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Brown v. Casino

Court of Appeal of Iowa

October 2, 2013

PHILLIP M. BROWN, Plaintiff-Appellee/Cross-Appellant,
MYSTIQUE CASINO, Defendant-Appellant/Cross-Appellee.

Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.

An employer appeals the award of damages to an employee on his claim under the Americans with Disabilities Act that he was wrongfully discharged. The employee cross-appeals, claiming the amount of damages was insufficient.

Nicholas J. Kilburg, Robert Hogg, and Patrick M. Roby of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellant.

Matthew L. Noel of The Noel Law Firm, P.C., Dubuque, for appellee.

Heard by Vogel, P.J., and Danilson and Tabor, JJ.


An employer, Mystique Casino, appeals the award of damages to a former employee, Phillip Brown, on his claim that he was a person with a disability, and under the provisions of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a), he had been improperly terminated from his employment. Mystique Casino claims Brown failed to show he had a disability within the meaning of the ADA. Mystique Casino also claims that if Brown had a disability, he failed to show he was discharged because of his disability. Brown cross-appeals, claiming the district court erred by striking the jury's award of compensatory damages and claims the court erred by denying his request for front pay. We find Brown was terminated for failure to submit to a drug test, a non-discriminatory reason. We therefore reverse the decision of the district court, concluding the company's motion for judgment notwithstanding the verdict should have been granted. We dismiss the cross-appeal.

II. Background Facts & Proceedings

In 1980 Brown injured his left leg while working on an oil rig. As a result he has a drop foot, where he cannot lift his left foot up, and wears a leg brace on his left leg. He has taken pain medication, such as narcotic analgesics, for twenty-five to thirty years, but successfully performed jobs as a mechanic, welder, and fabricator.

Brown began working for Mystique Casino in October 1999 as a maintenance laborer.[1] In 2006 a supervisor, Robert Kaesbauer, became aware Brown was taking a narcotic drug, hydrocodone, while on the job. Because of safety concerns, Brown was informed he could not operate any power tools or drive any vehicles off the premises while on the medication. Kaesbauer testified that after about four months Brown told him he was off of the medication and Kaesbauer released him to normal duties. Notwithstanding his representation to Mystique Casino, Brown continued to take his prescription narcotic analgesics while at work.

In February 2010 Brown asked for and received a leave of absence because he was having problems with his left leg.[2] After about four weeks, Brown sought to return to his job, but Mystique Casino informed him he would need a medical release to return. Brown provided a letter signed by his physician, Dr. Mark Fortson, which detailed Brown's prescriptions for hydrocodone, oxycodone, and hydromorphone, but also noting other non-opiate medications were available for pain control. Mystique Casino, believing the narcotics were prescribed for short-term use, stated Brown could not return to the job until he was off his narcotic medications. At the suggestion of Dr. Fortson, Brown and Mystique Casino eventually came to a compromise which prohibited Brown from bringing his narcotic pain medication onto the casino property, but he could use them while away from the job site. Brown returned to work on May 27, 2010.

On June 10, 2010, Brown cut his finger while at work, and reported it to the shift supervisor. In a hurry to leave work when his shift was over, Brown declined to show the injury to the EMT who was just coming to work. When Brown returned to work the next day his immediate supervisor, William Wolfe, insisted that an EMT at the casino look at the injury. Wolfe testified the EMT made the decision that Brown needed to go to Finley Hospital for further medical evaluation as to whether stitches were needed. Brown testified the EMT told him it was not worth a trip to the hospital, but he had to go. Wolfe accompanied Brown to the hospital.

At the hospital, Wolfe stated that under the company's drug and alcohol policy, Brown was required to have a drug test because he had been involved in an accident which resulted in an injury. Brown refused to submit to the drug test. Wolfe and medical personnel informed Brown that the test was only to check for illegal substances, not prescription medications. Brown still refused the drug test. Under the company's drug and alcohol policy, a refusal was considered the same as a positive test result. Mystique Casino terminated Brown from his employment.

Brown filed an action against Mystique Casino claiming that he had a disability, and the company violated the ADA by discharging him based on his disability.[3] In its answer, Mystique Casino asserted Brown was discharged for violating the ...

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