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Kozisek v. County of Seward: EMPLOYMENT - requiring inpatient alcohol treatmt not 'regarded as disabled'; no pretext for PTSD; no 1st Amendment violation

1The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
United States Court of Appeals
No. 07-3682
Fredrick T. Kozisek, *
Appellant, **
v. * Appeal from the United States
* District Court for the District
County of Seward, Nebraska; * of Nebraska.
Joe Ruzicka, individually and *
in his capacity as Chairman of *
the Seward County Board, **
Appellees. *
Submitted: June 9, 2008
Filed: August 27, 2008
Before MELLOY, BEAM, and BENTON, Circuit Judges.
BEAM, Circuit Judge.
Fredrick Kozisek appeals the district court's1 grant of summary judgment in
favor of Seward County and the chairman of the Seward County Board (collectively
and hereinafter "county" or "board") in this employment discrimination and civil
rights case. We affirm.
Kozisek began working for the county in 1981 as a weed control officer. In
1994, he applied for and was appointed to the multi-position of County Veterans
Service Officer, Building and Grounds Supervisor, and General Assistance
Administrator (collectively, "CVSO"). Kozisek and the board had a contentious
history about the nature of the CVSO job. He apparently wanted to devote more of
his time and the county's resources to veterans' issues, and less to the other two
positions. Kozisek is a veteran himself, and served in the Vietnam war. Kozisek has
Post Traumatic Stress Disorder (PTSD) from his time in the war, and he testified that
he took medication regularly to help control those symptoms. However, it was not
widely known that Kozisek suffered from PTSD, and Kozisek testified that he did not
talk to anyone outside of his medical providers about it.
On July 22, 2005, Kozisek left work early and began drinking. Later that
evening, an intoxicated Kozisek wielded firearms, killed or wounded some of his
family's farm animals (a pet racoon, ducks, a peacock, and a family dog), and
threatened his wife. Kozisek also had not taken his prescribed medications in the days
preceding July 22. Kozisek was arrested by the Seward County Sheriff the next
morning for making terroristic threats, and for using a firearm to commit a felony.
Based on this incident, the board and Kozisek agreed that he would get a
psychological evaluation and a substance abuse evaluation. Kozisek first met with a
mental health practitioner from the Veterans Administration (VA), Molly Nosbisch.
In a letter to the board, Nosbisch recommended that Kozisek complete inpatient
alcohol treatment, and notified the board that she had arranged for him to be admitted
to the Department of Veterans Affairs residential rehabilitation treatment center on
August 18, 2005. Kozisek did not want to complete inpatient treatment, however, and
instead told the board that he would pursue treatment through the Blue Valley Mental
Health Center. The counselors at Blue Valley agreed that Kozisek needed to complete
alcohol abuse treatment, but recommended outpatient treatment, in addition to
suggesting that Kozisek get PTSD counseling, and attend Alcoholics Anonymous
(AA) meetings.
The board decided to follow Nosbisch's recommendation and require Kozisek
to complete inpatient treatment. The board mailed Kozisek a letter on August 31,
2005, informing him that he had ten days to enroll in an inpatient alcohol treatment
center or lose his job. Kozisek refused. The board sent him another letter, dated
September 20, 2005, noting that it had not received notification about his enrollment
in an inpatient treatment program. This letter did not terminate his employment, but
again threatened to do so, and invited him to a September 27, 2005, closed session
meeting to discuss his continued employment with the county. Kozisek attended this
meeting on September 27, and at that time argued with the board about whether he
needed inpatient treatment. Following the meeting, the board memorialized the
parties' discussions and conclusions in a letter, reiterating its mandate that Kozisek
complete inpatient alcohol treatment. This time, the letter set a date of October 3,
2005, for Kozisek to provide proof that he enrolled in a program.
Instead, Kozisek returned to the VA medical center seeking an opinion from a
doctor that he did not need inpatient alcohol treatment. Kozisek obtained such a letter
from Dr. Padala and provided it to the board. Dr. Padala noted in his letter, dated
September 28, 2005, that Kozisek had already "completed an outpatient program for
substance abuse" at the Blue Valley facility. It is undisputed that Kozisek completed
no such treatment. His "treatment" between July 22, 2005, and September 28, 2005,
consisted of attending AA meetings. On October 4, the board notified Kozisek by
letter that it was terminating his employment for his failure to "follow the treatment
Kozisek brought the current action against the county under the Americans with
Disability Act (ADA), asserting that he was disabled because of the PTSD, and that
the county regarded him as a disabled alcoholic. He also raised claims under 42
U.S.C. 1983 for violations of his First Amendment right to speak on matters of
public concern about veterans' issues, and his due-process-protected property right in
his continued employment with the county. The district court found that there was no
evidence in the record that Kozisek's PTSD substantially impaired any of his major
life activities. The district court presumed that Kozisek made a prima facie claim that
the board regarded him as an alcoholic because his continued employment was
conditioned upon him receiving inpatient alcohol abuse treatment. Nevertheless, the
district court held that the county proffered a legitimate reason for Kozisek's
dismissalKozisek's refusal of inpatient alcohol treatment. The district court also
rejected Kozisek's constitutional claims and granted summary judgment in favor of
the county.
We review the district court's grant of summary judgment de novo. Brannon
v. Luco Mop Co., 521 F.3d 843, 848 (8th Cir. 2008).
To establish a prima facie case under the ADA, Kozisek must show that he was
a disabled person within the meaning of the ADA, that he was qualified to perform the
essential functions of the job, and that he suffered an adverse employment action
under circumstances giving rise to an inference of unlawful discrimination. Miners
v. Cargill Commc'ns, Inc., 113 F.3d 820, 823 (8th Cir. 1997). "[T]he ADA defines
a disability as: (A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment." Christensen v.
Titan Distrib., Inc., 481 F.3d 1085, 1093 (8th Cir. 2007) (quotations omitted).
Once a plaintiff has made out a 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 employers
proffered reason is a pretext for unlawful discrimination. St. Marys Honor Ctr. v.
Hicks, 509 U.S. 502, 507-08 (1993).
Kozisek claims disability status based on two things: his PTSD and that the
county regarded him as an alcoholic. We address the latter claim first. Kozisek
asserts that the board regarded him as an alcoholic as evidenced by its requirement
that he complete inpatient alcohol treatment as a condition of keeping his job. An
employer regards the employee as disabled when "it mistakenly believe[s] that [the
employee's] physical ailments substantially limit[] his ability to work." Chalfant v.
Titan Distrib., Inc., 475 F.3d 982, 989 (8th Cir.), cert. denied, 128 S. Ct. 98 (2007).
The "regarded as" provision was meant to combat "archaic attitudes, erroneous
perceptions, and myths" working to the disadvantage of the disabled or perceived
disabled. Brunko v. Mercy Hosp., 260 F.3d 939, 942 (8th Cir. 2001) (quotations
omitted). Accordingly, "[i]f a restriction is based upon the recommendations of
physicians, then it is not based upon myths or stereotypes about the disabled and does
not establish a perception of disability." Breitkreutz v. Cambrex Charles City, Inc.,
450 F.3d 780, 784 (8th Cir. 2006).
Although not cited by either of the parties, we fail to see how Breitkreutz is not
fatal to Kozisek's "regarded as" prima facie case. The board's insistence upon Kozisek
completing inpatient alcohol treatment was not based upon misconceptions, myths or
stereotypes about his possible drinking problem. Rather, it was based upon, first, a
very serious incident which resulted in criminal charges against Kozisek, and then
2It is uncontested that Kozisek was not interviewed or examined by Dr. Padala
on September 28, 2005. Dr. Padala simply met him in the hallway and provided the
requested "recommendation." It is also uncontested that Dr. Padala's letter contains
erroneous factual underpinningsthat Kozisek had already completed outpatient
alcohol treatment.
most importantly, a licensed mental health therapist's recommendation that Kozisek
complete inpatient alcohol treatment. That Kozisek was able, two months later, to
manipulate2 a physician from the VA into providing a letter opining that outpatient
treatment would be sufficient does not matter. The fact remains that the county based
its decision about Kozisek's "restriction"complete inpatient treatment before
returning to his important public job of assisting veteransupon the recommendation
of a professional substance abuse counselor.
These facts amply distinguish Kozisek's case from Miners, which he principally
relies upon. In Miners, where Cargill fired an employee (Miners) who refused to
attend a chemical dependency treatment program, we reversed the grant of summary
judgment in favor of the employer. Miners worked for a radio station and was
required to sponsor and attend promotions that took place in bars and restaurants.
Through a private investigator, Cargill obtained evidence that Miners had consumed
alcohol at these events and then later drove the company car, contrary to company
policy. The company informed her that she could either complete a chemical
dependency treatment program or be fired. Miners had not been arrested for DUI or
had any other encounters with law enforcement regarding her alcohol use. Nor had
she been evaluated by a professional substance abuse counselor who recommended
treatment. Miners chose not to enter treatment, was fired, and brought an ADA claim,
arguing that her employer regarded her as an alcoholic. We reversed summary
judgment for the employer, holding that Cargill did regard her as an alcoholic, and
absent some evidence that Miners was an alcoholic, Cargill could not argue that it
attempted to accommodate her or had a basis for terminating her for refusing
treatment. Miners, 113 F.3d at 825.
3Kozisek also testified that he had not yet been officially diagnosed with PTSD
when he interviewed for the CVSO position in 1994.
Here, there is evidence that Kozisek needed professional intervention for his
drinking. Kozisek admitted that he regularly attended AA meetings after the July
2005 incident. The counselors at Blue Valley Mental Health recommended that he
complete outpatient treatment. And at least one counselor at the VA recommended
that he complete inpatient treatment. The board's insistence that he fulfill this latter
recommendation before returning to his CVSO job does not violate the ADA's
prohibitions on regarding employees as disabled. Kozisek's regarded as claim fails.
Kozisek also asserts disability discrimination based upon his PTSD. As noted
above, the district court found that there was no evidence in the record that Kozisek's
PTSD substantially impaired any of his major life activities. Kozisek now argues that
it affects his major life activity of thinking. No one seems to dispute that Kozisek has
PTSD, and accordingly, we will assume he can make out a prima facie case on this
claim. Nevertheless, we find that the board articulated a legitimate, nondiscriminatory
reason for firing himbecause he would not complete inpatient alcohol
treatment. Further buttressing the county's claims that this, and not Kozisek's PTSD,
is the real reason that he was fired, is the fact that there is no evidence the county
knew of his PTSD condition. Kozisek testified that he was careful to keep the
condition to himself. It is axiomatic that the county must have known about his
condition before it can be liable for discriminating against him because of that
condition. Although there was some evidence that Kozisek had told members of the
veterans service committee about PTSD symptoms when he first applied for the job
in 1994,3 there is no evidence that anyone on that committee was a member of the
board in 2005. And there is no evidence that the county took action against Kozisek
based upon his PTSD. The record is fairly clear that the county fired Kozisek because
he would not complete inpatient alcohol treatment, and conversely, would have
retained him if he had completed such treatment. Any arguments that this reason was
pretextual are not persuasive. Accordingly, the PTSD claim fails, and we affirm the
district court's grant of summary judgment on Kozisek's ADA claim.
B. First Amendment
A public employee alleging a violation of the right to free speech must show
that the speech in question is entitled to the protections of the First Amendment
because it addresses a matter of public concern. Buazard v. Meridith, 172 F.3d 546,
548 (8th Cir. 1999). Whether an employee's speech addresses a matter of public
concern is determined by the content, form, and context of the speech, and that speech
must relate to some matter of political, social or other community concern. Connick
v. Myers, 461 U.S. 138, 146-48 (1983). Although the First Amendment protects some
expressions related to the speaker's job, it does not protect expressions made as part
of the employee's job duties. Garcetti v. Ceballos, 126 S. Ct. 1951, 1959-60 (2006).
Kozisek claims that he engaged in protected speech when he asked the board
for more money for veterans' issues, and when he requested that the CVSO position
be made full-time. These communications to the board were made pursuant to his
duties as CVSO and were not protected speech. Id. at 1960. And, even assuming that
the speech had protected status, there is no link between Kozisek's speech and his
termination. He was actually successful in his request to spend more time on veterans'
issues, as his position was made a full-time veterans' position approximately one year
prior to the time he was fired. Accordingly, this claim fails.
C. Due Process
To survive summary judgment on his procedural due process claim, Kozisek
must provide evidence that he had a property interesta reasonable and legitimate
expectation of continued employment. Howard v. Columbia Pub. Sch. Dist., 363 F.3d
797, 803 (8th Cir. 2004). Whether he had a constitutionally protected property
interest in his job is dependent upon Nebraska law and the terms of his employment.
Id. Kozisek argues that he had a protected property interest in the CVSO position by
virtue of Nebraska Revised Statute 23-2001 to 23-2009, which provide for the
removal of county officers through judicial proceedings. However, Kozisek was not
a "county officer" within the meaning of these statutes, because the statutory terms
indicate that they only apply to elected county officials, and Kozisek was not elected,
but appointed. He also cites the statutes dealing with the veterans service committee
and the committee's authorization to hire a full or part-time CVSO. Neb. Rev. Stat.
80-407, 80-408. We fail to discern how these statutes create a due-processprotected
property right in the position, as there is no mandate concerning the length
of the CVSO's appointment or a proscription on the county's ability to terminate this
position. See Heinzman v. County of Hall, 328 N.W.2d 764, 768 (Neb. 1983) (noting
that absent legislation, government employees in Nebraska are at-will employees and
finding that employee's "bare allegation of a 'property right'" to continued employment
was insufficient to establish a right to notice and a hearing).
Further, there is evidence that Kozisek considered himself an at-will employee
as stated in the employee handbook. He testified that he felt he could leave at any
time, and admitted that he did not think he was entitled to the CVSO job for any set
period of time. Finally, even assuming that Kozisek did have a property right in his
CVSO position, he received all process due. The board gave him notice by way of the
three letters he receivedall of which outlined the steps Kozisek needed to take to
retain his job. Kozisek was also given the opportunity to be heard at the September
27, 2005, meeting he attended with the board. These actions constituted adequate due
process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985) ("The
essential requirements of due process . . . are notice and an opportunity to respond.").
Kozisek's due process claim fails.
We affirm the district court


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