                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 14a0626n.06

                                            No. 13-4324


                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

JONATHAN KEITH BLAZEK,                                                              FILED
                                                                               Aug 13, 2014
           Plaintiff-Appellant,                                            DEBORAH S. HUNT, Clerk

and

DONNA BLAZEK,
                                                       ON APPEAL FROM THE UNITED
           Plaintiff,                                  STATES DISTRICT COURT FOR THE
                                                       NORTHERN DISTRICT OF OHIO
v.

CITY OF LAKEWOOD, OHIO,

           Defendant-Appellee.




BEFORE:            BOGGS, CLAY, and GILMAN, Circuit Judges.

           CLAY, Circuit Judge. Plaintiff Jonathan Blazek appeals from the district court’s grant

of summary judgment in favor of Defendant, the City of Lakewood, Ohio, on Plaintiff’s claim of

discrimination and failure to accommodate in violation of the Americans with Disabilities Act of

1990 (“ADA”), 42 U.S.C. § 12101 et seq., amended by the ADA Amendments Act of 2008, Pub.

L. No. 110-325, 122 Stat. 3553. For the reasons set forth below, we AFFIRM the district court

in full.
                                           No. 13-4324


                                        BACKGROUND

       Plaintiff began working for Defendant in May 1988. Over the years, Plaintiff held

several positions that required him to maintain a Commercial Driver’s License (“CDL”). In

2010, Plaintiff took a job in streets, construction, maintenance, and repair (“SCMR”). Plaintiff’s

job in SCMR followed a seasonal cycle. “Fall time was leaf pick-up. Wintertime was snow

removal. And then in the winter, we would do Christmas tree pick-up after the holidays.” (R.

18, Blazek Dep., at 112.) Other times, Plaintiff worked laying and repairing asphalt. The job

required Plaintiff to operate many types of trucks, including trucks for snow-plowing and salting.

As a result, possessing a CDL was a central requirement of the SCMR position.

       Plaintiff’s twenty-plus years of employment with Defendant came to an end in March

2012. On March 13, 2012, Plaintiff arrived for the day’s second shift, which began at 4:00 p.m.,

with a 21-ounce bottle filled with Canadian Mist whiskey stashed in his truck. Plaintiff spent the

first part of his shift moving firewood and loading a dumpster before his lunch break began at

about 7:00 p.m. Plaintiff admits that he could easily have been assigned a driving job after

lunch. But despite this possibility, Plaintiff went to his truck and drank the entire bottle of

whiskey he had brought from home. To put this in perspective, a shot of whiskey contains about

1.5 ounces, meaning that Plaintiff drank the equivalent of 14 shots of liquor over his lunch break.

       After the lunch break ended at about 8:00 p.m., a short meeting of the SCMR workers

was convened by Jean Yousefi, Defendant’s director of human resources. The winter had been a

mild one, and the SCMR workers had thought they could stop having extra shifts earlier than

usual. But Yousefi had an ulterior motive for calling the meeting. Yousefi had received a tip the

week before that Plaintiff had been drinking on the job. During the meeting, Yousefi noticed

that Plaintiff “was acting suspiciously. He had bloodshot eyes and alcohol on his breath and




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was, you know, in a euphoric type of mood.” (R. 19, Yousefi Dep., at 201.) When the meeting

broke up, Yousefi asked Plaintiff to step outside with her. Yousefi then asked Plaintiff if he had

been drinking. Plaintiff said no, but Yousefi insisted that the two go to the local police station so

Plaintiff could take a Breathalyzer. Once the two arrived at the station, Plaintiff told Yousefi that

he had been drinking before he arrived at work—an untrue statement.

       Plaintiff took the Breathalyzer at approximately 9:15 p.m. He blew a 0.132, 65% more

than Ohio’s legal limit, see Ohio Rev. Code 4511.19(A)(1)(d), and more than three times the

limit for CDL drivers. See 49 C.F.R. § 382.201. Once Plaintiff had taken the Breathalyzer,

Yousefi told him that she would like to have a drug test performed at the local hospital. Plaintiff

then told Yousefi that he was taking Suboxone, a drug designed to help people wean themselves

from opiate dependence. This was the first time Plaintiff had disclosed this prescription to his

employer.

       Yousefi and Plaintiff ended the night sitting by some picnic tables behind the SCMR

garage. Plaintiff tearfully asked Yousefi if he would be fired. Yousefi could not say, and only

recommended that Plaintiff go to an Alcoholics Anonymous meeting or contact the Employee

Assistance Program as soon as possible.

       This was not the first time alcohol had interfered with Plaintiff’s life. Plaintiff picked up

a DUI in 1986—a fact he disclosed in his 1989 application for employment with Defendant. In

August 2007, Plaintiff was again charged with driving under the influence, although Plaintiff

later pleaded guilty to the reduced charge of reckless operation of a motor vehicle. Plaintiff’s

plea required him to complete a four-tier Mothers Against Drunk Driving program. According

to Plaintiff, his drinking problem worsened in the late 2000s when his son left home to attend

college. Not only did Plaintiff simply miss his son, but the financial strains of sending his son to




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college were opening rifts between Plaintiff and his wife. Indeed, Plaintiff and his wife had

fought about money on March 13, 2012, just before Plaintiff left for his shift with a bottle of

whiskey.

       On March 14, 2012, Yousefi wrote a letter to Plaintiff notifying him of a pre-disciplinary

meeting that would take place later that week. Yousefi charged Plaintiff with being intoxicated

at work, driving a city vehicle while intoxicated, drinking at work, possessing alcohol on City

property, and failing to report the use of prescriptions containing controlled substances. All of

these acts violated Defendant’s policy on drugs and alcohol in the workplace. Possessing or

consuming alcohol on City property constituted a fireable offense—even for a first-time violator.

       But Plaintiff was not a first-time violator. At the pre-disciplinary hearing, Plaintiff

admitted that he had drunk “at work and/or drove City vehicles, on a handful of occasions in the

[preceding] several months. . . . This includes driving a snowplow under the influence during a

snow storm.” (R. 18, Blazek Dep., at 189.) The hearing panel considered Plaintiff’s actions

“completely irresponsible and dangerous. You put your safety, the safety of our citizens and the

safety of your co-workers in jeopardy on each of these occasions.” (Id.) Plaintiff was terminated

effective April 2, 2012—a date Defendant selected to allow Plaintiff to seek treatment. Plaintiff

avers that he has since sought out-patient treatment for his alcoholism, is pursuing a twelve-step

program, and has stayed sober.

       After his termination, Plaintiff sought reinstatement through his union, which filed a

grievance for wrongful termination on March 19, 2012. An arbitrator convened two hearings—

on August 20 and September 14, 2012.          At one of the hearings, Plaintiff asked for an

accommodation for the first time. Specifically, Plaintiff requested to either be transferred to a

non-driving position, or to receive a “Last Chance Agreement.” A Last Chance Agreement is




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essentially an addendum to an employment contract, under which the employee agrees to certain

conditions (such as not drinking) in exchange for being allowed to return to work after

committing a fireable offense. Defendant did not offer Plaintiff either of these options, and on

December 27, 2012, the arbitrator denied the union’s grievance.

       As Plaintiff pursued his union grievance, he also filed a charge of discrimination with the

EEOC and the Ohio Civil Rights Commission.            Neither entity pursued Plaintiff’s claims.

Plaintiff and his wife initiated this suit on November 4, 2012. Their complaint stated five causes

of action: (1) ADA discrimination, (2) disability discrimination in violation of the Ohio Civil

Rights Act, (3) negligent infliction of emotional distress, (4) wrongful discharge, and (5) loss of

consortium (the only claim that concerned Plaintiff’s wife). After discovery, Defendant moved

for summary judgment, and the district court granted the motion in full. Blazek v. City of

Lakewood, No. 12 CV 2749, 2013 WL 5566678 (N.D. Ohio Oct. 9, 2013). Plaintiff timely

appealed.1

                                         DISCUSSION

       Plaintiff asserts that Defendant violated the ADA in two ways—by firing him, and by

failing to accommodate his disability, alcoholism.2 The district court granted summary judgment

to Defendant on both theories. We review this decision de novo. See Shazor v. Prof’l Transit

Mgmt., 744 F.3d 948, 955 (6th Cir. 2014). Summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to



       1
          Plaintiff’s wife did not appeal, and Plaintiff himself has briefed only his ADA claims.
To the extent Plaintiff’s other claims are analyzed similarly to his ADA claims, they fail for the
same reasons discussed below. To the extent Plaintiff’s other claims are different, they have
been waived. See Moore v. Mitchell, 708 F.3d 760, 774 (6th Cir. 2013).
        2
          Plaintiff also raises a free-standing disparate treatment claim. Insofar as this claim is
legally distinct from his termination and failure-to-accommodate claims, it fails because Plaintiff
cannot show that similarly situated non-disabled employees were treated differently from him.


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                                           No. 13-4324


judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In reviewing the district court’s grant of

summary judgment, this Court must view all the facts and the inferences drawn therefrom in the

light most favorable to the nonmoving party.” Birch v. Cuyahoga Cnty. Probate Ct., 392 F.3d

151, 157 (6th Cir. 2004).

I.     TERMINATION

       As it now reads, the ADA prohibits employers from discriminating against qualified

individuals “on the basis of disability.” 42 U.S.C. § 12112(a). In the absence of direct evidence

of discrimination, courts analyze ADA discrimination claims following the familiar burden-

shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). “To prove a

prima facie case of disability discrimination, a plaintiff must show that (1) he is disabled, (2) he

is otherwise qualified to perform the essential functions of a position, with or without

accommodation,” and (3) a causal link ties the disability to the adverse employment action.

Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir. 2014).

Alcoholism can constitute a disability under the ADA. See Mararri v. WCI Steel, Inc., 130 F.3d

1180, 1184–85 (6th Cir. 1997). “Once Plaintiff establishes a prima facie case, the burden shifts

to the employer to articulate a nondiscriminatory legitimate reason for the termination. Provided

that the employer meets this burden, Plaintiff must then show that the proffered reason is but a

pretext for discrimination.” Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 310 (6th Cir.

2000) (citation omitted).

       We assume without deciding that Plaintiff has established a prima facie claim, shifting

the onus to Defendant to articulate a legitimate reason for Plaintiff’s termination. Defendant has

done so. Plaintiff violated Defendant’s policies against possessing and consuming alcohol in the

workplace, and admitted to doing so on numerous occasions.                  This is a legitimate,




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nondiscriminatory reason for firing Plaintiff. See Mararri, 130 F.3d at 1183; Maddox v. Univ. of

Tenn., 62 F.3d 843, 847–48 (6th Cir. 1995), overruled on other grounds by Lewis v. Humboldt

Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc).

       At this point, the burden shifts back to Plaintiff to create a genuine factual dispute that

Defendant’s proffered justification was a pretext to mask discrimination. Plaintiff can do this by

showing “either (1) that the proffered reasons had no basis in fact; (2) that the proffered reasons

did not actually motivate the action; or (3) that they were insufficient to motivate the action.”

Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 883 (6th Cir. 1996). Plaintiff’s only evidence of

pretext are the records of fifteen employees of Defendant who received Last Chance Agreements

following incidents involving drugs or alcohol. Plaintiff’s (implicit) reasoning goes that if these

employees were not disabled and were given Last Chance Agreements after problems with drugs

or alcohol, this suggests that Plaintiff’s termination was motivated by his disability, not his

misconduct.

       This argument fails for two reasons. First, Plaintiff has not demonstrated that these

fifteen employees were not disabled. In fact, the only evidence in the record on this point is

Plaintiff’s own affidavit stating that these employees “also suffered from alcoholism.” (R. 22-1,

Blazek Aff., at 425.) Second, even assuming that none of these other employees was disabled,

the facts of their cases differ significantly from Plaintiff’s. Only three of the fifteen employees

had their drug or alcohol incidents while reporting to the same supervisors who terminated

Plaintiff. Although it is not an “inflexible requirement,” this Circuit has noted that similarly

situated employees will often have dealt with the same supervisor. Bobo v. United Parcel Serv.,

Inc., 665 F.3d 741, 751 (6th Cir. 2012) (internal quotation marks omitted).             But more

importantly, Plaintiff’s infractions were significantly more serious than these other employees’




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misdeeds. Many of the incidents involving these employees took place outside of work. And

unlike for Plaintiff’s position, a CDL does not appear to have been a requirement for these other

employees’ jobs. The employee most similar to Plaintiff was Thomas Bork, who received a Last

Chance Agreement in December 1994 under which he agreed not to consume alcohol or drugs

when employed by Defendant. But on May 18, 1999, Bork was found to be drunk and high

while operating a backhoe at work. Bork was fired as a result of this second infraction.

       Plaintiff admitted driving a City snowplow during a storm while intoxicated. Plaintiff

further admitted that was not his only time drinking on the job. Plaintiff’s violations of City

policies dwarf those of the other employees whom Plaintiff offers up as comparisons. The most

analogous is Bork, who also operated a City vehicle while drunk—and was fired. Even if we

assume that none of these fifteen employees was disabled (and there is no reason to make this

assumption), the facts of their cases are simply too different from the facts of Plaintiff’s case to

be of use. Plaintiff therefore cannot show that Defendant’s legitimate reason for terminating him

was pretextual.

II.    FAILURE TO ACCOMMODATE

       Next, Plaintiff asserts that Defendant failed to accommodate his disability by offering

him a non-driving job or a Last Chance Agreement (which we will assume could qualify as an

ADA accommodation).        The discrimination proscribed by the ADA includes “not making

reasonable accommodations to the known physical or mental limitations of an otherwise

qualified individual with a disability who is an . . . employee, unless such covered entity can

demonstrate that the accommodation would impose an undue hardship on the operation of [its]

business.”    42 U.S.C. § 12112(b)(5)(A).        The ADA further provides that “‘reasonable

accommodation’ may include . . . reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B);




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                                          No. 13-4324


see also Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 869–71 (6th Cir. 2007). We analyze

failure-to-accommodate claims via the following approach:

       (1) The plaintiff bears the burden of establishing that he or she is disabled.
       (2) The plaintiff bears the burden of establishing that he or she is otherwise
       qualified for the position despite his or her disability: (a) without accommodation
       from the employer; (b) with an alleged essential job requirement eliminated; or
       (c) with a proposed reasonable accommodation. (3) The employer will bear the
       burden of proving that a challenged job criterion is essential, and therefore a
       business necessity, or that a proposed accommodation will impose an undue
       hardship upon the employer.

E.E.O.C. v. Ford Motor Co., 752 F.3d 634, 640 (6th Cir. 2014) (internal quotation marks

omitted).

       We assume that Plaintiff was disabled and that a vacant non-driving position was

available when he was terminated. Even with these elements established, Plaintiff’s claim falls

on the ground that he did not request any accommodation from Defendant prior to his

termination. The first time that Plaintiff raised the possibility of moving to a non-driving

position was during his union grievance, several months after he was fired. “Because Plaintiff

made no request for accommodation the district court properly found that [he] failed to create an

issue of fact as to whether or not the Company failed to reasonably accommodate [him].” Gantt

v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998); see also, e.g., Melange v.

City of Ctr. Line, 482 F. App’x 81, 84–85 (6th Cir. 2012).

                                        CONCLUSION

       For these reasons, we AFFIRM the district court in full.




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