                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-1096
                                    ___________

Jeanne Dovenmuehler,                     *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
St. Cloud Hospital,                      *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: October 5, 2007
                                 Filed: December 4, 2007
                                  ___________

Before LOKEN, Chief Judge, RILEY, and SMITH, Circuit Judges.
                              ___________

SMITH, Circuit Judge.

      Jeanne Dovenmuehler sued St. Cloud Hospital ("St. Cloud"), alleging that St.
Cloud violated the Americans with Disabilities Act (ADA) and Minnesota's Human
Rights Act (MHRA). Dovenmuehler contends that St. Cloud improperly terminated
her based on her chemical-dependency disability. The district court1 granted St.
Cloud's motion for summary judgment, concluding that: (1) Dovenmuehler did not
have an impairment under either the ADA or MHRA; (2) she was not limited in a
major life activity; (3) St. Cloud did not regard her as disabled; (4) St. Cloud had no

      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
duty to accommodate Dovenmuehler because she never disclosed her disability; and
(5) she was not qualified for the job because the accommodation she required was
unreasonable. The district court also found that St. Cloud had a legitimate
nondiscriminatory reason for terminating Dovenmuehler and that Dovenmuehler
failed to prove St. Cloud's reason was pretextual. We hold that Dovenmuehler has
failed to establish that she is disabled under the ADA or MHRA. Therefore, we affirm.

                                      I. Background
       We recite the facts in the light most favorable to Dovenmuehler, the nonmoving
party. In the early 1980s, Dovenmuehler was addicted to cocaine. She attended in-
patient treatment and has not used cocaine since. Dovenmuehler has been a registered
nurse in Minnesota since 1993.

       In July 2004, Dovenmuehler applied for a registered nurse position in St.
Cloud's Children's Center. Dovenmuehler's employment application listed her
previous nursing experience, but she did not disclose to St. Cloud why she left her
previous employer, St. Joseph's Hospital ("St. Joseph's"). St. Joseph's terminated
Dovenmuehler for stealing narcotics. That same month, Dovenmuehler voluntarily
reported herself to Minnesota's Health Professional Services Program (HPSP) seeking
help for chemical dependency.2

       St. Cloud interviewed Dovenmuehler for a position in the Children's Center and
hired her on August 5, 2004.The Children's Center treats patients ranging from pre-
term babies through children age 17. Intensive care patients comprise about 65% of


      2
        HPSP was created by Minnesota statute in 1994, and the Minnesota Board of
Nursing participates. Minn. Stat. §§ 214.31–.37. The program monitors health
professionals who have an illness or condition that may impair their ability to practice
safely. If an individual does not abide by the plan HPSP creates for them, they may
lose their professional license.


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the unit's daily volume, and often 98% of those patients are under the age of two. In
caring for these patients, Dovenmuehler's duties would include administering routine
and emergency narcotics to patients who, due to age and illness, typically cannot
communicate their medication needs.

       St. Cloud hired Dovenmuehler but made the hiring contingent upon her
completing a medical placement evaluation with St. Cloud's Occupational Health
Services (OHS).3 During her evaluation with OHS, Dovenmuehler disclosed that she
had carpel tunnel syndrome, rare leg soreness, a previous back injury, and hepatitis
C. She did not disclose that she was chemically dependent or that she had reported
herself to HPSP. St Cloud placed Dovenmuehler's employment on hold due to her
hepatitis C pending notification of clearance by the Minnesota Department of Health.

      Six weeks into her new job, Dovenmuehler told OHS that she had previously
reported herself to HPSP and that HPSP had issued a plan that she needed to follow
in order to practice nursing safely. Dovenmuehler also told OHS that she had been
terminated from St. Joseph's due to alleged theft of Vicodin, but she stated that she
was fighting the charges. Dovenmuehler did not tell OHS that she was chemically
dependent. St. Cloud's Human Resources Director called St. Joseph's, her previous
employer, and confirmed that Dovenmuehler had been involuntarily terminated.

      Dovenmuehler's HPSP plan, which was intended to address her chemical
dependency, contained "practice restrictions" that would require St. Cloud to
"maintain supervised access to controlled substances . . . for 2000 hours of
professional practice or one year of continuous abstinence from alcohol and drugs of
abuse and until HPSP authorizes in writing to lift or amend this restriction." The
Human Resources Director and Dovenmuehler's supervisor met with Dovenmuehler


      3
        OHS is an internal St. Cloud department that deals with nurses when they are
sick or injured on the job.

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to discuss the HPSP plan. They discussed compliance options for the HPSP plan
including: limiting Dovenmuehler's duties so that she would not have access to
medications; putting a "buddy" system in effect with a nurse from another unit; hiring
an additional nurse to shadow Dovenmuehler during her shifts; visual oversight of
Dovenmuehler; and transferring Dovenmuehler to another position in the Children's
Center that would not involve medication.

       St. Could, based upon prior experience with HPSP plans, construed "supervised
access" as requiring, in some cases, constant observation. In deciding how to
implement the HPSP plan, St. Cloud considered: what unit the employee worked in;
the essential functions of each specific position; the unit size and location; the patient
population being served; the staffing of the unit; and the budget for the unit. Looking
at these factors, St. Cloud determined it could not accommodate Dovenmuehler's
HPSP plan restriction because it would need to have a nurse shadow her at all times
due to the duties of Dovenmuehler's position, the young patient population, and the
private room layout of the unit where she would be working.

      St. Cloud terminated Dovenmuehler on October 27, 2004, informing her that
her position in the Children's Center would not permit the supervised narcotics access
required by her HPSP plan. Since being terminated by St. Cloud, Dovenmuehler has
been hired by University of Minnesota Fairview Hospital and St. Gabriel's Hospital.
Both hospitals have implemented Dovenmuehler's HPSP plan restrictions.

        The district court granted summary judgement to St. Cloud concluding, among
other things, that "Plaintiff is not disabled under the ADA or MHRA. Defendant
terminated Plaintiff because Defendant was given an HPSP plan that it could not
fulfill with any reasonable accommodation." Thus, the district court granted the
motion.




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                                   II. Discussion
      On appeal, Dovenmuehler argues that the district court erred in granting
summary judgment. She contends that the district court erred in finding that she did
not demonstrate she is disabled or perceived as disabled. Dovenmuehler claims she
met the burden of proving her prima facie case of discrimination.

      We review de novo the district court's grant of summary judgment to St. Cloud.
Equal Employment Opportunity Comm'n v. Wal-Mart Stores, Inc., 477 F.3d 561, 568
(8th Cir. 2007). Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Id.
(quotations and citation omitted).

       The ADA prohibits discrimination by an employer "against a qualified
individual with a disability because of the disability of such individual." 42 U.S.C. §
12112(a).4 Drug addiction that substantially limits one or more major life activities is
a recognized disability under the ADA. Thompson v. Davis, 295 F.3d 890, 896 (9th
Cir. 2002). However, the ADA protects only individuals who are no longer using
illegal drugs. Campbell v. Minneapolis Public Housing Authority, 168 F.3d 1069,
1072 n.1 (8th Cir. 1999).

      ADA and MHRA disability discrimination claims are analyzed under the well-
known McDonnell Douglas burden shifting analysis. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Burchett v. Target Corp., 340 F.3d 510, 516 (8th
Cir. 2003). The employee bears the initial burden of proving a prima facie case of


      4
        Dovenmuehler also bases her claims on the MHRA, but she does not
differentiate between the ADA and MHRA claims. Both are analyzed under
McDonnell Douglas and federal precedent may be used to construe the MHRA. See
Reiff v. Interim Personnel, Inc., 906 F. Supp. 1280, 1292 (D. Minn. 1995). It is
appropriate that we treat the claims together. See Larson v. Koch Refining Co., 920 F.
Supp. 1000, 1004 (D. Minn. 1996).

                                          -5-
discrimination. McDonnell Douglas Corp., 411 U.S. at 802. The employer then has
the burden to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Id. at 802–03. Finally, to prevail, plaintiff must show that the
defendant's proffered reason was a pretext for discrimination. Id. at 804.

       Dovenmuehler's prima facie case of employment discrimination required that
she prove (1) she has a disability within the meaning of the ADA or MHRA; (2) she
is qualified to perform the essential functions of her job, with or without reasonable
accommodation; and (3) she suffered an adverse employment action because of her
disability. Burchett, 340 F.3d at 517 (citations and quotation omitted). The plaintiff
bears the burden to prove she is disabled. Id.

       Dovenmuehler has not met her burden on step one of the prima facie case. More
specifically, she has not shown she has a disability within the meaning of the ADA or
the MHRA. To show that she qualifies as disabled under federal and state law,
Dovenmuehler must show that she: (1) has a physical, sensory, or mental impairment
which materially limits one or more major life activities; (2) has a record of such an
impairment; or (3) is regarded as having such an impairment. Minn. Stat. § 363A.03,
Subd. 12. See also 42 U.S.C. § 12102(2)(A). Major life activities include caring for
one's self, performing manual tasks, walking, seeing, hearing, breathing, learning, and
working. Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 948 (8th Cir. 1999).

       With respect to the prima facie case, Dovenmuehler makes three arguments on
appeal. First, Dovenmuehler asserts that she is disabled due to chemical dependency.
The record shows that in 2003 and 2004 various doctors concluded that
Dovenmuehler smoked cigarettes occasionally, only drank alcohol occasionally and
had probably shared needles with other drug users in the past. In September 2005, as
part of her chemical dependency evaluation with HPSP, the evaluator concluded that
Dovenmuehler's cocaine dependency was in remission, that she was an opiate abuser,
and that she was at a high risk for relapse. Dovenmuehler stated in her deposition for

                                         -6-
this case that she has been chemical free since 1988 and that she only relapsed once
when she drank alcohol in February 2006. However, Dovenmuehler admitted to HPSP
that in 2004 she resumed drinking, and she later diverted Vicodin from St. Joseph's
for her own use.

       Dovenmuehler's case is unique because her claimed disability has a peculiar
feature. Certain behavior, while consistent with her claimed disability, also happens
to be illegal. Such conduct is not protected by the ADA. Under the ADA "the term
'individual with a disability' does not include an individual who is currently engaging
in the illegal use of drugs, when the covered entity acts on the basis of such use." 42
U.S.C. 12210(a).

       Dovenmuehler argues that she is disabled because although she is currently
sober, if she were to relapse, she would then be disabled. As the district court noted,
this argument is unpersuasive and contrary to the ADA. Under the ADA,
Dovenmuehler is not protected from the consequences of illicit conduct explainable
by her chemical dependence, such as diverting hospital drugs intended for patients to
personal use. Dovenmuehler admitted to the Board of Nursing that she diverted
Vicodin for her own use from St. Joseph's. Neither the ADA nor MHRA protects
appellant from the consequences of that conduct. In this case, the HPSP plan that St.
Cloud considered an unreasonable accommodation stemmed directly from her
unprotected, illegal conduct, not from her status as one chemically dependent. See
Larson v. Koch Refining Co., 920 F. Supp. 1000, 1004 (D. Minn. 1996).

       Next, Dovenmuehler contends that because of her chemical dependency she is
precluded from the major life activity of working. An individual is substantially
limited in the major life activity of working if she is "significantly restricted in the
ability to perform either a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills and abilities."
Kellogg v. Union Pacific R.R. Co., 233 F.3d 1083, 1087 (8th Cir. 2000) (citations and

                                          -7-
quotations omitted). The inability to perform a single, particular job does not
constitute a substantial limitation in the major life activity of working. Id. In
determining if Dovenmuehler's major life activity of work is materially impaired by
her chemical dependency, we must consider:

      (A) the geographical area to which the individual has reasonable access;
      (B) the job from which the individual has been disqualified because of
      the impairment and the class of similar jobs from which the individual
      also is disqualified because of the impairment; and/or (C) the job from
      which the individual has been disqualified and the broad range of jobs
      in various classes from which the individual also is disqualified because
      of the impairment.

Id.

       Dovenmuehler argues that her chemical dependency is a lifelong illness and
when she is not in remission she is unable to perform a range of jobs that require
interpersonal skills and year-round work. However, the record belies this assertion.
Dovenmuehler testified that her life activities outside work are not limited by her
chemical dependency, and her medical records do not indicate her addictions have
limited her major life activities, including working. Dovenmuehler has been employed
steadily as a nurse since 1994, and she has been able to find nursing jobs at two
different hospitals since her termination from St. Cloud. The only job from which
Dovenmuehler has been precluded is the one at issue in the St. Cloud Children's
Center—a job with special patient concerns not present in nursing jobs generally.
Therefore, Dovenmuehler has not shown that she is limited in the major life activity
of working.

      Lastly, Dovenmuehler fails to adduce evidence that St. Cloud regarded her as
disabled. To show that she was regarded as disabled under the ADA, Dovenmuehler
must establish that St. Cloud "mistakenly believed that she had a physical impairment


                                         -8-
that substantially limited one or more major life activities," or that St. Cloud
"mistakenly believed that she had an actual, nonlimiting impairment which
substantially limited one or more major life activities." Brunko v. Mercy Hosp., 260
F.3d 939, 942 (8th Cir. 2001). The record does not support her allegation that St.
Cloud knew she was substantially limited in some major life activity or that St. Cloud
regarded her as such.

       Dovenmuehler has not carried her burden of proving the first part of the prima
facie case for discrimination—she has not shown that she is disabled or perceived as
disabled. Therefore, we need not analyze St. Cloud's legitimate reasons for
terminating Dovenmuehler or Dovenmuehler's claims that those reasons are
pretextual. Dovenmuehler failed to establish that she is disabled under the ADA and
MHRA. The district court did not err in granting summary judgment.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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