Rule 206 ELECTRONIC CITATION: 2000 FED App. 0142P (6th Cir.) File Name: 00a0142p.06… v. Barnesville Exempted Village School District Board of Education

*The Honorable Frank J. Magill, Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0142P (6th Cir.)
File Name: 00a0142p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DENNIS L. M ARTIN ,
Plaintiff-Appellant,
v.
BARNESVILLE EXEMPTED
VILLAGE S CHOOL DISTRICT
BOARD OF EDUCATION ,
Defendant-Appellee.
;>

1
No. 99-3263
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 97-00992—Algenon L. Marbley, District Judge.
Argued: March 14, 2000
Decided and Filed: April 21, 2000
Before: MERRITT, DAUGHTREY, and MAGILL,*
Circuit Judges.

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2 Martin v. Barnsville Exempted Village
School District Board of Education
No. 99-3263
_________________
COUNSEL
ARGUED: Samuel N. Lillard, MOWERY & YOUELL,
Dublin, Ohio, for Appellant. John C. Albert, CRABBE,
BROWN, JONES, POTTS & SCHMIDT, Columbus, Ohio,
for Appellee. ON BRIEF: Samuel N. Lillard, MOWERY &
YOUELL, Dublin, Ohio, for Appellant. John C. Albert,
CRABBE, BROWN, JONES, POTTS & SCHMIDT,
Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
MERRITT, Circuit Judge. Plaintiff Dennis L. Martin
appeals the district court's order granting summary judgment
in favor of defendant, Barnesville Exempted Village School
District Board of Education. On appeal, plaintiff alleges that
defendant discriminated against him on the basis of a
perceived disability – namely alcoholism – in violation of the
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.
and Ohio Revised Code § 4112. Because the record
demonstrates that plaintiff did not receive an assignment as a
school bus driver because he was caught drinking on the job,
no violation of the ADA occurred. We therefore affirm the
judgment of the district court.
Plaintiff was hired by defendant as a bus driver in 1984. He
is a member of the union, known as the Barnesville
Association of Classified Employees, OEA/NEA. In 1991 he
bid for and was awarded a custodial position with defendant.
Shortly after beginning his custodial duties, Robert Miller, the
president of the school board, observed plaintiff drinking beer
while on the job at an elementary school. When confronted
by Miller, plaintiff denied the allegation and left the building,
even though his shift was not over. Upon completion of an
investigation, the school board recommended that plaintiff be
No. 99-3263 Martin v. Barnsville Exempted Village
School District Board of Education
7
drinking problem" based on the Last Chance Agreement he
signed after the beer drinking incident at the school. We will
assume without deciding that defendant does perceive that
plaintiff suffers from alcoholism, a disability, and that
plaintiff has established a prima facie case of disability. We
then turn to defendant's stated reason for rejecting plaintiff's
bids. Defendant stated that plaintiff was denied the jobs as a
bus driver and garage worker in 1994 based on the 1991 beer
drinking incident during work hours at an elementary school.
The defendant asserts that the law should not require it to put
a person guilty of drinking on the job in the driver's seat of a
school bus hauling children.
The ADA does not protect plaintiff from his own bad
judgment in drinking on the job. The plaintiff cannot force
defendant to hire him as a school bus driver when there is a
serious risk that he may again drink on the job, have an
accident and kill a group of school children. Any suggestion
to the contrary is absurd on its face. For a federal court to
interpret the ADA to require a school board to hire as a
school bus driver a person guilty of drinking on the job and
thereby run the risk of an accident would raise serious
constitutional problems. If an accident should occur and
students were injured or killed, the school board would be
subject to large compensatory and punitive damages and open
itself to the moral condemnation of the community.
Therefore, even if we assume that plaintiff has established a
prima facie case of discrimination, defendant has articulated
a legitimate, non-discriminatory reason for its actions.
Plaintiff has not demonstrated that this stated reason is a
pretext for any unlawful discrimination.
For the foregoing reasons, we affirm the district court.

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6 Martin v. Barnsville Exempted Village
School District Board of Education
No. 99-3263
3Plaintiff stated that he signed the Last Chance Agreement, in which
plaintiff admitted to a "drinking problem," because it was the only way he
could keep his job.
42 U.S.C. § 12102(2). Plaintiff denies that he has a physical
or mental impairment and instead relies on either the second
or third criteria to establish that he is "disabled;" that is,
"having a record of such impairment" or being "regarded as"
having such an impairment.3 The district court granted
summary judgment to defendant because it found that plaintiff
had not established that his disability -- whether perceived or
real -- "substantially limits one or more major life activities."
While we do not necessarily disagree with the district court's
reasoning, we affirm on a different ground.
This Court has held that there is a distinction between
taking an adverse job action for unacceptable misconduct and
taking such action solely because of a disability, even if the
misconduct is "caused" by the disability. Maddox v.
University of Tennessee, 62 F.3d 843, 847 (6th Cir. 1995). In
Maddox, an assistant football coach at the University of
Tennessee was fired after an arrest for driving while
intoxicated. The coach argued that his alcoholism was a
covered disability and that his conduct of driving while
impaired resulted from his disability, thereby precluding the
university from firing him. This court assumed without
deciding that alcoholics may be "individuals with a disability"
for purposes of the ADA. The court held that the ADA
specifically provides that an employer may hold an alcoholic
employee to the same performance and behavior standards to
which the employer holds other employees "even if any
unsatisfactory performance is related to the alcoholism of
such employee," thereby clearly distinguishing the issue of
misconduct from one's status as an alcoholic. 42 U.S.C.
§ 12114(c)(4).
Maddox controls this case. Plaintiff makes much of the fact
that defendant represented throughout the arbitration and
Ohio state court proceedings that plaintiff had an "admitted
No. 99-3263 Martin v. Barnsville Exempted Village
School District Board of Education
3
terminated for consuming alcohol at work, leaving his post
and for conduct in violation of the stated "drug-free
workplace" policy. Plaintiff ultimately admitted that he had
been drinking a beer while on duty on school grounds. After
intervention by the union, plaintiff was allowed to keep his
position if he signed a document entitled "Last Chance
Agreement." The terms of the agreement required plaintiff
(1) to admit to an unspecified "drinking problem;" (2)
successfully to complete an approved alcohol rehabilitation
program; (3) to accept a four-week suspension without pay
and (4) to submit to alcohol and drug testing upon request for
two years. Plaintiff signed the agreement and there is no
dispute that he has at all times complied with the terms of the
Last Chance Agreement. (Plaintiff was never asked to submit
to a drug test during the two-year period and defendant
acknowledges that it never had any reason to believe that
plaintiff abused alcohol during that period.)
In December 1994, plaintiff submitted bids for a part-time
bus driver position and a part-time bus garage worker
position. Although plaintiff was the most senior worker to
bid for the positions, defendant rejected him, citing the 1991
beer incident. Plaintiff filed a grievance with the union and
in August 1995, after a binding arbitration hearing in
compliance with the union's collective bargaining agreement
with defendant, plaintiff was awarded the bus driver and
garage worker positions on which he had bid in December
1994. The arbitrator based his decision solely on the terms of
the bargaining agreement between the union and defendant,
finding that the school board had not demonstrated that
plaintiff posed a safety threat and therefore the seniority
provisions of the labor agreement could not be overridden.
Arbitrator's Opinion and Award, Aug. 10, 1995.
Defendant appealed the arbitrator's decision to the Belmont
County Common Pleas Court, which reversed and vacated the
labor arbitration award. In the Matter of Barnesville
Exempted Village School Dist. Bd. of Educ. v. Miller, 1997
Ohio App. LEXIS 5253 (Belmont Cty. 1997). On appeal, the

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4 Martin v. Barnsville Exempted Village
School District Board of Education
No. 99-3263
1During the pendency of the arbitration proceedings and subsequent
state court proceedings, plaintiff continued to bid on available bus driver
and garage worker positions when they became available. His bids were
rejected each time.
Ohio Court of Appeals reversed the Court of Common Pleas
and reinstated the arbitrator's award. Barnesville Exempted
Village School Dist. Bd. of Educ. v. Barnesville Ass'n of
Classified Employees, 123 Ohio App. 3d 272, 704 N.E.2d 36
(1997). The Court of Appeals reversed the Court of Common
Pleas, holding that the arbitrator's award must be upheld
unless the decision bears "no connection" with the labor
contract. 123 Ohio App. 3d at 276, 704 N.E.2d at 38. The
Court of Appeals found that the arbitrator carefully weighed
the competing concerns of safety and seniority and the state
court could not overrule the decision simply because it
disagreed with the outcome. Id. Defendant appealed to the
Ohio Supreme Court, which did not allow the discretionary
appeal. Barnesville Exempted Village School Dist. Bd. of
Educ. v. Barnesville Ass'n of Classified Employees, 81 Ohio
St. 3d 1421, 688 N.E.2d 1046 (1998). Plaintiff was awarded
the positions he sought in December 19941 and began his
duties in February 1998. He was not awarded back pay or
any other remuneration for lost wages or benefits.
Plaintiff filed this suit under the federal and state disability
discrimination laws in September 1997, during the pendency
of the arbitration proceedings. Both parties have filed briefs
asserting that the arbitration proceeding under the collective
bargaining agreement does not bar our review of plaintiff's
federal discrimination claim. They cite Wright v. Universal
Maritime Serv. Corp., 525 U.S. 70 (1998) (terms of collective
bargaining agreement must contain "clear and unmistakable"
language waiving specific federal statutory rights) and Bratten
v. SSI Servs., Inc. 185 F.3d 625 (6th Cir. 1999)(same). We
therefore do not decide the res judicata issue. We note that
because plaintiff was subsequently awarded the positions he
sought in his federal complaint as a result of the arbitration
proceedings, plaintiff's request in his complaint that he be
No. 99-3263 Martin v. Barnsville Exempted Village
School District Board of Education
5
2Both federal and Ohio disability discrimination actions require the
same analysis. Little Forest Med. Ctr. V. Ohio Civ. Rights Comm'n, 61
Ohio St. 3d 607, 575 N.E.2d 1164, 1167 (1991).
awarded the positions of bus driver and garage worker is moot
and the only issue before us is whether plaintiff should be
awarded compensatory and punitive damages, including back
pay for the period from December 1994 to February 1998, due
to defendant's alleged discrimination.
To prevail in a disability discrimination case, plaintiff must
present either direct evidence of discrimination or present a
prima facie case of discrimination. To establish a prima facie
case under the Americans with Disabilities Act, plaintiff must
show: (1) he was "disabled" under the ADA; (2) he was
otherwise qualified to perform the essential functions of the
job; (3) he suffered an adverse employment action and (4) a
nondisabled person replaced him. Monette v. Electronic Data
Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). Once the
plaintiff establishes a prima facie case, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason
for the adverse employment action. The burden then shifts
back to plaintiff to demonstrate that the employer's stated
reason is a pretext for discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).2
The ADA provides that "[n]o covered entity shall
discriminate against a qualified individual with a disability
because of the disability of such individual in regard to job
application procedures, job training, and other terms,
conditions, and privileges of employment." 42 U.S.C.
§ 12112(a). The term "disability" is defined as:
1. a physical or mental impairment that substantially
limits one or more major life activities;
2. a record of such impairment; or
3. being regarded as having such an impairment.

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