1

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3682

___________

Fredrick T. Kozisek, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the District

County of Seward, Nebraska; * of Nebraska.

Joe Ruzicka, individually and *

in his capacity as Chairman of *

the Seward County Board, *

*

Appellees. *

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Submitted: June 9, 2008

Filed: August 27, 2008

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Before MELLOY, BEAM, and BENTON, Circuit Judges.

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BEAM, Circuit Judge.

Fredrick Kozisek appeals the district court's1

 grant of summary judgment in

favor of Seward County and the chairman of the Seward County Board (collectively

and hereinafter "county" or "board") in this employment discrimination and civil

rights case. We affirm.
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I. BACKGROUND

Kozisek began working for the county in 1981 as a weed control officer. In

1994, he applied for and was appointed to the multi-position of County Veterans

Service Officer, Building and Grounds Supervisor, and General Assistance

Administrator (collectively, "CVSO"). Kozisek and the board had a contentious

history about the nature of the CVSO job. He apparently wanted to devote more of

his time and the county's resources to veterans' issues, and less to the other two

positions. Kozisek is a veteran himself, and served in the Vietnam war. Kozisek has

Post Traumatic Stress Disorder (PTSD) from his time in the war, and he testified that

he took medication regularly to help control those symptoms. However, it was not

widely known that Kozisek suffered from PTSD, and Kozisek testified that he did not

talk to anyone outside of his medical providers about it.

On July 22, 2005, Kozisek left work early and began drinking. Later that

evening, an intoxicated Kozisek wielded firearms, killed or wounded some of his

family's farm animals (a pet racoon, ducks, a peacock, and a family dog), and

threatened his wife. Kozisek also had not taken his prescribed medications in the days

preceding July 22. Kozisek was arrested by the Seward County Sheriff the next

morning for making terroristic threats, and for using a firearm to commit a felony.

Based on this incident, the board and Kozisek agreed that he would get a

psychological evaluation and a substance abuse evaluation. Kozisek first met with a

mental health practitioner from the Veterans Administration (VA), Molly Nosbisch.

In a letter to the board, Nosbisch recommended that Kozisek complete inpatient

alcohol treatment, and notified the board that she had arranged for him to be admitted

to the Department of Veterans Affairs residential rehabilitation treatment center on

August 18, 2005. Kozisek did not want to complete inpatient treatment, however, and

instead told the board that he would pursue treatment through the Blue Valley Mental
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Health Center. The counselors at Blue Valley agreed that Kozisek needed to complete

alcohol abuse treatment, but recommended outpatient treatment, in addition to

suggesting that Kozisek get PTSD counseling, and attend Alcoholics Anonymous

(AA) meetings.

The board decided to follow Nosbisch's recommendation and require Kozisek

to complete inpatient treatment. The board mailed Kozisek a letter on August 31,

2005, informing him that he had ten days to enroll in an inpatient alcohol treatment

center or lose his job. Kozisek refused. The board sent him another letter, dated

September 20, 2005, noting that it had not received notification about his enrollment

in an inpatient treatment program. This letter did not terminate his employment, but

again threatened to do so, and invited him to a September 27, 2005, closed session

meeting to discuss his continued employment with the county. Kozisek attended this

meeting on September 27, and at that time argued with the board about whether he

needed inpatient treatment. Following the meeting, the board memorialized the

parties' discussions and conclusions in a letter, reiterating its mandate that Kozisek

complete inpatient alcohol treatment. This time, the letter set a date of October 3,

2005, for Kozisek to provide proof that he enrolled in a program.

Instead, Kozisek returned to the VA medical center seeking an opinion from a

doctor that he did not need inpatient alcohol treatment. Kozisek obtained such a letter

from Dr. Padala and provided it to the board. Dr. Padala noted in his letter, dated

September 28, 2005, that Kozisek had already "completed an outpatient program for

substance abuse" at the Blue Valley facility. It is undisputed that Kozisek completed

no such treatment. His "treatment" between July 22, 2005, and September 28, 2005,

consisted of attending AA meetings. On October 4, the board notified Kozisek by

letter that it was terminating his employment for his failure to "follow the treatment

recommendations."
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Kozisek brought the current action against the county under the Americans with

Disability Act (ADA), asserting that he was disabled because of the PTSD, and that

the county regarded him as a disabled alcoholic. He also raised claims under 42

U.S.C. § 1983 for violations of his First Amendment right to speak on matters of

public concern about veterans' issues, and his due-process-protected property right in

his continued employment with the county. The district court found that there was no

evidence in the record that Kozisek's PTSD substantially impaired any of his major

life activities. The district court presumed that Kozisek made a prima facie claim that

the board regarded him as an alcoholic because his continued employment was

conditioned upon him receiving inpatient alcohol abuse treatment. Nevertheless, the

district court held that the county proffered a legitimate reason for Kozisek's

dismissal–Kozisek's refusal of inpatient alcohol treatment. The district court also

rejected Kozisek's constitutional claims and granted summary judgment in favor of

the county.

II. DISCUSSION

We review the district court's grant of summary judgment de novo. Brannon

v. Luco Mop Co., 521 F.3d 843, 848 (8th Cir. 2008). 

A. ADA

To establish a prima facie case under the ADA, Kozisek must show that he was

a disabled person within the meaning of the ADA, that he was qualified to perform the

essential functions of the job, and that he suffered an adverse employment action

under circumstances giving rise to an inference of unlawful discrimination. Miners

v. Cargill Commc'ns, Inc., 113 F.3d 820, 823 (8th Cir. 1997). "[T]he ADA defines

a disability as: (A) a physical or mental impairment that substantially limits one or

more of the major life activities of such individual; (B) a record of such an
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impairment; or (C) being regarded as having such an impairment." Christensen v.

Titan Distrib., Inc., 481 F.3d 1085, 1093 (8th Cir. 2007) (quotations omitted).

Once a plaintiff has made out a prima facie case, the burden of production shifts

to the employer to articulate a legitimate, nondiscriminatory reason for its actions.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The burden of

production then shifts back to the plaintiff to demonstrate that the employer’s

proffered reason is a pretext for unlawful discrimination. St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 507-08 (1993).

Kozisek claims disability status based on two things: his PTSD and that the

county regarded him as an alcoholic. We address the latter claim first. Kozisek

asserts that the board regarded him as an alcoholic as evidenced by its requirement

that he complete inpatient alcohol treatment as a condition of keeping his job. An

employer regards the employee as disabled when "it mistakenly believe[s] that [the

employee's] physical ailments substantially limit[] his ability to work." Chalfant v.

Titan Distrib., Inc., 475 F.3d 982, 989 (8th Cir.), cert. denied, 128 S. Ct. 98 (2007).

The "regarded as" provision was meant to combat "archaic attitudes, erroneous

perceptions, and myths" working to the disadvantage of the disabled or perceived

disabled. Brunko v. Mercy Hosp., 260 F.3d 939, 942 (8th Cir. 2001) (quotations

omitted). Accordingly, "[i]f a restriction is based upon the recommendations of

physicians, then it is not based upon myths or stereotypes about the disabled and does

not establish a perception of disability." Breitkreutz v. Cambrex Charles City, Inc.,

450 F.3d 780, 784 (8th Cir. 2006).

Although not cited by either of the parties, we fail to see how Breitkreutz is not

fatal to Kozisek's "regarded as" prima facie case. The board's insistence upon Kozisek

completing inpatient alcohol treatment was not based upon misconceptions, myths or

stereotypes about his possible drinking problem. Rather, it was based upon, first, a

very serious incident which resulted in criminal charges against Kozisek, and then
2

It is uncontested that Kozisek was not interviewed or examined by Dr. Padala

on September 28, 2005. Dr. Padala simply met him in the hallway and provided the

requested "recommendation." It is also uncontested that Dr. Padala's letter contains

erroneous factual underpinnings–that Kozisek had already completed outpatient

alcohol treatment. 

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most importantly, a licensed mental health therapist's recommendation that Kozisek

complete inpatient alcohol treatment. That Kozisek was able, two months later, to

manipulate2

 a physician from the VA into providing a letter opining that outpatient

treatment would be sufficient does not matter. The fact remains that the county based

its decision about Kozisek's "restriction"–complete inpatient treatment before

returning to his important public job of assisting veterans–upon the recommendation

of a professional substance abuse counselor.

These facts amply distinguish Kozisek's case from Miners, which he principally

relies upon. In Miners, where Cargill fired an employee (Miners) who refused to

attend a chemical dependency treatment program, we reversed the grant of summary

judgment in favor of the employer. Miners worked for a radio station and was

required to sponsor and attend promotions that took place in bars and restaurants.

Through a private investigator, Cargill obtained evidence that Miners had consumed

alcohol at these events and then later drove the company car, contrary to company

policy. The company informed her that she could either complete a chemical

dependency treatment program or be fired. Miners had not been arrested for DUI or

had any other encounters with law enforcement regarding her alcohol use. Nor had

she been evaluated by a professional substance abuse counselor who recommended

treatment. Miners chose not to enter treatment, was fired, and brought an ADA claim,

arguing that her employer regarded her as an alcoholic. We reversed summary

judgment for the employer, holding that Cargill did regard her as an alcoholic, and

absent some evidence that Miners was an alcoholic, Cargill could not argue that it

attempted to accommodate her or had a basis for terminating her for refusing

treatment. Miners, 113 F.3d at 825.
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Kozisek also testified that he had not yet been officially diagnosed with PTSD

when he interviewed for the CVSO position in 1994.

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Here, there is evidence that Kozisek needed professional intervention for his

drinking. Kozisek admitted that he regularly attended AA meetings after the July

2005 incident. The counselors at Blue Valley Mental Health recommended that he

complete outpatient treatment. And at least one counselor at the VA recommended

that he complete inpatient treatment. The board's insistence that he fulfill this latter

recommendation before returning to his CVSO job does not violate the ADA's

prohibitions on regarding employees as disabled. Kozisek's regarded as claim fails.

Kozisek also asserts disability discrimination based upon his PTSD. As noted

above, the district court found that there was no evidence in the record that Kozisek's

PTSD substantially impaired any of his major life activities. Kozisek now argues that

it affects his major life activity of thinking. No one seems to dispute that Kozisek has

PTSD, and accordingly, we will assume he can make out a prima facie case on this

claim. Nevertheless, we find that the board articulated a legitimate, nondiscriminatory reason for firing him–because he would not complete inpatient alcohol

treatment. Further buttressing the county's claims that this, and not Kozisek's PTSD,

is the real reason that he was fired, is the fact that there is no evidence the county

knew of his PTSD condition. Kozisek testified that he was careful to keep the

condition to himself. It is axiomatic that the county must have known about his

condition before it can be liable for discriminating against him because of that

condition. Although there was some evidence that Kozisek had told members of the

veterans service committee about PTSD symptoms when he first applied for the job

in 1994,3

 there is no evidence that anyone on that committee was a member of the

board in 2005. And there is no evidence that the county took action against Kozisek

based upon his PTSD. The record is fairly clear that the county fired Kozisek because

he would not complete inpatient alcohol treatment, and conversely, would have

retained him if he had completed such treatment. Any arguments that this reason was
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pretextual are not persuasive. Accordingly, the PTSD claim fails, and we affirm the

district court's grant of summary judgment on Kozisek's ADA claim.

B. First Amendment

A public employee alleging a violation of the right to free speech must show

that the speech in question is entitled to the protections of the First Amendment

because it addresses a matter of public concern. Buazard v. Meridith, 172 F.3d 546,

548 (8th Cir. 1999). Whether an employee's speech addresses a matter of public

concern is determined by the content, form, and context of the speech, and that speech

must relate to some matter of political, social or other community concern. Connick

v. Myers, 461 U.S. 138, 146-48 (1983). Although the First Amendment protects some

expressions related to the speaker's job, it does not protect expressions made as part

of the employee's job duties. Garcetti v. Ceballos, 126 S. Ct. 1951, 1959-60 (2006).

Kozisek claims that he engaged in protected speech when he asked the board

for more money for veterans' issues, and when he requested that the CVSO position

be made full-time. These communications to the board were made pursuant to his

duties as CVSO and were not protected speech. Id. at 1960. And, even assuming that

the speech had protected status, there is no link between Kozisek's speech and his

termination. He was actually successful in his request to spend more time on veterans'

issues, as his position was made a full-time veterans' position approximately one year

prior to the time he was fired. Accordingly, this claim fails.

C. Due Process

To survive summary judgment on his procedural due process claim, Kozisek

must provide evidence that he had a property interest–a reasonable and legitimate

expectation of continued employment. Howard v. Columbia Pub. Sch. Dist., 363 F.3d

797, 803 (8th Cir. 2004). Whether he had a constitutionally protected property
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interest in his job is dependent upon Nebraska law and the terms of his employment.

Id. Kozisek argues that he had a protected property interest in the CVSO position by

virtue of Nebraska Revised Statute §§ 23-2001 to 23-2009, which provide for the

removal of county officers through judicial proceedings. However, Kozisek was not

a "county officer" within the meaning of these statutes, because the statutory terms

indicate that they only apply to elected county officials, and Kozisek was not elected,

but appointed. He also cites the statutes dealing with the veterans service committee

and the committee's authorization to hire a full or part-time CVSO. Neb. Rev. Stat.

§§ 80-407, 80-408. We fail to discern how these statutes create a due-processprotected property right in the position, as there is no mandate concerning the length

of the CVSO's appointment or a proscription on the county's ability to terminate this

position. See Heinzman v. County of Hall, 328 N.W.2d 764, 768 (Neb. 1983) (noting

that absent legislation, government employees in Nebraska are at-will employees and

finding that employee's "bare allegation of a 'property right'" to continued employment

was insufficient to establish a right to notice and a hearing).

Further, there is evidence that Kozisek considered himself an at-will employee

as stated in the employee handbook. He testified that he felt he could leave at any

time, and admitted that he did not think he was entitled to the CVSO job for any set

period of time. Finally, even assuming that Kozisek did have a property right in his

CVSO position, he received all process due. The board gave him notice by way of the

three letters he received–all of which outlined the steps Kozisek needed to take to

retain his job. Kozisek was also given the opportunity to be heard at the September

27, 2005, meeting he attended with the board. These actions constituted adequate due

process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985) ("The

essential requirements of due process . . . are notice and an opportunity to respond.").

Kozisek's due process claim fails.

III. CONCLUSION

We affirm the district court

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