UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

R. KENT WYLAND, JR.,
Plaintiff-Appellant,

v.
                                                                      No. 98-1163
BODDIE-NOELL ENTERPRISES,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-95-436-R)

Submitted: October 27, 1998

Decided: November 17, 1998

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Terry N. Grimes, KING, FULGHUM, SNEAD, NIXON & GRIMES,
P.C., Roanoke, Virginia, for Appellant. A. Bruce Clarke, C. Matthew
Keen, OGLETREE, DEAKINS, NASH, SMOAK & STEWART,
P.C., Raleigh, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

R. Kent Wyland, Jr., appeals from the district court's grant of sum-
mary judgment in favor of Defendant Boddie-Noell Enterprises, Inc.
(Boddie-Noell), in Kent's action under the Americans with Disabili-
ties Act (ADA), 42 U.S.C.A. §§ 12101-12213 (West 1995 & Supp.
1998). Finding no error, we affirm.

I.

Wyland began working for Boddie-Noell in 1983. In 1992, after
being promoted numerous times, Wyland sought a promotion to a
position as a Group Leader. Group Leaders are required to supervise
the operation of Boddie-Noell franchises, which requires a great deal
of driving and for which they are provided company cars. As part of
the process of consideration for promotion to Group Leader, Boddie-
Noell performed a driving records check. Boddie-Noell also per-
formed a drug screen on Wyland, as required under Boddie-Noell's
company policy for those seeking promotion to a management posi-
tion. Wyland's driving record reflected numerous infractions, includ-
ing several speeding violations. Wyland's drug screen tested positive
for the use of several prescription drugs, which Wyland was taking
for a back injury.

Boddie-Noell asked Wyland to provide a list of his prescriptions,
and then sought the advise of a physician in order to determine
whether Wyland's medications would affect his ability to drive a
company vehicle. The physician indicated that the drugs Wyland was
taking could impair his ability to operate a car. Boddie-Noell officers
met with Wyland; at that meeting, Wyland stated that he did not need
to be taking the medications and volunteered to stop taking them.
Boddie-Noell requested that Wyland agree to periodic quarterly drug
screening as a follow-up measure, to ensure that Wyland remained

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able to operate a company vehicle safely. Wyland agreed to the quar-
terly follow-up testing. Subsequently, Boddie-Noell sought the advice
of a medical provider for Boddie-Noell's Employee Assistance Pro-
gram, who opined that Wyland would not pose a liability risk by driv-
ing if he discontinued the use of his prescription medications.

Boddie-Noell awarded Wyland the position of Group Leader in
March 1993, and he was provided with a company car. Wyland
appeared for, and passed, his first two quarterly drug screens in Feb-
ruary and June of 1993. On Thursday, September 9, 1993, Boddie-
Noell informed Wyland that he needed to appear for his third drug
screen immediately. Wyland failed to take a drug screen that day, and
did not report for a drug screen until Tuesday, September 14. Boddie-
Noell policy requires that any employee who is asked to take a drug
test must do so within three days of notification, and that failure to
take the test within three days will result in termination. Wyland's
drug screen was negative. However, Wyland met with a Boddie-Noell
officer several days later and admitted that he failed to take the screen
within the required three-day period. Boddie-Noell terminated
Wyland for insubordination, pursuant to company policy.

II.

We review the district court's grant of summary judgment de novo.
See Cline v. Wal-Mart Stores, Inc., 144 F.2d 294, 300 (4th Cir. 1998).
Wyland cannot make out a prima facie case of discrimination under
the ADA because he cannot show that he is a member of a protected
class by virtue of his disability. See Halperin v. Abacus Tech. Corp.,
128 F.3d 191, 196-97 (4th Cir. 1997).

In order to show that he is disabled, Wyland must show that he (1)
suffers from a physical or mental impairment that substantially limits
a major life activity; (2) has a record of such an impairment; or (3)
that Boddie-Noell regarded him as having a physical or mental
impairment that substantially limits a major life activity. See 42
U.S.C.A. § 12102(2). Wyland contends that even though he did not
in fact have a disability, Boddie-Noell regarded him as having a dis-
ability because it viewed him as an abuser of prescription drugs.
However, to show that he qualifies as an individual with a disability
under this standard, Wyland must show not only that Boddie-Noell

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regarded him as having a disability, but also that Boddie-Noell per-
ceived the impairment to substantially limit a major life activity. See
id.; Cline, 144 F.3d at 303.

Even assuming that Boddie-Noell regarded Wyland as having an
impairment, Wyland cannot show that Boddie-Noell perceived the
impairment, abuse of prescription drugs, as substantially limiting a
major life activity. Wyland contends that the major life activity that
was affected was working. Although working is a major life activity,
see 29 C.F.R. § 1613.702(c) (1998), in order to prove that his ability
to work has been substantially impaired, Wyland must show that
Boddie-Noell considered his perceived disability to significantly
restrict his ability to perform a broad class of jobs, not that it viewed
him as only unable to perform a particular position. See Cline, 144
F.3d at 303-04; Burch v. Coca-Cola, 119 F.3d 305, 322-23 (5th Cir.
1997), cert. denied, ___ U.S. #6D6D 6D#, 66 U.S.L.W. 3364 (U.S. Jan. 20,
1998) (No. 97-791); Williams v. Channel Master Satellite Systems,
101 F.3d 346, 349 (4th Cir. 1996), cert. denied , ___ U.S. ___, 65
U.S.L.W. 3779 (U.S. May 27, 1997) (No. 96-1521); Gupton v.
Virginia, 14 F.3d 203, 205 (4th Cir. 1994). Here, Boddie-Noell's con-
cerns stemmed from Wyland's ability to operate a car safely, and only
extended to Wyland's position as Group Leader, which required use
of a company car. There is no evidence that Boddie-Noell viewed
Wyland to be significantly restricted in a "broad class of jobs," and
thus Wyland's claim on this basis must fail. See Williams, 101 F.3d
at 349; Gupton, 14 F.3d at 205.*

To the extent that Wyland contends Boddie-Noell's requirement
that he undergo quarterly drug screens in his position as a Group
Leader is impermissible under the ADA, we note that employers may
inquire about and test for prescription drug use if such inquiry and
_________________________________________________________________
*To the extent that Wyland claims on appeal that"driving" is the
major life activity that was significantly impaired, we note that driving
is not a major life activity. See 29 C.F.R.§ 1613.702(c); Bragdon v.
Abbott, ___ U.S. ___, 66 U.S.L.W. 4601 (U.S. Jun. 25, 1998) (No. 97-
156). Further, although Boddie-Noell had legitimate concerns about
Wyland's ability to operate a company car and potential liability,
Wyland offers little evidence that his ability to drive generally was sig-
nificantly impaired.

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testing is job related and necessary for a business purpose. See 42
U.S.C.A. § 12112(d)(4)(A); EEOC v. Prevo's Family Market, Inc.,
135 F.3d 1089, 1094 (6th Cir. 1998); Roe v. Cheyenne Mountain Con-
ference Resort, Inc., 124 F.3d 1221, 1226-31 (10th Cir. 1997).
Boddie-Noell's inquiry into and testing of Wyland for prescription
drug use was both job-related and necessary for a business purpose--
Boddie-Noell needed to ensure that Wyland was capable of driving
the company car as required to perform his job as a Group Leader,
and also needed to ensure the safety of the general public and protect
itself from potential liability. See Prevo's, 135 F.3d at 1094.

We affirm the district court's grant of summary judgment in favor
of Boddie-Noell. We dispense with oral argument because the facts
and legal contentions are adequately set forth in the materials before
the court and argument would not aid the decisional process.

AFFIRMED

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