Court: Court of Appeals for the Ninth Circuit; June 11, 2002; Federal Appellate Court
The order amends a previous opinion regarding the case of Joel Hernandez against Hughes Missile Systems Company. Key amendments include changing language to clarify that Hughes "screens out" applicants rather than discriminating based on past disability, and specifying that Hernandez's only workplace offense was testing positive for drug use. A footnote emphasizes that Hughes did not raise a business necessity defense concerning the hiring of rehabilitated drug addicts.
The court ultimately denies both the Petition for Rehearing and the Petition for Rehearing En Banc. Hernandez, who worked at Hughes for approximately 25 years, tested positive for cocaine in 1991 and resigned in lieu of termination, noted as "discharge for personal conduct." In 1994, he applied for reemployment but was rejected, claiming discrimination based on his history of drug addiction. The EEOC supported his claim, leading to legal action under the Americans with Disabilities Act (ADA). The district court had granted summary judgment in favor of Hughes, but this decision was reversed.
Hernandez's reemployment application included a resumé and positive reference letters from a pastor and a counselor affirming his commitment to sobriety. Hughes's Labor Relations Department, led by Ms. Joanne Bockmiller, reviewed Hernandez's application and personnel file, concluding he was ineligible for rehire due to an unwritten policy against rehiring employees who resigned in lieu of termination, despite lacking knowledge of the specific circumstances surrounding his resignation.
Hughes responded to Hernandez’s EEOC charge, stating his application was rejected due to prior drug use and lack of evidence of rehabilitation. Hughes maintained its right to deny re-employment based on company rule violations. The EEOC later found reasonable cause to believe Hernandez was denied hire due to his disability. After Hernandez filed suit, Hughes claimed he did not establish a prima facie case of discrimination and argued its reasons for denial were not a pretext for discrimination. The district court granted Hughes summary judgment without explanation. Hernandez appealed, asserting discrimination under Title I of the ADA, requiring him to prove he was disabled, qualified for the job, and that the rejection was due to his disability. Hernandez contended he was discriminated against based on his record of disability or perceived disability, arguing that Hughes's EEOC position statement evidenced discrimination due to his drug addiction history. Hughes countered that the statement was from an employee not involved in the hiring decision, suggesting reliance on testimony from the reviewer, Ms. Bockmiller. However, even her testimony did not definitively support Hughes's claim of Hernandez failing to establish a prima facie case of discrimination, as she was unaware of his drug history or the reason for his previous termination.
Bockmiller reviewed Hernandez’s personnel file, which included his 1991 drug test results, and was likely aware of his status as a recovering alcoholic due to an accompanying letter from his A.A. counselor. This knowledge raises questions about Hernandez's earlier termination and the validity of Hughes's claim that his application was rejected due to past drug addiction. Hernandez must prove he was a "qualified" individual for rehire, demonstrating he met the job-related requirements. His performance in 1991 was rated as "good" and "fair," and he contends this qualifies him under the ADA. While Hughes agrees with his qualifications in 1991, it disputes his qualifications in 1994, citing his failure to pass a relevant exam in 1999. Hernandez argues that this failure does not reflect his potential in 1994, indicating a genuine material fact issue regarding his qualifications at that time. The court finds Hernandez presented enough evidence to challenge a summary judgment, shifting the burden to Hughes to provide a legitimate, nondiscriminatory reason for not rehiring him. Hughes claims its unwritten policy against rehiring employees terminated for misconduct, including drug use, is non-discriminatory. However, this policy may violate the ADA as it could unjustly affect former drug addicts who have been rehabilitated, as the ADA protects those who are not currently using drugs and have a history of addiction.
Hernandez cannot be denied re-employment solely due to his past drug addiction if he has successfully rehabilitated. Even if Bockmiller was unaware of Hernandez’s addiction when rejecting his application, Hughes's decision not to re-employ him based on his prior termination would violate the Americans with Disabilities Act (ADA). If Bockmiller's lack of knowledge stemmed from Hughes's unlawful policy preventing employees from understanding that their hiring decisions could be illegal, this ignorance does not absolve the employer from responsibility. Hughes's blanket policy against re-hiring former employees who violated company rules discriminates against rehabilitated individuals with a history of addiction, which is illegal under the ADA. Hernandez has established a prima facie case of discrimination, showing he was qualified for the position in 1994 and that his application was rejected due to his addiction record. Thus, Hughes's unwritten policy barring reemployment of employees who left due to personal conduct violations is deemed a violation of the ADA. Summary judgment was therefore inappropriate, and the decision is reversed and remanded for further proceedings. Additionally, Hernandez's claim of discrimination is confined to interpretations of disability under the ADA, specifically regarding being "regarded as" or having a "record of" a disability, with no contest about his prior discharge for testing positive for cocaine. It is confirmed that Hernandez was disabled under the ADA at the time of resignation and that a record of this disability exists.
Physical or mental impairment under the ADA includes drug addiction and alcoholism, with drug addiction recognized as a disability if it significantly limits major life activities. Alcoholism is also undisputedly a disability under the ADA. Hernandez, who struggled with substance abuse during his employment, is inferred to have had the potential to be an above-average employee at the time of his resignation from his position as Calibration Service Technician, which was a higher role than Product Test Specialist, a position he had previously held. If found qualified in 1994 but not today, he could claim damages.
Hughes does not argue on appeal that Hernandez is unqualified due to lack of rehabilitation, acknowledging that evidence of Hernandez's recovery, including an affidavit and a letter from Alcoholics Anonymous, raises a genuine factual issue. Notably, Hughes's employment policy favors new applicants who may be drug users over former employees like Hernandez, who, if fired for drug use, are permanently barred from reemployment, while new applicants can reapply after a year. Hughes justified Hernandez's application rejection based on its policy against rehiring those with previous rule violations. Hernandez has established a prima facie case that his addiction record influenced the rejection, regardless of the decision-maker's awareness of the specific termination reasons or Hughes's blanket policy.
Hughes has not presented a business necessity defense regarding the hiring of rehabilitated individuals, and the court affirms that Hernandez failed to timely assert his disparate impact claim, which was neither included in the complaint nor raised before the discovery period ended. Consequently, Hughes's motion to strike references to the disparate impact claim from Hernandez’s Reply Brief is granted.
