                United States Court of Appeals
                     FOR THE EIGHTH CIRCUIT


                              No. 96-1985


Annie Miners,                       *
                                    *
                Appellant,          *
                                    *   Appeal from the United States
     v.                             *   District Court for the
                                    *   District of Minnesota.
Cargill Communications, Inc.,       *
a Minnesota corporation,            *
                                    *
                 Appellee.          *


                   Submitted:     December 12, 1996

                         Filed:    May 9, 1997


Before BOWMAN and HEANEY, Circuit Judges, and STROM,1 District
     Judge.



HEANEY, Circuit Judge.


     Annie Miners appeals from a district court order granting
summary judgment to her former employer, Cargill Communications,
Inc. (Cargill) on her claim of employment discrimination under the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, and
dismissing without prejudice her claims under the Minnesota Human
Rights Act (MHRA), Minn. Stat. §§ 363.01-363.14, and for breach of
contract.   Miners claims Cargill fired her because it regarded her
as being an alcoholic.    Cargill responds that it fired Miners for



     1
      The Honorable Lyle E. Strom, District Judge for the District
of Nebraska, sitting by designation.
violating a company policy that prohibited drinking and driving.
In the alternative, Cargill claims that even if it regarded Miners




                                2
to be an alcoholic, its offer of treatment for that condition was
an appropriate accommodation of her disability, the refusal of
which justified her termination.         We hold that summary judgment was
improvidently granted and remand to the district court for further
proceedings consistent with this opinion.


                                        I.


     Miners worked as promotions director for REV 105, a radio
station owned by Cargill.          Her employment contract permitted
Cargill to terminate Miners only if she failed to substantially
perform her obligations under the contract or failed to adhere to
company policy.      Miners was responsible for organizing the radio
station's     promotional    events,     which       were     held     primarily   in
nightclubs and bars.      Cargill gave Miners a company van to drive in
connection with those responsibilities.


     During     Miners'     employment,          Cargill     maintained     policies
regarding employee consumption of alcohol.                   On May 2, 1995, the
company     issued   a    memorandum        to     all     employees     prohibiting
consumption of alcoholic beverages while working at company events
and announcing that violating the policy would be grounds for
dismissal.2      Cargill     contends       that    it     also   disseminated     an
unwritten company policy prohibiting drinking alcohol and driving




     2
      The memorandum stated, in part:

            If you are at a Company[-]sponsored event such
            as a remote broadcast and you are working at
            the event the use of alcohol is against
            company policy and is grounds for immediate
            termination.

(Appellant's App. at 42 (Miners Aff. Ex. B).)

                                        3
company   vehicles   and   that   Miners   learned   of   the   policy   at
department-head meetings.     Cargill acknowledges, however, that




                                    4
Miners could not attend all of the meetings at which Cargill claims
to have disclosed the rule.


     In May 1994, Mark Lang became Miners' supervisor.                 Lang had
reason to be particularly sensitive to issues of drug or alcohol
abuse because he had received treatment for chemical dependency in
Florida in 1987 and again in Minneapolis in 1989 and remains
enrolled in substance abuse rehabilitation programs.


     A month prior to Lang's arrival, Miners failed to report to
work one morning.     She later explained to the station's management
that she had been out drinking the night before.          Management noted
the incident by memorandum in her personnel file.              Lang saw this
entry after becoming Miners' supervisor.


     A year later, REV 105 management became suspicious that Miners
had been drinking prior to driving the company van.            This suspicion
prompted them to hire Dan Seman, a private investigator, to follow
Miners.   On June 6, 1995, Seman observed Miners drinking alcoholic
beverages at several Minneapolis bars and then driving away in the
company van.     Again, on the evening of June 8, Seman observed
Miners    consuming   alcohol   at   several    bars   with    other    Cargill
employees and some of the station's advertising clients.                Miners,
who weighed approximately 250 pounds, admits that she drank five
alcoholic beverages that night over the course of at least six
hours, during which time she also consumed food.3             After observing
Miners drinking, Seman called Lang.            Miners left the bar with a
friend and proceeded to the parking ramp where the van was parked.
Lang was waiting at the parking lot when Miners arrived and



     3
      Miners presented expert testimony claiming that her blood-
alcohol content under these circumstances was zero.

                                     5
demanded the keys to the van.   Miners surrendered the keys and Lang
drove away in the van.




                                  6
     The next day, Cargill's president, John Kuehne, informed
Miners that her actions the previous night constituted grounds for
termination.    He offered her the opportunity to attend a chemical
dependency    treatment   program   "[d]ue    to   the   possibility   that
[Miners] may be an alcoholic."          (Appellant's App. at 21 (Kuehne
Aff. ¶ 7).)    He told Miners that she must either enter and complete
the program with no loss in pay or job position or be fired.           After
considering her options for several days, Miners rejected the offer
of treatment.     Cargill immediately fired her.          At no point did
Miners admit to being an alcoholic.


     Miners brought an action against Cargill claiming the company
violated the ADA and sections of the Minnesota Human Rights Act by
firing her because it regarded her as an alcoholic.               Cargill
alleged in its answer and by affidavits that it fired Miners
because she broke a company rule by drinking before driving a
company vehicle, thereby violating the terms of her contract.
Miners asserts that Cargill's explanation for firing her is a
pretext for its discriminatory motivation:         its perception that she
was an alcoholic.    In support, Miners contends that she was never
informed of the rule she purportedly violated, that other Cargill
employees who were assigned company vehicles consumed alcohol
before driving the vehicles and were not fired, and that Cargill's
offer of treatment demonstrates that the management thought she was
an alcoholic.


     Cargill moved for summary judgment.              The district court
granted Cargill's motion for summary judgment on Miners' ADA claim,
stating in substance that Cargill "gave an honest explanation" for




                                    7
Miners' termination.4    In addition, the court noted that the
private investigator's report "could, and did, lead to a fear of




     4
      The court relied on Krenik v. County of LeSeuer, 47 F.3d 953,
960 (8th Cir. 1995), for the proposition that the court's "inquiry
at this stage is limited to whether the employer gave an honest
explanation of its behavior."

                                8
tort liability for Cargill."        Because of its decision with respect
to the ADA claim, the court declined to exercise supplemental
jurisdiction over Miners' state law claims and dismissed them
without prejudice.      We reverse.


                                      II.


     We review a grant of summary judgment de novo. Crawford v.
Runyon, 37 F.3d 1338, 1340 (8th Cir. 1994).                District courts may
grant motions for summary judgment where "there is no genuine issue
as to any material fact and [] the moving party is entitled to a
judgment as a matter of law."              Fed. R. Civ. P. 56(c).      Summary
judgment is appropriate only where the evidence is such that no
reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).                  Thus,
the moving      party   must    demonstrate    that   no   genuine   issues   of
material fact remain to be resolved.          Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).       In determining whether the moving party is
entitled   to     summary      judgment,    the   court    must   resolve     all
controversies in favor of the non-moving party, take the non-
movant's evidence as true, and draw all justifiable inferences in
favor of that party.           Matsushita Elec. Indus. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).           In opposing a motion for summary
judgment, the non-movant may not rest on allegations or denials in
its pleadings but must "set forth specific facts showing that there
is a genuine issue for trial."         Anderson, 407 U.S. at 256.


     In the employment discrimination context, a plaintiff must
present a prima facie case to survive a defendant's motion for
summary judgment.       To establish a prima facie case under the ADA,
a plaintiff must show that she was a disabled person within the
meaning of the ADA, that she was qualified to perform the essential


                                       9
functions of the job, and that she suffered an adverse employment
action under circumstances giving rise to an inference of unlawful




                               10
discrimination.         Price v. S-B Power Tool, 75 F.3d 362, 365 (8th
Cir.), cert. denied, 117 S. Ct. 274 (1996).


       Once a plaintiff has made out her prima facie case, the burden
of production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its actions.                       McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973).               The burden of production then
shifts back to the plaintiff to demonstrate that the employer's
proffered reason is a pretext for unlawful discrimination.                                 St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993).                            After the
burden of       production     has    shifted     back          to   the   plaintiff,      the
evidence produced to show a prima facie case and the "inferences
drawn therefrom may be considered by the trier of fact on the issue
of whether the [employer's] explanation is pretextual."                                Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 n.10
(1981).


       Without deciding whether Miners presented a prima facie case
of   discrimination,       the    district      court       held      that    she    had   not
produced evidence sufficient for a jury to find that Cargill's
proffered      reason    for     firing   her     was       a    pretext     for    unlawful
discrimination.         In our view, Miners both presented a prima facie
case under the ADA and offered sufficient evidence of pretext to
survive summary judgment.


       Miners made out a prima facie case of discrimination under
ADA.       First, she introduced evidence sufficient to establish that
Cargill regarded         her   as    being   an    alcoholic,          thus    making      her
                                                        5
disabled within the meaning of the ADA.                     Cargill offered Miners

       5
      The ADA defines a disability as "a physical or mental
impairment that substantially limits one or more major life
activities . . . or being regarded as having such an impairment."
42 U.S.C. § 12102(2). Although alcoholism qualifies as a

                                          11
the choice between entering a chemical-abuse treatment program or
being fired, and Lang was aware that Miners had missed a day of
work as a result of her drinking on a previous evening.         Second,
Miners presented ample evidence from which a jury could conclude
that she was qualified to perform the job for which Cargill hired
her.6       Third, Miners has offered evidence to support a jury finding
that she suffered an adverse employment action from which an
inference of unlawful discrimination arises.7        In this case, the


disability for the purposes of the ADA, Crewe v. United States
Office of Personnel Management, 834 F.2d 140, 141 (8th Cir. 1987),
employers need not tolerate employees under the influence of
alcohol in the workplace, 42 U.S.C. § 12114(c)(1),(2), and may hold
an employee who is an alcoholic to the same standards of
performance and behavior as non-alcoholics. 42 U.S.C. 114(c)(4).

        6
      Although   Cargill   does   not   contest   Miners'   general
qualifications or that she performed well in the position, it
argues that Miners could not be "otherwise qualified" for the
position because her conduct in operating a company vehicle after
consuming alcohol was contrary to Cargill's interests. Although
the ADA does not protect alcoholics or perceived alcoholics from
the consequences of alcohol-related misconduct, to accept Cargill's
sweeping argument would allow an employer's proffered reason for an
unfavorable action toward an employee, pretextual or not, to
prevent a plaintiff from presenting a prima facie case of
discrimination in all but the most blatantly discriminatory cases
under the ADA. An employer would merely need to offer evidence of
any misconduct on the part of the plaintiff to destroy the
plaintiff's job qualifications whether or not that misconduct
prompted the adverse employment action.
        7
      Cargill, citing Johnson v. Legal Services of Ark., Inc., 813
F.2d 893 (8th Cir. 1987), contends that Miners cannot show that her
termination    was   surrounded    by   circumstances    suggesting
discrimination.    Cargill points to this court's statement in
Johnson that "inference[s] of discrimination [are] commonly raised
in these cases by . . . showing that [the plaintiff] was treated
less favorably than similarly situated employees who are not in
[the] plaintiff's protected class."     Id. at 896.    Although the
language cited indicates that disparate treatment commonly gives
rise to an inference of discrimination, it cannot be the only means
of demonstrating unlawful discrimination. If it were, employees

                                     12
evidence Miners presents to establish that Cargill regarded her as
disabled (e.g., treatment-or-discharge ultimatum) also creates an
inference that her firing was motivated by unlawful discrimination.


     We   next   turn   to   the   fundamental   question   in    this   case:
whether Miners presented sufficient evidence from which a jury
could conclude that Cargill fired her because it regarded her as an
alcoholic, not because she violated a company rule.              Miners calls
Cargill's proffered explanation into question in several respects.
First, in contrast to Cargill's other alcohol policies, the rule
Miners supposedly violated was never presented in written form and,
according   to   Miners,     never   communicated   to   her.       Moreover,
accepting Miners' evidence as true, her blood-alcohol content would
have been minimal at the time Lang confiscated her keys, and it is
undisputed that Cargill made no attempt to determine whether Miners
was under the influence.      Finally, Miners casts doubt on Cargill's
sincerity about enforcing the policy by presenting evidence that
persons in management consumed alcohol prior to driving company
vehicles without recourse by Cargill.8


without similarly-situated peers would be without the protection of
the ADA.    Neither congressional mandate nor judicial precedent
requires evidence of disparate impact to show discrimination under
the ADA. See 42 U.S.C. § 12111 (no requirement that an employee
must show disparate impact); McDonnell Douglas Corp., 411 U.S. at
802 n.13 (proof required to establish a prima facie case of
discrimination will necessarily vary in different factual
situations); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978) (prima facie case is shown where "one can infer . . . that
it is more likely than not that such actions were `based on a
discriminatory criterion illegal under [federal law].'").
     8
      The district court refused to consider this evidence,
concluding that those employees were not situated similarly to
Miners because they were in managerial positions. The district
court would be correct if the evidence were offered merely to show
disparate impact to establish a prima facie case of discrimination.
However, the evidence is proper to challenge Cargill's claim that
it was motivated by concern about the tort liability associated

                                      13
     In addition, a jury could find that Miners' new supervisor was
a firm believer in the value of treatment for chemical abuse and




with employees operating company vehicles under the influence of
alcohol.

                                14
that he saw Miners as being at particular risk, given the nature of
her work.    Miners’ evidence permits a finding that Cargill created
the policy at issue to target Miners and expose what it regarded as
her alcoholism.        Under these circumstances, a jury could reasonably
find that Cargill was less interested in whether Miners was driving
under the influence than in looking for a lever to force her into
treatment for alcoholism.         Although the district court is correct
in stating that Cargill would be justified in firing Miners if she
were driving       a   company   vehicle       while   under   the   influence     of
alcohol, see 42 U.S.C. § 12182(b)(3), in this case, the question
whether Cargill actually believed Miners was doing so becomes a
credibility issue to be determined by the factfinder.


      Cargill alternatively argues that even if it perceived Miners
to be an alcoholic, its offer of treatment was an appropriate
accommodation of Miners' disability.              It cites Senate Sergeant at
Arms v. Senate Fair Employment Practices, 95 F.3d 1102, 1107 (Fed.
Cir. 1996), in support of its position that "[t]reatment would seem
to be essential to any accommodation for alcoholism.                         If an
individual refuses treatment when offered, then discipline is
appropriate."      This case is distinguishable.          In Senate Sergeant at
Arms, the plaintiff conceded that he was an alcoholic and had a
history of alcohol-related work problems, neither of which is
present here.      See id. at 1104.       As the Federal Circuit points out,
"the ADA requires that a covered entity provide a reasonable
accommodation for the known disability of a qualified individual."
Id.   at    1107   (alteration       in   original)      (citing     42   U.S.C.    §
12112(b)(5)(A)).         Without actual knowledge that Miners was an
alcoholic,     Cargill      cannot    now      argue   that    it    attempted     to
accommodate Miners, and it certainly lacks a basis to claim that
Miners' refusal of treatment warranted her termination.                          Had
Cargill acted on its perception that Miners suffered from


                                          15
alcoholism by attempting to establish that she was an alcoholic9
and demonstrated performance problems related to her alcoholism, it
might       have   been   able   to   avail    itself     of   the   opportunity      to
accommodate Miners' disability.               Cargill asserts that disallowing
it   to      require   an   employee    to     undergo    treatment        under   these
circumstances places it between a rock and a hard place by forcing
it to choose between facing tort liability for an employee's
alcohol-related misconduct and defending against allegations of
employment         discrimination.      However,        allowing     an    employer   to
require an employee it only suspects of being an alcoholic to enter
treatment places the employee between the Scylla of entering an
unnecessary chemical treatment program, with all of the associated
personal costs and its stigmas, and the Charybdis of losing her
job.        Under these circumstances, Cargill's claim of accommodation
lacks merit.



                                  III. CONCLUSION


       Miners has established a prima facie case under the ADA and
presented evidence from which a reasonable jury could conclude that
Cargill's       proffered    reason    for     firing    her   was    a    pretext    for
unlawful        discrimination.         Moreover,        Cargill's        treatment-or-
termination offer was not an accommodation where Cargill made no
attempt to confirm whether Miners was an alcoholic.                         Therefore,
summary judgment was improper.           Likewise, the district court erred
in dismissing Miners' claims under the MHRA.                         We reverse the




        9
      Miners asserts that she would have been willing to undergo a
medical or other appropriate form of evaluation to determine
whether she was an alcoholic. (Appellant's App. at 39 (Miners Aff.
¶ 9).)

                                          16
district court and remand for proceedings consistent with this
opinion.




                              17
A true copy.


     Attest.


          CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                          18
