The full case caption appears at the
end of this opinion. OPINION MERRITT, Circuit Judge. Plaintiff Dennis L. Martin appeals the district court’s order granting summary judgment in favorof defendant, Barnesville Exempted Village School District Board of Education. On appeal, plaintiff alleges that defendantdiscriminated against him on the basis of a perceived disability – namely alcoholism – in violation of the Americans withDisabilities Act, 42 U.S.C. �� 12101 et seq. and Ohio Revised Code � 4112. Because the record demonstrates that plaintiffdid not receive an assignment as a school bus driver because he was caught drinking on the job, no violation of the ADAoccurred. We therefore affirm the judgment of the district court. Plaintiff was hired by defendant as a bus driver in 1984. He is a member of the union, known as the BarnesvilleAssociation of Classified Employees, OEA/NEA. In 1991 he bid for and was awarded a custodial position with defendant.Shortly after beginning his custodial duties, Robert Miller, the president of the school board, observed plaintiff drinking beerwhile on the job at an elementary school. When confronted by Miller, plaintiff denied the allegation and left the building, eventhough his shift was not over. Upon completion of an investigation, the school board recommended that plaintiff beterminated for consuming alcohol at work, leaving his post and for conduct in violation of the stated “drug-free workplace”policy. Plaintiff ultimately admitted that he had been drinking a beer while on duty on school grounds. After intervention bythe union, plaintiff was allowed to keep his position if he signed a document entitled “Last Chance Agreement.” The terms ofthe agreement required plaintiff (1) to admit to an unspecified “drinking problem;” (2) successfully to complete an approvedalcohol rehabilitation program; (3) to accept a four-week suspension without pay and (4) to submit to alcohol and drugtesting upon request for two years. Plaintiff signed the agreement and there is no dispute that he has at all times complied withthe terms of the Last Chance Agreement. (Plaintiff was never asked to submit to a drug test during the two-year period anddefendant acknowledges that it never had any reason to believe that plaintiff abused alcohol during that period.) In December 1994, plaintiff submitted bids for a part-time bus driver position and a part-time bus garage workerposition. Although plaintiff was the most senior worker to bid for the positions, defendant rejected him, citing the 1991 beerincident. Plaintiff filed a grievance with the union and in August 1995, after a binding arbitration hearing in compliance with theunion’s collective bargaining agreement with defendant, plaintiff was awarded the bus driver and garage worker positions onwhich he had bid in December 1994. The arbitrator based his decision solely on the terms of the bargaining agreementbetween the union and defendant, finding that the school board had not demonstrated that plaintiff posed a safety threat andtherefore the seniority provisions of the labor agreement could not be overridden. Arbitrator’s Opinion and Award, Aug. 10,1995. Defendant appealed the arbitrator’s decision to the Belmont County Common Pleas Court, which reversed and vacatedthe labor arbitration award. In the Matter of Barnesville Exempted Village School Dist. Bd. of Educ. v. Miller, 1997Ohio App. LEXIS 5253 (Belmont Cty. 1997). On appeal, the Ohio Court of Appeals reversed the Court of Common Pleasand reinstated the arbitrator’s award. Barnesville Exempted Village School Dist. Bd. of Educ. v. Barnesville Ass’n ofClassified Employees, 123 Ohio App. 3d 272, 704 N.E.2d 36 (1997). The Court of Appeals reversed the Court ofCommon Pleas, holding that the arbitrator’s award must be upheld unless the decision bears “no connection” with the laborcontract. 123 Ohio App. 3d at 276, 704 N.E.2d at 38. The Court of Appeals found that the arbitrator carefully weighed thecompeting concerns of safety and seniority and the state court could not overrule the decision simply because it disagreedwith the outcome. Id. Defendant appealed to the Ohio Supreme Court, which did not allow the discretionary appeal.Barnesville Exempted Village School Dist. Bd. of Educ. v. Barnesville Ass’n of Classified Employees, 81 Ohio St. 3d1421, 688 N.E.2d 1046 (1998). Plaintiff was awarded the positions he sought in December 1994
[FOOTNOTE 1] and began his duties inFebruary 1998. He was not awarded back pay or any other remuneration for lost wages or benefits. Plaintiff filed this suit under the federal and state disability discrimination laws in September 1997, during the pendency ofthe arbitration proceedings. Both parties have filed briefs asserting that the arbitration proceeding under the collectivebargaining agreement does not bar our review of plaintiff’s federal discrimination claim. They cite Wright v. UniversalMaritime Serv. Corp., 525 U.S. 70 (1998) (terms of collective bargaining agreement must contain “clear and unmistakable”language waiving specific federal statutory rights) and Bratten v. SSI Servs., Inc. 185 F.3d 625 (6th Cir. 1999)(same). Wetherefore do not decide the res judicata issue. We note that because plaintiff was subsequently awarded the positions hesought in his federal complaint as a result of the arbitration proceedings, plaintiff’s request in his complaint that he be awardedthe positions of bus driver and garage worker is moot and the only issue before us is whether plaintiff should be awardedcompensatory and punitive damages, including back pay for the period from December 1994 to February 1998, due todefendant’s alleged discrimination. To prevail in a disability discrimination case, plaintiff must present either direct evidence of discrimination or present aprima facie case of discrimination. To establish a prima facie case under the Americans with Disabilities Act, plaintiff mustshow: (1) he was “disabled” under the ADA; (2) he was otherwise qualified to perform the essential functions of the job; (3)he suffered an adverse employment action and (4) a nondisabled person replaced him. Monette v. Electronic Data Sys.Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). Once the plaintiff establishes a prima facie case, the burden shifts to theemployer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. The burden then shifts backto plaintiff to demonstrate that the employer’s stated reason is a pretext for discrimination. McDonnell Douglas Corp. v.Green, 411 U.S. 792 (1973).(2) The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of thedisability of such individual in regard to job application procedures, job training, and other terms, conditions, and privileges ofemployment.” 42 U.S.C. � 12112(a). The term “disability” is defined as: 1. a physical or mental impairment that substantially limits one or more major life activities; 2. a record of such impairment; or 3. being regarded as having such an impairment. 42 U.S.C. � 12102
[FOOTNOTE 2]. Plaintiff denies that he has a physical or mental impairment and instead relies on either the second orthird criteria to establish that he is “disabled;” that is, “having a record of such impairment” or being “regarded as” having suchan impairment.
[FOOTNOTE 3] The district court granted summary judgment to defendant because it found that plaintiff had notestablished that his disability — whether perceived or real — “substantially limits one or more major life activities.” While wedo not necessarily disagree with the district court’s reasoning, we affirm on a different ground. This Court has held that there is a distinction between taking an adverse job action for unacceptable misconduct andtaking such action solely because of a disability, even if the misconduct is “caused” by the disability. Maddox v. Universityof Tennessee, 62 F.3d 843, 847 (6th Cir. 1995). In Maddox, an assistant football coach at the University of Tennessee wasfired after an arrest for driving while intoxicated. The coach argued that his alcoholism was a covered disability and that hisconduct of driving while impaired resulted from his disability, thereby precluding the university from firing him. This courtassumed without deciding that alcoholics may be “individuals with a disability” for purposes of the ADA. The court held thatthe ADA specifically provides that an employer may hold an alcoholic employee to the same performance and behaviorstandards to which the employer holds other employees “even if any unsatisfactory performance is related to the alcoholismof such employee,” thereby clearly distinguishing the issue of misconduct from one’s status as an alcoholic. 42 U.S.C.� 12114(c)(4). Maddox controls this case. Plaintiff makes much of the fact that defendant represented throughout the arbitration andOhio state court proceedings that plaintiff had an “admitted drinking problem” based on the Last Chance Agreement hesigned after the beer drinking incident at the school. We will assume without deciding that defendant does perceive thatplaintiff suffers from alcoholism, a disability, and that plaintiff has established a prima facie case of disability. We then turn todefendant’s stated reason for rejecting plaintiff’s bids. Defendant stated that plaintiff was denied the jobs as a bus driver andgarage worker in 1994 based on the 1991 beer drinking incident during work hours at an elementary school. The defendantasserts that the law should not require it to put a person guilty of drinking on the job in the driver’s seat of a school bushauling children. The ADA does not protect plaintiff from his own bad judgment in drinking on the job. The plaintiff cannot force defendantto hire him as a school bus driver when there is a serious risk that he may again drink on the job, have an accident and kill agroup of school children. Any suggestion to the contrary is absurd on its face. For a federal court to interpret the ADA torequire a school board to hire as a school bus driver a person guilty of drinking on the job and thereby run the risk of anaccident would raise serious constitutional problems. If an accident should occur and students were injured or killed, theschool board would be subject to large compensatory and punitive damages and open itself to the moral condemnation of thecommunity. Therefore, even if we assume that plaintiff has established a prima facie case of discrimination, defendant hasarticulated a legitimate, non-discriminatory reason for its actions. Plaintiff has not demonstrated that this stated reason is apretext for any unlawful discrimination. For the foregoing reasons, we affirm the district court. :::FOOTNOTES:::
FN1 During the pendency of the arbitration proceedings and subsequent state court proceedings, plaintiff continued to bid onavailable bus driver and garage worker positions when they became available. His bids were rejected each time.
FN2 Both federal and Ohio disability discrimination actions require the same analysis. Little Forest Med. Ctr. V. Ohio Civ.Rights Comm’n, 61 Ohio St. 3d 607, 575 N.E.2d 1164, 1167 (1991).
FN3 Plaintiff stated that he signed the Last Chance Agreement, in which plaintiff admitted to a “drinking problem,” because itwas the only way he could keep his job.
FN4 The Honorable Frank J. Magill, Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting bydesignation.
Martin v. Barnesville Exempted Village School Dist. Bd. of Educ. UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Dennis L. Martin, Plaintiff-Appellant, v. Barnesville Exempted Village School District Board of Education, Defendant-Appellee. No. 99-3263 Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 97-00992–Algenon L. Marbley, District Judge. Argued: March 14, 2000 Decided and Filed: April 21, 2000 Before: MERRITT, DAUGHTREY, and MAGILL,
[FOOTNOTE 4] Circuit Judges. COUNSEL ARGUED: Samuel N. Lillard, MOWERY & YOUELL, Dublin, Ohio, for Appellant. John C. Albert, CRABBE,BROWN, JONES, POTTS & SCHMIDT, Columbus, Ohio, for Appellee. ON BRIEF: Samuel N. Lillard, MOWERY &YOUELL, Dublin, Ohio, for Appellant. John C. Albert, CRABBE, BROWN, JONES, POTTS & SCHMIDT, Columbus,Ohio, for Appellee.
