                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 02-3297
                                 ___________

Ira Longen,                               *
                                          *
              Plaintiff - Appellant,      *
                                          *
Mary Jo A. Jensen-Carter,                 *
Trustee for the Bankruptcy                * Appeal from the United States
Estate of Ira Longen,                     * District Court for the
                                          * District of Minnesota.
              Plaintiff,                  *
                                          *
      v.                                  *
                                          *
Waterous Company,                         *
                                          *
              Defendant - Appellee.       *
                                     ___________

                            Submitted: May 14, 2003

                                Filed: October 20, 2003
                                 ___________

Before MORRIS SHEPPARD ARNOLD, HANSEN, and SMITH, Circuit Judges.
                         ___________

SMITH, Circuit Judge.

      Ira Longen sued his former employer, Waterous Company, alleging that the
terms of his "last chance agreement" violated the Americans with Disabilities Act
("ADA") and the Minnesota Human Rights Act ("MHRA"). On cross motions for
summary judgment, the district court1 denied Longen's claim. Longen then appealed.
We affirm.

                                         I.
      Longen was an employee with Waterous Company from July 23, 1974, until
he was terminated on September 7, 2000. During that time, he had recurring
substance abuse battles, entering chemical dependency treatment five times–in June
of 1993, February of 1994, May of 1995, January of 1996, and June of 1996–while
employed by Waterous.

      Waterous learned of Longen's problems with chemical substances in February
1994. On February 17, 1994, Longen and Waterous entered into an agreement in
which the parties agreed that if Longen successfully completed a treatment program,
then Waterous would allow Longen to return to work without any discipline.
However, in May 1995 Longen relapsed. The parties then entered into a similar–but
more structured–agreement that permitted Longen to return to work if he successfully
completed another inpatient treatment program as well as an extensive aftercare
program.

       Less than six months after exiting the inpatient treatment program, Longen
again relapsed and entered another treatment program. Waterous and Longen entered
into a third agreement, which was deemed by the parties as a last chance agreement
("LCA"). It again permitted Longen to return to work. However, it required him to,
among other things, complete the two and one-half month treatment program and to
"abstain from using any mood altering chemicals, including alcohol." The parties




      1
         The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.


                                        -2-
agreed that if Longen violated any of the terms of the LCA, he would "be subject to
immediate termination."

       Despite this, in June 1996, less than four months after Longen returned to work
following his treatment, Waterous learned that Longen was using cocaine. On June
25, 1996, Waterous suspended Longen for five work days and notified him of its
intent to dismiss him based upon the last chance provision of the January agreement.
On July 2, 1996, however, Longen's union and Waterous negotiated still another
LCA. Under the terms of this agreement, Longen was permitted to return to work
after the completion of his suspension. The terms of that agreement stated: "Future
use of any mood altering chemicals, including alcohol or violation of working rules
generally related to chemical dependency will result in immediate termination of
employment from Waterous Company."

      Four years later–in April 2000–while absent from work because of a workers'
compensation injury, Longen was arrested for driving while intoxicated ("DWI"). In
June 2000 he pleaded guilty to the charge. Four months after the arrest, Waterous
learned of the DWI . Pursuant to the terms of the LCA, Waterous terminated Longen's
employment on September 7, 2000.

       On January 23, 2002, Longen filed suit in Minnesota state court, alleging
claims of wrongful termination under the ADA and MHRA. Upon Waterous's motion,
the case was then removed to the district court. The parties then filed cross-motions
for summary judgment. After hearing oral argument, the district court granted
Waterous's summary-judgment motion and entered judgment dismissing Longen's
claims.




                                         -3-
                                         II.
       We review this grant of summary judgment de novo. Fenney v. Dakota, Minn.
& E. R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003). A court may grant a motion for
summary judgment when there is no genuine issue as to any material fact and "the
moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A
material fact is one, which depending on the applicable substantive law, might affect
the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is genuine "if the evidence is sufficient to allow a reasonable jury
to return a verdict for the non-moving party." Fenney, 327 F.3d at 711 (citing id.).

       In a claim of discriminatory termination under the ADA,2 we apply "the
traditional burden-shifting framework of McDonald Douglas." Id. at 711–12. Under
the McDonald Douglas framework, Longen must first establish a prima facie case of
discrimination. Id. Under the ADA, Longen must show that he "(1) has a 'disability'
within the meaning of the ADA, (2) is a 'qualified individual' under the ADA, and (3)
'suffered an adverse employment action as a result of the disability.'" Id. (citing Duty
v. Norton-Alcoa Proppants, 293 F.3d 481, 490 (8th Cir. 2002)). After he has
established each element of his prima facie case, Waterous must then "rebut the
presumption of discrimination by articulating a legitimate, non-discriminatory reason
for the adverse employment action." Id. (citation omitted). If Waterous does this, then
"the burden of production shifts back to [Longen] to demonstrate that [Waterous's]
non-discriminatory reason is pretextual." Id. (citation omitted).

     In this case, the district court apparently assumed, without deciding, that
Longen had met his prima facie case.3 Because the record on this issue is not fully


      2
        The MHRA parallels the ADA. Fenney, 327 F.3d at 711 n.5. Thus, we
analyze the claims at the same time. Id.
      3
       On appeal Waterous argues that he has not. We need not decide this issue,
because we can affirm on other grounds. African American Voting Rights Legal

                                          -4-
developed, we likewise will assume without deciding that Longen has met his prima
facie case. Therefore, Waterous must offer a legitimate, non-discriminatory reason for
terminating Longen. As proof of its reason, Waterous offered evidence of its various
agreements with Longen as well as the July 1996 LCA. In response, Longen argues
that the LCA–to which Longen agreed and signed–is not a legitimate reason for
terminating Longen because it violates the ADA.

      Longen first argues that the LCA itself violates the ADA because it subjects
Longen to employment conditions that are different from Waterous's other
employees.4 However, all return-to-work agreements, by their nature, impose
employment conditions different from those of other employees. As a result, courts
have consistently found no disability discrimination in discharges pursuant to such
agreements. See, e.g., Mararri v. WCI Steel Inc., 130 F.3d 1180 (6th Cir. 1997);
Fuller v. Frank, 916 F.2d 558 (9th Cir. 1990); McKey v. Occidental Chem. Corp., 956
F.Supp. 1313 (S.D. Tex. 1997); Golson-El v. Runyon, 812 F.Supp. 558 (E.D. Pa.
1993), aff'd, 8 F.3d 811 (3d Cir. 1993) (mem.); see also Nelson v. Williams Field
Services Co., No. 99-8041, available at 2000 WL 743684 (10th Cir. June 9, 2000).
This conclusion only makes sense. The terms to which Longen agreed were supported
by valuable consideration–i.e., that he would not be terminated. Moreover, Longen
has not alleged that he was coerced or was made to sign the LCA under duress.
Rather, he freely signed it. To find now that Waterous cannot enforce the terms of the
LCA would render all such agreements invalid. We decline to do so.




Defense Fund, Inc. v. Villa, 54 F.3d 1345, 1356 (8th Cir.1995).
      4
         Longen argues in his brief that we should apply the analysis of Miners v.
Cargill Comm., Inc., 113 F.3d 820 (8th Cir. 1997). Miners, however, is inapposite.
In that case, Annie Miners was fired because her employer perceived her as being an
alcoholic. Here, Longen was not fired because he was an alcoholic. Instead, he was
fired because he violated the terms of his LCA.

                                         -5-
       Longen next argues that the LCA violates the ADA because it subjects him to
termination for any "future use of any mood altering chemicals," regardless of
whether the use of such chemicals was at his workplace. To support his argument, he
seizes upon the ADA's language, which states that an employer "may require that
employees shall not be under the influence of alcohol . . . at the workplace." 42
U.S.C. § 12114(c). However, this argument completely misses the point. Section
12114(c) refers to the types of permissible restrictions a company may impose upon
all employees at the workplace–regardless of whether they are alcoholics or not.
However, under the ADA there are no restrictions on what type of further constraints
a party may place upon himself.

       Longen placed separate restrictions on his conduct when he signed the LCA.
One of these restrictions was that he would refrain from the "future use of any mood
altering chemicals." Again, these additional restrictions were not gratuitous. Because
of them, Longen was able to continue working at Waterous. Thus, Longen has not
shown that the ADA forbids such agreements.

                                       III.
      Thus, because Longen has failed to establish that Waterous's reason for
dismissing him was pretextual, the judgment of the district court is affirmed.
                     ______________________________




                                         -6-
