           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0142P (6th Cir.)
                    File Name: 00a0142p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                  ;
                                   
 DENNIS L. MARTIN,
                                   
           Plaintiff-Appellant,
                                   
                                   
                                      No. 99-3263
           v.
                                   
                                    >
 BARNESVILLE EXEMPTED              
                                   
                                   
 VILLAGE SCHOOL DISTRICT

          Defendant-Appellee. 
 BOARD OF EDUCATION,
                                   
                                  1
      Appeal from the United States District Court
     for the Southern District of Ohio at Columbus.
   No. 97-00992—Algenon L. Marbley, District Judge.
                    Argued: March 14, 2000
               Decided and Filed: April 21, 2000
    Before: MERRITT, DAUGHTREY, and MAGILL,*
                  Circuit Judges.




    *
    The Honorable Frank J. Magill, Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.

                                 1
2     Martin v. Barnsville Exempted Village        No. 99-3263      No. 99-3263     Martin v. Barnsville Exempted Village         7
      School District Board of Education                                              School District Board of Education

                    _________________                               drinking problem" based on the Last Chance Agreement he
                                                                    signed after the beer drinking incident at the school. We will
                         COUNSEL                                    assume without deciding that defendant does perceive that
                                                                    plaintiff suffers from alcoholism, a disability, and that
ARGUED: Samuel N. Lillard, MOWERY & YOUELL,                         plaintiff has established a prima facie case of disability. We
Dublin, Ohio, for Appellant. John C. Albert, CRABBE,                then turn to defendant's stated reason for rejecting plaintiff's
BROWN, JONES, POTTS & SCHMIDT, Columbus, Ohio,                      bids. Defendant stated that plaintiff was denied the jobs as a
for Appellee. ON BRIEF: Samuel N. Lillard, MOWERY &                 bus driver and garage worker in 1994 based on the 1991 beer
YOUELL, Dublin, Ohio, for Appellant. John C. Albert,                drinking incident during work hours at an elementary school.
CRABBE, BROWN, JONES, POTTS & SCHMIDT,                              The defendant asserts that the law should not require it to put
Columbus, Ohio, for Appellee.                                       a person guilty of drinking on the job in the driver's seat of a
                                                                    school bus hauling children.
                    _________________
                                                                       The ADA does not protect plaintiff from his own bad
                        OPINION                                     judgment in drinking on the job. The plaintiff cannot force
                    _________________                               defendant to hire him as a school bus driver when there is a
                                                                    serious risk that he may again drink on the job, have an
  MERRITT, Circuit Judge. Plaintiff Dennis L. Martin                accident and kill a group of school children. Any suggestion
appeals the district court's order granting summary judgment        to the contrary is absurd on its face. For a federal court to
in favor of defendant, Barnesville Exempted Village School          interpret the ADA to require a school board to hire as a
District Board of Education. On appeal, plaintiff alleges that      school bus driver a person guilty of drinking on the job and
defendant discriminated against him on the basis of a               thereby run the risk of an accident would raise serious
perceived disability – namely alcoholism – in violation of the      constitutional problems. If an accident should occur and
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.         students were injured or killed, the school board would be
and Ohio Revised Code § 4112. Because the record                    subject to large compensatory and punitive damages and open
demonstrates that plaintiff did not receive an assignment as a      itself to the moral condemnation of the community.
school bus driver because he was caught drinking on the job,        Therefore, even if we assume that plaintiff has established a
no violation of the ADA occurred. We therefore affirm the           prima facie case of discrimination, defendant has articulated
judgment of the district court.                                     a legitimate, non-discriminatory reason for its actions.
  Plaintiff was hired by defendant as a bus driver in 1984. He      Plaintiff has not demonstrated that this stated reason is a
is a member of the union, known as the Barnesville                  pretext for any unlawful discrimination.
Association of Classified Employees, OEA/NEA. In 1991 he              For the foregoing reasons, we affirm the district court.
bid for and was awarded a custodial position with defendant.
Shortly after beginning his custodial duties, Robert Miller, the
president of the school board, observed plaintiff drinking beer
while on the job at an elementary school. When confronted
by Miller, plaintiff denied the allegation and left the building,
even though his shift was not over. Upon completion of an
investigation, the school board recommended that plaintiff be
6       Martin v. Barnsville Exempted Village             No. 99-3263        No. 99-3263     Martin v. Barnsville Exempted Village        3
        School District Board of Education                                                     School District Board of Education

42 U.S.C. § 12102(2). Plaintiff denies that he has a physical                terminated for consuming alcohol at work, leaving his post
or mental impairment and instead relies on either the second                 and for conduct in violation of the stated "drug-free
or third criteria to establish that he is "disabled;" that is,               workplace" policy. Plaintiff ultimately admitted that he had
"having a record of such impairment"     or being "regarded as"              been drinking a beer while on duty on school grounds. After
having such an impairment.3 The district court granted                       intervention by the union, plaintiff was allowed to keep his
summary judgment to defendant because it found that plaintiff                position if he signed a document entitled "Last Chance
had not established that his disability -- whether perceived or              Agreement." The terms of the agreement required plaintiff
real -- "substantially limits one or more major life activities."            (1) to admit to an unspecified "drinking problem;" (2)
While we do not necessarily disagree with the district court's               successfully to complete an approved alcohol rehabilitation
reasoning, we affirm on a different ground.                                  program; (3) to accept a four-week suspension without pay
                                                                             and (4) to submit to alcohol and drug testing upon request for
  This Court has held that there is a distinction between                    two years. Plaintiff signed the agreement and there is no
taking an adverse job action for unacceptable misconduct and                 dispute that he has at all times complied with the terms of the
taking such action solely because of a disability, even if the               Last Chance Agreement. (Plaintiff was never asked to submit
misconduct is "caused" by the disability. Maddox v.                          to a drug test during the two-year period and defendant
University of Tennessee, 62 F.3d 843, 847 (6th Cir. 1995). In                acknowledges that it never had any reason to believe that
Maddox, an assistant football coach at the University of                     plaintiff abused alcohol during that period.)
Tennessee was fired after an arrest for driving while
intoxicated. The coach argued that his alcoholism was a                         In December 1994, plaintiff submitted bids for a part-time
covered disability and that his conduct of driving while                     bus driver position and a part-time bus garage worker
impaired resulted from his disability, thereby precluding the                position. Although plaintiff was the most senior worker to
university from firing him. This court assumed without                       bid for the positions, defendant rejected him, citing the 1991
deciding that alcoholics may be "individuals with a disability"              beer incident. Plaintiff filed a grievance with the union and
for purposes of the ADA. The court held that the ADA                         in August 1995, after a binding arbitration hearing in
specifically provides that an employer may hold an alcoholic                 compliance with the union's collective bargaining agreement
employee to the same performance and behavior standards to                   with defendant, plaintiff was awarded the bus driver and
which the employer holds other employees "even if any                        garage worker positions on which he had bid in December
unsatisfactory performance is related to the alcoholism of                   1994. The arbitrator based his decision solely on the terms of
such employee," thereby clearly distinguishing the issue of                  the bargaining agreement between the union and defendant,
misconduct from one's status as an alcoholic. 42 U.S.C.                      finding that the school board had not demonstrated that
§ 12114(c)(4).                                                               plaintiff posed a safety threat and therefore the seniority
                                                                             provisions of the labor agreement could not be overridden.
  Maddox controls this case. Plaintiff makes much of the fact                Arbitrator's Opinion and Award, Aug. 10, 1995.
that defendant represented throughout the arbitration and
Ohio state court proceedings that plaintiff had an "admitted                   Defendant appealed the arbitrator's decision to the Belmont
                                                                             County Common Pleas Court, which reversed and vacated the
                                                                             labor arbitration award. In the Matter of Barnesville
    3
      Plaintiff stated that he signed the Last Chance Agreement, in which    Exempted Village School Dist. Bd. of Educ. v. Miller, 1997
plaintiff admitted to a "drinking problem," because it was the only way he   Ohio App. LEXIS 5253 (Belmont Cty. 1997). On appeal, the
could keep his job.
4       Martin v. Barnsville Exempted Village              No. 99-3263        No. 99-3263        Martin v. Barnsville Exempted Village              5
        School District Board of Education                                                         School District Board of Education

Ohio Court of Appeals reversed the Court of Common Pleas                      awarded the positions of bus driver and garage worker is moot
and reinstated the arbitrator's award. Barnesville Exempted                   and the only issue before us is whether plaintiff should be
Village School Dist. Bd. of Educ. v. Barnesville Ass'n of                     awarded compensatory and punitive damages, including back
Classified Employees, 123 Ohio App. 3d 272, 704 N.E.2d 36                     pay for the period from December 1994 to February 1998, due
(1997). The Court of Appeals reversed the Court of Common                     to defendant's alleged discrimination.
Pleas, holding that the arbitrator's award must be upheld
unless the decision bears "no connection" with the labor                        To prevail in a disability discrimination case, plaintiff must
contract. 123 Ohio App. 3d at 276, 704 N.E.2d at 38. The                      present either direct evidence of discrimination or present a
Court of Appeals found that the arbitrator carefully weighed                  prima facie case of discrimination. To establish a prima facie
the competing concerns of safety and seniority and the state                  case under the Americans with Disabilities Act, plaintiff must
court could not overrule the decision simply because it                       show: (1) he was "disabled" under the ADA; (2) he was
disagreed with the outcome. Id. Defendant appealed to the                     otherwise qualified to perform the essential functions of the
Ohio Supreme Court, which did not allow the discretionary                     job; (3) he suffered an adverse employment action and (4) a
appeal. Barnesville Exempted Village School Dist. Bd. of                      nondisabled person replaced him. Monette v. Electronic Data
Educ. v. Barnesville Ass'n of Classified Employees, 81 Ohio                   Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). Once the
St. 3d 1421, 688 N.E.2d 1046 (1998). Plaintiff  was awarded                   plaintiff establishes a prima facie case, the burden shifts to the
the positions he sought in December 19941 and began his                       employer to articulate a legitimate, nondiscriminatory reason
duties in February 1998. He was not awarded back pay or                       for the adverse employment action. The burden then shifts
any other remuneration for lost wages or benefits.                            back to plaintiff to demonstrate that the employer's stated
                                                                              reason is a pretext for discrimination.2 McDonnell Douglas
   Plaintiff filed this suit under the federal and state disability           Corp. v. Green, 411 U.S. 792 (1973).
discrimination laws in September 1997, during the pendency
of the arbitration proceedings. Both parties have filed briefs                  The ADA provides that "[n]o covered entity shall
asserting that the arbitration proceeding under the collective                discriminate against a qualified individual with a disability
bargaining agreement does not bar our review of plaintiff's                   because of the disability of such individual in regard to job
federal discrimination claim. They cite Wright v. Universal                   application procedures, job training, and other terms,
Maritime Serv. Corp., 525 U.S. 70 (1998) (terms of collective                 conditions, and privileges of employment." 42 U.S.C.
bargaining agreement must contain "clear and unmistakable"                    § 12112(a). The term "disability" is defined as:
language waiving specific federal statutory rights) and Bratten
v. SSI Servs., Inc. 185 F.3d 625 (6th Cir. 1999)(same). We                      1. a physical or mental impairment that substantially
therefore do not decide the res judicata issue. We note that                    limits one or more major life activities;
because plaintiff was subsequently awarded the positions he
sought in his federal complaint as a result of the arbitration                  2. a record of such impairment; or
proceedings, plaintiff's request in his complaint that he be
                                                                                3. being regarded as having such an impairment.

    1
      During the pendency of the arbitration proceedings and subsequent           2
state court proceedings, plaintiff continued to bid on available bus driver        Both federal and Ohio disability discrimination actions require the
and garage worker positions when they became available. His bids were         same analysis. Little Forest Med. Ctr. V. Ohio Civ. Rights Comm'n, 61
rejected each time.                                                           Ohio St. 3d 607, 575 N.E.2d 1164, 1167 (1991).
