For the second time in less than a month, a federal appeals court has addressed the issue of whether the termination of an employee, when based upon that individual’s use of prescription medication, leads to the conclusion that the employer regarded the employee as “disabled.”  On October 16, the 6th U.S. Circuit Court of Appeals found that an employer’s decision not to recall an individual from layoff based upon that employee’s use of opiate-based prescription medication did not violate the ADA.  In that case, the court held that the company did not perceive the employee to be precluded from a broad range of employment positions and, therefore, did not perceive him to be disabled.  Daugherty v. Sajar Plastics, No. 05-02787 (6th Circ. October 16, 2008).  On October 27, the 8th U.S. Circuit Court of Appeals came to the same conclusion in a similar case, by way of a different rationale.  Kosmicki v. Burlington Northern & Santa Fe Railway Company, No. 08-1511 (8th Circ. October 27, 2008).

Daniel Kosmicki was fired from his position as a train conductor and engineer with the Burlington Northern & Santa Fe Railway Company.  Kosmicki filed suit, claiming that the reason for his termination was the fact that the Railway perceived him to be disabled.  The Railway disagreed, arguing that Kosmicki was fired when he failed to provide the company with complete information on a medical questionnaire regarding his treatment and medication, and because he worked while on prescription drugs that affected his cognitive abilities, both of which are contrary to company policies.  

In order to succeed on his ADA claim, Kosmicki would have to discredit the Railway’s stated reason for his discharge, and also would have to provide evidence raising a reasonable inference that the true reason for the discharge was that he was “regarded as” disabled by the company.  The trial court granted the Railway’s motion for summary judgment, and that dismissal was upheld by the Eighth Circuit. 

The Railway provided evidence that Kosmicki violated the company’s written drug and alcohol policy by taking a prescription medicine that “has an adverse effect on the employee’s ability to work safely.”  During the months immediately prior to his firing, Kosmicki was taking at least one and sometimes two of three prescription drugs – Ativan, Risperdal, and Lexapro.  According to a medical expert who testified at Kosmicki’s termination hearing, each of those drugs can cause sleepiness and dizziness. Kosmicki himself admitted that his inability to pass simulator tests administered to him by the Railway was caused by his medications.  In addition, Kosmicki failed to provide complete information about his medications in connection with a medical screening – there was evidence that he originally made an entry on a medical history form about the medications, but then crossed that entry out. 

Kosmicki was unable to produce evidence that would have permitted a jury to find that the Railway fired him because it regarded him as disabled.  At most, according to the court, Kosmicki was “inviting speculation about the reasons for his termination” by showing that one of his supervisors mentioned that Kosmicki might have suffered a head injury during his days as a boxer.  However, this “invitation” is not sufficient to support the assertion that the company’s perception of a disability was the real basis for the termination of Kosmicki’s employment.

The 8th Circuit did not address the issue of whether the Railway viewed Kosmicki as precluded from working in a broad range of jobs (as did the Sixth Circuit in Daugherty v. Sajar Plastics earlier in the same month), and did not dwell on the “regarded as” provision of the ADA.  Instead, it focused on the company’s written policies and procedures, and on the fact that the evidence showed a clear violation of those policies by Kosmicki.  Because of that evidence, the company was able to provide a legitimate business reason for Kosmicki’s firing, and to preclude Kosmicki from carrying his burden of showing that the proffered reason for his firing was a pretext for ADA discrimination.  This case is another example of the importance of clear, concise written policies, consistently enforced by employers.  


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