Employee’s Refusal Of Inpatient Alcoholism Treatment Was Legitimate Ground For Termination Under ADA
Frederick Kozisek began working for Seward County in 1981 as a weed control officer. In 1994, he applied for and was appointed to the multi-position of County Veterans Service Officer, Building and Grounds Supervisor, and General Assistance Administrator (collectively, “CVSO”). Kozisek and the board had a contentious history about the nature of the CVSO job. He apparently wanted to devote more of his time and the county's resources to veterans' issues, and less to the other two positions. Kozisek is a veteran himself, and served in the Vietnam war. Kozisek has Post Traumatic Stress Disorder (PTSD) from his time in the war, and he took medication regularly to help control those symptoms.
On July 22, 2005, Kozisek left work early and began drinking. Later that evening, an intoxicated Kozisek wielded firearms, killed or wounded some of his family's farm animals, and threatened his wife. Kozisek also had not taken his prescribed medications in the days proceding July 22. Kozisek was arrested by the Seward County Sheriff the next morning for making terroristic threats, and for using a firearm to commit a felony.
Based on this incident, the board and Kozisek agreed that he would get a psychological evaluation and a substance abuse evaluation. Kozisek first met with a mental health practitioner from the Veterans Administration, Molly Nosbisch. In a letter to the board, Nosbisch recommended that Kozisek complete inpatient alcohol treatment, and notified the board that she had arranged for him to be admitted to the Department of Veterans Affairs residential rehabilitation treatment center on August 18, 2005. Kozisek did not want to complete inpatient treatment, however, and instead told the board that he would pursue treatment through the Blue Valley Mental Health Center. The counselors at Blue Valley agreed that Kozisek needed to complete alcohol abuse treatment, but recommended outpatient treatment, in addition to suggesting that Kozisek get PTSD counseling, and attend Alcoholics Anonymous (AA) meetings.
The board decided to follow Nosbisch's recommendation and require Kozisek to complete inpatient treatment. The board mailed Kozisek a letter on August 31, 2005, informing him that he had ten days to enroll in an inpatient alcohol treatment center or lose his job. Kozisek refused. The board sent him another letter, dated September 20, 2005, noting that it had not received notification about his enrollment in an inpatient treatment program. This letter did not terminate his employment, but again threatened to do so, and invited him to a September 27, 2005, closed session meeting to discuss his continued employment with the county. Kozisek attended this meeting on September 27, and at that time argued with the board about whether he needed inpatient treatment. Following the meeting, the board memorialized the parties' discussions and conclusions in a letter, reiterating its mandate that Kozisek complete inpatient alcohol treatment. This time, the letter set a date of October 3, 2005, for Kozisek to provide proof that he enrolled in a program.
Instead, Kozisek returned to the VA medical center seeking an opinion from a doctor that he did not need inpatient alcohol treatment. Kozisek obtained such a letter from Dr. Padala and provided it to the board. Dr. Padala noted in his letter, dated September 28, 2005, that Kozisek had already “completed an outpatient program for substance abuse” at the Blue Valley facility. It is undisputed that Kozisek completed no such treatment. His “treatment” between July 22, 2005, and September 28, 2005, consisted of attending AA meetings. On October 4, the board notified Kozisek by letter that it was terminating his employment for his failure to “follow the treatment recommendations.”
Kozisek brought the current action against the county under the Americans with Disability Act (ADA), asserting that he was disabled because of the PTSD, and that the county regarded him as a disabled alcoholic. The district court found that there was no evidence in the record that Kozisek's PTSD substantially impaired any of his major life activities. The district court presumed that Kozisek made a prima facie claim that the board regarded him as an alcoholic because his continued employment was conditioned upon him receiving inpatient alcohol abuse treatment. Nevertheless, the district court held that the county proffered a legitimate reason for Kozisek's dismissal--Kozisek's refusal of inpatient alcohol treatment. On appeal, the 8th Circuit affirmed:
To establish a prima facie case under the ADA, Kozisek must show that he was a disabled person within the meaning of the ADA, that he was qualified to perform the essential functions of the job, and that he suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. The ADA defines a disability as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.
Kozisek claims disability status based on two things: his PTSD and that the county regarded him as an alcoholic. We address the latter claim first. Kozisek asserts that the board regarded him as an alcoholic as evidenced by its requirement that he complete inpatient alcohol treatment as a condition of keeping his job. An employer regards the employee as disabled when it mistakenly believes that the employee's physical ailments substantially limit his ability to work. The “regarded as” provision was meant to combat “archaic attitudes, erroneous perceptions, and myths” working to the disadvantage of the disabled or perceived disabled. Accordingly, if a restriction is based upon the recommendations of physicians, then it is not based upon myths or stereotypes about the disabled and does not establish a perception of disability.
The board's insistence upon Kozisek completing inpatient alcohol treatment was not based upon misconceptions, myths or stereotypes about his possible drinking problem. Rather, it was based upon, first, a very serious incident which resulted in criminal charges against Kozisek, and then most importantly, a licensed mental health therapist's recommendation that Kozisek complete inpatient alcohol treatment. That Kozisek was able, two months later, to manipulate a physician from the VA into providing a letter opining that outpatient treatment would be sufficient does not matter. The fact remains that the county based its decision about Kozisek's “restriction”--complete inpatient treatment before returning to his important public job of assisting veterans-upon the recommendation of a professional substance abuse counselor.
Kozisek also asserts disability discrimination based upon his PTSD. As noted above, the district court found that there was no evidence in the record that Kozisek's PTSD substantially impaired any of his major life activities. Kozisek now argues that it affects his major life activity of thinking. No one seems to dispute that Kozisek has PTSD, and accordingly, we will assume he can make out a prima facie case on this claim. Nevertheless, we find that the board articulated a legitimate, nondiscriminatory reason for firing him-because he would not complete inpatient alcohol treatment. The record is fairly clear that the county fired Kozisek because he would not complete inpatient alcohol treatment, and conversely, would have retained him if he had completed such treatment. Any arguments that this reason was pretextual are not persuasive. Accordingly, the PTSD claim fails, and we affirm the district court's grant of summary judgment on Kozisek's ADA claim.
Kozisek v. County Of Seward, Nebraska
The 8th Circuit Court of Appeals’ jurisdiction includes North Dakota, South Dakota, Minnesota, Nebraska, Iowa, Missouri and Arkansas.