Fired alcoholic not protected under ADA, court rules.

The Sixth Circuit has ruled that an alcoholic employee who was fired for testing positive for alcohol was not protected under the Americans with Disabilities Act (ADA) because he had signed an agreement with his employer not to drink.

William Mararri, a steelworker for Warren Consolidated Industries (WCI) for more than 20 years, had been fired twice for alcohol-related incidents. Each time--in 1989 and 1991--he was reinstated after signing a last-chance agreement (LCA). Mararri acknowledged his alcoholism and agreed to attend Alcoholics Anonymous (AA) meetings and to submit to random drug and alcohol testing. (Mararri v. WCI Steel, Inc., 130 F3d 1180 (6th Cir. 1997).)

In 1992, Mararri and other employees were asked to provide urine samples for testing. Mararri tested slightly below the Ohio statutory level for being "under the influence of alcohol." Several days later, WCI discharged him.

Mararri admitted he had consumed four or five beers the night before the testing and had taken a "healthy" dose of liquid cold medicine before reporting for work. He filed an unsuccessful grievance, and his union declined to arbitrate the case.

Mararri then filed suit against WCI and the union, alleging unlawful discharge. While that action was pending, the Equal Employment Opportunity Commission issued him a right-to-sue letter. He later sued for ADA violations.

The district court granted summary judgment, holding that Mararri's termination was lawful because he had violated two provisions of the LCA--reporting to work after having consumed alcohol and testing positive for alcohol. The court also found that Mararri was not entitled to ADA protection because he was a current user of alcohol.

On appeal, the issues before the Sixth Circuit were: (1) whether WCI's termination of Mararri violated the ADA, and (2) whether the district court erred in holding that a provision of the ADA that excludes from protection people "currently engaged in the illegal use of drugs" applies to the "current use of alcohol."

Mararri argued that because he neither drank nor was suspected of drinking alcohol on the job and was not intoxicated when he was tested, his discharge was based solely on his disability, alcoholism. He said reporting to work and testing positive for alcohol did not violate WCI policy.

The Sixth Circuit disagreed. It said that "the problem with [plaintiffs] position is that it attempts to avoid the consequences of Mararri's violation of the LCA." The court acknowledged that Mararri was treated differently than other employees, but said this difference resulted from the terms of the LCA, not from "any discriminatory animus." The court wrote that the only way Mararri could prevail was if the LCA were invalid, "because it is clear that WCI discharged him for violating the agreement, not for being an alcoholic."

The court said it was joining with other courts in noting that while the ADA "protects an individual's status as an alcoholic," merely being an alcoholic does not insulate a person from the consequences of his actions. It echoed the Ninth Circuit, which held that "employers must be allowed to terminate their employees on account of misconduct, `irrespective of whether the employee is handicapped.'" (Collings v. Longview Fibre Go., 63 F.3d 828, 832 (9th Cir. 1995) (quoting Little v. FBI, 1 F.3d 255, 259 (4th Cir. 1993).)

The court also noted that Mararri had attended AA meetings in an unsuccessful attempt at rehabilitation, and that WCI had accommodated him the first two times he failed urine tests.

The court agreed with Mararri, however, that the district court had erred in ruling that his "current use of illegal drugs" disqualified him from ADA protection. It found that alcoholics were not excluded from ADA coverage because alcohol is not a "drug" within the meaning of the statute. The court said the statute treats drug addiction and alcoholism differently, and an alcoholic is not automatically excluded from ADA protection because he or she is a current user of alcohol.

Despite the lower court's error, the Sixth Circuit affirmed the ruling.

Youngstown, Ohio, attorney John Dixon, who represented Mararri, said he found that the case presented several challenges. "I do believe representing a substance abuser is difficult because there is often a bias against that disability that is hard to overcome," he said.

"The key question in this case involves whether the ADA or the LCA prevails," Dixon said. "Can an employer insist on provisions in an LCA that are discriminatory against a handicapped individual? I don't believe the court addressed this issue."