Worker Fired for Alcohol Use Lacks FMLA, ADA Claims

A Home Depot employee fired for coming to work under the influence of alcohol after signing an agreement that called for immediate termination if she tested positive for alcohol on the job has no claim under the Family and Medical Leave Act or Americans with Disabilities Act, the U.S. Court of Appeals for the Seventh Circuit ruled Jan. 6 (Ames v. Home Depot U.S.A. Inc., 7th Cir., No. 09-4151, 1/6/11).

According to the court, in November 2001 Home Depot hired Diane Ames to work on the freight crew at a Home Depot store in Oswego, Ill. She worked without incident until September 2006, when she told store manager Mike Mahon that she had an alcohol problem and requested help through Home Depot's employee assistance program.

Home Depot put Ames on paid administrative leave. On Sept. 23 Ames signed an EAP agreement, which provided that she would be subject to periodic drug and alcohol testing for the remainder of her employment with Home Depot and that her refusal to take a required test or a positive test result would be cause for immediate termination.

On Oct. 18 Ames passed a drug and alcohol test and was authorized to return to work. At about the same time, Joe Peña became the new store manager. On the morning of Nov. 21, Ames was arrested for driving under the influence of alcohol.

On Dec. 23 Ames reported to work as scheduled, but an assistant manager told Peña that Ames was “acting differently” and smelled of alcohol. Peña observed that Ames seemed less responsive to conversation and was slurring her words. On the advice of the human resources department, Peña sent Ames to a testing facility for a blood alcohol test. A few days later, the lab reported Ames's blood had tested positive for alcohol.

Home Depot decided to terminate Ames, effective Dec. 23, for violating its substance abuse policy.

Ames sued in the U.S. District Court for the Northern District of Illinois, alleging Home Depot violated the FMLA and ADA by firing her rather than granting her leave or otherwise accommodating her condition. The district court ruled in favor of Home Depot, and Ames appealed.

Analyzing Ames's FMLA claims under the Labor Department regulations in effect in 2006, the Seventh Circuit said substance abuse can qualify as a “serious health condition” triggering a right to FMLA leave if treatment involves “inpatient care” or “continuing treatment by a health care provider.”

But Ames can meet neither condition, the court said. “At no time before Dec. 23, the day she was terminated, did Ames go into inpatient care for her condition; her decision to check herself into the hospital on Jan. 1 occurred well after she violated Home Depot's policy on substance abuse,” the appeals court said. “In addition, Ames cannot establish that her substance abuse was a condition requiring ‘continuing treatment by a health care provider.' ”

“Based on the record, a reasonable factfinder could not conclude that Ames was afflicted with a serious health condition within the meaning of the FMLA as of Dec. 23, the day her termination for failing the blood alcohol test became effective,” the court said.

Ames's FMLA retaliation claim fails as a matter of law because she presented no evidence of a causal link between her alleged request for FMLA leave and the adverse employment actions, the court said.

Ames's ADA claim also fails because she failed to produce evidence that her condition substantially limited any major life activity, the court said. Even if Ames had established a covered disability, the court said, there is no evidence that Home Deport refused to accommodate her condition. “In fact, the evidence shows that Home Depot gave Ames time off with pay and assistance through its employee assistance program” and was willing to grant her leave to attend Alcoholics Anonymous meetings, the court said.

Text of the decision can be accessed at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-8cuqyb.