Nielsen v. Moroni Feed Co., 97-4118

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation162 F.3d 604
Docket NumberNo. 97-4118,97-4118
Parties8 A.D. Cases 1553, 14 NDLR P 56, 98 CJ C.A.R. 6437 Joseph C. NIELSEN, individually and on behalf of all similarly situated shareholders of Moroni Feed Company, Plaintiff-Appellant, v. MORONI FEED COMPANY, a Utah Corporation; Tim Blackham, Individually and as Chairman of the Board of Directors of Moroni Feed Company; David Bailey, individually and as President of Moroni Feed Company; Carol Blain, individually; Frank Cook, individually and as Vice President of Moroni Feed Company; Blake Donaldson, individually; and Parry Olson, individually and as a member of the Board of Directors of Moroni Feed Company, Defendants-Appellees.
Decision Date09 December 1998

David L. Barclay and Lynn S. Davies, Richards, Brandt, Miller & Nelson, Salt Lake City, Utah (Mark L. McCarty with them on the briefs) for Appellant-Petitioner.

Stanley J. Preston, Snow, Christensen & Martineau, Salt Lake City, Utah (Michael R. Carlston and Camille N. Johnson with him on the briefs) for Appellees-Respondents.

Before SEYMOUR, Chief Judge, and EBEL and KELLY, Circuit Judges.

EBEL, Circuit Judge.

Joseph C. Nielsen ("Nielsen") was terminated from his position as President of the Moroni Feed Company ("Moroni Feed") after repeated incidents in which Nielsen was found, uninvited, in private homes in the local community, including the homes of Moroni Feed employees. Nielsen sued Moroni Feed under the ADA, claiming that the real reason for his termination was an erroneous perception on behalf of his employer that he illegally used prescription pain-killing drugs and that he was addicted to such drugs. He also sued Moroni Feed under various state causes of action. The district court granted Moroni Feed's motion for summary judgment and then dismissed Nielsen's state claims for lack of jurisdiction. Nielsen now appeals. We affirm.


Moroni Feed is a farming cooperative whose membership consists mainly of turkey growers operating in Sanpete County, Utah. Nielsen began his employment with Moroni Feed in 1970 and served as President of the co-op for the ten years prior to his termination in 1995. For many years prior to the events that led up to his termination, Nielsen had been taking prescription pain-killing medication as a result of a number of chronic ailments, including arthritis, back pain, shingles, Barrett's esophagus, and others.

In September, 1994, Moroni Feed received a report that Nielsen was found to have entered the home of Board Member Parry Olson ("Olson") without permission. This was the second time Nielsen had entered that particular home without permission, both times on a Sunday morning, when the Olson family regularly attended church. The Chairman of the Board of Moroni Feed, Tim Blackham ("Blackham"), testified in his deposition that he discussed these incidents with Nielsen and requested that Nielsen cease entering homes uninvited. According to Blackham, Nielsen promised that it would never happen again. 1 On the morning of March 27, 1995, Nielsen was found, uninvited, in the home of Moroni Feed employee Carol Blain ("Blain") by the Blains' daughter, who was home alone and still in her pajamas. A criminal trespass complaint was filed against Nielsen as a result of that entry. 2 By the time of Nielsen's ultimate termination, Moroni Feed had received a total of eight reports of Nielsen's unauthorized entry into private homes in the Sanpete County area. 3

Following the incident at the Blain home, the Moroni Feed Board of Directors met to discuss the situation. Olson told the Board that Nielsen had confided in him that Nielsen had a "drug problem." 4 Some members of the Board subsequently met with a psychologist to discuss Nielsen's behavior; at this meeting members of the Board indicated that they perceived Nielsen to be suffering from a drug problem that was interfering with Nielsen's performance of his duties as President of the company. Board Member David Bailey ("Bailey") confided in co-op member Doug Neeley ("Neeley") that he was actively seeking Nielsen's ouster due to Nielsen's deficient performance as President. From their conversation, Neeley received the impression that Nielsen had a drug problem, although Bailey did not explicitly say so.

In his affidavit, Nielsen stated that members of the Board told Nielsen that they believed that he had a drug problem, that they believed he was going into homes to steal drugs, and that the problem was set to be discussed at an upcoming Board meeting. Ultimately, the Board decided to make Bailey acting President. Upon learning the news, Nielsen registered his displeasure, and the Board suspended its decision. Nielsen then met with the Board to discuss the situation, at which time the Board indicated to Nielsen that its decision was based upon Nielsen's unauthorized entry into private homes. The Board neither confirmed nor On April 17, Nielsen returned to Moroni Feed, reported his experiences at Dayspring to the Board, and was instructed to "get back to work." However, the next day Blackham terminated Nielsen, informing Nielsen that he was taking this action because Nielsen had lost the trust of the Board, the managers, and the membership of the co-op "through his conduct of going into people's homes in an inappropriate fashion." The Board ratified Blackham's termination of Nielsen.

                denied that its decision was based upon a perceived drug problem, but it requested that Nielsen be admitted to Dayspring, a drug treatment center, for evaluation.  Nielsen agreed.  Nielsen's discharge report from Dayspring indicates that he had been admitted "for evaluation of a possible chemical dependency problem....  It was felt by his company that he was going into these homes to steal drugs, because he had a drug problem."   After three days of evaluation, the Dayspring staff determined that Nielsen was not chemically dependent, and Nielsen was discharged.  The Moroni Feed Board of Directors was aware of this diagnosis

Nielsen simultaneously filed disability-based discrimination claims with the EEOC and the Utah Anti-Discriminatory Division. After receiving a right-to-sue letter from the EEOC, Nielsen filed suit in federal district court, claiming discrimination in employment on the basis of a perceived disability, in violation of the Americans with Disabilities Act ("ADA") and the Utah Anti-Discriminatory Act. Nielsen also brought a myriad of other state-law claims, including wrongful termination, breach of contract, defamation, negligence, intentional infliction of emotional distress, and others. Nielsen named as defendants Moroni Feed as well as six Moroni Feed employees, including Blackham, Bailey, Blain, and Olson. 5

During discovery Moroni Feed deposed Nielsen's healthcare providers, and in the process collected evidence tending to show that Nielsen obtained large amounts of prescription painkillers from a number of different doctors, that in doing so he may have falsely told some of those doctors that he was not currently receiving painkillers from other sources, and that some of his treating physicians were concerned that Nielsen might have a dependency on prescription painkillers. At the close of discovery both parties moved for summary judgment. The district court granted summary judgment to Moroni Feed on Nielsen's ADA claim, on the ground that Moroni Feed terminated Nielsen because of his home-entering activity and not because of a disability, real or perceived. Because the ADA claim was the sole source of federal court jurisdiction, the district court exercised its discretion and dismissed all of Nielsen's state law claims as well. Nielsen appeals the district court's grant of summary judgment to Moroni Feed on his ADA claim. 6

A. Law

The ADA provides:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a). The statute defines the term "disability" as any of the following:

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

Id. § 12102(2). Thus, in passing the ADA, Congress intended to protect individuals from employment discrimination by employers on the basis of an actual or perceived disability, provided that the disability substantially limits or is perceived to limit substantially a major life activity.

While it is clear that the ADA protects against discrimination on the basis of a disability or a perceived disability, this court and other circuit courts have wrestled with the relationship between a disability and conduct related to that disability. In Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1088 (10th Cir.1997), this court held that ordinarily conduct caused by a qualifying disability is protected by the ADA. Den Hartog involved a claim of mental illness, and in that context we explained that "[t]o permit employers carte blanche to terminate employees with mental disabilities on the basis of any abnormal behavior would largely nullify the ADA's protection of the mentally disabled." Id. at 1087.

We noted, however, that the ADA's protection of disability-caused conduct is subject to certain limitations found in the Act. First, a disabled employee "may be held to any performance criteria that are job-related and consistent with business necessity, so long as the disabled employee is given the opportunity to meet such performance criteria by reasonable accommodation." Id. at 1086 n. 8 (citing 42 U.S.C. § 12113(a)). Second, an employer need only make reasonable accommodation, and need not make any accommodation that would constitute an ...

To continue reading

Request your trial
82 cases
  • Hill v. Hamilton County Public Hosp.
    • United States
    • U.S. District Court — Northern District of Iowa
    • April 26, 1999 engaging in such use, but is not engaging in such use" is not so precluded. 42 U.S.C. § 12114(a)-(b)(3); Nielsen v. Moroni Feed Co., 162 F.3d 604, 610 (10th Cir.1998) (explaining "[b]ecause § 12114(b)(3) excludes erroneous perception of illegal drug use from being disallowed as a disabil......
  • Walsted v. Woodbury County, Ia
    • United States
    • U.S. District Court — Northern District of Iowa
    • September 25, 2000
    ...misconduct is not, they all make this distinction in the context of alcoholism or illegal drug use. Nielsen v. Moroni Feed Company, 162 F.3d 604, 608 (10th Cir.1998). Significantly, however, the plaintiff's misconduct in Harris was not caused by alcoholism or illegal drug use; rather, it wa......
  • Conrad v. Board of Johnson County Com'Rs
    • United States
    • U.S. District Court — District of Kansas
    • October 15, 2002
    ...F.3d 1265, 1270 (10th Cir.1998) (quoting 29 C.F.R. pt. 1630, App. § 1630.2(j)). 53. 29 C.F.R. § 1630.2(j)(3)(i); Nielsen v. Moroni Feed Co., 162 F.3d 604, 612 (10th Cir. 1998). 54. Sutton v. United Air Lines, Inc., 130 F.3d 893, 904 (10th Cir.1997), aff'd, 527 U.S. 471, 119 S.Ct. 2139, 144 ......
  • Kimble v. Douglas Cnty. Sch. Dist. Re-1
    • United States
    • U.S. District Court — District of Colorado
    • February 25, 2013
    ...504). Analysis of a claim under Title II of the ADA is identical to an analysis under the Rehabilitation Act. Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 n. 7 (10th Cir.1998); Kimber v. Thiokol Corp., 196 F.3d 1092, 1102 (10th Cir.1999) (“Because the language of disability used in the ADA......
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT