Revised May 28, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50063
TOM ZENOR,
Plaintiff-Appellant,
versus
EL PASO HEALTHCARE SYSTEM, LIMITED,
doing business as Columbia Medical
Center-East; COLUMBIA MEDICAL CENTER-EAST,
Defendants-Appellees.
Appeal from the United States District Court for the
Western District of Texas
May 24, 1999
Before GARWOOD, BARKSDALE, and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Tom Zenor (Zenor) appeals the district
court’s grant of judgment as a matter of law in favor of his former
employer, Vista Hills Medical Center, now defendant-appellee El
Paso Healthcare Ltd., d/b/a/ Columbia Medical Center-East
(Columbia). We affirm.
Facts and Proceedings Below
In 1991, Columbia hired Zenor to work as a pharmacist in the
pharmacy at its Columbia Medical Center-East hospital. When Zenor
began his employment, he received an employment manual expressing
the at-will nature of his employment and disclaiming any
contractual obligations between the employer and employee. Zenor
also received a copy of Vista Hill’s then-existing drug and alcohol
policy. In 1993, Zenor received a copy of Columbia’s Drug-
Free/Alcohol-Free Workplace Policy (the Policy), which was in
effect at all times relevant to this case.
In 1993, Zenor became addicted to cocaine. Between 1993 and
1995, Zenor injected himself with cocaine as many as four to five
times a week. He also smoked marijuana on three or four occasions
and more frequently used tranquilizers to offset the cocaine’s
effects. Despite his drug use, Zenor remained a generally adequate
employee and usually received favorable employment evaluations.
However, his evaluation for the year ended July 8, 1994, discussed
with Zenor in October 1994, was not favorable, his performance was
rated “below average,” and he was placed in a probationary status
for two months with the admonishment that discharge was possible if
insufficient improvement were noted. Zenor successfully completed
the probationary status. The record does not show any subsequent
annual evaluation. Zenor testified he never used drugs at work,
nor came to work under the influence of drugs. Columbia was
unaware of Zenor’s addiction until August 15, 1995.
Zenor had been working the night shift at the pharmacy. When
Zenor left work on August 15, 1995, at approximately 8:30 a.m., he
2
injected himself with cocaine. As Zenor prepared to return to work
that night, he became dizzy and had difficulty walking. Suspecting
that he was still impaired from the morning’s cocaine injection,
Zenor called the pharmacy director, Joe Quintana (Quintana), and
stated that he could not report to work because he was under the
influence of cocaine. During the conversation, Quintana asked
whether Zenor would take advantage of Columbia’s Employee
Assistance Program, “ACCESS.” Zenor replied that he would.
Quintana then stated that he was on vacation, and instructed Zenor
to contact Quintana’s supervisor, Paschall Ike (Ike).
Zenor spoke to Ike, who was also on vacation and told Zenor to
call his (Zenor’s) own doctor. Zenor then called his personal
physician, who arranged for Zenor to receive emergency treatment
that evening. Zenor stayed overnight at R.E. Thomason General
Hospital. The next morning, Zenor was transferred to the El Paso
Alcohol and Drug Abuse Service Detox Center, where he remained
hospitalized for nine days.
On August 23, while still at the Detox Center, Zenor became
concerned about losing his job. Zenor and one of his Detox Center
counselors, Pete McMillian (McMillian), contacted Yolanda Mendoza
(Mendoza), Columbia’s Human Resources Director. This was the first
time Zenor had contacted Columbia since his conversation with Ike
eight days earlier. Nobody at Columbia knew where Zenor had been
since the night of August 15.
Zenor told Mendoza that he wished to enter a rehabilitation
3
program and asked her whether his job would be secure until he
returned. Although the evidence is disputed, there is evidence
that Mendoza assured Zenor that his job would be secure until he
completed the program. Mendoza then told McMillan that Zenor was
eligible for a twelve-week leave of absence under the Family
Medical Leave Act (FMLA), 29 U.S.C. § 2601 et. seq. Later that
afternoon, McMillian retrieved from Mendoza the paperwork necessary
for Zenor to take FMLA leave. Zenor completed the paperwork. The
next day, August 24, Zenor checked into an independent residential
rehabilitation facility, Landmark Adult Intensive Residential
Services Center (Landmark). Landmark was not owned or operated by
Columbia and was not part of its ACCESS program.
After consulting with Columbia’s lawyers, Mendoza and Quintana
decided to terminate Zenor’s employment. On September 20, 1995,
Mendoza, Quintana, and ACCESS director Joe Provencio had a meeting
with Zenor, his Landmark counselor, and Landmark’s Director of
Adult Treatment Services Dorrance Guy (Guy). Zenor was told that
he would remain an employee of Columbia until his medical leave
expired, and then he would be terminated.
Zenor protested that Columbia could not fire him because the
Policy stated that employees who completed rehabilitation would be
returned to work. Zenor also argued that he had been told if he
“self-reported” his addiction he would not be fired. Mendoza
explained that Columbia was concerned because pharmaceutical
4
cocaine would be readily available to Zenor in the pharmacy, and
therefore Columbia would not allow Zenor to return to work.
Zenor offered to transfer to a day shift where he could be
monitored, or to a satellite pharmacy where pharmaceutical cocaine
would not be available. Columbia rejected these suggestions. The
next day Guy wrote a letter to Provencio calling Columbia’s action
unfair, and contrary to Guy’s interpretation of the Policy.
Columbia did not respond to the letter.
Zenor completed the residential portion of his treatment
program and was released from Landmark on October 9, 1995. On
October 18, Zenor met with Mendoza and again asked to keep his job.
Mendoza told Zenor that his termination stood. Zenor then
requested that Mendoza write an official letter regarding his
termination, in order to assist Zenor in continuing his medical
benefits.
Zenor later sued Columbia, alleging that he was fired in
violation of the Americans with Disabilities Act (ADA) and the
Texas Commission on Human Rights Act (TCHRA). Zenor also alleged
claims of fraud, breach of contract, promissory estoppel, and
intentional infliction of emotional distress.
Following discovery, Columbia moved for summary judgment. The
district court granted summary judgment for Columbia on Zenor’s
intentional infliction of emotional distress claim, but denied
summary judgment on the other claims. The case proceeded to trial
on the remaining claims. At the conclusion of Zenor’s case-in-
5
chief, Columbia moved for judgment as a matter of law. The
district court granted Columbia judgment as a matter of law on
Zenor’s disability discrimination, fraud, and breach of contract
claims. Only Zenor’s promissory estoppel claim was submitted to
the jury.
The jury found for Zenor on the promissory estoppel claim, and
awarded him substantial damages, including damages for past lost
earnings, future lost earnings, and mental anguish. Columbia
renewed its motion for judgment as a matter of law. The district
court granted Columbia’s renewed motion, holding that there was
insufficient evidence to support two elements of the promissory
estoppel claim: the existence of any promise altering the at-will
relationship or foreseeable and reasonable reliance by Zenor.
Zenor appeals and in this Court challenges only the dismissal of
his ADA, breach of contract, and promissory estoppel claims.1
Discussion
I. The ADA
The ADA, 42 U.S.C. § 12101 et. seq., prohibits an employer
from discriminating against a “qualified individual with a
1
Zenor does not raise his TCHRA claim on appeal. The TCHRA
claim is analogous to the ADA claim, and generally would be treated
similarly. See Talk v. Delta Air Lines, Inc., 165 F.3d 1021 (5th
Cir. 1999). We are pointed to nothing under the Texas law which
would in this appeal authorize a different disposition of the TCHRA
claim than of the ADA claim. Hence we do not separately address
the TCHRA claim.
6
disability” on the basis of that disability. 42 U.S.C. § 12112(a).
To establish a prima facie discrimination claim under the ADA, a
plaintiff must prove: (1) that he has a disability; (2) that he
was qualified for the job; (3) that he was subject to an adverse
employment decision on account of his disability. Robertson v.
Neuromedical Center, 161 F.3d 292, 294 (5th Cir. 1998) (per
curiam). See also Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th
Cir. 1997); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36
(5th Cir. 1996).
At the close of Zenor’s case-in-chief, the district court
found insufficient evidence to support the ADA claim and granted
Columbia’s motion for judgment as a matter of law. On appeal, the
parties raise three separate questions with respect to the ADA
claim: (1) whether Zenor was disqualified from the ADA’s
protection because he was a “current user” of illegal drugs at the
relevant time, (2)whether Zenor was an otherwise qualified
individual, and (3)whether Zenor established that he suffered from
a disability.
This Court reviews a judgment as a matter of law de novo. See
Burch, 119 F.3d at 313. Judgment as a matter of law is proper only
where "there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue.” Fed. R.
Civ. P. 50(a)(1). This Court reviews the record in the light most
favorable to the party opposing the motion. Burch, 119 F.3d at
7
313.
The district court correctly granted judgment in favor of
Columbia. First, Zenor is excluded from the definition of
“qualified individual” under the ADA because he was a current user
of illegal drugs. Similarly, due to Zenor’s cocaine use, he was
not otherwise qualified for the job of a pharmacist.
Alternatively, regardless of whether Zenor was a current user of
illegal drugs, Zenor failed to prove that he was disabled within
the meaning of the statute.
The first issue is whether Zenor was “currently engaging in
the illegal use of drugs” at the time the adverse employment action
was taken. 42 U.S.C. § 12114 specifically exempts current illegal
drug users from the definition of qualified individuals. See 42
U.S.C. § 12114(a) (“For purposes of this title, the term ‘qualified
individual with a disability’ shall 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.”). In other
words, federal law does not proscribe an employer’s firing someone
who currently uses illegal drugs, regardless of whether or not that
drug use could otherwise be considered a disability. The issue in
this case, therefore, is whether Zenor was a “current” drug user
within the meaning of the statute.
As a threshold matter, this Court must determine the proper
time at which to evaluate whether Zenor was “currently engaging in
8
the illegal use of drugs.” Zenor urges this Court to look to the
date his employment status officially ended: November 24, 1995.
The Second Circuit adopted this approach in Teahan v. Metro-North
Commuter R.R. Co., 951 F.2d 511 (2d Cir. 1991). Teahan was an
alcoholic who had missed an extensive amount of work due to his
alcoholism. On December 28, 1987, Metro-North wrote a letter
informing Teahan that his employment was terminated. That same
day, before receiving the termination letter, Teahan voluntarily
entered a rehabilitation program. Id. While Teahan was in the
rehabilitation program, Metro-North initiated procedures to fire
Teahan pursuant to its collective bargaining agreement with the
International Brotherhood of Electrical Workers (IBEW). However,
the disciplinary procedures were not complete on January 28, 1988,
when Teahan completed the rehabilitation program. Pursuant to its
agreement with IBEW, therefore, Metro-North permitted Teahan to
return to work temporarily. Metro-North finally terminated Teahan
on April 11, 1989. Id.
Teahan sued Metro-North, alleging that his dismissal violated
the Rehabilitation Act.2 Teahan alleged that his absenteeism was
2
The Rehabilitation Act is considered generally as a
predecessor to the ADA, and cases under the Rehabilitation Act are
relevant to the ADA. See, e.g., Johnson v. Gambrinus
Company/Spoetzl Brewery, 116 F.3d 1052, 1060 n.4 (5th Cir. 1997)
(citing 36 Fed. Reg. 35544, 35545 (1991)). But see Washington v.
HCA Health Services of Texas, Inc., 152 F.3d 464, 470 n.9 (5th Cir.
1998) (“A case decided under the Rehabilitation Act is not
controlling over the legislative history and administrative
guidelines of the ADA. . . .”).
9
caused solely by his alcoholism; since the Second Circuit
considered alcoholism a handicap under the Rehabilitation Act,
Teahan alleged that Metro-North fired him solely by reason of his
handicap. Like the current ADA, the Rehabilitation Act did not
protect “an alcoholic whose current use of alcohol prevents such
individual from performing the duties of the job in question.” See
Teahan, 951 F.2d at 51 n.1 (discussing 1990 Amendments to the
Rehabilitation Act of 1973, 29 U.S.C. § 794, § 706(8)). The case
therefore turned on whether Teahan was a current abuser of alcohol
at the relevant time.
Metro-North asked the court to consider Teahan’s status as a
current alcohol abuser on December 28, 1987, at which time Metro-
North began procedures to fire Teahan, although it was legally
unable to do so until April 11, 1989. See Teahan, 951 F.2d at 517.
The Second Circuit disagreed, and decided instead to focus on the
date on which Teahan was actually fired. The court reasoned that
the word “current” within the statute prohibited an employer from
firing an employee based on past substance abuse problems that the
employee had overcome. That court feared that Metro-North’s theory
would create a loophole which would expose recovering substance
abusers to retroactive punishment. Therefore, the court looked to
the April 11, 1989, actual termination date to determine whether
the drug use was current. Id.; accord, Dauen v. Board of Fire and
Police Commissioners of the City of Sterling, Ill., 656 N.E.2d 427
10
(Ill. App. Ct. 1995) (following Teahan); D’Amico v. City of New
York, 132 F.3d 145 (2d Cir. 1998).
This Court has already, at least implicitly, rejected the
Second Circuit’s approach.3 See McDaniel v. Mississippi Baptist
Medical Center, 877 F.Supp. 321 (S.D. Miss. 1995) (interpreting
current user provision under the ADA), aff’d 74 F.3d 1238 (5th Cir.
1995) (table)4. McDaniel was a recovered substance abuser who
worked as an adolescent marketing representative for a substance
abuse recovery program. On or around September 2, 1992, McDaniel
voluntarily entered a rehabilitation program after suffering a
relapse. On September 1, the day before McDaniel entered the
program, McDaniel’s employer notified him that he would not return
to his current position but might be transferred within the
company. The employer subsequently fired McDaniel on September 20,
1992. See id. at 324-26.
McDaniel argued that he was not a current drug user on
September 20, the date he was fired, and therefore he was protected
3
We note that our disagreement with the Teahan case is only
with the narrow aspect of identifying the relevant date by which to
determine whether an employee is a current user of illegal drugs.
4
On the appeal of the plaintiff McDaniel, this Court, in an
unpublished opinion issued December 8, 1995, affirmed “essentially
on the authorities cited and analysis made by the district court”
in its opinion. McDaniel v. Mississippi Baptist Medical Center,
No. 95-60038 (5th Cir. Dec. 8, 1995). As this Court’s opinion,
though unpublished, was issued before January 1, 1996, it is
precedential and binding on this panel. 5th Cir. R. 47.5.3.
11
by the ADA.5 The court disagreed, finding that the relevant
adverse employment action was conveyed to McDaniel on September 1,
before he entered the rehabilitation program. See id. At that
time, McDaniel was a current user of illegal drugs. Id.6 See also
Grimes v. U.S. Postal Serv., 872 F. Supp. 668, 675 (W.D. Mo. 1994)
(rejecting actual termination date as relevant point of inquiry
where plaintiff had been arrested for drug possession in January
but termination was not finalized until April).
Similarly, the relevant adverse employment action in this case
occurred on September 20, 1995, when Quintana and Mendoza informed
Zenor that he would be terminated upon the expiration of his
medical leave. We do not share the Second Circuit’s fear that
considering the notification date, rather than the actual
termination date, creates a loophole by which employers can punish
recovered addicts. There is nothing to suggest that Columbia was in
any way punishing Zenor. Instead, Columbia was carrying out its
rational and legally sound decision not to employ illegal cocaine
users in its hospital pharmacy.
Looking to the notification of termination date provides a
fair remedy both to the employer and employee. Otherwise, in this
case, Columbia would effectively be penalized for allowing Zenor to
5
McDaniel in fact argued that he fell within the statute’s safe
harbor, discussed infra.
6
We observe that neither the district court’s nor this Court’s
opinion in McDaniel cites Teahan.
12
take a medical leave of absence rather than terminating him right
away. Such a ruling would encourage employers in Columbia’s
position to hasten effectuation of employment decisions, which
could have adverse effects for employees who would benefit from
remaining in an employee status, such as by retaining employer-
provided health and insurance benefits, during their recovery
programs.
Zenor suggests that he did not know with certainty whether he
would be fired on September 20. However, this argument is
untenable. Columbia representatives undisputably told Zenor he was
being terminated September 20. Indeed, Zenor’s counsel argued such
to the jury in his closing argument: “They came to the Landmark
Center on September 20th of 1995, and they told him, Mr. Zenor, we
know we’ve made some promises, but we’re going to fire you anyway.”
Zenor admits in his testimony that at this September 20 meeting
“they said they were planning to terminate me.” Zenor’s witness
Guy, Landmark’s director present at the meeting on Zenor’s behalf,
testified on direct examination that at the meeting Columbia’s
“Mrs. Mendoza repeated the fact that he [Zenor] would not be taken
back on staff there upon completion of the program” and that he
protested but the meeting “broke up with Tom [Zenor] was still not
going back to Columbia.” On cross-examination, Guy agreed “there
was no doubt in your mind at the end of that meeting on September
20th, that Columbia intended to fire Mr. Zenor.” Furthermore,
Guy’s letter dated September 21, written on Zenor’s behalf and
13
calling Columbia’s action unfair, also reflects that Zenor
understood that he was being fired.
Nonetheless, Zenor persists in disputing that he understood
the meaning of those statements. Zenor testified that although he
was told on September 20 that he would be fired, he retained “the
impression” that he “might” get his job back because “she [Mendoza]
didn’t say it was written in stone at that point that I might be,
you know. She didn’t say, you definitely will not get your job
back.” Such speculation or confusion on Zenor’s part was
unreasonable and cannot be attributed to any action or inaction by
Columbia. Finally, Zenor suggests that he was surprised and
“emotionally destroyed” to receive his termination letter on
November 24. This is likewise legally unavailing in light of the
foregoing and the undisputed evidence that Mendoza wrote that
letter at Zenor’s request, in order to help Zenor continue his
health care benefits.
Columbia decided to terminate Zenor on or before September 20,
1995, and that decision was adequately conveyed to Zenor on
September 20, 1995. The relevant employment action for Zenor’s ADA
case thus occurred on September 20, 1995. Therefore, the question
is whether Zenor, who had used cocaine on August 15, 1995, was
currently engaging in the illegal use of drugs when Columbia
informed him on September 20, 1995, of its decision to terminate
him. We conclude, as a matter of law, that he was.
Under the ADA, “currently” means that the drug use was
14
sufficiently recent to justify the employer’s reasonable belief
that the drug abuse remained an ongoing problem. See 143 Cong.
Rec. H 103-01 (1997). Thus, the characterization of “currently
engaging in the illegal use of drugs” is properly applied to
persons who have used illegal drugs in the weeks and months
preceding a negative employment action. Shafer v. Preston Memorial
Hospital Corp., 107 F.3d 274, 278 (4th Cir. 1997); Collings v.
Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995); McDaniel.
In McDaniel, the district court held that an individual who
had used drugs six weeks prior to being notified of his termination
was not protected by the ADA. Accord, Baustian v. Louisiana, 910
F.Supp. 274, 276-77 (E.D. La. 1996) (finding plaintiff who had used
drugs seven weeks before termination to be a current drug user),
reconsideration denied, 929 F.Supp. 980 (E.D. La. 1996). The
Fourth and Ninth Circuits have similarly concluded that persons who
had used illegal drugs in the weeks and months prior to being fired
from their jobs were current drug users for purposes of the ADA.
See Shafer v. Preston Memorial Hospital Corp., 107 F.3d 274, 278
(4th Cir. 1997); Collings, 63 F.3d at 833. “Therefore, the fact
that the employees may have been drug-free on the day of their
discharge is not dispositive.” Id.
In Shafer, the Fourth Circuit interpreted the phrase
“currently engaging in the illegal use of drugs” to encompass a
woman who had used illegal drugs approximately three weeks before
15
she was fired from her job, and had in the interim enrolled in a
rehabilitation program. The plaintiff in that case argued that the
term current should mean, “at the precise time,” or “at the exact
moment.” Id. at 277. The Fourth Circuit rejected that
interpretation. The term “currently,” when modifying the phrase
“engaging in the illegal use of drugs” should be construed in its
broader sense, “mean[ing] a periodic or ongoing activity in which
a person engages (even if doing something else at the precise
moment) that has not yet permanently ended.” Shafer, 107 F.3d at
278. Indeed, “the ordinary or natural meaning of the phrase