Nielsen v. Moroni Feed Company (1998)

Although the “status of being an alcoholic or illegal drug user may merit [ADA] protection,” Nielsen v. Moroni Feed Co., 162 F.3d 604, 609 (10th Cir. 1998), an employee or job applicant is not “a qualified individual with a disability” if he or she “is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” 42 U.S.C. § 12114 (a).

It is significant that the ADA anti-discrimination provision “does not contemplate a stark dichotomy between ‘disability’ and ‘disability-caused misconduct,’ but rather protects both.” McKenzie, 242 F.3d at 974 (quoting Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 (10th Cir.1998)); see also Den Hartog, 129 F.3d at 1088.

See Tennessee v. Lane, 541 U.S. 509, 516-17 (2004) (explaining the ADA “forbids discrimination against persons with disabilities 11 in three major areas of public life: employment, which is covered by Title I of the statute; public services, programs, and activities, which are the subject of Title II; and public accommodations, which are covered by Title III”); Nielsen v. Moroni Feed Co., 162 F.3d 604 , 608 n.7 (10th Cir. 1998) (“The ADA enlarges the scope of the Rehabilitat…

As relevant here, an individual may be regarded as disabled if he “is erroneously regarded as having engaged in [illegal use of drugs], but is not engaging in such use.” 42 U.S.C. § 12114 (b)(3); see also Nielsen v. Moroni Feed Co., 162 F.3d 604, 610 (10th Cir, 1998) (“[T]he ADA protects employees who are erroneously regarded as being current illegal drug users”).

The conduct that precipitated McKenzie’s resignation reflects her illness, not an absence of “good moral character” that would cause her to fail a background investigation. 7 More importantly, subject to narrow exceptions such as those for employees who pose a “direct threat” to the health or safety of others, Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1087 (10th Cir.1997), the ADA’s anti-discrimination provision “does not contemplate a stark dichotomy between ‘disability’ …

See 42 U.S.C. § 12102 (2); Nielsen v. Moroni Feed Co., 162 F.3d 604, 611 (10th Cir. 1998); Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996) (acknowledging that to prevail on a perceived disability claim, a "plaintiff must show that the perceived impairment is a substantial limitation on a major life activity"). 46 The term "'substantially limits' means an inability to perform or a significant restriction on the ability to perform as compared to the average …

See 42 U.S.C. § 12102 (2); Nielsen v. Moroni Feed Co., 162 F.3d 604, 611 (10th Cir.1998); Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir.1996) (acknowledging that to prevail on a perceived disability claim, a “plaintiff must show that the perceived impairment is a substantial limitation on a major life activity”).

In this regard see Burch at 315 . 4 In Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 (10th Cir. 1998) we said: Thus, in passing the ADA, Congress intended to protect individuals from employment discrimination by employers on the basis of an actual or perceived disability, provided that the disability substantially limits or is perceived to limit substantially a major life activity. -9- Williams’ stated reason for terminating him, namely his violation of the Return-to-Work Ag…

Nielsen, 162 F.3d at 610 (“[T]he erroneous perception of being an illegal drug user is to be treated like any other perception of a disability... .”).

Nielsen v. Moroni Feed Co., 162 F.3d 604, 612 (10th Cir.1998) (quoting Sutton, 130 F.3d at 904 ).

An employee’s “eligibility for the safe harbor must be determined on a case-by-case basis, examining whether the circumstances of the plaintiff’s drug use and recovery justify a reasonable 19 Id. § 12114(b). 20 Mauerhan v. Wagner Corp., 649 F.3d 1180, 1185 (10th Cir. 2011) (quoting Nielsen v. Moroni Feed Co., 162 F.3d 604, 609 (10th Cir. 1998)). 21 See Nielsen, 162 F.3d at 610 (stating that an “individual who falls under one of the subcategories of 42 U.S.C. § 12114 (b) is n…

Nielsen v. Moroni Feed Co., 162 F.3d 604, 609 (10th Cir. 1998), quoting Den Hartog v Wasatch Academy, 129 F.3d 1076, 1086 (10th Cir. 1997).

Therefore, although a current drug user is precluded from relying upon the protections of the ADA, an employee who is “erroneously regarded as engaging in such use, but is not engaging in such use” is not so precluded. 42 U.S.C. § 12114 (a)-(b)(3); Nielsen v. Moroni Feed Co., 162 F.3d 604, 610 (10th Cir.1998) (explaining “[b]ecause § 12114(b)(3) excludes erroneous perception of illegal drug use from being disallowed as a disability under § 12114(a), the ADA protects employee…

Dep’t of Health, 646 F.3d 717 , 726 (10th Cir. 2011) (noting that the “antidiscrimination language in § 12132 . . . parallels § 504 of the Rehabilitation Act”); Nielsen v. Moroni Feed Co., 162 F.3d 604 , 608 n.7 (10th Cir. 1998) (“The ADA defines disability in essentially the same terms as the Rehabilitation Act”).

No. 5-1.) 39 Mauerhan v. Wagner Corp., 649 F.3d 1180, 1185 (10th Cir. 2011) (alteration in original) (quoting Nielsen v. Moroni Feed Co., 162 F.3d 604, 609 (10th Cir. 1998)). 40 George v. Cmty. Health Ctrs., No. CIV-21-00464-PRW, 2022 U.S. Dist.

However, the mere status of being an alcoholic or illegal drug user may merit such protection.” Nielsen v. Moroni Feed Co., 162 F.3d 604, 609 (10th Cir. 1998).

See, e.g., Nielsen v. Moroni Feed Co., 162 F.3d 604, 610 (10th Cir. 1998) (“[T]he erroneous perception of being an illegal drug user is to be treated like any other perception of a disability, and is only to be considered a qualifying disability if the employer perceives the disability to substantially limit a major life activity.”).

As the Tenth Circuit explained in Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 (10th Cir. 1998), when the disability at issue is alcoholism, the ADA and Rehabilitation Act draw a distinction between “having a disability” and “disability-caused misconduct.” Thus, “unsatisfactory conduct caused by alcoholism . . . does not receive protection under the ADA or the Rehabilitation Act”.4 Id. at 609 (citing 42 U.S.C. § 12114 (c); 29 U.S.C. § 706 (8)(C)(v)). 4 On the other hand, “t…

See Thompson v. Davis, 295 F.3d 890, 896 (9th Cir.2002) (“While the term ’qualified individual with a disability’ does not include an individual who is currently engaging in the illegal use of drags, the ADA does protect individuals ... who are erroneously regarded as using drugs when they are not.”); Nielsen v. Moroni Feed Co., 162 F.3d 604, 610 (10th Cir.1998) (“[T]he ADA protects employees who are erroneously regarded as being current illegal drug users.”). 1 Here, Genesc…

See 29 C.F.R. § 1630.2 (b) and (c). 42 U.S.C. § 12132 prohibits discrimination in the provision of public services and states that, “[s]ubject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” The FCRA, in part, makes it unlawful “for a…

In particular, he argues that Plaintiffs inability to work was actually caused by _See Nielsen v. Moroni Feed Co., 162 F.3d 604, 609 (10th Cir.1998) (unsatisfactory conduct caused by drug and alcohol abuse not protected by the Rehabilitation Act).

Nielsen v. Moroni Feed Co., 162 F.3d 604, 610 (10th Cir.1998).

Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998) (quoting 29 C.F.R. pt. 1630, App. § 1630.2(j)). 53 . 29 C.F.R. § 1630.2 (j)(3)(i); Nielsen v. Moroni Feed Co., 162 F.3d 604, 612 (10th Cir. 1998). 54 .

Nielsen v. Moroni Feed Company, 162 F.3d 604, 608-609 (10th Cir.1998) (collecting cases and holding that “unsatisfactory conduct caused by alcoholism and illegal drug use does not receive protection under the ADA or the Rehabilitation Act”).

See Sutton, 527 U.S. at 492 , 119 S.Ct. 2139 (plaintiffs’ allegations that defendant regarded their poor vision as preventing them from being global airline pilots did not support regarded as disabled claim because the position of global airline pilot was merely a single job which they could not perform); Nielsen v. Moroni Feed Co., 162 F.3d 604, 611 (10th Cir.1998) (summary judgment affirmed where plaintiff merely presented evidence that the defendant did not consider him f…

Nielsen v. Moroni Feed Company, 162 F.3d 604, 608 (10th Cir.1998).

The protection of the ADA does not extend to those “currently engaging in the illegal use of drugs.” 42 U.S.C.A. § 12114 (a); Nielsen v. Moroni Feed Company, 162 F.3d 604, 609 (10th Cir.1998). 3 .

See Nielsen v. Moroni Feed Co., 162 F.3d 604, 609 (10th Cir.1998).

Wyman-Gordon Company is not an active entity and never was served in this case. 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 . 42U.S.C. § 12114(b). 7 .

See id., Doc. 36, 38.

See Nielsen v. Moroni Feed Co., 162 F.3d 604 , 606 n. 3 (10th Cir.1998).

See, e.g., 42 U.S.C. § 12210 (b) (1994) (stating the ADA's protections do not extend to current drug use); 29 U.S.C. § 706 (8)(C)(1994) (excluding current drug use, but not some past drug use, from the Rehabilitation Act's protections); see also Nielsen v. Moroni Feed Co., 162 F.3d 604, 609 (10th Cir.1998) (stating that, although unsatisfactory conduct "caused by alcoholism or drug abuse does not receive protection under the ADA or the Rehabilitation Act[,] ... the mere stat…

See, e.g., 42 U.S.C. § 12210 (b) (1994) (stating the ADA's protections do not extend to current drug use); 29 U.S.C. § 706 (8)(C)(1994) (excluding current drug use, but not some past drug use, from the Rehabilitation Act's protections); see also Nielsen v. Moroni Feed Co., 162 F.3d 604, 609 (10th Cir.1998) (stating that, although unsatisfactory conduct "caused by alcoholism or drug abuse does not receive protection under the ADA or the Rehabilitation Act[,] ... the mere stat…

See Nielsen v. Moroni Feed Co., 162 F.3d 604 , 608 n.7 (10th Cir. 1998).

See Nielson v. Moroni Feed Co., 162 F.3d 604, 607-08 (10th Cir. 1998); 42 U.S.C. § 12112 (a).

See Nielsen v. Moroni Feed Co., 162 F.3d 604 , 608 n.7 (10th Cir. 1998); see also Sanchez v. Vilsack, 695 F.3d 1174 , 1177 n.2 (10th Cir. 2012) (“Regardless of whether suit is filed under the Rehabilitation Act or under the [ADA], the substantive standards for determining whether an individual is disabled are the same.”).

See Nielsen v. Moroni Feed Co., 162 F.3d 604 , 608 n. 7 (10th Cir.1998) ("[T]he legislative history of the ADA indicates that Congress intended judicial interpretation of [§ 504] to be incorporated by reference when interpreting the ADA.”) *1254 (citations omitted); Patton v. TIC United Corp., 77 F.3d 1235, 1245 (10th Cir.1996) (“To the extent feasible, we look to decisions construing [§ 504] to assist us in interpreting analogous provisions of the ADA.”). 6 .

See Nielsen v. Moroni Feed Co., 162 F.3d 604 , 608 n. 7 (10th Cir.1998).

See Nielsen v. Moroni Feed Co., 162 F.3d 604 , 608 n. 7 (10th Cir.1998).

See now, 29 U.S.C. § 705 (20)(C)(v) (1998) (stating that the term "`individual with a disability' does not include any individual who is an alcoholic whose current use of alcohol prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others."). [18] See 42 U.S.C. § 12114 (c)(4) (an employer "may hold an employee who engages in the il…

See 42 U.S.C. § 12114 (c)(4) (an employer “may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee .. ..”); see Nielsen v. Moroni Feed Co., 162 F.3d 604, 609 (10th Cir. 1998). 42 U.S.C. § 423 (d)(2)(C) (“An individual s…

Instead, the plaintiffs burden is as follows: To demonstrate that an impairment “substantially limits” the major life activity of working, an individual must show “significant! ] restriction] in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” Id. [29 C.F.R.] § 1630.2(j)(3)(i) Bolton v. Scrivner, Inc., 36 F.3d at 942 ; see also Nielsen v. Moroni Feed …

See also Nielsen v. Moroni Feed Company, 162 F.3d 604, 609 (10th Cir.1998); Maddox v. University of Tennessee, 62 F.3d 843, 847-48 (6th Cir.1995); Little v. FBI, 1 F.3d 255, 258-59 (4th Cir.1993).