A fired football coach's lawsuit provides a cautionary tale for employers

Russ Samson Iowa Employment & Labor Law Dickinson Law Des Moines Iowa

Posted on 12/11/2015 at 11:56 AM by Russell Samson

On December 5, 2015, former University of Southern California head football coach Stephen Ambrose "Steve" Sarkisian filed litigation in California state court against his former employer after his employment was terminated on October 11, 2015, The lawsuit is pled in fourteen different counts, each under either California state law or the California common law of contracts.

The press release issued at the time the firing, announced by the USC athletic director, is cryptic, and there is no reason given for the adverse employment action. It concludes: Through all of this we remain concerned for Steve and hope that it [the termination of his employment] will give him the opportunity to focus on his personal well-being." The day following, the Los Angeles Times had an article complete with copies of receipts from submitted expense reports -- talking about some who had concerns about Sarkisian's alcohol use as far back as when he was head football coach at the University of Washington. It comes as no surprise, then, that the focus of Sarkisian's litigation is the claim that at the time he worked for USC he was a person with a disability in that he suffered from alcoholism, and that alcoholism limited one or more of his major life activities. Noted legal journal Sports Illustrated has an article discussing Sarkisian's litigation as it relates to an employer's obligation to make reasonable accommodations' to persons with disabilities.  No, I am not being snide: The article is authored by a tenured law school professor, who is also Director of the school's Sports & Entertainment Law Institute. The article includes an excellent discussion on what may and what may not be a “reasonable accommodation for an alcoholic in the position of head football coach at an institution like USC. I want to take a few steps back from Sarkisian's lawsuit, to reinforce that some problems that USC apparently faced are in fact shared with all Iowa employers, and indeed with all employers subject to the Americans with Disabilities Act. (I am not licensed to practice law in California, and thus am not willing to say anything about that state's laws.)

  1. Both the Iowa Civil Rights Act and the Americans with Disabilities Act extend the protections of the disability discrimination laws to individuals who are “regarded as” having a covered impairment. The specific language of the amended ADA is, “persons who have been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”
  1. Chronic alcoholism is, under Iowa law and under the ADA, a “disability.” Freightways, Inc. v. Cedar Rapids Civil Rights Comm'n, 366 N.W.2d 522, 528 (Iowa 1985); Miners v. Cargill Commc'ns, Inc., 113 F.3d 820, 824 (8th Cir. 1997).
  1. In Miners, the plaintiff/employee was observed violating a known rule about drinking (any drinking) and then operating a company vehicle. Although the plaintiff had never contended to be an alcoholic, she was told she had a choice either of being fired for observed violation of the rule, or of entering and completing an alcoholic treatment program with no loss of pay or job position. She turned down the proffered treatment, was fired and then sued under the ADA. The Eighth Circuit held that she had introduced evidence sufficient to “establish that Cargill regarded her as being an alcoholic, thus making her disabled within the meaning of the ADA.”
  1. As a representative of an employer, you may wonder whether an individual’s observed problems may be caused by alcoholism. DO NOT ASK. Rather than trying to diagnose the individual, just deal with the problem performance or behavior. By asking, you may be setting the stage for a contention that you perceived or regarded the individual as a protected alcoholic. And what do you learn by asking? Denial has been recognized as an integral part of the disease of alcoholism.
  1. Professor McCann’s article in S.I. notes that a leave of absence may be a “reasonable accommodation” under disability discrimination laws. What Professor McCann doesn’t mention, and what is not mentioned in the Sarkisian court complaint, is the Family and Medical Leave Act. The University of Southern California is a private, not-for-profit corporation. It is not “the state.” So court decisions about whether a state employer can be sued for violation of the self-care provisions of the FMLA are not called into question. USC has more than 50 employees. Sarkisian was hired as head coach at USC in December 2013; he coached the entire 2014 football season. So I have no doubt that Sarkisian in the abstract would have been an FMLA “eligible employee” who worked for an FMLA “covered employer.”

a. Under the DOL’s FMLA regulations, the first time the need for an absence which might qualify for FMLA comes up, there is no obligation for an employee to even mention the FMLA. All the employee needs to do is provide information such that an employer can “reasonably determine” that the FMLA might apply to a leave request.

b. Refresh your recollection here on the standards for a “key employee” under the FMLA. A football coach may in fact meet the requirement for “highest paid 10 percent of all the employees employed by the employer within 75 miles.” But the question is not whether an FMLA absence of the key employee will cause a substantial and grievous injury to the employer, but rather whether the restoration of that individual to his or her employment after the FMLA leave ends will cause a “substantial and grievous injury.”

There is a separate FMLA regulation regarding leave for treatment of substance abuse.  Beyond cavil, substance abuse may be a “serious health condition” under the FMLA, and treatment by or through a health care provider would qualify for leave under that law. The FMLA substance abuse regulation continues, however, that an employer may nevertheless discipline an employee for conduct which may be related to the substance abuse, so long as the discipline is under an established policy which has been communicated to all employees, and is being applied in a non-discriminatory manner. By way of contrast, the ADA itself expressly permits an employer to hold an alcoholic or an illegal user of drugs “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.” Employers need to ALWAYS focus on performance. And employers need to recognize that by trying to be “nice,” they may in fact be creating a problem down the road.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

 

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