                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 JUN 27 2000
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 JOE FITZGERALD,

           Plaintiff-Appellant,
 v.
                                                             No. 99-5079
                                                      (D.C. No. 97-CV-710-EA)
 LOUIS CALDERA, Secretary of the
                                                    (Northern District of Oklahoma)
 United States Department of the Army,

           Defendant-Appellee.




                                  ORDER AND JUDGMENT*


Before BRISCOE, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
ALARCON, Senior Circuit Judge.**


       Although the complaint is apparently not a part of the record on appeal, it appears

that on August 4, 1997, Joe Fitzgerald, (“Fitzgerald”), brought suit in the United States

District Court for the Northern District of Oklahoma against the Department of the Army,

and Togo West, Secretary of the United States Department of the Army, alleging,



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

       Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of
       **

Appeals for the Ninth Circuit, sitting by designation.
generally, that he had been unlawfully discharged on June 28, 1996, from his employment

by the Department of the Army, Corps of Engineers, as a WY-5426-05 Lock and Dam

Operator. Although it, too, is not in the record before us, Fitzgerald apparently filed an

amended complaint on February 17, 1998, naming as the only defendant Louis Caldera,

Secretary of the Army (“the defendant”), Caldera having succeeded West as Secretary.

The defendant, in due time, presumably filed an answer, though such is not in the record

before us. Pursuant to agreement of the parties, on July 9, 1998, the case was submitted

to a United States Magistrate Judge for resolution, pursuant to 28 U.S.C. § 636(c).

Sometime later, on December 7, 1998, Fitzgerald filed a motion for partial summary

judgment and on the same date the defendant filed a motion for summary judgment.

These motions are in the record on appeal.

       On January 20, 1999, the Honorable Claire V. Eagan, a United States Magistrate

Judge in the Northern District of Oklahoma, by published opinion granted defendant’s

motion for summary judgment and denied Fitzgerald’s motion for partial summary

judgment. Fitzgerald v. Caldera, 34 F. Supp. 2d 1299 (N.D. Okla. 1999). In so doing,

the judge concluded, inter alia, that Fitzgerald was not a “disabled person” under the

Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., nor was his discharge based on any

such disability, and that, alternatively, even if Fitzgerald had made a prima facie showing

on both matters, the defendant had articulated a legitimate business reason for terminating

him which was non-pretextual. Judgment for the defendant was duly entered on February


                                             -2-
11, 1999. Notice of appeal was timely filed.

       We do not propose to recite a detailed chronology leading up to Fitzgerald’s

termination on June 28, 1996. Such is fully set forth in the magistrate judge’s published

order and opinion. We would only note that Fitzgerald was originally employed by the

defendant as a park ranger in 1978 and that in 1987 he became a lock and dam operator at

Chouteau Lock and Dam, Number 17, on the McClellan-Kerr Arkansas River Navigation

System. As a lock and dam operator, Fitzgerald was responsible for operating gates to

allow shipping to pass through the lock and for maintaining safety and security at the

lock. There is no dispute that on October 12, 1994, Fitzgerald brought, “inadvertently” he

said, a marijuana pipe and a small quantity of marijuana on his person into the

defendant’s work place. As a result of defendant’s discovery that on October 12, 1994,

Fitzgerald brought a marijuana pipe and marijuana onto the work place, and after an

investigation of that incident, Fitzgerald, pursuant to a warrant, was arrested by the local

sheriff on January 17, 1995 in the defendant’s parking lot when he arrived for work.

With his consent, the sheriff searched the automobile Fitzgerald was driving. The

ensuing search disclosed three vials which it was later determined contained

methamphetamine, although, initially, it was thought that perhaps two of the vials

contained cocaine. Fitzgerald stated he did not “know” that there was methamphetamine

in his car. Fitzgerald was later charged in a state criminal proceeding with the possession

of a controlled substance, to which charge Fitzgerald pled nolo contendere. On February


                                            -3-
20, 1996, the Corps of Engineers issued a second proposal to remove Fitzgerald from

federal employment for introducing and possessing marijuana and a marijuana pipe while

in a duty status on government property at a government facility and for introducing and

possessing methamphetamine on government property at the facility.1 On June 28, 1996,

Fitzgerald was “removed” from his employment with the defendant by Larry Hogue,

Chief of the Operations Division for the Corps. The reader of this order and judgment is

referred to the order and opinion of the magistrate judge for further background regarding

this controversy, which has now been going on for some six years.

       The magistrate judge carefully considered all of the numerous contentions of the

parties and held, in the first instance, that Fitzgerald had failed to make a prima facie

showing that he had a claim for disability discrimination under the Rehabilitation Act of

1973, 29 U.S.C. § 701, et seq. In particular, the judge concluded that Fitzgerald was not

“disabled” under the Act. Further, the judge also found that Fitzgerald had failed to show

that he was removed or terminated because of his claimed disability. In this regard the

judge observed that Fitzgerald was discharged because of “misconduct,” i.e., bringing

drugs onto the government work place, not because of any “chemical dependency.”

However, the judge then went on to hold that even if Fitzgerald had established a prima

facie case of disability within the provisions of the Rehabilitation Act of 1973, the


       1
        A prior proposal to remove had been withdrawn by the Corps when it was
ascertained that all three vials found in Fitzgerald’s automobile on January 17, 1995
contained methamphetamine, and that there was no cocaine.

                                             -4-
defendant had articulated a legitimate, non-discriminatory reason for the removal decision

which reason Fitzgerald had failed to show was “pretextual.” In this connection, plaintiff

must first establish a prima facie case before the burden shifts to defendant to show a

non-discriminatory reason for its action, after which plaintiff may attempt to show

defendant’s proffered reason was pretextual. Texas Department of Community Affairs v.

Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

804 (1973); Williams v. Widnall, 79 F.3d 1003, 1007 n.3 (10th Cir. 1996).

       In this court counsel suggests that there are two issues to be resolved: (1) was

Fitzgerald a qualified disabled person, and (2) was he terminated because of his

disability? As indicated, the magistrate judge answered both of these questions in the

negative. We are not in any particular disagreement with the judge’s disposition of those

matters, though we elect to resolve this appeal on the judge’s alternative holding that even

if Fitzgerald had made a prima facie showing of discrimination under the Rehabilitation

Act of 1973, the defendant had articulated a legitimate business reason for terminating

him which reason was non-pretextual. In this connection, the reason advanced by the

defendant for terminating Fitzgerald was the defendant’s “loss of trust” in Fitzgerald

based on the fact that he had on two occasions introduced drugs into the workplace in

violation of state and federal laws and agency regulations. According to the defendant,

such created a “safety risk” inasmuch as Fitzgerald’s duties included allowing ships in

and out of locks which involved the use of equipment and machinery costing millions of


                                            -5-
dollars. Specifically, Larry Hogue, Chief of the Operations Division for the Corps, in

terminating Fitzgerald spoke as follows:

              Moreover, the responsibility of lock and dam operators is
              significant and the risk associated with errors made by them
              are equally significant. Your position as an operator demands
              a high degree of trust. Bringing illegal drugs to the work site
              on two occasions within approximately three months is
              flagrant and a disregard for the responsibilities expected of a
              lock operator. As stated by Mr. Johnson, it would be
              irresponsible to have you work as a lock operator.

       Regulations of the Corps of Engineers, under the heading “Unauthorized use or

possession of a controlled substance,” provide that the penalty for “Introduction of

controlled substances to a work area or government installation for personal use,” on a

first offense, ranges from a 3-day suspension to removal. Another regulation of the Tulsa

district of the Corps provided as follows:

              4. POLICY. The policy of the Tulsa District is:

                 a. To provide assistance to employees and immediate
              family members in resolving personal, behavioral and
              medical problems that adversely affect employee job
              performance.

                 b. That mental and emotional disorders, alcoholism or
              drug abuse are recognized as treatable health problems.

                  c. That employees who suffer from mental or emotional
              disorders, or health problems resulting from the abuse of
              alcohol or drugs should receive the same careful
              consideration and offer of assistance that is presently
              extended to employees having any other illness or health
              problem which adversely affects job performance.


                                             -6-
                   d. When problems arise on the job as a result of an
              employee’s emotional or behavioral disorders or abuse of
              drugs, managers will utilize nondisciplinary procedures under
              which the employee will first be offered rehabilitative
              assistance.


       Many matters presented to the magistrate judge, and ruled on by the judge, are not

urged in this appeal. In this Court, Fitzgerald’s “Summary of Argument” reads in its

entirety, as follows:

                     The issue in this case centers upon plaintiff’s
              complaint of disability discrimination under the
              Rehabilitation Act of 1973. Plaintiff would urge that as a
              prior drug abuser he was entitled to the protection of the
              Rehabilitation Act. Plaintiff would urge that at the time of
              his discharge he was not a “current user” of illegal drugs.
              Further, plaintiff would urge that summary judgment should
              not have been entered on the issue of whether defendant
              discharged plaintiff because of his disability.


       As we read Fitzgerald’s brief in this court, there is no challenge, as such, to the

judge’s alternative holding that defendant had articulated a legitimate business reason for

discharge, which Fitzgerald had not shown to be pretextual. We believe the record

supports the judge’s holding on the “pretext” question and on that basis we affirm. U.S.

v. Anderson, 154 F.3d 1225, 1229 (10th Cir. 1998); U.S. v. Winningham, 140 F.3d 1328,

1332 (10th Cir. 1998).

       The regulations of the defendant above set forth deserve comment. However, at

the outset it should be remembered that this action is designed to bring Fitzgerald within


                                            -7-
the purview of the Rehabilitation Act of 1973. It is not a breach of employment contract

case. However, in connection with his contention that Fitzgerald had shown, prima

facie, that the defendant had discriminated against him because of his disability, or at

least a “perceived” disability, counsel argues that the fact that defendant discharged

Fitzgerald when, under the regulations, he could have imposed a 3-day suspension, is

circumstantial evidence of discriminatory intent. In thus arguing, counsel recognizes that

under the regulations the penalty for even a first offense of bringing drugs onto the

workplace ranges from a 3-day suspension to outright removal. In our view, the fact

that the Corps determined to remove Fitzgerald, rather than impose a 3-day suspension,

or impose a penalty somewhere in between, is slight circumstantial evidence, if any, of

discriminatory intent.2

       In like fashion, counsel argues that under its regulations defendant was required to

“utilize non-discriminatory procedures under which the employee will first be offered

rehabilitative assistance,” rather than to discharge him, even though another regulation

authorized removal for the bringing of drugs onto the workplace. Again this is not a

breach of contract case, and such is only the slightest evidence, in our view, of a

discriminatory intent. In this regard it should be noted that Fitzgerald some time after his

arrest sought professional help on his own.



       2
        Actually, Fitzgerald brought drugs into the workplace on two occasions, and,
under the regulations, the only penalty on a second offense is removal.

                                            -8-
       The judge recognized, and it merits repeating, that this is a case where the

employee was discharged because of on-the-job misconduct, and that Fitzgerald was not

discharged because of any use of drugs. Counsel says this is a distinction without any

real difference. We do not agree, though of course there is some relationship between

the two. In this regard, in Nielsen v. Moroni Feed Co., 162 F.3d 604 (10th Cir. 1998),

we said that “unsatisfactory conduct caused by alcoholism and illegal drug use does not

receive protection under the ADA or the Rehabilitation Act,” noting, however, that the

“mere status of being an alcoholic or illegal drug user may merit such protection.” Id. at

609. The court went on to observe that “while the mere status of being an illegal drug

user may invoke protection under the ADA, that protection does not extend to those

‘currently engaging in the illegal use of drugs.’” Id., see also 29 U.S.C. § 705(C)(i).

       In like fashion, in Williams v. Widnall, 79 F.3d 1003, 1007 (10th Cir. 1996) we

held that an employer subject to the Rehabilitation Act of 1973 may terminate its

employee because of egregious misconduct irrespective of whether he is, under the Act,

handicapped. In the same case we quoted with approval the following: “the Act does not

protect alcoholics or drug addicts from the consequences of their misconduct,” citing

Little v. FBI, 1 F.3d 255, 258 (4th Cir. 1993).

       In sum, the record supports the magistrate judge’s holding that the defendant had

articulated a legitimate business reason for discharging Fitzgerald and that Fitzgerald had




                                            -9-
not made a sufficient showing that such reason was pretextual.3

      Judgment affirmed.



                                         Entered for the court,

                                         Robert H. McWilliams
                                         Senior Circuit Judge




      3
         In Kendall v. Watkins, 998 F.2d 848, 851 (10th Cir. 1993) we stated that a “mere
showing” by an employee that his employer’s articulated reason for adverse employment
action was “wrong” or “unreasonable,” and not a “sound business reason” or even a “fair
one,” does not prove intentional discrimination, citing Gray v. University of Arkansas,
883 F.2d 1394, 1401 (8th Cir. 1989). In Gray, the Eighth Circuit said “An employer’s
articulated reason for terminating a member of a protected class need not be a sound
business reason, or even a fair one.” Id. at 1401.

                                          - 10 -
