## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 8 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID G. RENAUD, Plaintiff-Appellant,

v. No. 98-8046 WYOMING DEPARTMENT OF FAMILY SERVICES; SHIRLEY R. CARSON, individually,
Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING (D.C. Civil Action No. 97-CV-143)

Bruce T. Moats (Jane A. Villemez with him on the br iefs) of Villemez Law Office, Cheyenne, Wyoming, for Plaintiff-Appellant. Terry L. Armitage, Cheyenne, Wyoming, for Defendant s-Appellees.

Before EBEL , McKAY , and BRISCOE , Circuit Judges.

McKAY , Circuit Judge.-2-

Plaintiff David G. Renaud brought this action in th e United States District Court for the District of Wyoming for wrongful term ination of his employment as superintendent of the Wyoming Boys’ School. He ass erted seven claims for relief. His first claim was that Defendant Wyoming Department of Family Services violated the Americans with Disabilities A ct [ADA], 42 U.S.C. §§ 12101-12213. His second claim was that the Department violated the Family and Medical Leave Act [FMLA], 29 U.S.C. §§ 2601-265 4. His third, fourth, and fifth claims, asserted under 42 U.S.C. § 1983, were against Defendant Shirley R. Carson, in her individual capacity. He alleged that Ms. Carson, then director of the Wyoming Department of Family Services, deprivedhim of his property and liberty interests without due process and violated his First Amendment rights of expression and association. His sixth and seventh claims, based on state law, were against both defendants for breach of an impli ed contract of employment created by Wyoming government personnel rules and p olicies and for intentional infliction of emotional distress. The district court entered an order granting Defend ants’ motion for summary judgment in part and denying it in part. T he court granted summary judgment to Ms. Carson on all claims against her an d granted summary judgment to the Department on the state law claims. The cas e went to trial only on the claims under the ADA and the FMLA. The jury return ed a verdict in favor of the-3-

Department on both claims, and judgment was enteredin favor of the Department. On appeal, Plaintiff challenges the grant of summary judgment on his claims for deprivation of a liberty interest and br each of contract. He also challenges the court’s jury instructions regarding the ADA claim, and he asserts a lack of evidence to support the jury finding on his FMLA claim.

I. Plaintiff was superintendent of the Wyoming Boys’ S chool from December 1985 through April 30, 1996. On Friday afternoon, March 29, 1996, following meetings in Casper, Wyoming, Plaintiff returned to his office on the Boys’ School campus, where he had contact with six employees. O n April 4, one of those employees, Tracy Norris, the education director at the school, reported to Les Pozsgi, administrator for the Division of Juvenile Services and Plaintiff’s direct supervisor, that he believed that Plaintiff had bee n drunk when he returned to school on March 29. Mr. Pozsgi reported these alle gations to Ms. Carson. On April 15, Ms. Carson placed Plaintiff on administrative suspension with pay to allow the Department of Family Services to investig ate his alleged violation of Wyoming’s substance abuse policy. On April 16, Pla intiff submitted a request for thirty days’ sick leave and checked himself into a voluntary alcohol treatment program in a Wyoming hospital. Mr. Pozsgi granted the leave request. On-4-

April 18, Ms. Carson and Mr. Pozsgi attempted to me et with Plaintiff for the purpose of terminating his employment, but Plaintif f’s doctor did not allow the visit. On April 22, Ms. Carson sent a certified le tter to Plaintiff at the hospital stating that she was dismissing him from his employ ment as an “at-will” employee effective April 30, 1996. She later testi fied that she fired him because he had come to work drunk in violation of the Wyomi ng substance abuse policy. On April 26, Ms. Carson allegedly contacted the Div ision of Criminal Investigation, and the Division broadcast a statewi de bulletin indicating that Plaintiff had checked himself out of rehabilitation and might be suicidal and dangerous to others. Plaintiff, in fact, remained in an inpatient treatment program at that time.

II. We begin with the summary judgment issues. We revi ew de novo a district court’s grant or denial of summary judgment, and we apply the same legal standard employed by the district court pursuant to Federal Rule of Civil Procedure 56(c). See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). In reviewing such dispositions, we must draw all infer ences in favor of the party opposing summary judgment. See Trujillo v. University of Colo. Health Sciences
Ctr. , 157 F.3d 1211, 1213 (10th Cir. 1998); Curtis v. O klahoma City Pub. Sch.-5-

Bd. of Educ. , 147 F.3d 1200, 1214 (10th Cir. 1998).

A. Plaintiff asserts that Ms. Carson deprived him of h is liberty interest by making false and damaging statements about him “acc ompanying his dismissal” or “when terminating his employment.” Appellant’s Br. at 37. He alleges that on April 26, 1996, while he remained in treatment at t he hospital, Ms. Carson “caused the Division of Criminal Investigation to b roadcast[] statewide . . . false and malicious allegations that he had checked out o f rehabilitation and was dangerous.” Appellant’s App., Vol. 3 at 697. The bulletin broadcast indicated that he might be suicidal and, having recently losta state job, might “try to go after state employees.” Id. at 698. Plaintiff contends that the loss of his j ob, the false bulletin “‘assassinating his character and re putation,’” and the “‘pending loss of his home and the devastating effect of thes e events on his family’” forced him to leave rehabilitation prematurely. Id. He also contends that he has not been able to obtain employment in juvenile correcti ons since Ms. Carson terminated him. See id. Plaintiff alleges that these actions deprived him of a liberty interest without due process of law. The Due Process Clause of the Fourteenth Amendment requires that no state “deprive any person of life, liberty, or prop erty, without due process of law.”-6-

U.S. C ONST . amend. XIV, § 2. The Supreme Court has addressedthe nature of the liberty interest protected under this provision , observing that “there can be no doubt that the meaning of ‘liberty’ must be broad i ndeed.” Board of Regents v. Roth , 408 U.S. 564, 572 (1972). “Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, t o engage in any of the common occupations of life, to acquire useful k nowledge, to marry, establish a home and bring up children, to w orship God according to the dictates of his own conscience, an d generally to enjoy those privileges long recognized . . . as ess ential to the orderly pursuit of happiness by free men.” Id. (quoting Meyer v. Nebraska , 262 U.S. 390, 399 (1923)). The Court observed in dicta that a state might abridge a liberty inter est if, in declining to renew an employment contract, the state made charges of dish onesty or immorality or imposed “a stigma or other disability that foreclos ed [an employee’s] freedom to take advantage of other employment opportunities.” Id. at 573. The Court later clarified the scope of this interes t. In Paul v. Davis , 424 U.S. 693, 708-10 (1976), the Court held that defamation, standing alone, was not sufficient to establish a claim for deprivation of a liberty interest. “[T]he defamation had to occur in the course of the termin ation of employment.” Id. at 710. The court has further stated that no constitu tional claim can be stated even where a defendant acts with malice in defaming anot her. See Siegert v. Gilley , 500 U.S. 226, 234 (1991).-7-

Applying Supreme Court precedent, we delineated a f our-part test in Workman v. Jordan , 32 F.3d 475 (10th Cir. 1994), that a plaintiff mu st satisfy to demonstrate a deprivation of liberty: First, to be actionable, the statements must impugn the good name, reputation, honor, or integrity of the employee. S econd, the statements must be false. Third, the statements mu st occur in the course of terminating the employee or must foreclos e other employment opportunities. And fourth, the statemen ts must be published. Id. at 481 (citations omitted); see also Melton v. City of Oklahoma City , 928 F.2d 920, 926-27 (10th Cir. 1991) (en banc) (holding that elements are not disjunctive but must all be satisfied). Plaintiff alleges that the Division of Criminal Inv estigation’s defamatory broadcast that he might be suicidal and dangerous t o others occurred in conjunction with the termination of his employment and therefore abridged his liberty interest. The district court held that “pl aintiff’s allegations do not show [that] the statements were made in the course of te rminating him.” Appellant’s App., Vol. 3 at 702. Plaintiff, however, asserts t hat the defamatory statements imposing a stigma need not be exactly contemporaneo us with a dismissal to occur in the course of the termination of employment. Pl aintiff cites several cases for this proposition, including Miller v. City of Missi on, Kansas , 705 F.2d 368, 373 (10th Cir. 1983) (affirming jury finding of deprivation of liberty interest based partly on evidence that reasons for termination wer e announced several days after-8-

dismissal), Campanelli v. Bockrath , 100 F.3d 1476, 1482-83 (9th Cir. 1996) (rejecting bright-line rule that post-termination s tatements cannot form basis of liberty deprivation and holding that statements mad e one week after termination were made in course of termination), and Mertek v. Blalock , 983 F.2d 1353, 1363 (6th Cir. 1993) (finding that plaintiff sufficientl y alleged deprivation of liberty interest, in part by showing “roughly contemporaneo us” publication of reasons for ban of plaintiff from city facilities). Timing is certainly one consideration in determinin g whether stigmatizing statements are made in the course of the terminatio n of employment. We agree with Plaintiff that publication of defamatory state ments need not be strictly contemporaneous with a termination to occur in the course of the termination of employment. That the allegedly defamatory statemen ts occurred several days following the announcement of Plaintiff’s terminati on does not, of itself, defeat his claim. Rather, we agree with the Ninth Circuit ’s common-sense approach examining the nature of the alleged defamation, as well as its timing, to determine whether it occurred in the course of the terminatio n. See Campanelli , 100 F.3d at 1483. Roughly contemporaneous statements about the reasons for termination are not the same as roughly contemporaneous statements on other matters. What is relevant to our analysis is the “manner in which a public employee is terminated,” Miller , 705 F.2d at 373, and the statements made “inciden t to the termination.”1 Under the test formulated in Workman , 32 F.3d at 481, the defamatory

statements “must occur in the course of terminating the employee or must foreclose other employment opportunities ” (emphasis added). At first blush, it appears that this prong of the test can be met eith er by statements made in the course of terminating an employee or, in the altern ative, by any other statements that might foreclose other employment opportunities . Workman , which was decided on other grounds, did not examine this ques tion. In delineating this -9- Siegert , 500 U.S. at 234. We therefore hold that a court must examine both the nature and the timing of an allegedly defamatory st atement to determine whether it has been made in the course of an employee’s ter mination. In this case, the alleged defamation had nothing to do with the reasons for termination, i.e., Plaintiff’s abuse of alcohol on the job in violation of the Wyoming substance abuse policy, nor did it have anybearing on the manner of termination. Plaintiff was terminated in a private manner, i.e., by certified letter dated April 22, 1996. Ms. Carson’s alleged stateme nts, as represented by the police bulletin, may have reflected that Plaintiff had been terminated, but they were not about the manner or reasons for his termin ation. Instead, they concerned Plaintiff’s potentially violent behavior in the aft ermath of termination. While the statements may have injured Plaintiff and may well have affected his opportunities for future employment, they did not o ccur in the course of the termination of employment. Because Ms. Carson’s statements were not made in th e course of discharging Plaintiff, 1 Plaintiff has failed to show one of the four essen tialprong of the test, Workmancited Paul , 424 U.S. at 710, and Sullivan v. Stark , 808

F.2d 737, 739 (10th Cir. 1987). As explained in th e foregoing analysis, Paul clearly requires that the defamation occur in the c ourse of the termination of employment. Sullivandid not abrogate or minimize this requirement. Wh ile the language of Workmanmay be susceptible to another reading, we conclude that the Workmancourt did not intend to create a test under which a liberty interest might be infringed by any defamatory statement that mightforeclose future employment opportunities. -10- elements that establish a deprivation of a liberty interest under Workman , and we need not address the other three prongs of the Workmantest. We conclude that the alleged defamation cannot establish a claim cog nizable under 42 U.S.C. § 1983 for deprivation of a constitutional right, a nd we affirm the district court’s grant of Defendant’s motion for summary judgment onthis claim.

B. We now turn to the issues raised by the district co urt’s order granting summary judgment to both defendants on the breach o f contract claim. Plaintiff, who held his position as superintendent for approxi mately ten years, argues that he had a permanent appointment at the Wyoming Boys’ School. He alleges that the Wyoming Personnel Rules defined his position as a permanent appointment and established an implied-in-fact contract under Wyoming law. He then contends that the State converted his position from a permanent to an “at-will” appointment by its 1996 amendment to § 9-2-2104(a)( viii) of the Wyoming-11-

Statutes, and he claims that this change in law and his subsequent dismissal as an “at-will” employee violated the Contract Clause of the United States Constitution. The district court determined that any rights Plain tiff may have enjoyed as an employee of the executive branch of Wyoming’s state government, including any asserted implied contract rights, were created by s tatute and could be eliminated by statute. Based on this conclusion of law, the d istrict court granted Defendants’ motion for summary judgment. We affirm on differen t grounds. Article I, § 10, of the Constitution provides: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .” To prevail on a claim under this clause, a plaintiff must show that (1) acontractual relationship existed, (2) the change in law impaired that relationship, a nd (3) the impairment was substantial. See General Motors Corp. v. Romein , 503 U.S. 181, 186 (1992). Nothing in the record nor in the applicable statute s and rules indicates that Plaintiff had either a permanent appointment or an implied-in-fact contract. Prior to its amendment in 1996, the statute at issue prov ided that the director of the Department of Family Services had the authority and control to “[a]ppoint and prescribe the duties of officers of [such] institut ions” as the Boys’ School. W YO
. S TAT
. ANN . § 9-2-2104(a)(viii) (1995). Effective March 12, 1996, the amended statute specified that the director shall [a]ppoint and prescribe the duties of the superinte ndent of the Wyoming boys’ school, the superintendent of the Wyo ming girls’-12-

school and the superintendent of the Wyoming youth treatment center. Each superintendent shall be under the dir ect authority and control of the director and may be removed by the d irector at any time without cause. Id. § 9-2-2104(a)(viii) (1996). It is clear that any appointment made under the provisions of the amended section must be an “at-wi ll” appointment. This interpretation, however, does not necessarily mean that an appointment under the provisions of the statutory section prior to amendm ent was a permanent appointment. We find nothing in the language of th e former section that accords Plaintiff permanent status. Plaintiff argues that under the Wyoming Personnel Rules, promulgated pursuant to § 9-2-1022(a)(xi) of the Wyoming Statut es, he had a right to be discharged only for just cause after notice and an opportunity to be heard. The personnel rules provide that a permanentemployee has the right to notice specifying “[t]he reason(s) and summary of the evid ence for dismissal,” the opportunity to respond to the charge(s), and the ri ght to a hearing on the matter.
W YO
. A DMIN
. C ODE , ch. 11, § 3(c)(I). The rules also provide that non-permanent employees are “at-will employee[s] who [have] no expectation of continued employment and may be dismissed at any time withoutcause or reason.” Id. at ch. 13, § 1. While the rules set forth the procedu res applicable to both groups of employees, they do not classify employees as perman ent or non-permanent. Plaintiff has not demonstrated how the rules accordhim permanent status, and we-13-

can find nothing in them that conferred permanent s tatus on him in the superintendent’s position. We therefore conclude that neither the applicable Wyoming statutes nor the personnel rules provide evidence of an implied cont ract. Because Plaintiff has not established that he was a permanent employee, w e affirm the district court’s grant of summary judgment on the breach of contractclaim.

III. With respect to Plaintiff’s ADA claim, a jury found that Plaintiff’s disability of alcoholism was not a motivating facto r in the decision to terminate him. Plaintiff challenges the district court’s jury instructions on the ADA claim. “We review the district court’s decision to give a particular jury instruction for abuse of discretion and consider the instructions a s a whole de novo to determine whether they accurately informed the jury of the go verning law.” United States v. Cerrato-Reyes , 176 F.3d 1253, 1262 (10th Cir. 1999).

A. Plaintiff asked the court to instruct the jury “that in all cases for purposes of [the] ADA alcoholism is a disability.” Appellan t’s App., Vol. 2 at 597. Plaintiff contends that the court’s failure to give this instruction left the jury to2 Our determination that alcoholism is a disability u nder the Rehabilitation

Act may be relevant to a determination of whether a lcoholism is a disability under the ADA. See 29 U.S.C. §§ 791(g), 794(d). “Congress adopted th e definition of [the] term [‘disability’] from the Rehabilitation A ct definition of the term ‘individual with handicaps.’ By so doing, Congress intended that the relevant caselaw developed under the Rehabilitation Act be g enerally applicable to the term ‘disability’ as used in the ADA.” 29 C.F.R. p t. 1630, app. § 1630.2(g). -14- decide the legal issue of whether alcoholism is a c overed disability under the
ADA. We have held that alcoholism is a disability under the Rehabilitation Act, 29 U.S.C. § 706(8)(C)(v). 2 See Williams v. Widnall , 79 F.3d 1003, 1005 (10th Cir. 1996). We have also observed in dicta that th e status of being an alcoholic may merit protection under the ADA. See Nielsen v. Moroni Feed Co. , 162 F.3d 604, 609 (10th Cir. 1998). At the same time, where the disability at issue is alcoholism, both the Rehabilitation Act and the ADArecognize a dichotomy between the disability and disability-caused miscon duct. See id. at 608. Although alcoholism may qualify as a disability forpurposes of the ADA, an employer “may prohibit . . . the use of alcohol at the workplace by all employees” and “may hold an employee . . . who is an alcoholic to the same qualification standards for employment or job performance and beh avior that [it] holds other employees, even if any unsatisfactory performance o r behavior is related to the . . . alcoholism of such employee.” 42 U.S.C. § 12114(c)(1), (4). ADA protection, therefore, does not extend to an alcoho lic’s use of alcohol on the job.3 Several circuits have held that alcoholism is a dis ability under the ADA.

See, e.g. , Mararri v. WCI Steel, Inc. , 130 F.3d 1180, 1180 (6th Cir. 1997); Buckley v. Consolidated Edison Co. of New York , 127 F.3d 270, 273 (2d Cir. 1997), vacated en banc on other grounds , 155 F.3d 150 (2d Cir. 1998); Miners v. Cargill Communications, Inc. , 113 F.3d 820, 823 n.5 (8th Cir. 1997); Office of the Senate Sergeant at Arms v. Office of Senate Fai r Employment Practices , 95 F.3d 1102, 1105 (Fed. Cir. 1996); cf. Despears v. Milwaukee County , 63 F.3d 635, 635 (7th Cir. 1995) (noting that the parties d id not deny that alcoholism is a disability under the ADA). Whether alcoholism is adisability per se may raise additional issues. See Burch v. Coco-Cola Co. , 119 F.3d 305, 316-17 (5th Cir. 1997) (holding that alcoholism is not a per se disability under the ADA and evidence that alcoholics, in general, are impaired is inadequate to show the substantial limitation of one or more major life ac tivities), cert. denied , 522 U.S. 1084 (1998); see also Wallin v. Minnesota Dep’t of Corrections , 153 F.3d 681, 686 n.4 (8th Cir. 1998) (citing Burchand requiring that a plaintiff show impairment of a major life activity), cert. denied , ___U.S. ___, 119 S. Ct. 1141 (1999); Buckley , 127 F.3d at 274 (citing Burchand requiring the plaintiff to demonstrate both “that he was actually addicted . . . and that this addiction substantially limited one or more of his major life activities”). -15- We assume for purposes of Plaintiff’s argument thatalcoholism is a covered disability, 3 but we find no reversible error. Instruction No. 11, which introduces the issue, states in full: It is unlawful for an employer to intentionally dis criminate against a qualified individual with a disability be cause of that person’s disability. In this case David Renaud cla ims that the State of Wyoming[] intentionally discriminated against hi m because he has a disability. He contends that he was terminated f rom his employment because he is an alcoholic. He contends that he never used alcohol on the job and never was under the inf luence of alcohol while at work. He contends that the State of Wyomi ng failed to reasonably accommodate his disability. He contends that [the] State of Wyoming’s allegations that he violated its subst ance abuse policy are only a pretext for terminating his employment b ecause he has a disability.-16- The State of Wyoming denies this charge. It conten ds that it did not discriminate against Mr. Renaud because of his disability. It also contends that Mr. Renaud’s employment was term inated because of serious misconduct – abuse of alcohol while on the job. It denies that Mr. Renaud requested accommodation for his alc oholism and also denies that it failed to reasonably accommodat e his disability. It is your responsibility to decide whether Mr. Ren aud has proven his claim against the State of Wyoming by a preponderance of the evidence, as that term is defined in these inst ructions. Appellant’s App., Vol. 3 at 727. Similar language is found in Instruction No. 13a which reads in part:

When Mr. Renaud has offered evidence that causes yo u to conclude that the State of Wyoming took the action complained of because of his disability, he is entitled to recove r unless the State of Wyoming proves that it would have taken the same ac tion concerning Mr. Renaud regardless of his disability. . . .

. . . . On the other hand, your verdict should be for the S tate of Wyoming if you find that Mr. Renaud has failed to p rove that his disability was a motivating factor in its decision or conduct. Your verdict should be for the State of Wyoming if you f ind that it has proved that it would have taken the same actions re garding Mr. Renaud regardless of his disability. Id. at 730-31. Instruction No. 14 tells the jury “to be mindful th at the law requires only that employers not discriminate against an employee because of his disability. An employer may demote, remove, discharge or terminate an employee for any other non-discriminatory reason, good or bad, fair or unf air.” Id. at 732. This-17-

instruction explains that Plaintiff may be terminat ed for misusing alcohol in the workplace as delineated by 42 U.S.C. § 12114(c)(1). Likewise, Instruction No. 20a clearly indicates that the disability of alcoho lism, but not disability-caused conduct, is protected:

Reasonable accommodation for the disability of alco holism requires that an employee be given time off to part icipate in a treatment program. The Americans [w]ith Disabilities Act does not prot ect alcoholics from the consequences of their misconduc t. Alcoholics are held to the same standard of performance and be havior as the employer holds other employees. Id. at 739. The wording of Instruction No. 23 is also on point: “If you find that defendant Wyoming Department of Family Services int entionally discriminated against David Renaud because of his disability, the n you must determine an amount of money that is fair compensation for his d amages.” Id. at 741. We conclude that these instructions were sufficient to inform the jury that alcoholism is a disability under the ADA. Taken as a whole, t he instructions clearly require the jury to determine not whether alcoholism is a p rotected disability but whether Plaintiff’s disability was a basis for his discharg e. Accordingly, we hold that the district court did not abuse its discretion in refu sing to give Plaintiff’s requested instruction.

B.4 Plaintiff argues that this jury instruction may hav e confused the jury,

particularly in light of one portion of the closing argument where Defendant’s counsel stated:

So what I submit is the problem here is not some di sability, it’s the act of drinking; two different things. If you don’t drink, you don’t get in trouble, you don’t have all those prob lems related to drinking. So I ask you to go back there and consider, is alco holism in this case even a disability that ought to be talked about under this law? He didn’t need something to help him get the job done. It was something different. Appellant’s App., Vol. 2 at 610. Standing alone th is line of argument could be -18- Plaintiff also objects to Instruction No. 17 which defines the term “disability” to mean “a physical or mental impairme nt that substantially limits one of the major activities of life, such as caring foroneself, performing manual tasks, walking, seeing, hearing, speaking, breathin g, learning, thinking, or working.” Id. at 735. The district court’s definition closely t racks the language of the definition found in the ADA and in the regul ations promulgated under the
ADA. See 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(I). Plai ntiff contends that this instruction suggested that the jury’s charge w as to determine whether alcoholism was a covered disability. Having studie d this instruction in the context of the instructions as a whole, we conclude that the instructions accurately informed the jury of the governing law a nd that Instruction No. 17 did not mislead the jury about the proper sphere of its inquiry. 4 Our conclusion isconfusing and the court may have sustained an objec tion to it, had such an

objection been raised. But we cannot agree with Pl aintiff that it so “tainted” Instruction No. 17 that, despite the direction give n in the instructions as a whole, the jury might have based their verdict on a decisi on that alcoholism was not a covered disability. -19- also influenced by the question posed by the “Speci al Interrogatory and Verdict Form.” It asked: “Did Plaintiff David G. Renaud p rove that his disability of alcoholism was a motivating factor in the State of Wyoming’s decision to terminate his employment?” Id. at 771. This question plainly states that Plainti ff had the disability of alcoholism. The jury’s negat ive response to the query indicates that the jury determined that his disabil ity did not motivate the termination of his employment. We conclude that th e district court did not abuse its discretion in giving Instruction No. 17.

IV. In the final issue on appeal, Plaintiff claims thatthere was insufficient evidence in the record to support the jury’s determ ination that the Department did not interfere with his rights under the FMLA. Our review is limited to determining whether substantial evidence in the rec ord supports the jury’s decision. See Thunder Basin Coal Co. v. Southwestern Pub. Serv. Co. , 104 F.3d 1205, 1212 (10th Cir. 1997). The FMLA provides that employers must allow “eligib le employees” up to-20-

twelve workweeks of leave in any twelve-month perio d if the leave is requested for one of the purposes enumerated in the statute, including an employee’s “serious health condition that makes the employee u nable to perform the functions of the position of such employee.” 29 U.S.C. § 261 2(a)(1)(D). Plaintiff argued to the jury that the Department interfered with his FMLA rights by ending his employment during his leave for the treatment of al coholism. We have previously held that “[u]nder FMLA, an empl oyee who requests leave or is on leave has no greater rights than an employee who remains at work.” Gunnell v. Utah Valley State College , 152 F.3d 1253, 1262 (10th Cir. 1998) (citing 29 C.F.R. § 825.216(a)). We observed that “an employee who requests FMLA leave would have no greater protection againsthis or her employment being terminated for reasons not related to his or her FMLA request than he or she did before submitting the request.” Id. The applicable regulation provides that an employee may be laid off if the action woul d have been taken in the absence of FMLA leave. See 29 C.F.R. § 825.216(a). In this case, Plaintiff was placed on administrativ e suspension on April 15, 1996, for investigation of alleged violations of Wy oming’s substance abuse policy. The following day he requested and was gra nted leave and checked himself into an alcohol treatment program. His emp loyment was terminated a few days later. Several employees testified that on Ma rch 29, 1996, they had seen-21-

Plaintiff unsteady on his feet, that he sounded int oxicated because his speech was slurred, and that he smelled like alcohol. See Appellant’s App., Vol. 2 at 405, 408, 426, 444. Several witnesses also testified th at Plaintiff had appeared to be under the influence of alcohol at work on prior occ asions. See id. at 412, 429, 441. Ms. Carson testified that she reviewed the st atements of these employees and, following an investigation she found “very con clusive,” made the decision to terminate Plaintiff because he was drunk. Id. at 583. She stated that she made the decision to terminate without regard to Plainti ff’s possible placement in a treatment facility. See id. at 584-85. This testimony provides substantial evidence upon w hich the jury may have found that Plaintiff was terminated for using alcoh ol on the job and that he would have been dismissed regardless of FMLA leave. We therefore conclude that there is substantial evidence in the record to support th e jury’s finding that the Department did not interfere with Plaintiff’s right s under the FMLA. The judgment of the United States District Court fo r the District of Wyoming is AFFIRMED

.