### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20544

BRYAN SHIRLEY Plaintiff-Appellant,
v. PRECISION CASTPARTS CORP., WYMAN-GORDON FORGINGS, L.P., WYMAN-GORDON COMPANY, and WYMAN-GORDON FORGINGS, INC. Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas

Before WIENER, DENNIS, and OWEN, Circuit Judges. WIENER, Circuit Judge: Plaintiff- A p p e llant Bryan Shirley appeals the district court’s summary j udgment that dismissed his claims a gainst Precision Castparts Corp., Wyman-Gordon Forgings, Inc., and Wy m a n - G o r d o n Forgings, L.P. 1 (collectively, “Defen d a n t s ” ) u n d e r t h e A m e r i c a n s w i t h D isabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”). We affirm. U n i t e d S t a te s C o u r t o f A p p e al s F i f t h C i rc u i t 

### F I L E D Aug ust 12, 2013 Ly l e W . Cay ce Clerk

1 Wym an- G ord on Com p any is not an active entity and never w as served in this cas e. Case: 12-20544 Document: 00512338403 Page: 1 Date Filed: 08/12/2013No. 12-20544 I. FACTS AND PROCEEDING A. Facts For twelve years, Shirley worked for Wyman-Gordon F o r g ings, L.P. (“W-G”) as an operator of the largest extrusion press in the world. Although he had taken Vicodin as prescribed by h is doctor for a long time to m anage the pain from various work-related i njur i e s , Shirley began v isiting physicians at other pain clinics to c ollect additional pre s c r i p t i o n s for the same drug. He did not inform those physicians of his other prescriptions. Under W -G’s drug-free workplace policy, any employee who dev elops a problem with drugs or a lcohol may confidentially inform t h e company’s human

resources ( “HR”) manager to pursue treatment. Under that policy, h owever, an employee “ who rejects treatment or who leaves a tr eatment program prior to being properly discharged will be terminated.” Following a near overdose in November 2009, Shirley requested medical leave from W-G. Its HR r epresentative, A lan Barnett, grante d t h e requested leave so that Shirley could be treated for the addiction. On December 3, with the blessing of his employer, Shirley checked i nto Memorial H e rmann Prevention and Recovery Center in Houston to begin such treatment. T r e a t m e n t f

o r d r u g a d d i c t i o n i n v o l v e s t w o d i s t i n c t , s e q u ential components

. In the first step, the patient must d etoxify, c leansing his b ody of t he drug. In the second step, the patient mus t u n d ergo treatment that addresses the a ddiction by helping him curb his need for the drug. On December 5, after successfully detoxifying, S hirley requested that he be d ischarged, albeit against the recommendation of h i s treating physician at Memorial Hermann, Dr. M ike Leath. Shirley f e l t o v e rly confined by the program
a nd resisted efforts to substitute a non-opiate pain reliever f or the Vicodin. Believing him to b e in d enial about his addiction and his d i m p r o s pects for

recov e r y w ithout inpatient treatment, Dr. Leath described S hirley’s discharge

2 Case: 12-20544 Document: 00512338403 Page: 2 Date Filed: 08/12/2013No. 12-20544

prognosis as “guarded” and provided him with a discharge p lan under which he was to obtain treatment from his primary care physician, Dr. David Hoefer. On December 9, S h irley visited Dr. Hoefer, who released him to r eturn to work. On his r eturn, H R representative Barnett informed Shirley that his early departure from Memorial Hermann w as g roun d s for termination under W-G’s drug-free workplace policy; ho w e v e r , Barnett permitted S hirley to reenter Memorial Hermann to complete his t reatment. He was advised that he would be welcomed back to work if he successfully completed his course of treatment at Memorial Hermann. Shirley accept e d W

- G ’ s offer of a second chance and admitted himself to Memorial Hermann’s residential program on December 11. He tested positive for hydrocodone on readmission, a nd h e admits t h a t h e had t a ken Vicodin following his initial discharge days earlier, but—he insists—only in p r escribed doses. After o n ly one day of detox, Shirley again checked himself o u t o f the Memorial Hermann program. This time, Dr. Leath’s discharge n ote stated that Shirley had completed detox, but had not c ompleted treatment. On December 14, W-G fired Shirley for twic e failing to complete t he M emorial Hermann treatment program.

B. Procedural History Shirley sued t he Defendants in district court, alleging that W-G violated the ADA a nd FMLA w hen it fire d h i m . T h e Defendants filed a summary judgment m otion addressing both claims, w hich t he c ourt granted. It held that (1) the ADA’s exclusion of current drug users applied to Shirley, and he was not otherwise protected by the Act’s safe harbor provision, a nd (2) t he F MLA did not protect h im from t e rmination following h is violation of W

- G ’ s d rug-free workplace policy. Shirley timely filed a notice of appeal.

3 Case: 12-20544 Document: 00512338403 Page: 3 Date Filed: 08/12/2013No. 12-20544 II. ANALYSIS A. ADA Claim The ADA p rohi b i ts employers from discriminating against a “ qualified individual on the basis of disability.” 2 A “qualified individual” is “an individual who, with or w i t hout reasonable a ccommodation, can perform the e ssential functions of the employment position that such i ndividual h o l d s o r desires.” 3 Section 12114(a) of the ADA expressly excludes from the class of “ qualified individuals” any e m p loyee “ who is currently engaging in t h e illegal use of drugs” at the t ime that the e mployer makes an employment decision “on the basis of such u se.” 4 This exclusion applies not just t o t h e use of i llegal street d rugs, but also to the illegal misuse of pain-killing drugs controlled by prescription. 5 The ADA contains a safe harbor provis i o n i n Section 12114(b), which makes the drug-use exclusion inapplicable to an otherwise qualified individual who (1) has successfully completed a supervised drug re habilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is n o longer engaging in such use; (2) is participating in a supervised rehabilitation program and is n o longer engaging in such use; or (3) is erron e o u s ly regarded as engaging in such use, but i s n ot engaging in such use[.] 6

2 42 U

. S. C. § 12112( a)

.
3 42 U

. S. C. § 12111( 8)

.
4 42 U

. S. C. § 12114( a)

.
5 S ee 42 U

. S. C. § 12111( 6) ; 29 C. F

. R

. § 1630. 3; see a l so N i el sen v . M

oroni Feed Co. , 162 F. 3d 604, 611 n. 12 ( 10th Cir. 1998)

.

6 42 U

. S. C. § 12114( b)

. 4 Case: 12-20544 Document: 00512338403 Page: 4 Date Filed: 08/12/2013No. 12-20544

Notwithstanding this safe harbor exception to the ADA’s drug-use exclusion, an employer may “adopt or administer reasonable p olicies or pr o c edures

. . . designed to ensure t h a t a n individual described in paragraph (1) or (2) is no longer engaging in the illegal use of drugs.” 7 To make out a p r ima facie case, Shirley had to s how, i nter alia , that he

was a qualified individual w ithin the intendment of the A DA. 8 He challenges the district court’s conclusion that he failed to bear this b urden, asserting that the court erred both i n applying the statutory exclusion to him and in holding that he was ineligible for the safe harbor.

1. Section 12114(a) Although Section 12114(a) excludes from the ADA’s protection only those individuals “ currently engaging in the illegal use of drugs,” t he term “currently” includes drug use “sufficiently recent to justify the employer’s r easonable belief that the d rug abuse remained an ongoing problem.” 9 T h e district court recognized, i n accordance with pr e c e d e n t s o f t h i s 1 0 a nd other circuit courts, 1 1 that

an individual wh o h as used illegal d rugs in t he weeks ( or even months) preceding the adverse employment a ction may be deemed “currently e ngaging” in that use. I n his open i n g b r i e f o n appeal, Shirley does not challenge the

7 Id.

8 See, e. g. , D up re v . Cha rter Beha v i ora l Hea l th Sys. of La f a yette, Inc. , 242 F .3d 610, 613 ( 5th Cir. 2001)

.

9 Zenor v . El P

a so H ea l thca re Sys. , Ltd. , 176 F .3d 847, 856 ( 5th C ir. 1999)

.
1 0 S ee i d.

1 1 See 9- 153 L A R SON ON E M P L OY M E N T D I SC R I M I N

A T I ON § 153. 11 ( 2013) ( collecting cas es and no t i n g t h a t “courts have tend ed to d ef ine current d rug us e broad ly, allow ing d rug us e w ithin days , w eek s , or even m onths of the ad v ers e action to be cons id ered current”)

. 5 Case: 12-20544 Document: 00512338403 Page: 5 Date Filed: 08/12/2013No. 12-20544

district court’s conclusion that he was a “current” user at the time in question within the intendment of Section 12114(a). 1 2 Shirley nevertheless contends t h at, current user or other w ise, he is not excluded from ADA coverage by S e ction 1 2114(a) because that section applies

o n l y when the employer takes the adverse employment action “on t he basis of [the e mployee’s drug] use.” Shirley a sserts that t he r e ason he was fired was his failure to complete the treatment program at Memorial Hermann, which reason, he insists, was distinct from his use o f i l l egal drugs a nd therefore not “on the basis” of that use. His logic is flawed beyond cavil: W-G required Shirley to complete the drug treatment program only because of his admitted drug problem, and he was f

ired after he failed to complete that program, not once but twice. 1 3 Just as importantly, Shirley’s argument i s self-defeating: A prima facie

case under the ADA requires a plaintiff to show that he (1) has a d isability; (2)

was qualified for the job; a nd (3) was subject to an adverse employment decision because of his disability. 1 4 If Shirley was not fired “ o n the basis” of h is d rug use, then he was not fired “because of” his addiction, and his ADA claim must fail.

2. Section 12114(b) Failing t o e scape the conclusion that he was “currently engaging” in illegal drug use a nd was fired “on the basis o f s uch u se,” Shirley contends, in the

1 2 T o the extent that Shirley challenges the court’s conclus ion in his rep ly brief , the argum ent is w aived

— and it is w ithout m erit anyw ay.

1 3 That the exclus ion ap p lies only w he n t h e em p loyer “acts on the bas is of s uch us e” ref lects Congres s’s intent to p rovid e AD A p rotection f or current d rug us ers who suf f er ad vers e em p loym ent actions becaus e of other d is abilities that are unrelated to their d rug us e. See id. ; see al so Rem ark s of Sen. K enned y, 135 C o n g
. Rec. S10, 775 ( d aily ed

. Sep t. 7, 1989) ( “If an ind ivid ual w ho us es or is ad dicted to illegal d rugs als o has a dif ferent d is ability , and is
s ubjected to d is crim ination becaus e of that p articular d is ability, that ind ivid ual rem ains f ully p rotected und er the AD A. ”)

.

1 4 Dup re , 242 F .3d at 613. 6 Case: 12-20544 Document: 00512338403 Page: 6 Date Filed: 08/12/2013No. 12-20544

alternative, that he q ualifies f or the safe harbor under Section 12114(b) because h e w as “participating in a supervised rehabilitation program and [was] no longe r
e n g a g i n g i n [illegal drug] use” at the time he was f ired. He reasons t hat t h e district court “mixed up the standard for falling into the disqualifying provision of 42 U.S.C. § 12114(a) and t he standard for obtaining the protection of the safe harbor provision of 42 U.S.C. § 1 2114(b)” w h e n i t c oncluded that he was not entitled to the safe harbor after only eleven days free from illegal drug use. Again, the district court was correct. A s we noted in Zenor v. El Paso Healthcare Sys., Ltd

. , “ t h e m ere fact that an employee has entered a rehabilitation program does no t a u t o matically bring that employee w ithin the safe harbor’s protection.” 1 5 Instead, S ection 12114(b) “applies only to i n d i v i d uals who have been drug-free fo r a s i g nificant period of t ime.” 1 6 Rather than providing cover for current users in rehab, t h e s afe harbor pro v ision reflects Congress’s recognition that “ m a n y people continue to participate in drug treatment programs long after they have s topped using drugs illegally, a nd that

s u ch persons should b e protected under the Act.” 1 7 N either does the analys i s change based on Shirley’s candor with h i s e m ployer about his addiction: Selfrep o r t ing “ does not p ropel [a plaintiff] into the safe harbor’s p rotection simply because he had entered a rehabilitation p r o gram before the a dverse employment action was taken.” 1 8 To the contrary, a “significant period of recovery” is required for an employee to qualify f or the safe har b o r , regardless of how his

1 5 Z enor , 176 F. 3d at 857.

1 6 I d. (citing H

. R

. Rep

. N o. 101- 596, at 64 ( 1990) ( Conf

. Rep

. ) ).

1 7 H

. R. R ep . No. 101- 596, a t 6 4 ( e m p h a s is ad d ed ) ; see a l so Zenor , 176 F. 3d at 857 ( d is cus s ing Congres s ’s intent in ad d ing s af e harbor p rovis ion) ; Sha f er v . Preston M

em . H osp . Corp

. , 107 F. 3d 274, 280 ( 4th C ir. 1997) ( s am e)

.

1 8 Z enor , 176 F. 3d at 858. 7 Case: 12-20544 Document: 00512338403 Page: 7 Date Filed: 08/12/2013No. 12-20544

addiction is discovered. 1 9 T his principle a ccords with decisions of other circuits 2 0 and faithfully applies Congress’s intent when it wrote the s afe h a rbor protection into the law. 2 1 Ultimately, courts must determ i n e e l i g i bility for safe harbor “on a case-by-case basis,” a sking whether “the c ircumsta n c e s o f t h e p l a intiff’s drug use and r e covery justify a reasonable b elief t hat drug use is no longer a problem.” 2 2 As the d istrict court noted, Shirley’s refusal to complete an inpatient treatment program, his ins i s t e n ce that he remain on an opiate pain reliever, and his continued use o f Vicodin following detox “support[ed] a reasonable belief that continued drug use was s till a n on-going p roblem at the time [W-G] terminated his employment.” Shirley fa i l s t o r e b u t any of the evidence proffered by his employer and does not otherwise offer evidence of his own s u f f i c i e n t to raise a

1 9 I d.

2 0 See, e. g. , M

a uerha n v . Wa

gner C orp . , 649 F. 3d 1180, 1087 ( 10th Cir. 2011) ( “[ A] lthough p articip ating in or com p leting a d rug treatm ent p rogram w ill bring an ind ivid ual clos er to qualif

ying f or the s af

e harbor, an ind ivid ual m us t als o be no longer engaging in d rug us e f or a s uf f icient p eriod of tim e that the d rug us e is no longer an ongoing problem

. ”) ; Sha fer , 107 F

. 3d at 279 ( “Congres s intend ed to exclud e f rom s tatutory protection an em ployee w ho illegally us es d rugs during the w eek s and m onths p rior to her d is charge, even if the em p loyee is p articip ating in a d rug rehabilitation p rogram and is d rug- f ree on the d ay s he is f ired .”)

.
2 1 S ee H .R. Rep

. N o. 101- 596, at 69 ( noting that the s af e harbor p r o v i s i o n “ d o e s not p erm it p ers ons to invok e the Act’s p rotecti o n s im p ly by s how ing that they are p articip ating in a drug treatm ent p rogram
. Rather, ref raining f

rom illegal us e of drugs is als o es s ential[ , and e] m p loyers are entitled to s eek rea s o n a ble as s urances that no illegal us e of d rugs is occurring or h a s o c c u rred recently enough s o that continuing us e is a real and ongoing p roblem ”)

.

2 2 Ma uerha n , 649 F. 3d at 1188. 8 Case: 12-20544 Document: 00512338403 Page: 8 Date Filed: 08/12/2013No. 12-20544

jury question. 2 3 As he d id not establish the existence of a g e n uine dispute of material fact, summary judgment was appropriate. 2 4

B. FMLA Claim Shirley also claims that his firing viola t e d h is rights under the FMLA. The statute g u arantees eligible e mployees up to twelve weeks of leave during
any twelve-month period to attend to various family and medical issues. 2 5 The FMLA contains both pre s criptive provisions that create a series of entitlements

or substantive rights and p ro scriptive provisions that p rotect employees from retaliation or discrimination based on their exercise of t hose rights. 2 6 S hirley’s claimed right to return to work after his qualified absence 2 7 is a s u b s t a n t ive right within the first category. 2 8 That right is not unlimited, however: An employee is not entitled to “any right, benefit, o r position of e mployment o ther than any r ight, b e n e f i t , or position to which the employee would have been entitled h a d the employee not taken the

2 3 Contrary to Shirley’s contention, courts f requently rule that claim ants are ineligible f or s af e harbor as a m atter of law

. See, e. g. , Zenor , 176 F. 3d at 861; Ma uerha n , 649 F

. 3d at 1189; Brow n v . Lucky Stores , 246 F. 3d 1182, 1189 ( 9th Cir. 2001) ; Sha f er , 107 F

. 3d at 281.

2 4 C f

. Zenor , 176 F. 3d at 861 ( af f irm ing dis trict court’s j u d gm ent as a m atter of law agains t p laintif

f w ho had been d rug- f

ree f or five week s , had com p leted the res id ential p ortion of his treatm ent p rogram , and had s elf

- rep orted his ad d iction to his em p loyer)

.

2 5 S ee 29 U

. S. C

. § 2612( a) ( 1)

.
2 6 M auder v . M

etro. Tra nsi t A uth. of H a rri s Cnty. , 446 F. 3d 574, 580 ( 5th Cir. 2006) ; H a l ey v . A l l i a nce C

om p ressor LLC , 391 F. 3d 644, 649 ( 5th C ir. 2004) ; Boca l bos v . Na ti ona l W. Li f e Ins. Co. , 162 F. 3d 379, 383 (5th Cir. 1998)

.
2 7 S ee 29 U

. S. C

. § 2614( a) ( 1) ; 29 C. F. R. § 825. 214( a)

.
2 8 M a uder , 446 F. 3d at 580; see a l so McA rdl e v . D el l Prods. , L. P

. , 293 F. Ap p ’x 331, 334 ( 5th Cir. 2008) ( “An em p loyer’s f a i l u r e to res tore an em ployee to the s am e or equivalent p os ition gives ris e to an entitlem ent claim und er 29 U

. S. C. § 2615( a) ( 1)

. ”) ; N ero v . I ndustri a l M ol di ng Corp

. , 167 F. 3d 921, 926- 927 ( 5th Cir. 1999) ( d is tinguis hing claim s alleging a f ailure to reins tate f

rom claim s alleging retaliatory d is charge f ollow ing FM LA leave)

. 9 Case: 12-20544 Document: 00512338403 Page: 9 Date Filed: 08/12/2013No. 12-20544

leave.” 2 9 Department of Labor regulations pla c e t h e burden on the employer that is denying reinstatement “to show that an employee would not otherwise have been employ ed a t the time reinstatement is requested.” 3 0 In applying this regulation, we h ave reasoned that a plaintiff’s right to r e i n s t atement was “extinguishe d b y [ the employer’s] e xercise of [its] prerogative” w hen it terminated h er for “otherwise appropriate” reasons u nrelated to her exercise of rights secured by the FMLA. 3 1 That an employee is not guaranteed a n a bsolute right to reinstatement following a qualified absence i s n ot on l y “ a matter of

common sense[,]” 3 2 but a lso a principle reflected i n this circuit’s p atter n j u ry instructions 3 3 and i n the opinions o f a significant majority of o t h e r c i r cuit courts. 3 4 Our opinion in Nero v. I n d u s t rial Molding C

orp. 3 5 i s not to the contrary. There, having accepted that § 2614(a)(3) provides an employee o nly those rights

2 9 29 U

. S. C. § 2614( a) ( 3 ) ( B ) ; see a l so 29 C. F. R. § 825. 216( a) ( “An em p loyee has no greater right to reins tatem ent

. . . than if the em p loyee had been cont i n u o u s l y e m p loyed d uring the FM LA leave p eriod .”)

.

3 0 29 C. F. R. § 825. 216( a)

.
3 1 S ee G rubb v . Southw est A i rl i nes , 296 F. Ap p ’x 383, 391 ( 5th Cir. 2008)

.
3 2 I d.

3 3 F I F T H C I R C U I T P A T T E R N J U R Y I N ST R U C T I O N S ( C I V I L ) § 11. 10. 2 ( B ) ( 8 ) ( 2 0 0 9 ) ( “ P l a i n t i f f ' s exercis e of FM LA leave rights d oes not entitle [ him ] to greater rights to continued em p loym ent or em p loym ent benef

its than any of [ his ] f

ellow em p loyees who d id not exercis e FM LA leave rights

. Thus , Def

end ant w as not required to

. . . res tore Plaintif f to the s am e or an equivalent p os ition if D ef

end ant p roves Plaintif f ’s em ploym ent

. . . w ould have end ed even if Plaintif f had not exercis ed [his ] FM LA leave rights

. ”)

.

3 4 See, e. g. , Sa rnow ski v . A i r Brooke Li m ousi ne, Inc. , 510 F. 3d 398, 403 ( 3d Cir. 2007) ; Ya shenko v . H

a rra h' s N C Ca si no Co. , LLC, 446 F. 3d 541, 547 ( 4th Cir. 2006) ; A rba n v . West Publ ' g Corp

. , 345 F. 3d 390, 401 ( 6th Cir. 2003) ; Kohl s v . Bev erl y Enters. Wi s. , Inc. , 259 F

. 3d 799, 805 (7th Cir. 2001) ; Throneberry v . M cG ehee D esha C

ounty Hosp

. , 403 F .3d 972, 977 ( 8th Cir. 2005) ; Bones v. H

oneyw el l Int' l , Inc. , 366 F. 3d 869, 877 ( 10th Cir. 2004) ; Krutz i g v . Pul te H om e Corp

. , 602 F. 3d 1231, 1236 ( 11th Cir. 2010)

.
3 5 167 F. 3d 921 ( 5th C ir. 1999)

. 10 Case: 12-20544 Document: 00512338403 Page: 10 Date Filed: 08/12/2013No. 12-20544

to which he would have been entitled had he not t a k e n l e a ve, we noted that, because r einstatement was an FMLA entitlement , “ the employee [was] due the benefit i f the statutory requirements [were] s atisfied, regardless of the intent of the employer .” 3 6 A few district courts have interpreted the italicized phrase as imposing a strict liability standard, requiring employers, in all circumstances, to r ein s t a t e e m p l oyees after returning from F MLA leave. 3 7 T hese courts misread Nero

. It is true that an employer may not fail to reinstate an employee following his return from FMLA leave, b u t o n l y if the statutory requirements have been satisfied

. Among t hose requirem e n t s is one dictating that an employee must actually be e ntitled to the position to which he seeks r e instatement, 29 U

. S.C. § 2614(a)(3); and an employer m ay challenge that e ntitlement by offering evidence that the employee would have lost his position even had he not taken FMLA leave, 29 C.F.R. § 825.216(a). Thus, although denying an employee the reinstatement to which he is entitled generally violates the F MLA, denying reinstatement t o an employee whose right to restored e mployment had already been extinguished

— for l egitimate reasons u nrelated to his efforts to secure FMLA leave—does not violate the Act. A lthough we might have been clearer in Nero , we in fact considered the employer’s reasons for terminating the e mployee, which, o f course, w o u ld have been u nnecessary had those r easons been irrelevant. 3 8 As a legitimate cause f or termination wou l d p r e c lude his FMLA claim, Shirley had to presen t e v i d e n c e sufficient to raise a j ury question that W-G’s stated reason for firing him—violation of i ts dr u g-free workplace policy—was

3 6 Nero , 167 F. 3d at 927.

3 7 S ee M

a ta m oros v. Ysl eta Indep

. Sch. D i st. , N o. 3: 11- CV- 203, 2012 WL 6800505, at *5- 6 (W. D

. Tex. Feb. 9, 2012) ; Shep a rd v . Tyson Foods, Inc. , N o. 9: 06- CV- 84 , 2 007 WL 1127408, at *2 ( E

. D

. Tex. Ap r. 16, 2007)

.

3 8 S ee N ero , 167 F. 3d at 926. 11 Case: 12-20544 Document: 00512338403 Page: 11 Date Filed: 08/12/2013No. 12-20544

pretextual. He suggests that W-G misapplied t he policy provision that subjects to termination a ny e mployee “who rejects t reatment or who leaves a treatment program prior to being properly discharged,” thereby raising th e s pecter of pretext. Shirley would have u s parse the policy’s l anguage and conclude that he did not actually leave the “treatment program” early because he never began the second step, i.e. , “treatment,” of Memorial Hermann’s two-step program in the first p l a ce, having begun only the first, or “detox,” step. He insists that the “treatment” was always contemplated t o be with his primary care doctor. W-G counters that “treatment program” refers to the entire program—both the detox step and the post-detox treatment step—and that Shirley violated W-G’s policy

w h e n h e b egan but did not complete the treatment p rogram at Memorial Hermann. W-G is c orrect, so Shirle y ’s claim is u navailing. He initially discharged himself from M emorial H ermann against t he advice of his t reating p h ysi c i a n there, returned to work w ith a clearance from his primary c are physician only, and w as timely a dvised by W-G that his premature departure from M emorial Hermann rendered him s ubject to termination. Yet he was gratuitously given another chance! He was directed to admit h imself a second time and complete the treatment regimen. Readmit himself he d id, but finish treatment he did not: Shirley checked himself out after only a single day in the “residential program,” insisting that outpatient treatment with h is personal physician was all that he required. O nly then w as h e fired for violating the company’s drug- f r e e workplace policy. To suppose, then, that Shirley was denied a right t o which he was entitled strains credulity to t he breaking p oint. E ven after W-G clarified any ambiguity in its policy and gave Shirley a second chance to comply, h e failed—refused!—to do so. W-G’s interpretation of its policy i s probably the correct one; it is certainly not so unreasonable as to invite any inference o f pretext in the reason it gave for

12 Case: 12-20544 Document: 00512338403 Page: 12 Date Filed: 08/12/2013No. 12-20544

Shirley’s te r m i n a t i on. Shirley has offered no e vidence of d iscriminatory application of W-G’s d rug-free workplace policy, 3 9 of hostility toward S hirley’s decision to take medical leave, 4 0 o r of h is employer’s reluctance to a bide more generally by the FMLA’s d ictates. His allegations and e vidence are insufficient to survive summary judgment on h is FMLA claim, as no reasonable jury could find that he was denied reinstatement for any reason other than his refusal to continue his FMLA leave period for the express purpose for which it was taken, viz. , completing his drug dependency treatment at Memorial Hermann.

III. CONCLUSION We affirm the judgment of the district court for essentially the reasons set forth in its fulsome opinion and as explained above. AFFIRMED.

3 9 S ee 29 C. F. R. § 825. 119( b) ( “[ I] f the em ployer has an es tablis hed p olicy, ap p lied in
a non- d is crim inatory m anner that has been com m uni c a t e d to all em p loyees , that p rovid es und er certain circum s tances an em p loyee m ay be term inated f or s ubs tance abus e, p urs uant to that p olicy the em p loyee m ay be term inated whether or not the em p loyee is p res ently tak ing FM L A leave. ”)

.

4 0 C f

. Ri cha rdson v . M

oni troni cs Int' l, Inc. , 434 F. 3d 327, 335 ( 5th C ir. 2005)

.

13 Case: 12-20544 Document: 00512338403 Page: 13 Date Filed: 08/12/2013