduct (including on account of substance abuse). Medina testified that he has never seen a written version of the uniform no rehire policy. He stated that he learned about it by working at Raytheon, but he could not remember who mentioned it to him.

On November 20, 1997, the EEOC issued a determination on the merits of Hernandez's charge in his favor, finding that "[t]he evidence shows [Raytheon] rejected Charging Party's application based on his record or past alcohol and drug use." EEOC conciliation efforts attempted thereafter were unsuccessful. On June 22, 1998, the EEOC issued Hernandez a right to sue letter.

II

The Americans with Disabilities Act of 1990 ("ADA"), 104 Stat. 327, as amended, 42 U.S.C. § 12101 et seq., makes it unlawful for an employer, with respect to hiring, to "discriminate against a qualified individual with a disability because of the disability of such individual." § 12112(a). As applied here, the ADA protects individuals "who have successfully completed or are participating in a supervised drug rehabilitation program and are no longer using illegal drugs, as well as individuals who are erroneously regarded as using drugs when in fact they are not." Collings v. Longview Fibre Co., 63 F.3d 828, 831-32 (9th Cir.1995); see also 42 U.S.C. §§ 12102(2)(B)-(C); 29 C.F.R. § 1630.2(g)(2)-(3).

We review a grant of summary judgment de novo and must view the evidence in the light most favorable to the petitioner, drawing all reasonable inferences in his favor. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). Hernandez bears the burden of proving, by a preponderance of the evidence, that his disability "actually played a role in [the employer's decisionmaking] process and had a determinative influence on the...