Shafer v. Preston Memorial Hosp. Corp.

• Decision Date: 26 February 1997
• Docket Number: No. 96-1412,96-1412
• Citation: 107 F.3d 274
• Parties: , 6 A.D. Cases 682, 20 A.D.D. 716, 9 NDLR P 193 Deborah SHAFER, Plaintiff-Appellant, v. PRESTON MEMORIAL HOSPITAL CORPORATION; Victoria Adams, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 274

107 F.3d 274

65 USLW 2572, 6 A.D. Cases 682, 20

A.D.D. 716, 9 NDLR P 193

Deborah SHAFER, Plaintiff-Appellant, v. PRESTON MEMORIAL HOSPITAL CORPORATION; Victoria Adams,

Defendants-Appellees.

No. 96-1412.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 4, 1996.

Decided Feb. 26, 1997.

ARGUED: Cynthia Santoro Gustke, Peter Gregory Zurbuch, Busch & Talbott, L.C., Elkins, WV, for Appellant. Kelley Lyn Mount, Jackson & Kelly, Charleston, WV, for Appellees. ON BRIEF: Roger A. Wolfe, Jackson & Kelly, Charleston, WV, for Appellees.

Before WILKINSON, Chief Judge, and NIEMEYER and WILLIAMS, Circuit Judges.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Chief Judge WILKINSON and Judge NIEMEYER joined.

OPINION

WILLIAMS, Circuit Judge:

Deborah Shafer appeals the district court's order granting summary judgment for Preston Memorial Hospital and Victoria Adams in Shafer's action alleging that the Hospital and Adams discriminated against her on the basis of her drug addiction in violation of the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101-12213 (West 1995); the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-797b (West Supp.1996); and the West Virginia Human Rights Act (WVHRA), W. Va.Code §§ 5-11-1 to -19 (Michie 1994 & Supp.1996). We conclude, although for reasons different from those stated by the district court, ¹ that summary judgment was appropriate.

I.

From 1982 until 1993, Deborah Shafer worked at Preston Memorial Hospital in various positions, including operating room nurse, assistant director of nurses, quality assurance director, and nurse anesthetist. While working as a nurse anesthetist, Shafer became addicted to Fentanyl, a Schedule II narcotic analgesic, see 21 U.S.C.A. § 812 (West 1981), commonly administered to patients for general anesthesia and post-operative pain control. In the fall of 1992, after a Hospital employee noticed that Shafer was "wasting" a significant amount of Fentanyl, ² the Hospital initiated an investigation. During the investigation, the Hospital caught Shafer returning to the pharmacy for disposal a syringe marked Fentanyl but filled with saline.

On February 12, 1993, Shafer was confronted by Victoria Adams (the Hospital's personnel director) and several other Hospital employees. After initially resisting, Shafer admitted that she had diverted Fentanyl to her own use by replacing leftover Fentanyl with saline, that she had deliberately ordered excess Fentanyl to ensure that there was leftover, and that she was addicted to Fentanyl. She maintained that she had never abused Fentanyl or any other drug on the job, and no evidence of on-the-job drug use was ever produced by the Hospital.

The Hospital placed Shafer on a medical leave of absence and helped her report to a drug rehabilitation facility. While Shafer was in drug rehabilitation, the Hospital gathered information from persons involved in the investigation and sought legal advice about whether to continue Shafer's employment. On March 6, 1993--the day Shafer completed the inpatient portion of her drug rehabilitation program--Adams informed her by telephone that her employment with the Hospital was terminated. In a letter dated March 10, 1993, the Hospital formally notified Shafer that she was discharged for gross misconduct involving the diversion of controlled substances. A few weeks later, Shafer obtained employment at another hospital as a nurse anesthetist under a restricted license. Within two weeks, she used Fentanyl while on duty. Her nursing license was subsequently revoked.

Shafer sued Preston Memorial and Adams under the ADA, the Rehabilitation Act, and the WVHRA, claiming that the Hospital and Adams discriminated against her on the basis of her addiction to Fentanyl when it terminated her employment. She sought past and future lost wages and contractual benefits in the amount of $849,339; unspecified damages for mental pain, suffering, anguish, annoyance, inconvenience, loss of benefits, and damaged credit rating; and attorneys' fees, court costs, and prejudgment and postjudgment interest.

The district court assumed "[f]or purposes of summary judgment" that Shafer was "disabled" under the ADA, the Rehabilitation Act, and the WVHRA. (J.A. at 103 n. 8.) The court then examined the merits of Shafer's claim and determined, relying on our decision in Little v. FBI, 1 F.3d 255, 259 (4th Cir.1993), and other cases, that Shafer's "activities involving the diversion of Fentanyl during the course of her employment constituted gross misconduct justifying discharge." (J.A. at 104.) The district court then determined that Shafer was "unable to offer any credible evidence of pretext," and granted the Hospital's motion for "summary judgment on [Shafer's] claims under the ADA, the Rehabilitation Act, and the West Virginia Human Rights Act." (J.A. at 106.)

In addition, the district court denied Shafer's motion to amend her Complaint, holding that any amendment would be futile because "there is no question" that the Hospital would be entitled to summary judgment on the amended Complaint. (J.A. at 108-09.) The district court also denied Shafer's other motions, finding that her motions to exclude witnesses, to compel sufficient responses from witnesses, and to deem a first request for admissions admitted, were moot in light of its other rulings.

II.

Shafer argues primarily that the district court erred in granting summary judgment for the Hospital and Adams on her claims under the ADA and the Rehabilitation Act. ³ The ADA and the Rehabilitation Act prohibit an employer from discriminating against a "qualified individual with a disability" because of that individual's disability. See 42 U.S.C.A. § 12112(a) (West 1995) (ADA); 29 U.S.C.A. § 794(a) (West Supp.1996) (Rehabilitation Act). To establish a violation of either of these statutes, a plaintiff must prove: (1) that she has a disability; (2) that she is otherwise qualified for the employment in question; and (3) that she was excluded from the employment or benefit due to discrimination solely on the basis of the disability. See Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir.1995) (citing Gates v. Rowland, 39 F.3d 1439, 1445 (9th Cir.1994)). An individual is not otherwise qualified, however, if she "is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." 42 U.S.C.A. § 12114(a) (West 1995) (ADA); accord 29 U.S.C.A. § 706(8)(C)(i) (West Supp.1996) (Rehabilitation Act). While expressly excluding current drug users from statutory protection, the statutes provide a "safe harbor" for recovering addicts:

(b) Rules of construction

Nothing in subsection (a) of this section shall be construed to exclude as a qualified individual with a disability an individual who--

(1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(3) is erroneously regarded as engaging in such use, but is not engaging in such use.

42 U.S.C.A. § 12114(b) (West 1995) (ADA); accord 29 U.S.C.A. § 706(8)(C)(ii) (West Supp.1996) (Rehabilitation Act).

The parties do not dispute that drug addiction is a disability. However, the Hospital and Adams contend that Shafer is not "otherwise qualified" under the ADA and the Rehabilitation Act because she was "currently engaging in the illegal use of drugs" at the time of her discharge. They contend that "current" illegal use of drugs under the statutes is "not limited to persons who use drugs on the day of the employment action in question, or even within a matter of days or weeks, before the action" (Appellees' Br. at 10), and that the safe harbor provision does not provide Shafer with protection. Conversely, Shafer argues, relying on the plain language of "currently engaging in the illegal use of drugs," that she was not a "current" user of drugs when the Hospital fired her because at that time, she was participating in a drug rehabilitation program and was not using drugs.

We review a district court's grant of summary judgment de novo. See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.1988). Summary judgment is proper only if no material facts are in dispute. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In deciding whether facts are in dispute, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). In addition, we review questions of statutory interpretation de novo. See United States v. Davis, 98 F.3d 141, 144 (4th Cir.1996) (citing United States v. Letterlough, 63 F.3d 332, 334 (4th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 406, 133 L.Ed.2d 324 (1995)).

The dispute centers on the scope of the phrase "currently engaging in the illegal use of drugs." See 42 U.S.C.A. § 12114(a); 29 U.S.C.A. § 706(8)(C)(i). We have never construed this phrase. ⁴ "When confronted with a question of statutory interpretation, our inquiry begins with an examination of the language used in the statute." Faircloth v. Lundy Packing Co., 91 F.3d 648, 653 (4th Cir.1996) (citing Stiltner v. Beretta U.S.A. Corp., 74 F.3d 1473, 1482 (4th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 54, 136 L.Ed.2d 18 (1996)), cert. denied, ---- U.S. -----, 117 S.Ct. 738, 136 L.Ed.2d 677 (1997). When Congress does not expressly define a statutory term or phrase, a court should "normally construe it in accord with its ordinary or natural meaning." Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993). In most cases, "if the...