IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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-Appellant Bryan Shirley appeals the district court’s summary

judgment that dismissed his claims against Precision Castparts Corp.,

Wyman-Gordon Forgings, Inc., and Wyman-Gordon Forgings, L.P.1(collectively,

“Defendants”) under the Americans withDisabilities Act (“ADA”) and the Family

Medical Leave Act (“FMLA”). We affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

August 12, 2013

Lyle W. Cayce

Clerk

1 Wyman-Gordon Company is not an active entity and never was served in this case.

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I. FACTS AND PROCEEDING

A. Facts

For twelve years, Shirley worked for Wyman-Gordon Forgings, L.P.

(“W-G”) as an operator of the largest extrusion press in the world. Although he

had taken Vicodin as prescribed by his doctor for a long time to manage the pain

from various work-related injuries, Shirley began visiting physicians at other

pain clinics to collect additional prescriptions 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 develops a

problem with drugs or alcohol may confidentially inform the company’s human

resources (“HR”) manager to pursue treatment. Under that policy, however, an

employee “who rejects treatment or who leaves a treatment 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 representative, Alan Barnett, granted the requested

leave so that Shirley could be treated for the addiction. On December 3, with the

blessing of his employer, Shirley checked into Memorial Hermann Prevention

and Recovery Center in Houston to begin such treatment. 

Treatmentfor drug addiction involves two distinct, sequential components. 

In the first step, the patient must detoxify, cleansing his body of the drug. In the

second step, the patient must undergo treatment that addresses the addiction

by helping him curb his need for the drug. 

On December 5, after successfully detoxifying, Shirley requested that he

be discharged, albeit against the recommendation of his treating physician at

Memorial Hermann, Dr. Mike Leath. Shirley felt overly confined by the program

and resisted efforts to substitute a non-opiate pain reliever for the Vicodin. 

Believing him to be in denial about his addiction and his dim prospects for

recovery without inpatient treatment, Dr. Leath described Shirley’s discharge

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prognosis as “guarded” and provided him with a discharge plan under which he

was to obtain treatment from his primary care physician, Dr. David Hoefer.

On December 9, Shirley visited Dr. Hoefer, who released him to return to

work. On his return, HR representative Barnett informed Shirley that his early

departure from Memorial Hermann was grounds for termination under W-G’s

drug-free workplace policy; however, Barnett permitted Shirley to reenter

Memorial Hermann to complete his treatment. He was advised that he would

be welcomed back to work if he successfully completed his course of treatment

at Memorial Hermann. 

Shirley accepted 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, and he admits that he had taken Vicodin

following his initial discharge days earlier, but—he insists—only in prescribed

doses. After only one day of detox, Shirley again checked himself out of the

Memorial Hermann program. This time, Dr. Leath’s discharge note stated that

Shirley had completed detox, but had not completed treatment. On December

14, W-G fired Shirley for twice failing to complete the Memorial Hermann

treatment program.

B. Procedural History

Shirley sued the Defendants in district court, alleging that W-G violated

the ADA and FMLA when it fired him. The Defendants filed a summary

judgment motion addressing both claims, which the court 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, and (2) the FMLA did not

protect him from termination following his violation of W-G’s drug-free

workplace policy. Shirley timely filed a notice of appeal. 

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II. ANALYSIS

A. ADA Claim

The ADA prohibits employers from discriminating against a “qualified

individual on the basis of disability.”2 A “qualified individual” is “an individual

who, with or without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds or desires.”3

Section 12114(a) of the ADA expressly excludes from the class of “qualified

individuals” any employee “who is currently engaging in the illegal use of drugs”

at the time that the employer makes an employment decision “on the basis of

such use.”4 This exclusion applies not just to the use of illegal street drugs, but

also to the illegal misuse of pain-killing drugs controlled by prescription.5

The ADA contains a safe harbor provision in Section 12114(b), which

makes the drug-use exclusion inapplicable to an otherwise qualified individual

who

(1) has successfully completed a supervised drug rehabilitation

program and is no longer engaging in the illegal use of drugs, or has

otherwise been rehabilitated successfully and is no longer engaging

in such use;

(2) is participating in a supervised rehabilitation program and is no

longer engaging in such use; or

(3) is erroneously regarded as engaging in such use, but is not

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 See 42 U.S.C. § 12111(6); 29 C.F.R. § 1630.3; see also Nielsen v. Moroni Feed Co., 162

F.3d 604, 611 n.12 (10th Cir. 1998).

6

42 U.S.C. § 12114(b).

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Notwithstanding this safe harbor exception to the ADA’s drug-use exclusion, an

employer may “adopt or administer reasonable policies or procedures . . .

designed to ensure that an individual described in paragraph (1) or (2) is no

longer engaging in the illegal use of drugs.”7

To make out a prima facie case, Shirley had to show, inter alia, that he

was a qualified individual within the intendment of the ADA.8 He challenges the

district court’s conclusion that he failed to bear this burden, asserting that the

court erred both in 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,” the term “currently”

includes drug use “sufficiently recent to justify the employer’s reasonable belief

that the drug abuse remained an ongoing problem.”9 The district court

recognized, in accordance with precedents ofthis

10

and other circuit courts,11

that

an individual who has used illegal drugs in the weeks (or even months)

preceding the adverse employment action may be deemed “currently engaging”

in that use. In his opening brief on appeal, Shirley does not challenge the

7

Id.

8 See, e.g., Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc., 242 F.3d 610, 613

(5th Cir. 2001).

9 Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 856 (5th Cir. 1999).

10 See id.

11 See 9-153 LARSONON EMPLOYMENTDISCRIMINATION § 153.11 (2013) (collecting cases

and noting that “courts have tended to define current drug use broadly, allowing drug use

within days, weeks, or even months of the adverse action to be considered current”).

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district court’s conclusion that he was a “current” user at the time in question

within the intendment of Section 12114(a).12

Shirley nevertheless contends that, current user or otherwise, he is not

excluded from ADA coverage by Section 12114(a) because that section applies

only when the employer takes the adverse employment action “on the basis of

[the employee’s drug] use.” Shirley asserts that the reason he was fired was his

failure to complete the treatment program at Memorial Hermann, which reason,

he insists, was distinct from his use of illegal drugs and 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 fired after he failed to complete that program, not once but

twice.13Just as importantly, Shirley’s argument is self-defeating: A prima facie

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

was qualified for the job; and (3) was subject to an adverse employment decision

because of his disability.14If Shirley was not fired “on the basis” of his drug use,

then he was not fired “because of” his addiction, and his ADA claim must fail.

2. Section 12114(b)

Failing to escape the conclusion that he was “currently engaging” in illegal

drug use and was fired “on the basis of such use,” Shirley contends, in the

12 To the extent that Shirley challenges the court’s conclusion in his reply brief, the

argument is waived—and it is without merit anyway.

13 That the exclusion applies only when the employer “acts on the basis of such use”

reflects Congress’s intent to provide ADA protection for current drug users who suffer adverse

employment actions because of other disabilities that are unrelated to their drug use. See id.;

see also Remarks of Sen. Kennedy, 135 Cong. Rec. S10,775 (daily ed. Sept. 7, 1989) (“If an

individual who uses or is addicted to illegal drugs also has a different disability, and is

subjected to discrimination because of that particular disability, that individual remains fully

protected under the ADA.”).

14 Dupre, 242 F.3d at 613.

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alternative, that he qualifies for the safe harbor under Section 12114(b) because

he was “participating in a supervised rehabilitation program and [was] no longer

engaging in [illegal drug] use” at the time he was fired. He reasons that the

district court “mixed up the standard for falling into the disqualifying provision

of 42 U.S.C. § 12114(a) and the standard for obtaining the protection of the safe

harbor provision of 42 U.S.C. § 12114(b)” when it concluded that he was not

entitled to the safe harbor after only eleven days free from illegal drug use.

Again, the district court was correct. As we noted in Zenor v. El Paso

Healthcare Sys., Ltd., “the mere fact that an employee has entered a

rehabilitation program does not automatically bring that employee within the

safe harbor’s protection.”15

Instead, Section 12114(b) “applies only to individuals

who have been drug-free for a significant period of time.”16 Rather than

providing cover for current users in rehab, the safe harbor provision reflects

Congress’s recognition that “many people continue to participate in drug

treatment programs long after they have stopped using drugs illegally, and that

such persons should be protected under the Act.”17 Neither does the analysis

change based on Shirley’s candor with his employer about his addiction: Selfreporting “does not propel [a plaintiff] into the safe harbor’s protection simply

because he had entered a rehabilitation program before the adverse employment

action was taken.”18 To the contrary, a “significant period of recovery” is

required for an employee to qualify for the safe harbor, regardless of how his

15 Zenor, 176 F.3d at 857.

16

Id. (citing H.R. Rep. No. 101-596, at 64 (1990) (Conf. Rep.)).

17 H.R. Rep. No. 101-596, at 64 (emphasis added); see also Zenor, 176 F.3d at 857

(discussing Congress’s intent in adding safe harbor provision); Shafer v. Preston Mem. Hosp.

Corp., 107 F.3d 274, 280 (4th Cir. 1997) (same).

18 Zenor, 176 F.3d at 858.

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addiction is discovered.19 This principle accords with decisions of other circuits20

and faithfully applies Congress’s intent when it wrote the safe harbor protection

into the law.21

Ultimately, courts must determine eligibility for safe harbor “on a

case-by-case basis,” asking whether “the circumstances ofthe plaintiff’s drug use

and recovery justify a reasonable belief that drug use is no longer a problem.”22

As the district court noted, Shirley’s refusal to complete an inpatient treatment

program, his insistence that he remain on an opiate pain reliever, and his

continued use of Vicodin following detox “support[ed] a reasonable belief that

continued drug use was still an on-going problem at the time [W-G] terminated

his employment.” Shirley fails to rebut any of the evidence proffered by his

employer and does not otherwise offer evidence of his own sufficient to raise a

19

Id.

20 See, e.g., Mauerhan v. Wagner Corp., 649 F.3d 1180, 1087 (10th Cir. 2011)

(“[A]lthough participating in or completing a drug treatment program will bring an individual

closer to qualifying for the safe harbor, an individual must also be no longer engaging in drug

use for a sufficient period of time that the drug use is no longer an ongoing problem.”); Shafer,

107 F.3d at 279 (“Congress intended to exclude from statutory protection an employee who

illegally uses drugs during the weeks and months prior to her discharge, even if the employee

is participating in a drug rehabilitation program and is drug-free on the day she is fired.”).

21 See H.R. Rep. No. 101-596, at 69 (noting that the safe harbor provision “does not

permit persons to invoke the Act’s protection simply by showing that they are participating

in a drug treatment program. Rather, refraining from illegal use of drugs is also essential[,

and e]mployers are entitled to seek reasonable assurances that no illegal use of drugs is

occurring or has occurred recently enough so that continuing use is a real and ongoing

problem”).

22 Mauerhan, 649 F.3d at 1188.

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jury question.23 As he did not establish the existence of a genuine dispute of

material fact, summary judgment was appropriate.24

B. FMLA Claim

Shirley also claims that his firing violated his rights under the FMLA. 

The statute guarantees eligible employees up to twelve weeks of leave during

any twelve-month period to attend to various family and medical issues.25 The

FMLA contains both prescriptive provisions that create a series of entitlements

or substantive rights and proscriptive provisions that protect employees from

retaliation or discrimination based on their exercise of those rights.26 Shirley’s

claimed right to return to work after his qualified absence27

is a substantive

right within the first category.28 

That right is not unlimited, however: An employee is not entitled to “any

right, benefit, or position of employment other than any right, benefit, or position

to which the employee would have been entitled had the employee not taken the

23 Contrary to Shirley’s contention, courts frequently rule that claimants are ineligible

for safe harbor as a matter of law. See, e.g., Zenor, 176 F.3d at 861; Mauerhan, 649 F.3d at

1189; Brown v. Lucky Stores, 246 F.3d 1182, 1189 (9th Cir. 2001); Shafer, 107 F.3d at 281.

24 Cf. Zenor, 176 F.3d at 861 (affirming district court’s judgment as a matter of law

against plaintiff who had been drug-free for five weeks, had completed the residential portion

of his treatment program, and had self-reported his addiction to his employer). 

25 See 29 U.S.C. § 2612(a)(1).

26 Mauder v. Metro. Transit Auth. of Harris Cnty., 446 F.3d 574, 580 (5th Cir. 2006);

Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004); Bocalbos v. National W.

Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998).

27 See 29 U.S.C. § 2614(a)(1); 29 C.F.R. § 825.214(a).

28 Mauder, 446 F.3d at 580; see also McArdle v. Dell Prods., L.P., 293 F. App’x 331, 334

(5th Cir. 2008) (“An employer’s failure to restore an employee to the same or equivalent

position gives rise to an entitlement claim under 29 U.S.C. § 2615(a)(1).”); Nero v. Industrial

Molding Corp., 167 F.3d 921, 926-927 (5th Cir. 1999) (distinguishing claims alleging a failure

to reinstate from claims alleging retaliatory discharge following FMLA leave).

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leave.”29 Department of Labor regulations place the burden on the employer that

is denying reinstatement “to show that an employee would not otherwise have

been employed at the time reinstatement is requested.”30In applying this

regulation, we have reasoned that a plaintiff’s right to reinstatement was

“extinguished by [the employer’s] exercise of [its] prerogative” when it

terminated her for “otherwise appropriate” reasons unrelated to her exercise of

rights secured by the FMLA.31 That an employee is not guaranteed an absolute

right to reinstatement following a qualified absence is not only “a matter of

common sense[,]”32but also a principle reflected in this circuit’s pattern jury

instructions33and in the opinions of a significant majority of other circuit

courts.34

Our opinion in Nero v. Industrial Molding Corp.35is not to the contrary. 

There, having accepted that § 2614(a)(3) provides an employee only those rights

29

29 U.S.C. § 2614(a)(3)(B); see also 29 C.F.R. § 825.216(a) (“An employee has no

greater right to reinstatement . . . than if the employee had been continuously employed

during the FMLA leave period.”).

30

29 C.F.R. § 825.216(a).

31 See Grubb v. Southwest Airlines, 296 F. App’x 383, 391 (5th Cir. 2008).

32

Id.

33 FIFTH CIRCUITPATTERNJURYINSTRUCTIONS (CIVIL) § 11.10.2(B)(8)(2009)(“Plaintiff's

exercise of FMLA leave rights does not entitle [him]to greater rights to continued employment

or employment benefits than any of [his] fellow employees who did not exercise FMLA leave

rights. Thus, Defendant was not required to . . . restore Plaintiff to the same or an equivalent

position if Defendant proves Plaintiff’s employment . . . would have ended even if Plaintiff had

not exercised [his] FMLA leave rights.”).

34 See, e.g., Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007);

Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 547 (4th Cir. 2006); Arban v. West

Publ'g Corp., 345 F.3d 390, 401 (6th Cir. 2003); Kohls v. Beverly Enters. Wis., Inc., 259 F.3d

799, 805 (7th Cir. 2001); Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 977 (8th

Cir. 2005); Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 877 (10th Cir. 2004); Krutzig v. Pulte

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

35

167 F.3d 921 (5th Cir. 1999).

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to which he would have been entitled had he not taken leave, we noted that,

because reinstatement was an FMLA entitlement, “the employee [was] due the

benefit if the statutory requirements [were] satisfied, regardless of the intent of

the employer.”36 A few district courts have interpreted the italicized phrase as

imposing a strict liability standard, requiring employers, in all circumstances,

to reinstate employees after returning from FMLA leave.37 These courts misread

Nero. It is true that an employer may not fail to reinstate an employee following

his return from FMLA leave, but only if the statutory requirements have been

satisfied. Among those requirements is one dictating that an employee must

actually be entitled to the position to which he seeks reinstatement, 29 U.S.C.

§ 2614(a)(3); and an employer may challenge that entitlement 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 FMLA, denying

reinstatement to an employee whose right to restored employment had already

been extinguished—for legitimate reasons unrelated to his efforts to secure

FMLA leave—does not violate the Act. Although we might have been clearer in

Nero, we in fact considered the employer’s reasons for terminating the employee,

which, of course, would have been unnecessary had those reasons been

irrelevant.38

As a legitimate cause for termination would preclude his FMLA claim,

Shirley had to present evidence sufficient to raise a jury question that W-G’s

stated reason for firing him—violation of its drug-free workplace policy—was

36 Nero, 167 F.3d at 927.

37 See Matamoros v. Ysleta Indep. Sch. Dist., No. 3:11-CV-203, 2012 WL 6800505, at

*5-6 (W.D. Tex. Feb. 9, 2012); Shepard v. Tyson Foods, Inc., No. 9:06-CV-84, 2007 WL

1127408, at *2 (E.D. Tex. Apr. 16, 2007).

38 See Nero, 167 F.3d at 926.

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pretextual. He suggests that W-G misapplied the policy provision that subjects

to termination any employee “who rejects treatment or who leaves a treatment

program prior to being properly discharged,” thereby raising the specter of

pretext. Shirley would have us parse the policy’s language 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 place, having begun only the first, or “detox,” step. He insists that the

“treatment” was always contemplated to 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

when he began but did not complete the treatment program at Memorial

Hermann.

W-G is correct, so Shirley’s claim is unavailing. He initially discharged

himself from Memorial Hermann against the advice of his treating physician

there, returned to work with a clearance from his primary care physician only,

and was timely advised by W-G that his premature departure from Memorial

Hermann rendered him subject to termination. Yet he was gratuitously given

another chance! He was directed to admit himself a second time and complete

the treatment regimen. Readmit himself he did, but finish treatment he did not:

Shirley checked himself out after only a single day in the “residential program,”

insisting that outpatient treatment with his personal physician was all that he

required. Only then was he fired for violating the company’s drug-free

workplace policy. 

To suppose, then, that Shirley was denied a right to which he was entitled

strains credulity to the breaking point. Even after W-G clarified any ambiguity

in its policy and gave Shirley a second chance to comply, he failed—refused!—to

do so. W-G’s interpretation of its policy is probably the correct one; it is certainly

not so unreasonable as to invite any inference of pretext in the reason it gave for

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Shirley’s termination. Shirley has offered no evidence of discriminatory

application of W-G’s drug-free workplace policy,39of hostility toward Shirley’s

decision to take medical leave,40or of his employer’s reluctance to abide more

generally by the FMLA’s dictates. His allegations and evidence are insufficient

to survive summary judgment on his 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. 

39 See 29 C.F.R. § 825.119(b) (“[I]f the employer has an established policy, applied in

a non-discriminatory manner that has been communicated to all employees, that provides

under certain circumstances an employee may be terminated for substance abuse, pursuant

to that policy the employee may be terminated whether or not the employee is presently taking

FMLA leave.”).

40 Cf. Richardson v. Monitronics Int'l, Inc., 434 F.3d 327, 335 (5th Cir. 2005).

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