25 Fla. L. Weekly Fed. C859a
Employment discrimination — Americans with Disabilities Act — Family
Medical Leave Act — No error in entering summary judgment in favor of former
employer who dismissed plaintiff from employment as commercial truck driver
after plaintiff was diagnosed as suffering from alcoholism — Employer did not
violate ADA by terminating plaintiff based on substance abuse treatment center’s
diagnosis of alcohol dependence seven days before the termination because
plaintiff could not qualify as a commercial motor vehicle driver under DOT
regulation regarding physical qualification standards and perform essential
functions of commercial motor vehicle driver job — Because one of DOT physical
qualification standards was that plaintiff have “no current clinical diagnosis
of alcoholism” and plaintiff had a “current clinical diagnosis of alcoholism,”
plaintiff could not perform an essential function of job description, and
employer could not allow him to drive a commercial motor vehicle — Employer was
entitled to rely on seven-day-old diagnosis in reaching conclusion that
plaintiff had a “current clinical diagnosis of alcoholism” — Claims of
interference and retaliation under FMLA also fail — Interference claim fails
because evidence established that employer would have discharged plaintiff
regardless of his FMLA leave — Retaliation claim fails where plaintiff could
not establish that employer’s decision to terminate plaintiff was causally
related to FMLA leave — Temporal proximity between FMLA leave and discharge is
not, standing alone, sufficient to establish causal connection, and there was no
showing that individual who made decision to terminate plaintiff had actual
knowledge that plaintiff was on FMLA leave
Medical Leave Act — No error in entering summary judgment in favor of former
employer who dismissed plaintiff from employment as commercial truck driver
after plaintiff was diagnosed as suffering from alcoholism — Employer did not
violate ADA by terminating plaintiff based on substance abuse treatment center’s
diagnosis of alcohol dependence seven days before the termination because
plaintiff could not qualify as a commercial motor vehicle driver under DOT
regulation regarding physical qualification standards and perform essential
functions of commercial motor vehicle driver job — Because one of DOT physical
qualification standards was that plaintiff have “no current clinical diagnosis
of alcoholism” and plaintiff had a “current clinical diagnosis of alcoholism,”
plaintiff could not perform an essential function of job description, and
employer could not allow him to drive a commercial motor vehicle — Employer was
entitled to rely on seven-day-old diagnosis in reaching conclusion that
plaintiff had a “current clinical diagnosis of alcoholism” — Claims of
interference and retaliation under FMLA also fail — Interference claim fails
because evidence established that employer would have discharged plaintiff
regardless of his FMLA leave — Retaliation claim fails where plaintiff could
not establish that employer’s decision to terminate plaintiff was causally
related to FMLA leave — Temporal proximity between FMLA leave and discharge is
not, standing alone, sufficient to establish causal connection, and there was no
showing that individual who made decision to terminate plaintiff had actual
knowledge that plaintiff was on FMLA leave
SAKARI JARVELA, Plaintiff-Appellant, v. CRETE CARRIER CORPORATION,
Defendant-Appellee. 11th Circuit. Case No. 13-11601. January 28, 2015. Appeal
from the U.S. District Court for the Northern District of Georgia (No.
1:11-cv-02486-SCJ).
Defendant-Appellee. 11th Circuit. Case No. 13-11601. January 28, 2015. Appeal
from the U.S. District Court for the Northern District of Georgia (No.
1:11-cv-02486-SCJ).
ON PETITION FOR REHEARING
[Original
Opinion at 24 Fla. L. Weekly Fed. C1465a]
(Before TJOFLAT and COX, Circuit Judges.*)
(COX, Circuit Judge.) Sakari Jarvela’s Petition for Panel Rehearing is
granted.1 The prior opinion of the panel
published at 754 F.3d 1283 is vacated, and this opinion is substituted for the
prior panel opinion.
granted.1 The prior opinion of the panel
published at 754 F.3d 1283 is vacated, and this opinion is substituted for the
prior panel opinion.
INTRODUCTION
The plaintiff, Sakari Jarvela, sued his former employer, Crete Carrier
Corporation, and asserted various claims under the Americans with Disabilities
Act and the Family and Medical Leave Act. These claims arose out of Crete’s
termination of Jarvela as a commercial motor vehicle driver. Crete terminated
Jarvela because, a week before Crete terminated him, a substance abuse treatment
center had discharged Jarvela with a diagnosis of alcohol dependence. The
district court granted Crete summary judgment, concluding that Crete did not
violate either the Americans with Disabilities Act or the Family and Medical
Leave Act. We affirm.
Corporation, and asserted various claims under the Americans with Disabilities
Act and the Family and Medical Leave Act. These claims arose out of Crete’s
termination of Jarvela as a commercial motor vehicle driver. Crete terminated
Jarvela because, a week before Crete terminated him, a substance abuse treatment
center had discharged Jarvela with a diagnosis of alcohol dependence. The
district court granted Crete summary judgment, concluding that Crete did not
violate either the Americans with Disabilities Act or the Family and Medical
Leave Act. We affirm.
I. PROCEDURAL HISTORY
and FACTS
A. Procedural History
Sakari Jarvela, a driver of commercial motor vehicles for Crete Carrier
Corporation, sued Crete, a motor carrier regulated by the Department of
Transportation, in the Northern District of Georgia. Count I of Jarvela’s
complaint alleges that Crete terminated him in violation the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. (“ADA”). Count
II alleges interference and retaliation claims under the Family and Medical
Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”) based on Crete’s alleged
failure to reinstate Jarvela following the conclusion of his Crete-approved
“leave to care for his . . . serious health condition.”
Corporation, sued Crete, a motor carrier regulated by the Department of
Transportation, in the Northern District of Georgia. Count I of Jarvela’s
complaint alleges that Crete terminated him in violation the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. (“ADA”). Count
II alleges interference and retaliation claims under the Family and Medical
Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”) based on Crete’s alleged
failure to reinstate Jarvela following the conclusion of his Crete-approved
“leave to care for his . . . serious health condition.”
After the close of discovery, Crete filed a motion for summary judgment on
all of Jarvela’s claims. Jarvela responded. The district court granted Crete
summary judgment on all claims. As to the ADA claim, the district court held
that Jarvela could not establish a prima facie case. The district court reasoned
that because he had “a current clinical diagnosis of alcoholism” within the
meaning of Department of Transportation (“DOT”) regulations (specifically 49
C.F.R. § 391.41(b)(13)), Jarvela was not a “qualified individual.” (Doc.
40, Order at 4) (emphasis added). The district court found the FMLA interference
claim meritless because of unrebutted record evidence indicating that,
regardless of Jarvela’s FMLA leave, Crete would have terminated him because of
his “current clinical diagnosis of alcoholism.” The district court found the
FMLA retaliation claim meritless because Jarvela failed to produce evidence of
the required causal connection between his taking FMLA leave and his
termination. Jarvela appeals.
all of Jarvela’s claims. Jarvela responded. The district court granted Crete
summary judgment on all claims. As to the ADA claim, the district court held
that Jarvela could not establish a prima facie case. The district court reasoned
that because he had “a current clinical diagnosis of alcoholism” within the
meaning of Department of Transportation (“DOT”) regulations (specifically 49
C.F.R. § 391.41(b)(13)), Jarvela was not a “qualified individual.” (Doc.
40, Order at 4) (emphasis added). The district court found the FMLA interference
claim meritless because of unrebutted record evidence indicating that,
regardless of Jarvela’s FMLA leave, Crete would have terminated him because of
his “current clinical diagnosis of alcoholism.” The district court found the
FMLA retaliation claim meritless because Jarvela failed to produce evidence of
the required causal connection between his taking FMLA leave and his
termination. Jarvela appeals.
B. Facts
1. Jarvela’s Employment and Crete’s
Job Description for Commercial
Motor Vehicle Drivers
According to Vice-President of Safety and Compliance Ray Coulter, Crete
Carrier Corporation employed approximately five thousand commercial motor
vehicle drivers. Coulter had ultimate responsibility for these drivers. Crete
employed Jarvela as an over-the-road commercial motor vehicle driver in its
National Fleet from November 2003 until April 2010. His base was Crete’s
Marietta, Georgia, facility, and his supervisor was Fleet Manager Bill Hough.
Carrier Corporation employed approximately five thousand commercial motor
vehicle drivers. Coulter had ultimate responsibility for these drivers. Crete
employed Jarvela as an over-the-road commercial motor vehicle driver in its
National Fleet from November 2003 until April 2010. His base was Crete’s
Marietta, Georgia, facility, and his supervisor was Fleet Manager Bill Hough.
Crete had a written job description for the commercial motor vehicle driver
position held by Jarvela. According to Jarvela, the job description is accurate.
Under the heading, ESSENTIAL DUTIES AND RESPONSIBILITIES, the first entry is
“[q]ualifies as an over the road driver pursuant to U.S. Department of
Transportation (‘DOT’) regulations.” The DOT regulations implicated by that job
description and relevant to resolution of this appeal are the following: (1) 49
C.F.R. § 391.11(a), which forbids a motor carrier to permit a person to drive a
commercial motor vehicle if he is not qualified to do so under DOT regulations;
(2) 49 C.F.R. § 391.41(a)(3)(i), which states that a commercial motor vehicle
driver must “meet[ ] the physical qualification standards in paragraph (b) of
this section”; and (3) 49 C.F.R. § 391.41(b)(13), which establishes as one of
the “physical qualification standards [under paragraph (b) of this section]”
that the person have “no current clinical diagnosis of alcoholism.”
position held by Jarvela. According to Jarvela, the job description is accurate.
Under the heading, ESSENTIAL DUTIES AND RESPONSIBILITIES, the first entry is
“[q]ualifies as an over the road driver pursuant to U.S. Department of
Transportation (‘DOT’) regulations.” The DOT regulations implicated by that job
description and relevant to resolution of this appeal are the following: (1) 49
C.F.R. § 391.11(a), which forbids a motor carrier to permit a person to drive a
commercial motor vehicle if he is not qualified to do so under DOT regulations;
(2) 49 C.F.R. § 391.41(a)(3)(i), which states that a commercial motor vehicle
driver must “meet[ ] the physical qualification standards in paragraph (b) of
this section”; and (3) 49 C.F.R. § 391.41(b)(13), which establishes as one of
the “physical qualification standards [under paragraph (b) of this section]”
that the person have “no current clinical diagnosis of alcoholism.”
2. Jarvela’s Clinical Diagnosis
and Treatment for Alcoholism
In March 2010, Jarvela reported to his personal physician, Dr. James
Marshall, that he had difficulties with alcohol use. Although Dr. Marshall did
not memorialize Jarvela’s self-reported difficulties with alcohol use, he did
refer Jarvela to Bradford Health Services for thirty days of intensive
outpatient treatment. Asked at his deposition whether he agreed with Dr.
Marshall’s assessment as to his need for rehabilitation for his drinking,
Jarvela answered, “Yes, I did.”
Marshall, that he had difficulties with alcohol use. Although Dr. Marshall did
not memorialize Jarvela’s self-reported difficulties with alcohol use, he did
refer Jarvela to Bradford Health Services for thirty days of intensive
outpatient treatment. Asked at his deposition whether he agreed with Dr.
Marshall’s assessment as to his need for rehabilitation for his drinking,
Jarvela answered, “Yes, I did.”
Jarvela requested FMLA leave for the duration of his treatment, which Crete
granted. Richard Yoakum, Jarvela’s primary counselor at Bradford Health
Services, completed a Certification of Health Care Provider for Employee’s
Serious Health Condition, which Jarvela’s attending physician at Bradford, Dr.
Jerry Howell, signed. Bradford Health Services forwarded this document to Crete.
At the top of the first page of this document, under Part A: Medical Facts, is
an indication of “Probable duration of condition.” The handwritten answer is,
“[c]hronic.”
granted. Richard Yoakum, Jarvela’s primary counselor at Bradford Health
Services, completed a Certification of Health Care Provider for Employee’s
Serious Health Condition, which Jarvela’s attending physician at Bradford, Dr.
Jerry Howell, signed. Bradford Health Services forwarded this document to Crete.
At the top of the first page of this document, under Part A: Medical Facts, is
an indication of “Probable duration of condition.” The handwritten answer is,
“[c]hronic.”
3. Jarvela’s Return-to-Work
Medical Certification
Jarvela completed his treatment for alcoholism at Bradford Health Services on
April 20, 2010. On April 22, he visited his personal physician, Dr. Marshall,
who gave him a Crete-prepared Return to Work Certification. Dr. Marshall noted
on the certification that Jarvela had been discharged from Bradford and could
return to work with no restrictions. Jarvela then notified Bill Hough, manager
of Crete’s Marietta facility, that he had completed his treatment, that he had
been certified to return to work by his personal physician, and that he wanted
to return to work. Hough told him to complete his fitness-for-duty examination
through Concentra Medical Centers, Crete’s medical examination contractor for
drivers, and to report on Monday morning, April 26.
April 20, 2010. On April 22, he visited his personal physician, Dr. Marshall,
who gave him a Crete-prepared Return to Work Certification. Dr. Marshall noted
on the certification that Jarvela had been discharged from Bradford and could
return to work with no restrictions. Jarvela then notified Bill Hough, manager
of Crete’s Marietta facility, that he had completed his treatment, that he had
been certified to return to work by his personal physician, and that he wanted
to return to work. Hough told him to complete his fitness-for-duty examination
through Concentra Medical Centers, Crete’s medical examination contractor for
drivers, and to report on Monday morning, April 26.
Jarvela arrived at Crete’s Marietta facility on April 26, and then proceeded
immediately to get his medical certification at Concentra, which, according to
Jarvela, was “standard operating procedure.” Concentra’s Dr. Alejandro
Alam-Gonzalez (“Dr. Alam”) examined Jarvela. After the examination, Dr. Alam
prepared a Medical Examination Report For Commercial Driver Fitness
Determination (“Concentra Examination Report”). In Section 2 on the first page
of the “Health History,” Dr. Alam checked the box beside “Regular, frequent
alcohol use.” On the bottom, right-hand corner of the last page of the report,
Dr. Alam wrote “See letter from Counselor regarding ETOH.” That letter,
addressed to Concentra Medical Centers and dated April 26, 2010, was from
Richard Yoakum, Jarvela’s primary counselor at Bradford Health Services. The
letter said that Jarvela “is able to return to his regular work responsibilities
(“Commercial DOT Driver”) without restriction.” The letter listed Jarvela’s
diagnosis as “Alcohol Dependence” and “suggested that Sakari attended AA/NA
meetings (at least 3 a week), keep calling his sponsor, and attending a
continuing care meeting or one time a week for two years. In my opinion, Sakai’s
prognosis is fair to good if recommendations are followed.” On the last page of
the Concentra Examination Report, in the set of boxes at the very bottom, Dr.
Alam checked the third box from the top in the left-hand column, beside “Meets
standards, but periodic monitoring required due to HTN [hypertension].” He
testified at his deposition that he “should have maybe added ETOH, alcohol.” Dr.
Alam gave Jarvela a “six-month card” and added, “[i]f no problem then may up to
one year.”
immediately to get his medical certification at Concentra, which, according to
Jarvela, was “standard operating procedure.” Concentra’s Dr. Alejandro
Alam-Gonzalez (“Dr. Alam”) examined Jarvela. After the examination, Dr. Alam
prepared a Medical Examination Report For Commercial Driver Fitness
Determination (“Concentra Examination Report”). In Section 2 on the first page
of the “Health History,” Dr. Alam checked the box beside “Regular, frequent
alcohol use.” On the bottom, right-hand corner of the last page of the report,
Dr. Alam wrote “See letter from Counselor regarding ETOH.” That letter,
addressed to Concentra Medical Centers and dated April 26, 2010, was from
Richard Yoakum, Jarvela’s primary counselor at Bradford Health Services. The
letter said that Jarvela “is able to return to his regular work responsibilities
(“Commercial DOT Driver”) without restriction.” The letter listed Jarvela’s
diagnosis as “Alcohol Dependence” and “suggested that Sakari attended AA/NA
meetings (at least 3 a week), keep calling his sponsor, and attending a
continuing care meeting or one time a week for two years. In my opinion, Sakai’s
prognosis is fair to good if recommendations are followed.” On the last page of
the Concentra Examination Report, in the set of boxes at the very bottom, Dr.
Alam checked the third box from the top in the left-hand column, beside “Meets
standards, but periodic monitoring required due to HTN [hypertension].” He
testified at his deposition that he “should have maybe added ETOH, alcohol.” Dr.
Alam gave Jarvela a “six-month card” and added, “[i]f no problem then may up to
one year.”
4. Jarvela’s “Current” Clinical
Diagnosis of Alcoholism
Bradford Health Services discharged Jarvela on April 20, 2010, from a
thirty-day intensive outpatient program for the treatment of alcoholism. Dr.
Marshall, Jarvela’s personal physician, had prescribed the treatment to Jarvela
on March 17, 2010. When asked at his deposition whether Jarvela “suffers from
alcoholism,” Dr. Marshall, Jarvela’s personal physician, answered, “Yes, I would
say he does.” According to Dr. Marshall, Jarvela is “in remission,” but he
pointed out that “you . . . always carry the diagnosis.” Dr. Alam, who cleared
Jarvela to return to work after the April 26 Concentra Medical Centers medical
examination, testified, “[A]n alcoholic is an alcoholic for life. That’s not an
understatement or an overstatement.” Richard Yoakum, Jarvela’s primary counselor
at Bradford Health Services, testified at his deposition that the reference to
“chronic” on the FMLA certification meant, “forever.” Yoakum’s colleague, Rachel
Patterson, confirmed Yoakum’s opinion in her explanation as to why recovering
alcoholics in Alcoholics Anonymous (“AA”) introduce themselves as “alcoholic”
for as long as they live.
thirty-day intensive outpatient program for the treatment of alcoholism. Dr.
Marshall, Jarvela’s personal physician, had prescribed the treatment to Jarvela
on March 17, 2010. When asked at his deposition whether Jarvela “suffers from
alcoholism,” Dr. Marshall, Jarvela’s personal physician, answered, “Yes, I would
say he does.” According to Dr. Marshall, Jarvela is “in remission,” but he
pointed out that “you . . . always carry the diagnosis.” Dr. Alam, who cleared
Jarvela to return to work after the April 26 Concentra Medical Centers medical
examination, testified, “[A]n alcoholic is an alcoholic for life. That’s not an
understatement or an overstatement.” Richard Yoakum, Jarvela’s primary counselor
at Bradford Health Services, testified at his deposition that the reference to
“chronic” on the FMLA certification meant, “forever.” Yoakum’s colleague, Rachel
Patterson, confirmed Yoakum’s opinion in her explanation as to why recovering
alcoholics in Alcoholics Anonymous (“AA”) introduce themselves as “alcoholic”
for as long as they live.
5. Jarvela’s Termination
Dr. Alam signed Jarvela’s Medical Examiner’s Certification on April 26, 2010.
On its face, the certificate expired on October 26, 2010. Jarvela reported for
work at the Marietta facility on the morning of April 27, when Ray Coulter,
Crete’s Vice-President of Safety and Compliance, located in Lincoln, Nebraska,
terminated him in a conference call in which Fleet Manager Bill Hough also
participated.
On its face, the certificate expired on October 26, 2010. Jarvela reported for
work at the Marietta facility on the morning of April 27, when Ray Coulter,
Crete’s Vice-President of Safety and Compliance, located in Lincoln, Nebraska,
terminated him in a conference call in which Fleet Manager Bill Hough also
participated.
Prior to the call, Coulter had reviewed documents that had been forwarded to
him, including the Concentra Examination Report prepared by Dr. Alam, and the
Bradford Health Services letter attached to and referenced in it, which
Jarvela’s primary counselor, Richard Yoakum, prepared and Jarvela’s attending
physician at Bradford, Dr. Jerry Howell, signed. Coulter consulted Crete’s legal
department about his concerns that the documents he was reviewing revealed a
“current diagnosis of alcoholism.” When asked whether he disagreed with medical
certifications that Jarvela could return to work, Coulter testified that whether
he disagreed or not with medical opinions did not matter. His responsibility was
to determine whether Jarvela was qualified to drive for Crete under the written
job description and the DOT regulations.
him, including the Concentra Examination Report prepared by Dr. Alam, and the
Bradford Health Services letter attached to and referenced in it, which
Jarvela’s primary counselor, Richard Yoakum, prepared and Jarvela’s attending
physician at Bradford, Dr. Jerry Howell, signed. Coulter consulted Crete’s legal
department about his concerns that the documents he was reviewing revealed a
“current diagnosis of alcoholism.” When asked whether he disagreed with medical
certifications that Jarvela could return to work, Coulter testified that whether
he disagreed or not with medical opinions did not matter. His responsibility was
to determine whether Jarvela was qualified to drive for Crete under the written
job description and the DOT regulations.
According to Jarvela, everyone identified themselves at the beginning of the
conference call, then the termination discussion ensued. Coulter told Jarvela
that he had reviewed and discussed with Crete’s legal department documentation
from which he concluded that Jarvela had a “current clinical diagnosis of
alcoholism” under DOT regulations. He also had reviewed the discharge letter
from Bradford Health Services stating that Jarvela’s prognosis was fair to good
if he attended at least three AA meetings a week, called his sponsor, and
attended an aftercare meeting once a week for two years. Coulter concluded that
Jarvela was not qualified to drive any Crete commercial motor vehicle for any
distance. According to Jarvela, Coulter also said that Crete simply could not
“accommodate” a long-haul driver with the continuing-care recommendations listed
in the Bradford Health Services letter.
conference call, then the termination discussion ensued. Coulter told Jarvela
that he had reviewed and discussed with Crete’s legal department documentation
from which he concluded that Jarvela had a “current clinical diagnosis of
alcoholism” under DOT regulations. He also had reviewed the discharge letter
from Bradford Health Services stating that Jarvela’s prognosis was fair to good
if he attended at least three AA meetings a week, called his sponsor, and
attended an aftercare meeting once a week for two years. Coulter concluded that
Jarvela was not qualified to drive any Crete commercial motor vehicle for any
distance. According to Jarvela, Coulter also said that Crete simply could not
“accommodate” a long-haul driver with the continuing-care recommendations listed
in the Bradford Health Services letter.
II. ISSUES ON APPEAL
There are three issues presented by this appeal: (1) whether the district
court erred in granting Crete summary judgment on Jarvela’s ADA termination
claim; (2) whether the district court erred in granting Crete summary judgment
on Jarvela’s FMLA interference claim; and (3) whether the district court erred
in granting Crete summary judgment on Jarvela’s FMLA retaliation claim. We
address these issues serially in the Discussion section.
court erred in granting Crete summary judgment on Jarvela’s ADA termination
claim; (2) whether the district court erred in granting Crete summary judgment
on Jarvela’s FMLA interference claim; and (3) whether the district court erred
in granting Crete summary judgment on Jarvela’s FMLA retaliation claim. We
address these issues serially in the Discussion section.
III. STANDARDS OF REVIEW
We review de novo a district court’s grant of summary judgment. We draw in
favor of the non-movant all reasonable inferences from the evidence we consider.
Skop
v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007) [20 Fla. L.
Weekly Fed. C579a]. We may affirm a district court’s summary judgment “on any
ground that finds support in the record,” even if it is not the basis
articulated by the district court. Lucas
v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001) [14 Fla. L.
Weekly Fed. C991a] (quoting Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.
Ct. 307, 308 (1957)).
favor of the non-movant all reasonable inferences from the evidence we consider.
Skop
v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007) [20 Fla. L.
Weekly Fed. C579a]. We may affirm a district court’s summary judgment “on any
ground that finds support in the record,” even if it is not the basis
articulated by the district court. Lucas
v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001) [14 Fla. L.
Weekly Fed. C991a] (quoting Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.
Ct. 307, 308 (1957)).
IV. DISCUSSION
A. ADA Claim
1. Was “No Current Clinical Diagnosis
of Alcoholism” a Qualification
for Jarvela’s Job?
(a) Crete’s Written Job Description
for Commercial Motor Vehicle Drivers
The Americans with Disabilities Act forbids a “covered entity” from
discharging “a qualified individual on the basis of disability.” 29 U.S.C. §
12112(a). In order to state a prima facie discriminatory termination claim under
the ADA, a plaintiff must show three things: (1) he is disabled; (2) he is a
qualified individual; and (3) he suffered unlawful discrimination because of his
disability. Pritchard v. Southern Co. Serv., 92 F.3d 1130, 1132 (11th
Cir. 1996).2
discharging “a qualified individual on the basis of disability.” 29 U.S.C. §
12112(a). In order to state a prima facie discriminatory termination claim under
the ADA, a plaintiff must show three things: (1) he is disabled; (2) he is a
qualified individual; and (3) he suffered unlawful discrimination because of his
disability. Pritchard v. Southern Co. Serv., 92 F.3d 1130, 1132 (11th
Cir. 1996).2
The dispositive factor is the second element of Jarvela’s prima facie case:
whether Jarvela was a qualified individual. Jarvela had to produce
evidence sufficient to persuade a reasonable jury that at the time he was
terminated he “satisfie[d] the requisite skill, experience, education and other
job-related requirements of the employment position” from which Crete terminated
him, and that, “with or without reasonable accommodation, [he could] perform the
essential functions of the position.” 29 C.F.R. § 1630.2(m).3
whether Jarvela was a qualified individual. Jarvela had to produce
evidence sufficient to persuade a reasonable jury that at the time he was
terminated he “satisfie[d] the requisite skill, experience, education and other
job-related requirements of the employment position” from which Crete terminated
him, and that, “with or without reasonable accommodation, [he could] perform the
essential functions of the position.” 29 C.F.R. § 1630.2(m).3
Crete’s written job description is considered evidence of the essential
functions of a particular position. Earl v. Mervyns, Inc., 207 F.3d 1361,
1365 (11th Cir. 2000) (citing 42 U.S.C. § 12111(8)). The written job description
for a commercial motor vehicle driver provides, in part, that the driver must
“[qualify] as an over the road driver pursuant to U.S. Department of
Transportation (‘DOT’) regulations.”
functions of a particular position. Earl v. Mervyns, Inc., 207 F.3d 1361,
1365 (11th Cir. 2000) (citing 42 U.S.C. § 12111(8)). The written job description
for a commercial motor vehicle driver provides, in part, that the driver must
“[qualify] as an over the road driver pursuant to U.S. Department of
Transportation (‘DOT’) regulations.”
Crete contends that a commercial motor vehicle driver’s being qualified under
the DOT regulations was an essential function of Jarvela’s job at the time Crete
terminated him. The district court agreed. Jarvela’s inability to meet a
criterion of the “physical qualification standards” regulation — in particular,
the requirement that he have “no current clinical diagnosis of alcoholism” —
precluded him from “performing” an essential function of his job as a motor
vehicle driver. The logic of this conclusion within the context of the
regulations is discussed in the following subsection.
the DOT regulations was an essential function of Jarvela’s job at the time Crete
terminated him. The district court agreed. Jarvela’s inability to meet a
criterion of the “physical qualification standards” regulation — in particular,
the requirement that he have “no current clinical diagnosis of alcoholism” —
precluded him from “performing” an essential function of his job as a motor
vehicle driver. The logic of this conclusion within the context of the
regulations is discussed in the following subsection.
(b) The Regulatory Framework
Embraced by Crete’s Job Description
Congress and the Equal Employment Opportunity Commission permit covered
entities subject to DOT qualification standards to require that their employees
comply with those standards. See 42 U.S.C. § 12114(c)(5)(C) (“A covered
entity . . . may . . . require that . . . employees comply with the standards
established in . . . regulations of the Department of Transportation . . . .”);
29 C.F.R. § 1630.16(b)(5) (“A covered entity . . . [m]ay require that its
employees employed in an industry subject to such regulations comply with the
standards established in the regulations (if any) of the . . . Department of
Transportation . . . regarding alcohol . . . .”). The DOT regulations material
to determining whether Jarvela was a “qualified individual” are three. First, 49
C.F.R. § 391.11(a) forbade Crete to permit Jarvela to drive a commercial motor
vehicle if Jarvela was not “qualified to drive a commercial motor vehicle.”
Second, 49 C.F.R. § 391.41(a)(3)(i) said that Jarvela had to “meet[ ] the
physical qualification standards in paragraph (b)” of Section 391.41. Because
one of those “qualification standards in paragraph (b)” of Section 391.41 was
that Jarvela have “no current clinical diagnosis of alcoholism,” Jarvela then
could not perform an essential function of Crete’s job description (and, indeed,
Crete could not allow him to drive a commercial motor vehicle), unless he had
“no current clinical diagnosis of alcoholism.”4 We turn now to Jarvela’s contention that he did not
have a “current” clinical diagnosis of alcoholism at the time Crete terminated
him.
entities subject to DOT qualification standards to require that their employees
comply with those standards. See 42 U.S.C. § 12114(c)(5)(C) (“A covered
entity . . . may . . . require that . . . employees comply with the standards
established in . . . regulations of the Department of Transportation . . . .”);
29 C.F.R. § 1630.16(b)(5) (“A covered entity . . . [m]ay require that its
employees employed in an industry subject to such regulations comply with the
standards established in the regulations (if any) of the . . . Department of
Transportation . . . regarding alcohol . . . .”). The DOT regulations material
to determining whether Jarvela was a “qualified individual” are three. First, 49
C.F.R. § 391.11(a) forbade Crete to permit Jarvela to drive a commercial motor
vehicle if Jarvela was not “qualified to drive a commercial motor vehicle.”
Second, 49 C.F.R. § 391.41(a)(3)(i) said that Jarvela had to “meet[ ] the
physical qualification standards in paragraph (b)” of Section 391.41. Because
one of those “qualification standards in paragraph (b)” of Section 391.41 was
that Jarvela have “no current clinical diagnosis of alcoholism,” Jarvela then
could not perform an essential function of Crete’s job description (and, indeed,
Crete could not allow him to drive a commercial motor vehicle), unless he had
“no current clinical diagnosis of alcoholism.”4 We turn now to Jarvela’s contention that he did not
have a “current” clinical diagnosis of alcoholism at the time Crete terminated
him.
2. Existence of “A Current
Clinical Diagnosis of Alcoholism”
Crete terminated Jarvela on April 27, 2010. Crete terminated Jarvela because
he had a “current clinical diagnosis of alcoholism” and, therefore, was not
qualified under DOT regulations and Crete’s written job description to drive
commercial motor vehicles. Crete based its decision on Jarvela’s discharge
diagnosis of “alcohol dependence” provided by Bradford Health Services a week
earlier on April 20, 2010.5 In their
earlier FMLA letter to Crete, Yoakum and Jarvela’s attending physician at
Bradford Health Services, Dr. Jerry Howell, had indicated that Jarvela’s
condition was “[c]hronic.” “Chronic” means “marked by long duration, by frequent
recurrence over a long time, and often by slowly progressing seriousness.”
WEBSTER’S THIRD NEW INT’L DICTIONARY 402 (Merriam-Webster 1981). Dr. Marshall,
Jarvela’s physician, characterized the diagnosis of alcoholism as one “[you]
always carry.” Dr. Alam testified that “an alcoholic is an alcoholic for life.”
Despite this and other evidence reviewed in subsection I(B)(4), supra,
Jarvela contends that his clinical diagnosis of alcoholism was not “current”
under 49 C.F.R. § 391.41(b) when Crete terminated him. We are not persuaded by
this contention.
he had a “current clinical diagnosis of alcoholism” and, therefore, was not
qualified under DOT regulations and Crete’s written job description to drive
commercial motor vehicles. Crete based its decision on Jarvela’s discharge
diagnosis of “alcohol dependence” provided by Bradford Health Services a week
earlier on April 20, 2010.5 In their
earlier FMLA letter to Crete, Yoakum and Jarvela’s attending physician at
Bradford Health Services, Dr. Jerry Howell, had indicated that Jarvela’s
condition was “[c]hronic.” “Chronic” means “marked by long duration, by frequent
recurrence over a long time, and often by slowly progressing seriousness.”
WEBSTER’S THIRD NEW INT’L DICTIONARY 402 (Merriam-Webster 1981). Dr. Marshall,
Jarvela’s physician, characterized the diagnosis of alcoholism as one “[you]
always carry.” Dr. Alam testified that “an alcoholic is an alcoholic for life.”
Despite this and other evidence reviewed in subsection I(B)(4), supra,
Jarvela contends that his clinical diagnosis of alcoholism was not “current”
under 49 C.F.R. § 391.41(b) when Crete terminated him. We are not persuaded by
this contention.
(a) Timing of the Diagnosis
Relative to Jarvela’s Termination
Jarvela does not and could not reasonably contend that a seven-day-old
diagnosis of alcoholism was not “current” at the time of his termination. We are
not prepared to draw a bright line as to how much time must pass before a
diagnosis of alcoholism is no longer “current,” but we hold that a seven-day-old
diagnosis is “current” under 49 U.S.C. § 391.41(b)(13). Jarvela did not “lose”
his clinical diagnosis between his discharge from Bradford Health Services on
April 20 and his termination by Crete one week later.
diagnosis of alcoholism was not “current” at the time of his termination. We are
not prepared to draw a bright line as to how much time must pass before a
diagnosis of alcoholism is no longer “current,” but we hold that a seven-day-old
diagnosis is “current” under 49 U.S.C. § 391.41(b)(13). Jarvela did not “lose”
his clinical diagnosis between his discharge from Bradford Health Services on
April 20 and his termination by Crete one week later.
(b) The Misconstruction of
Dr. Alam’s Testimony
Jarvela’s brief also relies on and takes out of context Dr. Alam’s deposition
testimony in support of Jarvela’s contention that his diagnosis was not
“current.” The following exchange occurred at the beginning of a lengthy (and
unsuccessful) effort by Jarvela’s lawyer to force Dr. Alam to admit that Jarvela
did not have a “current clinical diagnosis of alcoholism” when Crete terminated
Jarvela:
testimony in support of Jarvela’s contention that his diagnosis was not
“current.” The following exchange occurred at the beginning of a lengthy (and
unsuccessful) effort by Jarvela’s lawyer to force Dr. Alam to admit that Jarvela
did not have a “current clinical diagnosis of alcoholism” when Crete terminated
Jarvela:
Q. Okay. And did you determine that Mr. Jarvela — when you gave Mr.
Jarvela his six-month certification that he had no current clinical diagnosis of
alcoholism —
A. I determined that the [substance abuse professional] agreed that
he was doing well — an alcoholic is an alcoholic for life. That’s not an
understatement or an overstatement. But that he was doing what was necessary to
stay dry. Through the [substance abuse professional] I determined that to
be.
Q. Okay. But the regulations, just so I’m clear, 391.41(b)(13)
states, “That a person is physically qualified to drive a motor vehicle if that
person has no current clinical diagnosis of alcoholism.”6
Did you determine —
A. I determined exactly that. That the [substance abuse
professional] says that he’s dry. That means currently he’s not having a problem
with alcoholism.
No reasonable jury could conclude that “I determined exactly that” referred
to the regulatory quote in the question posed by Jarvela’s counsel. Indeed,
Jarvela’s counsel never finished asking Dr. Alam what it was that Dr. Alam had
“determined” before Dr. Alam stepped in with an answer repeating what he already
had said: that the substance abuse professional (Bradford Health Services) said
Jarvela was stable on discharge, and Dr. Alam thought that he looked fine on
April 26, when he presented for his physical. And yet this sentence — “I
determined exactly that” — is all Jarvela cites from the record in
support of his argument that his alcoholism diagnosis was not “current.” We
reject Jarvela’s contention that Dr. Alam’s answer, taken completely out of
context, raises a genuine issue of fact as to whether Jarvela’s clinical
diagnosis of alcoholism was “current.”
to the regulatory quote in the question posed by Jarvela’s counsel. Indeed,
Jarvela’s counsel never finished asking Dr. Alam what it was that Dr. Alam had
“determined” before Dr. Alam stepped in with an answer repeating what he already
had said: that the substance abuse professional (Bradford Health Services) said
Jarvela was stable on discharge, and Dr. Alam thought that he looked fine on
April 26, when he presented for his physical. And yet this sentence — “I
determined exactly that” — is all Jarvela cites from the record in
support of his argument that his alcoholism diagnosis was not “current.” We
reject Jarvela’s contention that Dr. Alam’s answer, taken completely out of
context, raises a genuine issue of fact as to whether Jarvela’s clinical
diagnosis of alcoholism was “current.”
We hold that Crete Carrier Corporation did not violate the ADA by terminating
Sakari Jarvela on the basis of Bradford Health Services’s diagnosing Jarvela
with alcohol dependence seven days before the termination; Crete was entitled to
rely on Bradford Health Services’s diagnosis in reaching the conclusion that
Jarvela had “a current clinical diagnosis of alcoholism.” 49 C.F.R.
§391.41(b)(13). Because Jarvela had a “current clinical diagnosis of
alcoholism,” he could not qualify as a commercial motor vehicle driver under DOT
regulations and perform all of the essential functions of Crete’s commercial
motor vehicle driver job. We render no opinion as to the meaning of “current” in
any other statutory or regulatory context governing employer-employee
relations.7
Sakari Jarvela on the basis of Bradford Health Services’s diagnosing Jarvela
with alcohol dependence seven days before the termination; Crete was entitled to
rely on Bradford Health Services’s diagnosis in reaching the conclusion that
Jarvela had “a current clinical diagnosis of alcoholism.” 49 C.F.R.
§391.41(b)(13). Because Jarvela had a “current clinical diagnosis of
alcoholism,” he could not qualify as a commercial motor vehicle driver under DOT
regulations and perform all of the essential functions of Crete’s commercial
motor vehicle driver job. We render no opinion as to the meaning of “current” in
any other statutory or regulatory context governing employer-employee
relations.7
For these reasons, the district court properly granted summary judgment to
Crete on Jarvela’s ADA claim.
Crete on Jarvela’s ADA claim.
B. FMLA CLAIMS
1. The Interference Claim
In order to state an interference claim under the FMLA, an employee need only
demonstrate by a preponderance of the evidence that he was entitled to a benefit
the employer denied. Strickland v. Water Works and Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1205 (11th Cir. 2001). An employee has the right
following FMLA leave “to be restored by the employer to the position of
employment held by the employee when the leave commenced” or to an equivalent
position. 29 U.S.C. § 2614(a)(1)(A); see also 29 C.F.R. § 825.214(a).
But, an employer can deny reinstatement following FMLA leave if it can
demonstrate that it would have discharged the employee even if he had not been
on FMLA leave. Martin
v. Brevard Cnty. Public Schools, 543 F.3d 1261, 1267 (11th Cir. 2008)
[21 Fla. L. Weekly Fed. C1132a]; see also 29 U.S.C. § 2614(a)(3); 29
C.F.R. § 825.216(a).
demonstrate by a preponderance of the evidence that he was entitled to a benefit
the employer denied. Strickland v. Water Works and Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1205 (11th Cir. 2001). An employee has the right
following FMLA leave “to be restored by the employer to the position of
employment held by the employee when the leave commenced” or to an equivalent
position. 29 U.S.C. § 2614(a)(1)(A); see also 29 C.F.R. § 825.214(a).
But, an employer can deny reinstatement following FMLA leave if it can
demonstrate that it would have discharged the employee even if he had not been
on FMLA leave. Martin
v. Brevard Cnty. Public Schools, 543 F.3d 1261, 1267 (11th Cir. 2008)
[21 Fla. L. Weekly Fed. C1132a]; see also 29 U.S.C. § 2614(a)(3); 29
C.F.R. § 825.216(a).
Jarvela contends that Crete improperly denied him the benefit of returning to
the same or an equivalent position following his FMLA leave. Crete, instead,
contends that it would have discharged Jarvela because he had a “current
clinical diagnosis of alcoholism” regardless of whether he had taken FMLA leave.
The district court found that, “Regardless of whether Mr. Jarvela had taken FMLA
leave, there [was] ample, unrebutted evidence in the record to indicate that
Crete would have discharged him upon learning of his diagnosis of alcohol
dependence.” (Doc. 40 at 19). Crete put forward evidence that it would have
discharged Jarvela regardless of his FMLA leave, and Jarvela presented no
evidence disputing it. Consequently, we agree with the district court’s
determination that Jarvela’s interference claim fails.
the same or an equivalent position following his FMLA leave. Crete, instead,
contends that it would have discharged Jarvela because he had a “current
clinical diagnosis of alcoholism” regardless of whether he had taken FMLA leave.
The district court found that, “Regardless of whether Mr. Jarvela had taken FMLA
leave, there [was] ample, unrebutted evidence in the record to indicate that
Crete would have discharged him upon learning of his diagnosis of alcohol
dependence.” (Doc. 40 at 19). Crete put forward evidence that it would have
discharged Jarvela regardless of his FMLA leave, and Jarvela presented no
evidence disputing it. Consequently, we agree with the district court’s
determination that Jarvela’s interference claim fails.
2. Retaliation Claim
The FMLA prohibits an employer from discriminating against an employee for
exercising a right under the FMLA. 29 U.S.C. § 2615(a)(2). To establish a prima
facie case of retaliation under the FMLA, an employee must show that, “(1) he
engaged in statutorily protected activity, (2) he suffered an adverse employment
decision, and (3) the decision was causally related to the protected activity.”
Martin, 543 F.3d at 1268. The district court held that Jarvela failed on
the third prong of this test; he could not show that Crete’s decision to
terminate him was causally related to his FMLA leave.
exercising a right under the FMLA. 29 U.S.C. § 2615(a)(2). To establish a prima
facie case of retaliation under the FMLA, an employee must show that, “(1) he
engaged in statutorily protected activity, (2) he suffered an adverse employment
decision, and (3) the decision was causally related to the protected activity.”
Martin, 543 F.3d at 1268. The district court held that Jarvela failed on
the third prong of this test; he could not show that Crete’s decision to
terminate him was causally related to his FMLA leave.
Jarvela argues that two factors sufficiently establish a causal connection:
Coulter — Crete’s vice president who fired him — had access to his personnel
file containing a notation that he was out on FMLA leave, and that his
termination occurred as he attempted to return from FMLA leave. Crete argues
that Coulter did not have actual knowledge that Jarvela was returning from FMLA
leave.
Coulter — Crete’s vice president who fired him — had access to his personnel
file containing a notation that he was out on FMLA leave, and that his
termination occurred as he attempted to return from FMLA leave. Crete argues
that Coulter did not have actual knowledge that Jarvela was returning from FMLA
leave.
Crete has the better position. Coulter said that he played no part in
approving Jarvela’s FMLA leave request, and that he was unaware that Jarvela had
taken FMLA leave. He also testified that he only reviewed certain parts of
Jarvela’s records before terminating him, and that none of the parts he reviewed
mentioned Jarvela’s FMLA leave. Furthermore, Jarvela concedes that two of the
most important documents Coulter relied on in terminating Jarvela — a letter
from Jarvela’s alcohol treatment counselor and a discharge form from Jarvela’s
treatment program — did not mention in any way the FMLA.
approving Jarvela’s FMLA leave request, and that he was unaware that Jarvela had
taken FMLA leave. He also testified that he only reviewed certain parts of
Jarvela’s records before terminating him, and that none of the parts he reviewed
mentioned Jarvela’s FMLA leave. Furthermore, Jarvela concedes that two of the
most important documents Coulter relied on in terminating Jarvela — a letter
from Jarvela’s alcohol treatment counselor and a discharge form from Jarvela’s
treatment program — did not mention in any way the FMLA.
Jarvela had the burden of proving Crete’s actual knowledge of his FMLA leave.
He presented no evidence to rebut Coulter’s testimony. Temporal proximity alone
is insufficient to establish a causal connection in the absence of actual
knowledge by the employer. Krutzig
v. Pulte Home Corp., 602 F.3d 1231, 1235 (11th Cir. 2010) [22 Fla. L.
Weekly Fed. C1416a]. Accordingly, summary judgment in favor of Crete on
Jarvela’s retaliation claim was properly granted.
He presented no evidence to rebut Coulter’s testimony. Temporal proximity alone
is insufficient to establish a causal connection in the absence of actual
knowledge by the employer. Krutzig
v. Pulte Home Corp., 602 F.3d 1231, 1235 (11th Cir. 2010) [22 Fla. L.
Weekly Fed. C1416a]. Accordingly, summary judgment in favor of Crete on
Jarvela’s retaliation claim was properly granted.
V. CONCLUSION
We affirm summary judgment in favor of Crete Carrier Corporation on all
claims.
claims.
AFFIRMED.
__________________
*The Honorable Arthur L. Alarcón, United States Circuit Judge for the United
States Court of Appeals for the Ninth Circuit, sitting by designation, heard
argument in this case, but did not participate in this decision. This decision
is rendered by quorum. 28 U.S.C. § 46(d).
States Court of Appeals for the Ninth Circuit, sitting by designation, heard
argument in this case, but did not participate in this decision. This decision
is rendered by quorum. 28 U.S.C. § 46(d).
1Under Eleventh Circuit Rule 35-5, “[a]
petition for rehearing en banc will also be treated as a petition for rehearing
before the original panel,” which is how we are treating Jarvela’s petition.
petition for rehearing en banc will also be treated as a petition for rehearing
before the original panel,” which is how we are treating Jarvela’s petition.
2We assume, arguendo, that Jarvela had a
covered disability when Crete terminated him. Consequently, we do not address
any contentions of the parties concerning the presence or absence of a
disability.
covered disability when Crete terminated him. Consequently, we do not address
any contentions of the parties concerning the presence or absence of a
disability.
3Jarvela has waived his reasonable
accommodation claim because the supporting contention he makes in this court
(that his six-month certificate was the only accommodation he needed) and the
supporting contention he made in the district court (a transfer to a different
driving position would have constituted reasonable accommodation) are materially
different. We do not consider contentions raised for the first time on appeal.
Access
Now, Inc. v. Southwest Airlines, Inc., 385 F.3d 1324, 1331 (11th Cir.
2004) [17 Fla. L. Weekly Fed. C1064a].
accommodation claim because the supporting contention he makes in this court
(that his six-month certificate was the only accommodation he needed) and the
supporting contention he made in the district court (a transfer to a different
driving position would have constituted reasonable accommodation) are materially
different. We do not consider contentions raised for the first time on appeal.
Access
Now, Inc. v. Southwest Airlines, Inc., 385 F.3d 1324, 1331 (11th Cir.
2004) [17 Fla. L. Weekly Fed. C1064a].
4In the context of reciting these
regulations, we note that Jarvela has raised for the first time in his petition
for rehearing a contention that Crete should have engaged in an administrative
resolution procedure set forth in 49 C.F.R. § 391.47. This was not presented in
Jarvela’s appellate brief and we do not consider it.
regulations, we note that Jarvela has raised for the first time in his petition
for rehearing a contention that Crete should have engaged in an administrative
resolution procedure set forth in 49 C.F.R. § 391.47. This was not presented in
Jarvela’s appellate brief and we do not consider it.
5Jarvela did not contend in the district
court, nor does he contend on appeal, that “alcohol dependence” and “alcoholism”
are not materially equivalent, but we accept that they are.
court, nor does he contend on appeal, that “alcohol dependence” and “alcoholism”
are not materially equivalent, but we accept that they are.
6Jarvela’s counsel collapsed Sections
391.11(b)(4), 391.41(a)(a)(3)(i), and 391.41(b)(13), but his synopsis is
materially accurate.
391.11(b)(4), 391.41(a)(a)(3)(i), and 391.41(b)(13), but his synopsis is
materially accurate.
7Because the “no current clinical
diagnosis of alcoholism” criterion is decisive in this case, we express no
opinion as to whether Crete could or did apply more stringent internal criteria
to Jarvela’s situation. Nor do we address Jarvela’s arguments that he did not
pose a “direct threat” to himself or others, see 29 C.F.R. § 1630.2(r)
(employer may defend employment decision if employee poses “a significant risk
of substantial harm to the health or safety of the individual or others that
cannot be eliminated or reduced by reasonable accommodation”), or that the
district court “sidestepped” the direct threat analysis by couching as a prima
facie qualification Crete’s drivers’ being able to meet the “no current clinical
diagnosis of alcoholism” criterion. Crete’s correct determination that Jarvela
had a “current clinical diagnosis of alcoholism” ended the ADA discrimination
inquiry in this case.
diagnosis of alcoholism” criterion is decisive in this case, we express no
opinion as to whether Crete could or did apply more stringent internal criteria
to Jarvela’s situation. Nor do we address Jarvela’s arguments that he did not
pose a “direct threat” to himself or others, see 29 C.F.R. § 1630.2(r)
(employer may defend employment decision if employee poses “a significant risk
of substantial harm to the health or safety of the individual or others that
cannot be eliminated or reduced by reasonable accommodation”), or that the
district court “sidestepped” the direct threat analysis by couching as a prima
facie qualification Crete’s drivers’ being able to meet the “no current clinical
diagnosis of alcoholism” criterion. Crete’s correct determination that Jarvela
had a “current clinical diagnosis of alcoholism” ended the ADA discrimination
inquiry in this case.
* * *