FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTIAGO LOPEZ,
Plaintiff-Appellant,
v.
PACIFIC MARITIME ASSOCIATION, No. 09-55698
Defendant-Appellee, D.C. No.
and 2:06-cv-04154-GW-
JTL
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION; and OPINION
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION LOCAL 13,
Defendants.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted
November 1, 2010—Pasadena, California
Filed March 2, 2011
Before: Harry Pregerson, Kenneth F. Ripple,* and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber;
Partial Concurrence and Partial Dissent by Judge Pregerson
*The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
3021
3024 LOPEZ v. PACIFIC MARITIME ASSOCIATION
COUNSEL
Andrea L. Cook, Andrea Cook & Associates, Long Beach,
California, for the plaintiff-appellant.
Jason M. Steele, Morgan, Lewis & Bockius LLP, Los Ange-
les, California, for the defendant-appellee.
OPINION
GRABER, Circuit Judge:
Plaintiff Santiago Lopez appeals from the entry of sum-
mary judgment in favor of Defendant Pacific Maritime Asso-
ciation on Plaintiff’s claims for disparate treatment and
disparate impact under the federal Americans with Disabili-
ties Act of 1990 (“ADA”) and the state Fair Employment and
Housing Act (“FEHA”). On de novo review, Doran v. 7-
Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. 2008), we affirm.
I. Background1
1
Because this case comes to us after the entry of summary judgment for
Defendant, we state the facts in the light most favorable to Plaintiff. Dark
v. Curry County, 451 F.3d 1078, 1082 n.2 (9th Cir. 2006).
LOPEZ v. PACIFIC MARITIME ASSOCIATION 3025
Defendant represents the shipping lines, stevedore compa-
nies, and terminal operators that run the ports along the west
coast of the United States. As the collective bargaining agent
and payroll administrator of those employers, Defendant
enforces the policies that govern the hiring of longshore
workers who work along the west coast. One of those policies
is a “one-strike rule,” which eliminates from consideration
any applicant who tests positive for drug or alcohol use during
the pre-employment screening process. Defendant notifies its
applicants at least seven days in advance of administering the
drug test. Failing the drug test, even once, disqualifies an
applicant permanently from future employment.
Plaintiff wants to be a longshoreman. He first applied in
1997 at the port in Long Beach, California. At that time, how-
ever, Plaintiff suffered from an addiction to drugs and alco-
hol. When Defendant administered its standard drug test,
Plaintiff tested positive for marijuana. Defendant therefore
disqualified Plaintiff from further consideration under the
one-strike rule.
In late 2002, Plaintiff recognized the deleterious effects on
his health that his addictions had caused. He became clean
and sober and, in 2004, reapplied to be a longshoreman.
Because of the one-strike rule, Defendant rejected Plaintiff’s
application. At that time, Defendant did not know of Plain-
tiff’s earlier addiction. Plaintiff attempted to appeal, but
Defendant never entertains appeals from disqualifications
arising from positive drug tests.
Plaintiff then filed this action, claiming that Defendant vio-
lated the ADA and the FEHA by discriminating against him
on the basis of his protected status as a rehabilitated drug
addict. See 42 U.S.C. §§ 12112(a), 12114(b)(1) (expressly
protecting from employment discrimination any person who
has “been rehabilitated successfully and is no longer engaging
in [illegal drug use]”); Cal. Gov’t Code § 12926(l) (incorpo-
rating by reference any protection in the ADA not expressly
3026 LOPEZ v. PACIFIC MARITIME ASSOCIATION
incorporated into the FEHA). The district court granted sum-
mary judgment to Defendant. Plaintiff timely appeals.
II. Plaintiff’s Disparate Treatment Claim
[1] In support of his disparate treatment claim, Plaintiff
makes three arguments. He first argues that the one-strike rule
facially discriminates against recovering or recovered drug
addicts. We disagree. The rule eliminates all candidates who
test positive for drug use, whether they test positive because
of a disabling drug addiction or because of an untimely deci-
sion to try drugs for the first time, recreationally, on the day
before the drug test. Conversely, the rule allows a drug-
addicted applicant who happens to be sober at the time of the
drug test to complete pre-employment processing success-
fully. Here, for example, had Plaintiff applied for the first
time in 2004, he would qualify for employment despite his
status as a recovering addict. The triggering event for pur-
poses of the one-strike rule is a failed drug test, not an appli-
cant’s drug addiction.
[2] The Supreme Court’s opinion in Raytheon Co. v. Her-
nandez, 540 U.S. 44 (2003), supports our view of the one-
strike rule. There, the Court held that an employer’s policy
not to rehire workers who lost their jobs due to drug-related
misconduct constituted a “neutral,” “legitimate, [and] nondis-
criminatory reason for refusing to rehire” the aggrieved
employee. Id. at 53. The Court disapproved of the argument
that, because the employee’s misconduct related to his drug
addiction, the employer’s refusal to rehire him on account of
that misconduct violated the ADA. Id. at 54 n.6. The ADA
prohibits employment decisions made because of a person’s
qualifying disability, not decisions made because of factors
merely related to a person’s disability. See Hazen Paper Co.
v. Biggins, 507 U.S. 604, 611 (1993) (holding that an employ-
er’s decision “wholly motivated by factors other than age”
does not constitute age discrimination, even if “the motivating
factor is correlated with age”).
LOPEZ v. PACIFIC MARITIME ASSOCIATION 3027
Second, Plaintiff alleges that Defendant adopted the one-
strike rule intentionally to exclude recovering and recovered
drug addicts from its work force. The record belies that alle-
gation. Before the adoption of the one-strike rule, the long-
shore industry suffered numerous serious accidents and
injuries, including several fatalities. Defendant attributed
those accidents in part to a culture that accepted the use of
drugs and alcohol in the workplace. Defendant thought that it
could reduce such accidents by eliminating applicants who
might be more likely to use drugs or alcohol at work.
With the support of the union that represented the long-
shore workers, Defendant began administering drug tests to
new applicants. Defendant decided to make the disqualifica-
tion of applicants who tested positive permanent because it
thought that applicants who could not abstain from using an
illegal drug, even after receiving advance notice of an upcom-
ing drug test, showed less responsibility and less interest in
the job than applicants who passed the drug test. Thus, Defen-
dant’s reasons for rejecting applicants who test positive did
not include a calculation that an applicant might test positive
because of a drug addiction, rather than because of recre-
ational use.
[3] In short, nothing about the history of the one-strike rule
leads us to conclude that Defendant adopted the rule with a
discriminatory purpose. The ADA and the FEHA protect peo-
ple who are recovering or who have recovered from a drug
addiction; they do not protect people who are using illegal
drugs when they apply for a job. It was lawful for Defendant
to eliminate applicants who were using drugs when they
applied to be longshore workers. It was likewise lawful for
Defendant to disqualify those applicants permanently. Noth-
ing in the record suggests that Defendant targeted or
attempted to target recovered drug addicts, as distinct from
recreational users.
[4] Finally, Plaintiff argues that the district court improp-
erly granted summary judgment because Defendant learned of
3028 LOPEZ v. PACIFIC MARITIME ASSOCIATION
Plaintiff’s drug addiction shortly after disqualifying him. We
fail to see how Plaintiff’s attempt to inform Defendant of his
status after Defendant disqualified him has any bearing on
whether Defendant decided to disqualify Plaintiff because of
his protected status. See Raytheon, 540 U.S. at 54 n.7 (“If [the
employer] were truly unaware that . . . a disability existed, it
would be impossible for her hiring decision to have been
based, even in part, on [the employee’s] disability. And, if no
part of the hiring decision turned on [the employee’s] status
as disabled, he cannot, ipso facto, have been subject to dispa-
rate treatment.”); Brundage v. Hahn, 66 Cal. Rptr. 2d 830,
836 (Ct. App. 1997) (affirming summary judgment on an
employee’s ADA and FEHA disparate treatment claims
because the employer could not have discriminated on the
basis of a disability of which it did not know).
Plaintiff attempts to rely on our opinion in Hernandez v.
Hughes Missile Systems Co., 362 F.3d 564 (9th Cir. 2004), to
show that he has raised a genuine issue of material fact with
respect to his disparate treatment claim. But the facts in Her-
nandez clearly distinguish it from the circumstances here. In
Hernandez, an employer fired an employee for failing to pass
his drug test. Id. at 566. The employee later became sober and
reapplied. Unlike in this case, the employee included with his
new application a letter from his Alcoholics Anonymous
sponsor that informed the employer of the employee’s “steady
and consistent progress in his recovery from [his] disease.” Id.
That piece of evidence was crucial because, even though the
employer claimed that it had not read the letter, a reasonable
juror could have found that it did. Id. at 566-67. Conse-
quently, we reversed summary judgment because “a reason-
able jury could determine that [the employer] refused to re-
hire [the employee] because of his past record of addiction
and not because of a company rule barring re-hire of previ-
ously terminated employees.” Id. at 570.
[5] Plaintiff has no such evidence. His letter informing
Defendant of his drug addiction came only after Defendant’s
LOPEZ v. PACIFIC MARITIME ASSOCIATION 3029
decision to disqualify him from further processing. Accord-
ingly, Plaintiff’s disparate treatment claim fails because there
is no evidence in this record that Defendant disqualified him
because of his protected status.
III. Plaintiff’s Disparate Impact Claim
Plaintiff’s disparate impact claim also fails. He argues that
the one-strike rule disparately affects recovering drug addicts
by eliminating anyone who previously tested positive for drug
use. But he offers only the bald assertion that this result must
be so. We disagree because, as we have noted, the rule does
not necessarily screen out recovering drug addicts dispropor-
tionately.
[6] To create a genuine issue of fact, Plaintiff must have
produced evidence from which a fact-finder reasonably could
conclude that the one-strike rule results in fewer recovered
drug addicts in Defendant’s employ, as compared to the num-
ber of qualified recovered drug addicts in the relevant labor
market. See Hazelwood Sch. Dist. v. United States, 433 U.S.
299, 308 (1977) (comparing the racial composition of the
employer’s work force to the racial composition of the quali-
fied work force in the relevant labor market). The record con-
tains neither statistical nor anecdotal evidence to that effect.
Plaintiff did present to the district court an affidavit from
a forensic economist. The economist concluded that Plaintiff
had a viable disparate impact claim2 because, after
“[c]omparing the selection rate of the whole population [of
longshore worker applicants] (48%) versus the population of
the ‘protected group’ (0%),” she found it “evident that [the
one-strike rule] is in violation of the 80% Rule.” See 29
2
We assume, without deciding, that the economist’s affidavit includes
some admissible evidence, while noting that it contains a legal conclusion.
See Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 777 (9th Cir. 2010)
(“Pure legal conclusions are not admissible as factual findings.”).
3030 LOPEZ v. PACIFIC MARITIME ASSOCIATION
C.F.R. § 1607.4(D) (1984) (“A selection rate for any race,
sex, or ethnic group which is less than [eighty percent] of the
rate for the group with the highest rate will generally be
regarded by the Federal enforcement agencies as evidence of
adverse impact, while a greater than four-fifths rate will gen-
erally not be regarded by Federal enforcement agencies as
evidence of adverse impact.”).
[7] Although the economist did not define the “protected
group,” she appears to have made the same mistake as Plain-
tiff. The correctly defined “protected group” for purposes of
the ADA and the FEHA is recovered drug addicts. It does not
matter whether such individuals applied to Defendant previ-
ously. If the number of recovered addicts in Defendant’s
workforce roughly reflects the number of recovered addicts in
the relevant labor market, then Defendant has not broken the
law under Plaintiff’s theory. By defining the “protected
group” as the number of recovered drug addicts who previ-
ously applied to Defendant and were rejected because they
failed a drug test, Plaintiff and his expert assume their own
conclusion. Although Defendant will never hire those people
and thus their selection rate always will be zero, we still do
not know how many recovered drug addicts Defendant hires
versus how many recovered drug addicts it turns away, nor do
we know how many of those turned away are not drug
addicts, recovering or otherwise.
[8] Plaintiff complains that our standard places an unfair
burden on him because he has no way to know how many
recovering or recovered drug addicts Defendant has disquali-
fied. Neither can he determine the proportion of recovering or
recovered drug addicts in the relevant labor market because,
he argues, state law prevents him from inquiring into a per-
son’s history of drug abuse. We recognize the challenge
involved in bringing a disparate impact claim of this kind, but
both logic and precedent require him to produce some evi-
dence that tends to show that the one-strike rule excludes
recovering or recovered drug addicts disproportionately.
LOPEZ v. PACIFIC MARITIME ASSOCIATION 3031
Plaintiff introduced no such evidence. At the summary judg-
ment stage, a party no longer can rely on allegations alone,
however plausible they may be. Berger v. City of Seattle, 569
F.3d 1029, 1077-78 (9th Cir. 2009) (en banc). Because the
record contains no evidence supporting an essential element
of Plaintiff’s disparate impact claim, we must affirm the sum-
mary judgment on that claim.
IV. Conclusion
We recognize that the one-strike rule imposes a harsh pen-
alty on applicants who test positive for drug use. As Defen-
dant candidly concedes, many people question the rule’s
reasonableness in light of the fact that many people who use
drugs later rehabilitate themselves, as Plaintiff exemplifies.
But unreasonable rules do not necessarily violate the ADA or
the FEHA. Because Plaintiff failed to establish that Defendant
intentionally discriminated against him on the basis of his
protected status or that the one-strike rule disparately affects
recovered drug addicts, we affirm the summary judgment in
favor of Defendant.
AFFIRMED.
PREGERSON, Circuit Judge, concurring in part and dissent-
ing in part:
I agree with the majority’s conclusion that the district court
did not err in granting summary judgment to Defendant on
Lopez’s disparate treatment claim. But, I disagree with the
majority’s decision to foreclose Lopez’s disparate impact
claim, and I would allow that claim to proceed for the follow-
ing reasons:
Lopez contends that lifetime bans for drug test failures are
per se violations of the ADA because they invariably exclude
3032 LOPEZ v. PACIFIC MARITIME ASSOCIATION
certain protected individuals from employment based on past
behavior.1 Employers may not reject an applicant because the
applicant was previously addicted to drugs. See Hernandez v.
Hughes Missile Sys. Co., 362 F.3d 564, 568 (9th Cir. 2004).
Yet Lopez contends this is exactly what the Pacific Maritime
Association’s (“PMA”) lifetime hiring ban does. To support
his contention, Lopez offered expert testimony that drug
addicts are disproportionately affected by the lifetime ban. In
addition, he showed that at least twenty-seven individuals
were subjected to the ban during roughly the same period he
was. Because the identities of those individuals are protected,
the court does not know which, if any, of them were drug
addicts rather than casual users, or which of the addicts, if
any, were later rehabilitated. It is clear, however, that a signif-
icant number of individuals were impacted by the ban. It is
also reasonable to infer that at least some of those individuals,
like Lopez, were at one time addicted to drugs, but after par-
ticipating in a drug rehabilitation program, were able to over-
come their addiction. Viewing the evidence in the light most
favorable to the Plaintiff, and making all reasonable infer-
ences in his favor, Snead v. Metro. Prop. & Cas. Ins. Co., 237
F.3d 1080, 1087 (9th Cir. 2001), Lopez has put forward suffi-
cient evidence to establish a prima facie case of adverse
impact on the protected class.
Moreover, the district court erred in requiring statistical
evidence to support Lopez’s disparate impact claim. While
statistical evidence is generally required to show disparate
impact under, for example, the Age Discrimination in
Employment Act,2 such evidence is not required for similar
claims under the ADA:
1
This is distinct from either current drug use or workplace misconduct,
both of which employers may lawfully penalize. See, e.g., Amy L. Hen-
nen, Protecting Addicts in the Employment Arena: Charting a Course
Toward Tolerance, 15 Law & Ineq. 157, 172-74 (1997).
2
See Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 2003).
LOPEZ v. PACIFIC MARITIME ASSOCIATION 3033
It is not necessary to make statistical comparisons
between a group of people with disabilities and peo-
ple who are not disabled to show that a person with
a disability is screened out by a selection standard.
Disabilities vary so much that it is difficult, if not
impossible, to make general determinations about
the effect of various standards, criteria and proce-
dures on “people with disabilities.” Often, there may
be little or no statistical data to measure the impact
of a procedure on any “class” of people with a par-
ticular disability compared to people without disabil-
ities.
Barbara T. Lindemann & Paul Grossman, Employment Dis-
crimination Law 953 (C. Geoffrey Weirich ed., 4th ed. 2007)
(quoting EEOC, Technical Assistance Manual § 4.3 (1992)).
Furthermore, it is manifestly unreasonable to require statis-
tical data regarding the number of recovering addicts either
hired by an employer or screened out by the test. These fig-
ures are not kept by employers, and indeed such data likely
could not be lawfully acquired. Moreover, recovering addicts
are unlikely to identify themselves to employers, or to a plain-
tiff’s investigator in a lawsuit such as this, even if asked. One
of the primary limitations suffered by individuals recovering
from addiction is the continuing stigma associated with their
prior drug and alcohol use.3 It is not an accident that nearly
every 12-step support group includes the word “anonymous”
in its name. Thus, statistical evidence on recovering addicts is
not practically available. It follows that if we are to give effect
to the statute’s express protection of individuals recovering
from drug and alcohol addictions, we must, at the summary
judgment stage, liberally construe any evidence suggesting an
adverse impact on those individuals.
3
See Brief of the Betty Ford Center, et al. as Amici Curiae Supporting
Respondent, Raytheon v. Hernandez, 540 U.S. 44 (2003) (No. 02-749),
2003 WL 21649671 at *21-22.
3034 LOPEZ v. PACIFIC MARITIME ASSOCIATION
I do not suggest that we now determine whether lifetime
employment bars resulting from a positive drug test necessar-
ily violate the ADA. It is clear, though, that where such a test
is mandated by an employer who exercises singular control
over an industry spanning the whole west coast of the United
States, the potential impact of the policy is broad and perva-
sive. I would allow Lopez’s case to proceed to determine
whether PMA’s lifetime hiring ban in fact has an adverse
impact on recovering addicts. Accordingly, I dissent from the
majority’s agreement with the district court on the disparate
impact claim.