I am back to my Monday postings. In my latest article, just published by the ABA GPSolo magazine, I discussed the legal parameters that an employer is faced with when it comes to dealing with an employee addicted to the Internet. This week’s case continues that line of thought, albeit with respect to alcohol and drug addiction.

I
Facts

The case is Quinones v. University of Puerto Rico decided by the United States District Court for the District of Puerto Rico on February 13, 2015 (I realize that citing to a case back in February when my blog entry is at the end of June is a bit against character for me. However, I was waiting for the article to come out due to the synergy of this case and the information discussed in that article before writing a blog entry on it).

In this case, the plaintiff was a licensed physician in Puerto Rico. Prior to her admission and enrollment in the ophthalmology residency program at the University of Puerto Rico School of Medicine, she enrolled herself in an alcohol rehabilitation program in March 2011 to treat her alcoholism. After being released from a rehabilitation facility with a number of prescriptions, she then began to use them in a manner not prescribed by her physician on or about July 2011 (not necessarily a surprise here, because addicts frequently switch from one addiction to the other). That same month she was admitted and enrolled in the residency program. Her addiction to the various drugs caused her to have visual disturbances, speech problems and dizziness thereby making it very problematic to comply with certain requirements of the residency program. She then met several times with the residency program committee to discuss her drug addiction and how it was affecting her performance. On September 10, 2012, she was terminated from the residency program and then promptly filed suit in the Superior Court of Puerto Rico requesting immediate reinstatement to the residency program. Subsequent to that suit, the plaintiff and the University of Puerto Rico reached an agreement with the residency program agreeing to temporary leave without affecting the decision to terminate her and granting her the opportunity to formally request reasonable accommodation through the school’s institutional committee on federal laws. On November 30, 2012, she submitted medical and testimonial evidence of the rehabilitation to that committee. In particular, the evidence she presented showed she had been free from using alcohol since March 5, 2011; she had been free for six months from taking prescription drugs; and she was actively participating in AA and Narcotics Anonymous meetings. Even so, the committee on federal laws rejected her request because in their view: she could not comply with the essential function of the position; she had a high risk of relapse; she would have required constant supervision of a faculty member and providing such supervision would constitute an undue hardship for the residency program. Other important facts include: University of Puerto Rico is a public entity; in her complaint, she was referred to as a “rehabilitated alcoholic,” and as an “active addict;” plaintiff did not file with an administrative agency prior to filing suit; and her complaint brought suit under title II of the ADA as well as under title V for retaliation.

II
Defenses/Issues

1. Failure to exhaust administrative remedies.

2. Plaintiff was not a person with a disability.

3. Plaintiff was not a qualified person with a disability because of the safe harbor regarding alcohol and drug addiction.

4. Plaintiff did not allege sufficient facts to support a retaliation claim.

III

Court’s Reasoning

Issue 1

1. Since title II of the ADA is keyed into the Rehabilitation Act and the Rehabilitation Act does not require exhaustion of administrative remedies, Title II of the ADA also does not require exhaustion of administrative remedies. This is not as simple as it seems because in many respects a resident would seem to be an employee. In fact, much of the decision uses terminology and reads as if it is a decision being made under title I of the ADA. Nevertheless, they are also learning to be physicians and are essentially in a student mode. The court wasn’t buying the claims made by the defendant in the supplemental brief that title I provided the exclusive remedy because title II covers programs and services of a public entity, which includes University of Puerto Rico, and so therefore, it follows that the plaintiff’s claims arise under title II. Readers may also want to check out last Friday’s blog entry of mine as well.

Issue 2

1. The plaintiff met her burden with respect to showing a physical or mental impairment that substantially limits one or more of her major life activities only with respect to drug addiction and not the alcohol addiction. With respect to the alcohol addiction, fatal to her claim was that her complaint referred to her as a, “rehabilitated alcoholic.” Further, she did not allege any instances in which her former consumption of alcohol limited any of her major life activities during her residency training.

2. With respect to the drug use, she was able to show that various physical impairments (visual disturbances, the problem, and dizziness), and major life activities (such as learning, reading, concentrating, thinking, communicating, interacting with others, and working), were substantially limited.

Issue 3

1. The ADA provides at 42 U.S.C. § 12114(a), that an employee is not a qualified individual with a disability if that person is currently engaging in the illegal use of drugs where the covered entity acts on the basis of such use.

2. The problem is what does what “currently engaging,” mean? As my article linked to above discusses in greater detail, courts are all over the place on this. In this particular case, the court cites many of the cases on the issue but glosses over their significant differences. It winds up taking a very broad approach by saying that currently engaging means that the illegal use of drugs is an ongoing problem. Further, a significant period of time must pass for an individual to no longer be considered a current user because the safe harbor does not give statutory protection to an employee illegally using drugs during the weeks and months prior to her discharge even where the employee is participating in a drug rehabilitation program and is drug-free on the day she is fired.

3. The ADA treats drug and alcohol addiction differently because it allows the evaluation of a person’s performance stemming from their drug use and drug-related misconduct. It also allows employers to terminate based upon that conduct without having to go through the reasonable accommodation process.

4. Plaintiff fell within the safe harbor because: 1) she alleged that she had stopped illegal use of prescription drugs only three months prior to being terminated; 2) the University of Puerto Rico only became aware of her addiction after several internal meetings and hearings with the plaintiff as a result of her problem complying with the residency program’s requirements; and 3) being a resident involved being entrusted with a high level of responsibility.

5. The court did note that one case found the person who had refrained from drug and alcohol use for one year was not currently engaged in drug use.

6. With respect to the reinstatement, University of Puerto Rico is not required to reinstate the plaintiff as a resident since the plaintiff was lawfully discharged in the first place. That is, since the plaintiff was lawfully discharged on the basis of her illegal use of drugs, the ADA did not require the University of Puerto Rico to afford her another chance. Further, plaintiff failed to show how being reinstated would’ve allowed her to perform her job function properly without endangering others (on this point, this blog entry might be helpful).

Issue 4

1. To state a valid retaliation claim, the plaintiff has to show: 1) she engaged in protected conduct; 2) she suffered an adverse employment action; and 3) there was a causal connection between the protected conduct and the adverse employment action.

2. Even where a plaintiff fails to succeed on a disability claim, a claim for retaliation may exist.

3. Sufficient facts were pled supporting a retaliation claim because: 1) not only did she file a lawsuit in state court arguing that the defendants discriminated against her on the basis of her alleged disability, but also, she filed a request for reasonable accommodation after she agreed to voluntarily dismiss the lawsuit. Both of which constitute protected conduct under the ADA’s retaliation provisions; 2) since the plaintiff was suspended from the residency program at the time of the denial of reinstatement, it follows that she suffered an adverse employment action when defendants refused to reinstate her and permanently terminated her; and 3) the time between the October 9 agreement and the proximity between her protected conduct and the adverse employment action were sufficient to establish a causal link, at least at this preliminary stage.

IV
Takeaways

1. Words matter. I get why a person would be referred to as an active addict or a rehabilitated alcoholic because that is the terminology that is used. However, such terminology may have an adverse impact if used without understanding the context which the language occurs in. Also, when faced with situations like this, a plaintiff may also want to consider using “the record of,” prong.

2. This case reads like an employment decision under title I of the ADA but is actually a title II case. It is far from clear whether a residency situation places the person in title I or title II since the duties of a resident resemble both an employee and a student in significant ways. On the defense side, you certainly would want to argue that title I of the ADA is the exclusive remedy. True, as we have seen, in a blog entry referred to above, § 504 applies to employment. Even so, on the defense side, it would be worthwhile to knock out the ADA claim and stick with the § 504 claim as it applies to employment because § 504 causation, solely by reason of, can be a very difficult standard for a plaintiff to meet.

3. As discussed in my article, also referenced above, what it means to be currently engaged in the illegal use of drugs entirely depend upon the jurisdiction. True, on a very broad level, as noted by the court in the decision being discussed in this blog entry, there is agreement, but the differences between the jurisdictions are extremely significant on a case-by-case basis. Ultimately, the Supreme Court will have to step in. For now, the practitioner definitely wants to review how his or her jurisdiction deals with currently engaging as the subtleties matter a great deal.

4. If you are a plaintiff dealing with a student that is removed from a program due to alcohol or drug addiction, it may be a very good idea to not consent to any reinstatement system before at least a year has passed rather than agreeing to a shorter time. As the cases make clear, for the safe harbor to apply, it doesn’t matter if the individual is actively using drugs or alcohol.

5. I don’t understand the reasoning of the court with respect to saying that since the plaintiff was lawfully discharged on the basis of her illegal use of drugs, a second chance was not required under the ADA. The ADA does protect addicts who are recovering addicts and therefore, should allow for second chances in those situations. Of course, we are then back to what does it mean for a person to be “currently engaging in drug and alcohol use.” Also, in that situation, the concept of direct threat must be considered as well.

6. Just because a disability-based discrimination claim get knocked out, does not mean that the retaliation claim will be knocked out. Retaliation claims can be very expensive, though whether actual and punitive damages are available is very debatable as discussed in this blog entry.

3 Responses to Current User of Illegal Drugs Does Not Mean Actual Use When It Comes to a Recovering Addict

Great question! Thing of it is, that this safe harbor is strictly related to employment. Since title III deals with undue burden and fundamental alteration but does not technically Referred to a qualified individual with a disability, the question there would be whether having someone who is currently engaged in the use of drugs, whatever that might mean, would fundamentally alter the nature of the business. With respect to the fair housing act, I don’t know what the fair housing act statute and implementing regulations say on this point; it would take some investigating on my part. That said, I could see many entities subject to the fair housing act also subject to the Rehabilitation Act and or Title II of the ADA. In that case, the question would be whether being someone not currently engaged in the illegal use of drugs, whatever that means, would be an essential eligibility requirement of the program or activity.

Excellent point! The answer is not as simple as it seems. If you look at 42 U.S.C. § 12114 the currently engaging in use of illegal drugs provision is clearly referring to employment situations. That said, the final regulations implementing title II (28 C.F.R. § 35.131) and title III (28 C.F.R. 36.209), both contain identical provisions saying that a public entity or place of public accommodation cannot discriminate on the basis of illegal use of drugs providing that person is not engaging in current illegal use of drugs if that person has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully; or is participating in a supervised rehabilitation program; or is erroneously regarded as engaging in such use. I don’t know what the answer is with respect to the Fair Housing Act that would take some research on my part.

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