203 F.3d 723 (10th Cir. 2000)
DAVID G. RENAUD,  Plaintiff-Appellant,v.WYOMING DEPARTMENT OF  FAMILY SERVICES; SHIRLEY R.  CARSON, individually,  Defendants-Appellees.
No. 98-8046
UNITED STATES COURT OF  APPEALS TENTH CIRCUIT
February 8, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT  FOR THE DISTRICT OF WYOMING. D.C. Civil Action No. 97-CV-143 [Copyrighted Material Omitted]
Bruce T. Moats (Jane A. Villemez with him on the briefs) of Villemez Law  Office, Cheyenne, Wyoming, for Plaintiff-Appellant.
Terry L. Armitage, Cheyenne, Wyoming, for Defendants-Appellees.
Before EBEL, McKAY, and BRISCOE,  Circuit Judges.
McKAY, Circuit Judge.


1
Plaintiff David G. Renaud brought this action in the United States District  Court for the District of Wyoming for wrongful termination of his employment as  superintendent of the Wyoming Boys' School.  He asserted seven claims for  relief.  His first claim was that Defendant Wyoming Department of Family  Services violated the Americans with Disabilities Act [ADA], 42 U.S.C.  §§ 12101-12213.  His second claim was that the Department violated the  Family  and Medical Leave Act [FMLA], 29 U.S.C. §§ 2601-2654.  His third, fourth,  and  fifth claims, asserted under 42 U.S.C. § 1983, were against Defendant Shirley R.  Carson, in her individual capacity.  He alleged that Ms. Carson, then director of  the Wyoming Department of Family Services, deprived him of his property and  liberty interests without due process and violated his First Amendment rights of  expression and association.  His sixth and seventh claims, based on state law,  were against both defendants for breach of an implied contract of employment  created by Wyoming government personnel rules and policies and for intentional  infliction of emotional distress.


2
The district court entered an order granting Defendants' motion for  summary judgment in part and denying it in part.  The court granted summary  judgment to Ms. Carson on all claims against her and granted summary judgment  to the Department on the state law claims.  The case went to trial only on the  claims under the ADA and the FMLA.  The jury returned a verdict in favor of the  Department on both claims, and judgment was entered in favor of the  Department.


3
On appeal, Plaintiff challenges the grant of summary judgment on his  claims for deprivation of a liberty interest and breach of contract.  He also  challenges the court's jury instructions regarding the ADA claim, and he asserts a  lack of evidence to support the jury finding on his FMLA claim.

I.

4
Plaintiff was superintendent of the Wyoming Boys' School from December  1985 through April 30, 1996.  On Friday afternoon, March 29, 1996, following  meetings in Casper, Wyoming, Plaintiff returned to his office on the Boys'  School campus, where he had contact with six employees.  On April 4, one of  those employees, Tracy Norris, the education director at the school, reported to  Les Pozsgi, administrator for the Division of Juvenile Services and Plaintiff's  direct supervisor, that he believed that Plaintiff had been drunk when he returned  to school on March 29.  Mr. Pozsgi reported these allegations to Ms. Carson.  On  April 15, Ms. Carson placed Plaintiff on administrative suspension with pay to  allow the Department of Family Services to investigate his alleged violation of  Wyoming's substance abuse policy.  On April 16, Plaintiff submitted a request  for thirty days' sick leave and checked himself into a voluntary alcohol treatment  program in a Wyoming hospital.  Mr. Pozsgi granted the leave request.  On  April 18, Ms. Carson and Mr. Pozsgi attempted to meet with Plaintiff for the  purpose of terminating his employment, but Plaintiff's doctor did not allow the  visit.  On April 22, Ms. Carson sent a certified letter to Plaintiff at the hospital  stating that she was dismissing him from his employment as an "at-will"  employee effective April 30, 1996.  She later testified that she fired him because  he had come to work drunk in violation of the Wyoming substance abuse policy. On April 26, Ms. Carson allegedly contacted the Division of Criminal  Investigation, and the Division broadcast a statewide bulletin indicating that  Plaintiff had checked himself out of rehabilitation and might be suicidal and  dangerous to others.  Plaintiff, in fact, remained in an inpatient treatment  program at that time.

II.

5
We begin with the summary judgment issues.  We review de novo a district  court's grant or denial of summary judgment, and we apply the same legal  standard employed by the district court pursuant to Federal Rule of Civil  Procedure 56(c).  See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996).  In  reviewing such dispositions, we must draw all inferences in favor of the party  opposing summary judgment.  See Trujillo v. University of Colo. Health Sciences  Ctr., 157 F.3d 1211, 1213 (10th Cir. 1998); Curtis v. Oklahoma City Pub. Sch.  Bd. of Educ., 147 F.3d 1200, 1214 (10th Cir. 1998).

A.

6
Plaintiff asserts that Ms. Carson deprived him of his liberty interest by  making false and damaging statements about him "accompanying his dismissal"  or "when terminating his employment."  Appellant's Br. at 37.  He alleges that on  April 26, 1996, while he remained in treatment at the hospital, Ms. Carson  "caused the Division of Criminal Investigation to broadcast[]  statewide . . .  false  and malicious allegations that he had checked out of rehabilitation and was  dangerous."  Appellant's App., Vol. 3 at 697.  The bulletin broadcast indicated  that he might be suicidal and, having recently lost a state job, might "try to go  after state employees."  Id. at 698.  Plaintiff contends that the loss of his job, the  false bulletin "'assassinating his character and reputation,'" and the "'pending  loss of his home and the devastating effect of these events on his family'" forced  him to leave rehabilitation prematurely.  Id.  He also contends that he has not  been able to obtain employment in juvenile corrections since Ms. Carson  terminated him.  See id.  Plaintiff alleges that these actions deprived him of a  liberty interest without due process of law.


7
The Due Process Clause of the Fourteenth Amendment requires that no  state "deprive any person of life, liberty, or property, without due process of  law."  U.S. Const. amend. XIV, § 2.  The Supreme Court has addressed the  nature of the liberty interest protected under this provision, observing that "there  can be no doubt that the meaning of 'liberty' must be broad indeed."  Board of  Regents v. Roth, 408 U.S. 564, 572 (1972).


8
"Without doubt, it denotes not merely freedom from bodily restraint  but also the right of the individual to contract, to engage in any of  the common occupations of life, to acquire useful knowledge, to  marry, establish a home and bring up children, to worship God  according to the dictates of his own conscience, and generally to  enjoy those privileges long recognized . . . as essential to the orderly  pursuit of happiness by free men."


9
Id. (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).  The Court  observed  in dicta that a state might abridge a liberty interest if, in declining to renew an  employment contract, the state made charges of dishonesty or immorality or  imposed "a stigma or other disability that foreclosed [an employee's] freedom to  take advantage of other employment opportunities."  Id. at 573.


10
The Court later clarified the scope of this interest.  In Paul v. Davis, 424  U.S. 693, 708-10 (1976), the Court held that defamation, standing alone, was not  sufficient to establish a claim for deprivation of a liberty interest.  "[T]he  defamation had to occur in the course of the termination of employment."  Id. at  710.  The court has further stated that no constitutional claim can be stated even  where a defendant acts with malice in defaming another.  See Siegert v. Gilley,  500 U.S. 226, 234 (1991).


11
Applying Supreme Court precedent, we delineated a four-part test in Workman v. Jordan, 32 F.3d 475 (10th Cir. 1994), that a plaintiff must satisfy to  demonstrate a deprivation of liberty:


12
First, to be actionable, the statements must impugn the good name,  reputation, honor, or integrity of the employee.  Second, the  statements must be false.  Third, the statements must occur in the  course of terminating the employee or must foreclose other  employment opportunities.  And fourth, the statements must be  published.


13
Id. at 481 (citations omitted); see also Melton v. City of Oklahoma  City, 928 F.2d  920, 926-27 (10th Cir. 1991) (en banc) (holding that elements are not disjunctive  but must all be satisfied).


14
Plaintiff alleges that the Division of Criminal Investigation's defamatory  broadcast that he might be suicidal and dangerous to others occurred in  conjunction with the termination of his employment and therefore abridged his  liberty interest.  The district court held that "plaintiff's allegations do not show  [that] the statements were made in the course of terminating him."  Appellant's  App., Vol. 3 at 702.  Plaintiff, however, asserts that the defamatory statements  imposing a stigma need not be exactly contemporaneous with a dismissal to occur  in the course of the termination of employment.  Plaintiff cites several cases for  this proposition, including Miller v. City of Mission, Kansas, 705 F.2d 368, 373  (10th Cir. 1983) (affirming jury finding of deprivation of liberty interest based  partly on evidence that reasons for termination were announced several days after  dismissal), Campanelli v. Bockrath, 100 F.3d 1476, 1482-83 (9th Cir. 1996)  (rejecting bright-line rule that post-termination statements cannot form basis of  liberty deprivation and holding that statements made one week after termination  were made in course of termination), and Mertek v. Blalock, 983 F.2d 1353, 1363  (6th Cir. 1993) (finding that plaintiff sufficiently alleged deprivation of liberty  interest, in part by showing "roughly contemporaneous" publication of reasons  for ban of plaintiff from city facilities).


15
Timing is certainly one consideration in determining whether stigmatizing  statements are made in the course of the termination of employment.  We agree  with Plaintiff that publication of defamatory statements need not be strictly  contemporaneous with a termination to occur in the course of the termination of  employment.  That the allegedly defamatory statements occurred several days  following the announcement of Plaintiff's termination does not, of itself, defeat  his claim.  Rather, we agree with the Ninth Circuit's common-sense approach  examining the nature of the alleged defamation, as well as its timing, to  determine whether it occurred in the course of the termination.  SeeCampanelli,  100 F.3d at 1483.  Roughly contemporaneous statements about the reasons for  termination are not the same as roughly contemporaneous statements on other  matters.  What is relevant to our analysis is the "manner in which a public  employee is terminated," Miller, 705 F.2d at 373, and the statements made  "incident to the termination."  Siegert, 500 U.S. at 234.  We therefore hold that a  court must examine both the nature and the timing of an allegedly defamatory  statement to determine whether it has been made in the course of an employee's  termination.


16
In this case, the alleged defamation had nothing to do with the reasons for  termination, i.e., Plaintiff's abuse of alcohol on the job in violation of the  Wyoming substance abuse policy, nor did it have any bearing on the manner of  termination. Plaintiff was terminated in a private manner, i.e., by certified letter  dated April 22, 1996.  Ms. Carson's alleged statements, as represented by the  police bulletin, may have reflected that Plaintiff had been terminated, but they  were not about the manner or reasons for his termination.  Instead, they  concerned Plaintiff's potentially violent behavior in the aftermath of termination. While the statements may have injured Plaintiff and may well have affected his  opportunities for future employment, they did not occur in the course of the  termination of employment.


17
Because Ms. Carson's statements were not made in the course of  discharging Plaintiff,1 Plaintiff has failed to  show one of the four essential  elements that establish a deprivation of a liberty interest under Workman, and we  need not address the other three prongs of the Workman test.  We conclude that  the alleged defamation cannot establish a claim cognizable under 42 U.S.C.  § 1983 for deprivation of a constitutional right, and we affirm the district court's  grant of Defendant's motion for summary judgment on this claim.

B.

18
We now turn to the issues raised by the district court's order granting  summary judgment to both defendants on the breach of contract claim.  Plaintiff,  who held his position as superintendent for approximately ten years, argues that  he had a permanent appointment at the Wyoming Boys' School.  He alleges that  the Wyoming Personnel Rules defined his position as a permanent appointment  and established an implied-in-fact contract under Wyoming law.  He then  contends that the State converted his position from a permanent to an "at-will"  appointment by its 1996 amendment to § 9-2-2104(a)(viii) of the Wyoming  Statutes, and he claims that this change in law and his subsequent dismissal as an  "at-will" employee violated the Contract Clause of the United States  Constitution.  The district court determined that any rights Plaintiff may have  enjoyed as an employee of the executive branch of Wyoming's state government,  including any asserted implied contract rights, were created by statute and could  be eliminated by statute.  Based on this conclusion of law, the district court  granted Defendants' motion for summary judgment.  We affirm on different  grounds.


19
Article I, § 10, of the Constitution provides:  "No State  shall . . . pass  any . . . Law impairing the Obligation of  Contracts . . . ."  To prevail on a claim  under this clause, a plaintiff must show that (1) a contractual relationship existed,  (2) the change in law impaired that relationship, and (3) the impairment was  substantial.  See General Motors Corp. v. Romein, 503 U.S. 181, 186 (1992).


20
Nothing in the record nor in the applicable statutes and rules indicates that  Plaintiff had either a permanent appointment or an implied-in-fact contract.  Prior  to its amendment in 1996, the statute at issue provided that the director of the  Department of Family Services had the authority and control to "[a]ppoint and prescribe the duties of officers of [such] institutions" as the Boys' School.  Wyo.  Stat. Ann. § 9-2-2104(a)(viii) (1995).  Effective March 12, 1996, the amended  statute specified that the director shall


21
[a]ppoint and prescribe the duties of the superintendent of the  Wyoming boys' school, the superintendent of the Wyoming girls'  school and the superintendent of the Wyoming youth treatment  center.  Each superintendent shall be under the direct authority and  control of the director and may be removed by the director at any  time without cause.


22
Id. § 9-2-2104(a)(viii) (1996).  It is clear that any appointment made under  the  provisions of the amended section must be an "at-will" appointment.  This  interpretation, however, does not necessarily mean that an appointment under the  provisions of the statutory section prior to amendment was a permanent  appointment.  We find nothing in the language of the former section that accords  Plaintiff permanent status.


23
Plaintiff argues that under the Wyoming Personnel Rules, promulgated  pursuant to § 9-2-1022(a)(xi) of the Wyoming Statutes, he had a right to be  discharged only for just cause after notice and an opportunity to be heard.  The  personnel rules provide that a permanent employee has the right to notice  specifying "[t]he reason(s) and summary of the evidence for dismissal," the  opportunity to respond to the charge(s), and the right to a hearing on the matter. Wyo. Admin. Code, ch. 11, § 3(c)(I).  The rules also provide that non-permanent employees are "at-will employee[s] who [have] no expectation of continued  employment and may be dismissed at any time without cause or reason."  Id. at  ch. 13, § 1.  While the rules set forth the procedures applicable to both groups of  employees, they do not classify employees as permanent or non-permanent. Plaintiff has not demonstrated how the rules accord him permanent status, and we  can find nothing in them that conferred permanent status on him in the  superintendent's position.


24
We therefore conclude that neither the applicable Wyoming statutes nor the  personnel rules provide evidence of an implied contract.  Because Plaintiff has  not established that he was a permanent employee, we affirm the district court's  grant of summary judgment on the breach of contract claim.

III.

25
With respect to Plaintiff's ADA claim, a jury found that Plaintiff's  disability of alcoholism was not a motivating factor in the decision to terminate  him.  Plaintiff challenges the district court's jury instructions on the ADA claim. "We review the district court's decision to give a particular jury instruction for  abuse of discretion and consider the instructions as a whole de novo to determine  whether they accurately informed the jury of the governing law."  United States  v. Cerrato-Reyes, 176 F.3d 1253, 1262 (10th Cir. 1999).

A.

26
Plaintiff asked the court to instruct the jury "that in all cases for purposes  of [the] ADA alcoholism is a disability."  Appellant's App., Vol. 2 at 597. Plaintiff contends that the court's failure to give this instruction left the jury to  decide the legal issue of whether alcoholism is a covered disability under the  ADA.


27
We have held that alcoholism is a disability under the Rehabilitation Act,  29 U.S.C. § 706(8)(C)(v).2  See Williams v. Widnall, 79 F.3d 1003, 1005 (10th  Cir. 1996).  We have also observed in dicta that the status of being an alcoholic  may merit protection under the ADA.  See Nielsen v. Moroni Feed Co., 162  F.3d  604, 609 (10th Cir. 1998).  At the same time, where the disability at issue is  alcoholism, both the Rehabilitation Act and the ADA recognize a dichotomy  between the disability and disability-caused misconduct.  See id. at 608. Although alcoholism may qualify as a disability for purposes of the ADA, an  employer "may prohibit . . . the use of alcohol at the workplace by all  employees"  and "may hold an employee . . . who is an alcoholic to the same  qualification  standards for employment or job performance and behavior that [it] holds other  employees, even if any unsatisfactory performance or behavior is related to  the . . . alcoholism of such employee."  42 U.S.C.  § 12114(c)(1), (4).  ADA  protection, therefore, does not extend to an alcoholic's use of alcohol on the job. We assume for purposes of Plaintiff's argument that alcoholism is a covered  disability,3 but we find no reversible error.


28
Instruction No. 11, which introduces the issue, states in full:


29
It is unlawful for an employer to intentionally discriminate  against a qualified individual with a disability because of that  person's disability.  In this case David Renaud claims that the State  of Wyoming[] intentionally discriminated against him because he has  a disability.  He contends that he was terminated from his  employment because he is an alcoholic.  He contends that he never  used alcohol on the job and never was under the influence of alcohol  while at work.  He contends that the State of Wyoming failed to  reasonably accommodate his disability.  He contends that [the] State  of Wyoming's allegations that he violated its substance abuse policy  are only a pretext for terminating his employment because he has a  disability.


30
The State of Wyoming denies this charge.  It contends that it  did not discriminate against Mr. Renaud because of his disability.  It  also contends that Mr. Renaud's employment was terminated because  of serious misconduct   abuse of alcohol while on the job.  It denies  that Mr. Renaud requested accommodation for his alcoholism and  also denies that it failed to reasonably accommodate his disability.


31
It is your responsibility to decide whether Mr. Renaud has  proven his claim against the State of Wyoming by a preponderance  of the evidence, as that term is defined in these instructions.


32
Appellant's App., Vol. 3 at 727.  Similar language is found in Instruction No.  13a which reads in part:


33
When Mr. Renaud has offered evidence that causes you to  conclude that the State of Wyoming took the action complained of  because of his disability, he is entitled to recover unless the State of  Wyoming proves that it would have taken the same action  concerning Mr. Renaud regardless of his disability. . . .


34
. . . .


35
On the other hand, your verdict should be for the State of  Wyoming if you find that Mr. Renaud has failed to prove that his  disability was a motivating factor in its decision or conduct.  Your  verdict should be for the State of Wyoming if you find that it has  proved that it would have taken the same actions regarding Mr.  Renaud regardless of his disability.


36
Id. at 730-31.


37
Instruction No. 14 tells the jury "to be mindful that the law requires only  that employers not discriminate against an employee because of his disability. An employer may demote, remove, discharge or terminate an employee for any  other non-discriminatory reason, good or bad, fair or unfair."  Id. at 732.  This  instruction explains that Plaintiff may be terminated for misusing alcohol in the  workplace as delineated by 42 U.S.C. § 12114(c)(1).  Likewise, Instruction No.  20a clearly indicates that the disability of alcoholism, but not disability-caused  conduct, is protected:


38
Reasonable accommodation for the disability of alcoholism  requires that an employee be given time off to participate in a  treatment program.


39
The Americans [w]ith Disabilities Act does not protect  alcoholics from the consequences of their misconduct.  Alcoholics  are held to the same standard of performance and behavior as the  employer holds other employees.


40
Id. at 739.  The wording of Instruction No. 23 is also on point:  "If you find that  defendant Wyoming Department of Family Services intentionally discriminated  against David Renaud because of his disability, then you must determine an  amount of money that is fair compensation for his damages."  Id. at 741.  We  conclude that these instructions were sufficient to inform the jury that alcoholism  is a disability under the ADA.  Taken as a whole, the instructions clearly require  the jury to determine not whether alcoholism is a protected disability but whether  Plaintiff's disability was a basis for his discharge.  Accordingly, we hold that the  district court did not abuse its discretion in refusing to give Plaintiff's requested  instruction.

B.

41
Plaintiff also objects to Instruction No. 17 which defines the term  "disability" to mean "a physical or mental impairment that substantially limits  one of the major activities of life, such as caring for oneself, performing manual  tasks, walking, seeing, hearing, speaking, breathing, learning, thinking, or  working."  Id. at 735.  The district court's definition closely tracks the language  of the definition found in the ADA and in the regulations promulgated under the  ADA.  See 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(I). Plaintiff contends that  this instruction suggested that the jury's charge was to determine whether  alcoholism was a covered disability.  Having studied this instruction in the  context of the instructions as a whole, we conclude that the instructions  accurately informed the jury of the governing law and that Instruction No. 17 did  not mislead the jury about the proper sphere of its inquiry.4  Our conclusion is  also influenced by the question posed by the "Special Interrogatory and Verdict  Form."  It asked:  "Did Plaintiff David G. Renaud prove that his disability of  alcoholism was a motivating factor in the State of Wyoming's decision to  terminate his employment?"  Id. at 771.  This question plainly states that Plaintiff  had the disability of alcoholism.  The jury's negative response to the query  indicates that the jury determined that his disability did not motivate the  termination of his employment.  We conclude that the district court did not abuse  its discretion in giving Instruction No. 17.

IV.

42
In the final issue on appeal, Plaintiff claims that there was insufficient  evidence in the record to support the jury's determination that the Department did  not interfere with his rights under the FMLA.  Our review is limited to  determining whether substantial evidence in the record supports the jury's  decision.  See Thunder Basin Coal Co. v. Southwestern Pub. Serv. Co., 104  F.3d  1205, 1212 (10th Cir. 1997).


43
The FMLA provides that employers must allow "eligible employees" up to  twelve workweeks of leave in any twelve-month period if the leave is requested  for one of the purposes enumerated in the statute, including an employee's  "serious health condition that makes the employee unable to perform the  functions of the position of such employee."  29 U.S.C. § 2612(a)(1)(D). Plaintiff argued to the jury that the Department interfered with his FMLA rights  by ending his employment during his leave for the treatment of alcoholism.


44
We have previously held that "[u]nder FMLA, an employee who requests  leave or is on leave has no greater rights than an employee who remains at work." Gunnell v. Utah Valley State College, 152 F.3d 1253, 1262 (10th Cir. 1998)  (citing 29 C.F.R. § 825.216(a)).  We observed that "an employee who requests  FMLA leave would have no greater protection against his or her employment  being terminated for reasons not related to his or her FMLA request than he or  she did before submitting the request."  Id.  The applicable regulation provides  that an employee may be laid off if the action would have been taken in the  absence of FMLA leave.  See 29 C.F.R. § 825.216(a).


45
In this case, Plaintiff was placed on administrative suspension on April 15,  1996, for investigation of alleged violations of Wyoming's substance abuse  policy.  The following day he requested and was granted leave and checked  himself into an alcohol treatment program.  His employment was terminated a  few days later.  Several employees testified that on March 29, 1996, they had  seen Plaintiff unsteady on his feet, that he sounded intoxicated because his  speech was slurred, and that he smelled like alcohol.  See Appellant's App., Vol.  2 at 405, 408, 426, 444.  Several witnesses also testified that Plaintiff had  appeared to be under the influence of alcohol at work on prior occasions.  Seeid. at 412, 429, 441.  Ms. Carson testified that she reviewed the statements of these  employees and, following an investigation she found "very conclusive," made the  decision to terminate Plaintiff because he was drunk.  Id. at 583.   She stated that  she made the decision to terminate without regard to Plaintiff's possible  placement in a treatment facility.  See id. at 584-85.


46
This testimony provides substantial evidence upon which the jury may have  found that Plaintiff was terminated for using alcohol on the job and that he would  have been dismissed regardless of FMLA leave.  We therefore conclude that there  is substantial evidence in the record to support the jury's finding that the  Department did not interfere with Plaintiff's rights under the FMLA.


47
The judgment of the United States District Court for the District of  Wyoming is AFFIRMED.



Notes:


1
 Under the test formulated in Workman, 32 F.3d at 481, the defamatory  statements "must occur in the course of terminating the employee or must  foreclose other employment opportunities" (emphasis added).  At first blush, it  appears that this prong of the test can be met either by statements made in the  course of terminating an employee or, in the alternative, by any other statements  that might foreclose other employment opportunities.  Workman, which was  decided on other grounds, did not examine this question.  In delineating this  prong of the test, Workman cited Paul, 424 U.S. at 710, and Sullivan v.  Stark,  808 F.2d 737, 739 (10th Cir. 1987).  As explained in the foregoing analysis, Paul clearly requires that the defamation occur in the course of the termination of  employment.  Sullivan did not abrogate or minimize this requirement.  While the  language of Workman may be susceptible to another reading, we conclude that  the Workman court did not intend to create a test under which a liberty interest  might be infringed by any defamatory statement that might foreclose future  employment opportunities.


2
 Our determination that alcoholism is a  disability under the Rehabilitation  Act may be relevant to a determination of whether alcoholism is a disability  under the ADA.  See 29 U.S.C. §§ 791(g), 794(d).  "Congress  adopted the  definition of [the] term ['disability'] from the Rehabilitation Act definition of the  term 'individual with handicaps.'  By so doing, Congress intended that the  relevant caselaw developed under the Rehabilitation Act be generally applicable  to the term 'disability' as used in the ADA."  29 C.F.R. pt. 1630, app.  § 1630.2(g).


3
 Several circuits have held that alcoholism is a  disability under the ADA. See, e.g., Mararri v. WCI Steel, Inc., 130 F.3d 1180, 1180 (6th Cir. 1997); Buckley v. Consolidated Edison Co. of New York, 127 F.3d 270, 273 (2d Cir.  1997), vacated en banc on other grounds, 155 F.3d 150 (2d Cir. 1998); Miners v.  Cargill Communications, Inc., 113 F.3d 820, 823 n.5 (8th Cir. 1997); Office of  the Senate Sergeant at Arms v. Office of Senate Fair Employment Practices, 95  F.3d 1102, 1105 (Fed. Cir. 1996); cf. Despears v. Milwaukee County, 63 F.3d  635, 635 (7th Cir. 1995) (noting that the parties did not deny that alcoholism is a  disability under the ADA).  Whether alcoholism is a disability per se may raise  additional issues.  See Burch v. Coco-Cola Co., 119 F.3d 305, 316-17 (5th Cir.  1997) (holding that alcoholism is not a per se disability under the ADA and  evidence that alcoholics, in general, are impaired is inadequate to show the  substantial limitation of one or more major life activities), cert. denied, 522 U.S.  1084 (1998); see also Wallin v. Minnesota Dep't of Corrections, 153 F.3d 681,  686 n.4 (8th Cir. 1998) (citing Burch and requiring that a plaintiff show  impairment of a major life activity), cert. denied, 526 U.S. 1004, 119 S. Ct. 1141  (1999); Buckley, 127 F.3d at 274 (citing Burch and requiring the plaintiff to  demonstrate both "that he was actually addicted . . . and that this  addiction  substantially limited one or more of his major life activities").


4
 Plaintiff argues that this jury instruction may  have confused the jury,  particularly in light of one portion of the closing argument where Defendant's  counsel stated:
So what I submit is the problem here is not some disability,  it's the act of drinking; two different things.  If you don't drink, you  don't get in trouble, you don't have all those problems related to  drinking.
So I ask you to go back there and consider, is alcoholism in  this case even a disability that ought to be talked about under this  law?  He didn't need something to help him get the job done.  It was  something different.
Appellant's App., Vol. 2 at 610.  Standing alone this line of argument could be  confusing and the court may have sustained an objection to it, had such an  objection been raised.  But we cannot agree with Plaintiff that it so "tainted"  Instruction No. 17 that, despite the direction given in the instructions as a whole,  the jury might have based their verdict on a decision that alcoholism was not a  covered disability.


