United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-3297

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Ira Longen, *

*

Plaintiff - Appellant, *

*

Mary Jo A. Jensen-Carter, *

Trustee for the Bankruptcy * Appeal from the United States

Estate of Ira Longen, * District Court for the

* District of Minnesota.

Plaintiff, *

*

v. *

*

Waterous Company, *

*

Defendant - Appellee. *

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Submitted: May 14, 2003

Filed: October 20, 2003

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Before MORRIS SHEPPARD ARNOLD, HANSEN, and SMITH, Circuit Judges.

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SMITH, Circuit Judge.

Ira Longen sued his former employer, Waterous Company, alleging that the

terms of his "last chance agreement" violated the Americans with Disabilities Act

("ADA") and the Minnesota Human Rights Act ("MHRA"). On cross motions for
1

 The Honorable Donovan W. Frank, United States District Judge for the

District of Minnesota.

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summary judgment, the district court1

 denied Longen's claim. Longen then appealed.

We affirm.

I.

Longen was an employee with Waterous Company from July 23, 1974, until

he was terminated on September 7, 2000. During that time, he had recurring

substance abuse battles, entering chemical dependency treatment five times–in June

of 1993, February of 1994, May of 1995, January of 1996, and June of 1996–while

employed by Waterous.

Waterous learned of Longen's problems with chemical substances in February

1994. On February 17, 1994, Longen and Waterous entered into an agreement in

which the parties agreed that if Longen successfully completed a treatment program,

then Waterous would allow Longen to return to work without any discipline.

However, in May 1995 Longen relapsed. The parties then entered into a similar–but

more structured–agreement that permitted Longen to return to work if he successfully

completed another inpatient treatment program as well as an extensive aftercare

program.

Less than six months after exiting the inpatient treatment program, Longen

again relapsed and entered another treatment program. Waterous and Longen entered

into a third agreement, which was deemed by the parties as a last chance agreement

("LCA"). It again permitted Longen to return to work. However, it required him to,

among other things, complete the two and one-half month treatment program and to

"abstain from using any mood altering chemicals, including alcohol." The parties
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agreed that if Longen violated any of the terms of the LCA, he would "be subject to

immediate termination."

Despite this, in June 1996, less than four months after Longen returned to work

following his treatment, Waterous learned that Longen was using cocaine. On June

25, 1996, Waterous suspended Longen for five work days and notified him of its

intent to dismiss him based upon the last chance provision of the January agreement.

On July 2, 1996, however, Longen's union and Waterous negotiated still another

LCA. Under the terms of this agreement, Longen was permitted to return to work

after the completion of his suspension. The terms of that agreement stated: "Future

use of any mood altering chemicals, including alcohol or violation of working rules

generally related to chemical dependency will result in immediate termination of

employment from Waterous Company." 

Four years later–in April 2000–while absent from work because of a workers'

compensation injury, Longen was arrested for driving while intoxicated ("DWI"). In

June 2000 he pleaded guilty to the charge. Four months after the arrest, Waterous

learned of the DWI . Pursuant to the terms of the LCA, Waterous terminated Longen's

employment on September 7, 2000. 

On January 23, 2002, Longen filed suit in Minnesota state court, alleging

claims of wrongful termination under the ADA and MHRA. Upon Waterous's motion,

the case was then removed to the district court. The parties then filed cross-motions

for summary judgment. After hearing oral argument, the district court granted

Waterous's summary-judgment motion and entered judgment dismissing Longen's

claims.
2

 The MHRA parallels the ADA. Fenney, 327 F.3d at 711 n.5. Thus, we

analyze the claims at the same time. Id.

3

 On appeal Waterous argues that he has not. We need not decide this issue,

because we can affirm on other grounds. African American Voting Rights Legal

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II.

We review this grant of summary judgment de novo. Fenney v. Dakota, Minn.

& E. R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003). A court may grant a motion for

summary judgment when there is no genuine issue as to any material fact and "the

moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A

material fact is one, which depending on the applicable substantive law, might affect

the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). An issue is genuine "if the evidence is sufficient to allow a reasonable jury

to return a verdict for the non-moving party." Fenney, 327 F.3d at 711 (citing id.).

In a claim of discriminatory termination under the ADA,2

 we apply "the

traditional burden-shifting framework of McDonald Douglas." Id. at 711–12. Under

the McDonald Douglas framework, Longen must first establish a prima facie case of

discrimination. Id. Under the ADA, Longen must show that he "(1) has a 'disability'

within the meaning of the ADA, (2) is a 'qualified individual' under the ADA, and (3)

'suffered an adverse employment action as a result of the disability.'" Id. (citing Duty

v. Norton-Alcoa Proppants, 293 F.3d 481, 490 (8th Cir. 2002)). After he has

established each element of his prima facie case, Waterous must then "rebut the

presumption of discrimination by articulating a legitimate, non-discriminatory reason

for the adverse employment action." Id. (citation omitted). If Waterous does this, then

"the burden of production shifts back to [Longen] to demonstrate that [Waterous's]

non-discriminatory reason is pretextual." Id. (citation omitted). 

In this case, the district court apparently assumed, without deciding, that

Longen had met his prima facie case.3

 Because the record on this issue is not fully
Defense Fund, Inc. v. Villa, 54 F.3d 1345, 1356 (8th Cir.1995).

4

 Longen argues in his brief that we should apply the analysis of Miners v.

Cargill Comm., Inc., 113 F.3d 820 (8th Cir. 1997). Miners, however, is inapposite.

In that case, Annie Miners was fired because her employer perceived her as being an

alcoholic. Here, Longen was not fired because he was an alcoholic. Instead, he was

fired because he violated the terms of his LCA.

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developed, we likewise will assume without deciding that Longen has met his prima

facie case. Therefore, Waterous must offer a legitimate, non-discriminatory reason for

terminating Longen. As proof of its reason, Waterous offered evidence of its various

agreements with Longen as well as the July 1996 LCA. In response, Longen argues

that the LCA–to which Longen agreed and signed–is not a legitimate reason for

terminating Longen because it violates the ADA.

Longen first argues that the LCA itself violates the ADA because it subjects

Longen to employment conditions that are different from Waterous's other

employees.4

 However, all return-to-work agreements, by their nature, impose

employment conditions different from those of other employees. As a result, courts

have consistently found no disability discrimination in discharges pursuant to such

agreements. See, e.g., Mararri v. WCI Steel Inc., 130 F.3d 1180 (6th Cir. 1997);

Fuller v. Frank, 916 F.2d 558 (9th Cir. 1990); McKey v. Occidental Chem. Corp., 956

F.Supp. 1313 (S.D. Tex. 1997); Golson-El v. Runyon, 812 F.Supp. 558 (E.D. Pa.

1993), aff'd, 8 F.3d 811 (3d Cir. 1993) (mem.); see also Nelson v. Williams Field

Services Co., No. 99-8041, available at 2000 WL 743684 (10th Cir. June 9, 2000).

This conclusion only makes sense. The terms to which Longen agreed were supported

by valuable consideration–i.e., that he would not be terminated. Moreover, Longen

has not alleged that he was coerced or was made to sign the LCA under duress.

Rather, he freely signed it. To find now that Waterous cannot enforce the terms of the

LCA would render all such agreements invalid. We decline to do so.
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Longen next argues that the LCA violates the ADA because it subjects him to

termination for any "future use of any mood altering chemicals," regardless of

whether the use of such chemicals was at his workplace. To support his argument, he

seizes upon the ADA's language, which states that an employer "may require that

employees shall not be under the influence of alcohol . . . at the workplace." 42

U.S.C. § 12114(c). However, this argument completely misses the point. Section

12114(c) refers to the types of permissible restrictions a company may impose upon

all employees at the workplace–regardless of whether they are alcoholics or not.

However, under the ADA there are no restrictions on what type of further constraints

a party may place upon himself.

Longen placed separate restrictions on his conduct when he signed the LCA.

One of these restrictions was that he would refrain from the "future use of any mood

altering chemicals." Again, these additional restrictions were not gratuitous. Because

of them, Longen was able to continue working at Waterous. Thus, Longen has not

shown that the ADA forbids such agreements.

III.

Thus, because Longen has failed to establish that Waterous's reason for

dismissing him was pretextual, the judgment of the district court is affirmed. 

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