Zenor v. El Paso Healthcare ( 1999 )


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  •                         Revised May 28, 1999
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 98-50063
    TOM ZENOR,
    Plaintiff-Appellant,
    versus
    EL PASO HEALTHCARE SYSTEM, LIMITED,
    doing business as Columbia Medical
    Center-East; COLUMBIA MEDICAL CENTER-EAST,
    Defendants-Appellees.
    Appeal from the United States District Court for the
    Western District of Texas
    May 24, 1999
    Before GARWOOD, BARKSDALE, and STEWART, Circuit Judges.
    GARWOOD, Circuit Judge:
    Plaintiff-appellant Tom Zenor (Zenor) appeals the district
    court’s grant of judgment as a matter of law in favor of his former
    employer, Vista Hills Medical Center, now defendant-appellee El
    Paso    Healthcare   Ltd.,   d/b/a/   Columbia   Medical   Center-East
    (Columbia).    We affirm.
    Facts and Proceedings Below
    In 1991, Columbia hired Zenor to work as a pharmacist in the
    pharmacy at its Columbia Medical Center-East hospital.        When Zenor
    began his employment, he received an employment manual expressing
    the   at-will   nature    of   his   employment   and   disclaiming   any
    contractual obligations between the employer and employee. Zenor
    also received a copy of Vista Hill’s then-existing drug and alcohol
    policy.    In 1993, Zenor received a copy of Columbia’s Drug-
    Free/Alcohol-Free Workplace Policy (the Policy), which was in
    effect at all times relevant to this case.
    In 1993, Zenor became addicted to cocaine.        Between 1993 and
    1995, Zenor injected himself with cocaine as many as four to five
    times a week.   He also smoked marijuana on three or four occasions
    and more frequently used tranquilizers to offset the cocaine’s
    effects. Despite his drug use, Zenor remained a generally adequate
    employee and usually received favorable employment evaluations.
    However, his evaluation for the year ended July 8, 1994, discussed
    with Zenor in October 1994, was not favorable, his performance was
    rated “below average,” and he was placed in a probationary status
    for two months with the admonishment that discharge was possible if
    insufficient improvement were noted.      Zenor successfully completed
    the probationary status.       The record does not show any subsequent
    annual evaluation.       Zenor testified he never used drugs at work,
    nor came to work under the influence of drugs.             Columbia was
    unaware of Zenor’s addiction until August 15, 1995.
    Zenor had been working the night shift at the pharmacy.         When
    Zenor left work on August 15, 1995, at approximately 8:30 a.m., he
    2
    injected himself with cocaine. As Zenor prepared to return to work
    that night, he became dizzy and had difficulty walking. Suspecting
    that he was still impaired from the morning’s cocaine injection,
    Zenor called the pharmacy director, Joe Quintana (Quintana), and
    stated that he could not report to work because he was under the
    influence of cocaine.         During the conversation, Quintana asked
    whether     Zenor   would    take   advantage       of   Columbia’s    Employee
    Assistance    Program,      “ACCESS.”       Zenor   replied   that    he   would.
    Quintana then stated that he was on vacation, and instructed Zenor
    to contact Quintana’s supervisor, Paschall Ike (Ike).
    Zenor spoke to Ike, who was also on vacation and told Zenor to
    call his (Zenor’s) own doctor.              Zenor then called his personal
    physician, who arranged for Zenor to receive emergency treatment
    that evening.       Zenor stayed overnight at R.E. Thomason General
    Hospital.    The next morning, Zenor was transferred to the El Paso
    Alcohol and Drug Abuse Service Detox Center, where he remained
    hospitalized for nine days.
    On August 23, while still at the Detox Center, Zenor became
    concerned about losing his job.         Zenor and one of his Detox Center
    counselors, Pete McMillian (McMillian), contacted Yolanda Mendoza
    (Mendoza), Columbia’s Human Resources Director. This was the first
    time Zenor had contacted Columbia since his conversation with Ike
    eight days earlier.      Nobody at Columbia knew where Zenor had been
    since the night of August 15.
    Zenor told Mendoza that he wished to enter a rehabilitation
    3
    program and asked her whether his job would be secure until he
    returned.   Although the evidence is disputed, there is evidence
    that Mendoza assured Zenor that his job would be secure until he
    completed the program.     Mendoza then told McMillan that Zenor was
    eligible for a twelve-week leave of absence under the Family
    Medical Leave Act (FMLA), 29 U.S.C. § 2601 et. seq.             Later that
    afternoon, McMillian retrieved from Mendoza the paperwork necessary
    for Zenor to take FMLA leave.        Zenor completed the paperwork.    The
    next day, August 24, Zenor checked into an independent residential
    rehabilitation     facility,   Landmark    Adult    Intensive   Residential
    Services Center (Landmark).      Landmark was not owned or operated by
    Columbia and was not part of its ACCESS program.
    After consulting with Columbia’s lawyers, Mendoza and Quintana
    decided to terminate Zenor’s employment.           On September 20, 1995,
    Mendoza, Quintana, and ACCESS director Joe Provencio had a meeting
    with Zenor, his Landmark counselor, and Landmark’s Director of
    Adult Treatment Services Dorrance Guy (Guy).          Zenor was told that
    he would remain an employee of Columbia until his medical leave
    expired, and then he would be terminated.
    Zenor protested that Columbia could not fire him because the
    Policy stated that employees who completed rehabilitation would be
    returned to work.     Zenor also argued that he had been told if he
    “self-reported” his addiction he would not be fired.               Mendoza
    explained   that   Columbia    was   concerned     because   pharmaceutical
    4
    cocaine would be readily available to Zenor in the pharmacy, and
    therefore Columbia would not allow Zenor to return to work.
    Zenor offered to transfer to a day shift where he could be
    monitored, or to a satellite pharmacy where pharmaceutical cocaine
    would not be available.      Columbia rejected these suggestions.            The
    next day Guy wrote a letter to Provencio calling Columbia’s action
    unfair,   and    contrary   to   Guy’s       interpretation   of   the   Policy.
    Columbia did not respond to the letter.
    Zenor completed the residential portion of his treatment
    program and was released from Landmark on October 9, 1995.                    On
    October 18, Zenor met with Mendoza and again asked to keep his job.
    Mendoza   told    Zenor   that   his   termination     stood.      Zenor   then
    requested that Mendoza write an official letter regarding his
    termination, in order to assist Zenor in continuing his medical
    benefits.
    Zenor later sued Columbia, alleging that he was fired in
    violation of the Americans with Disabilities Act (ADA) and the
    Texas Commission on Human Rights Act (TCHRA).             Zenor also alleged
    claims of fraud, breach of contract, promissory estoppel, and
    intentional infliction of emotional distress.
    Following discovery, Columbia moved for summary judgment. The
    district court granted summary judgment for Columbia on Zenor’s
    intentional infliction of emotional distress claim, but denied
    summary judgment on the other claims.            The case proceeded to trial
    on the remaining claims.         At the conclusion of Zenor’s case-in-
    5
    chief, Columbia moved for judgment as a matter of law.                The
    district court granted Columbia judgment as a matter of law on
    Zenor’s disability discrimination, fraud, and breach of contract
    claims.     Only Zenor’s promissory estoppel claim was submitted to
    the jury.
    The jury found for Zenor on the promissory estoppel claim, and
    awarded him substantial damages, including damages for past lost
    earnings, future lost earnings, and mental anguish.               Columbia
    renewed its motion for judgment as a matter of law.        The district
    court granted Columbia’s renewed motion, holding that there was
    insufficient evidence to support two elements of the promissory
    estoppel claim:    the existence of any promise altering the at-will
    relationship or foreseeable and reasonable reliance by Zenor.
    Zenor appeals and in this Court challenges only the dismissal of
    his ADA, breach of contract, and promissory estoppel claims.1
    Discussion
    I.   The ADA
    The ADA, 42 U.S.C. § 12101 et. seq., prohibits an employer
    from    discriminating   against   a    “qualified   individual   with   a
    1
    Zenor does not raise his TCHRA claim on appeal. The TCHRA
    claim is analogous to the ADA claim, and generally would be treated
    similarly. See Talk v. Delta Air Lines, Inc., 
    165 F.3d 1021
    (5th
    Cir. 1999). We are pointed to nothing under the Texas law which
    would in this appeal authorize a different disposition of the TCHRA
    claim than of the ADA claim. Hence we do not separately address
    the TCHRA claim.
    6
    disability” on the basis of that disability.            42 U.S.C. § 12112(a).
    To establish a prima facie discrimination claim under the ADA, a
    plaintiff must prove:      (1) that he has a disability; (2) that he
    was qualified for the job; (3) that he was subject to an adverse
    employment decision on account of his disability.                    Robertson v.
    Neuromedical     Center,   
    161 F.3d 292
    ,   294     (5th   Cir.    1998)    (per
    curiam).   See also Burch v. Coca-Cola Co., 
    119 F.3d 305
    , 320 (5th
    Cir. 1997); Robinson v. Global Marine Drilling Co., 
    101 F.3d 35
    , 36
    (5th Cir. 1996).
    At the close of Zenor’s case-in-chief, the district court
    found insufficient evidence to support the ADA claim and granted
    Columbia’s motion for judgment as a matter of law.              On appeal, the
    parties raise three separate questions with respect to the ADA
    claim:     (1)   whether    Zenor    was    disqualified      from     the    ADA’s
    protection because he was a “current user” of illegal drugs at the
    relevant   time,    (2)whether      Zenor   was   an     otherwise      qualified
    individual, and (3)whether Zenor established that he suffered from
    a disability.
    This Court reviews a judgment as a matter of law de novo.                  See
    
    Burch, 119 F.3d at 313
    .     Judgment as a matter of law is proper only
    where "there is no legally sufficient evidentiary basis for a
    reasonable jury to find for that party on that issue.”                   Fed. R.
    Civ. P. 50(a)(1).     This Court reviews the record in the light most
    favorable to the party opposing the motion.               
    Burch, 119 F.3d at 7
    313.
    The district court correctly granted judgment in favor of
    Columbia.     First,    Zenor   is   excluded    from   the   definition   of
    “qualified individual” under the ADA because he was a current user
    of illegal drugs.      Similarly, due to Zenor’s cocaine use, he was
    not    otherwise    qualified    for       the   job    of    a   pharmacist.
    Alternatively, regardless of whether Zenor was a current user of
    illegal drugs, Zenor failed to prove that he was disabled within
    the meaning of the statute.
    The first issue is whether Zenor was “currently engaging in
    the illegal use of drugs” at the time the adverse employment action
    was taken. 42 U.S.C. § 12114 specifically exempts current illegal
    drug users from the definition of qualified individuals.               See 42
    U.S.C. § 12114(a) (“For purposes of this title, the term ‘qualified
    individual with a disability’ shall not include any employee or
    applicant who is currently engaging in the illegal use of drugs,
    when the covered entity acts on the basis of such use.”).             In other
    words, federal law does not proscribe an employer’s firing someone
    who currently uses illegal drugs, regardless of whether or not that
    drug use could otherwise be considered a disability.              The issue in
    this case, therefore, is whether Zenor was a “current” drug user
    within the meaning of the statute.
    As a threshold matter, this Court must determine the proper
    time at which to evaluate whether Zenor was “currently engaging in
    8
    the illegal use of drugs.”    Zenor urges this Court to look to the
    date his employment status officially ended:    November 24, 1995.
    The Second Circuit adopted this approach in Teahan v. Metro-North
    Commuter R.R. Co., 
    951 F.2d 511
    (2d Cir. 1991).      Teahan was an
    alcoholic who had missed an extensive amount of work due to his
    alcoholism.   On December 28, 1987, Metro-North wrote a letter
    informing Teahan that his employment was terminated.      That same
    day, before receiving the termination letter, Teahan voluntarily
    entered a rehabilitation program. 
    Id. While Teahan
    was in the
    rehabilitation program, Metro-North initiated procedures to fire
    Teahan pursuant to its collective     bargaining agreement with the
    International Brotherhood of Electrical Workers (IBEW).    However,
    the disciplinary procedures were not complete on January 28, 1988,
    when Teahan completed the rehabilitation program.   Pursuant to its
    agreement with IBEW, therefore, Metro-North permitted Teahan to
    return to work temporarily.   Metro-North finally terminated Teahan
    on April 11, 1989. 
    Id. Teahan sued
    Metro-North, alleging that his dismissal violated
    the Rehabilitation Act.2   Teahan alleged that his absenteeism was
    2
    The Rehabilitation Act is considered generally as a
    predecessor to the ADA, and cases under the Rehabilitation Act are
    relevant to the ADA.         See, e.g., Johnson v. Gambrinus
    Company/Spoetzl Brewery, 
    116 F.3d 1052
    , 1060 n.4 (5th Cir. 1997)
    (citing 36 Fed. Reg. 35544, 35545 (1991)). But see Washington v.
    HCA Health Services of Texas, Inc., 
    152 F.3d 464
    , 470 n.9 (5th Cir.
    1998) (“A case decided under the Rehabilitation Act is not
    controlling over the legislative history and administrative
    guidelines of the ADA. . . .”).
    9
    caused   solely   by   his   alcoholism;   since   the   Second    Circuit
    considered alcoholism a handicap under the Rehabilitation Act,
    Teahan alleged that Metro-North fired him solely by reason of his
    handicap.   Like the current ADA, the Rehabilitation Act did not
    protect “an alcoholic whose current use of alcohol prevents such
    individual from performing the duties of the job in question.” See
    
    Teahan, 951 F.2d at 51
    n.1 (discussing 1990 Amendments to the
    Rehabilitation Act of 1973, 29 U.S.C. § 794, § 706(8)).           The case
    therefore turned on whether Teahan was a current abuser of alcohol
    at the relevant time.
    Metro-North asked the court to consider Teahan’s status as a
    current alcohol abuser on December 28, 1987, at which time Metro-
    North began procedures to fire Teahan, although it was legally
    unable to do so until April 11, 1989.      See 
    Teahan, 951 F.2d at 51
    7.
    The Second Circuit disagreed, and decided instead to focus on the
    date on which Teahan was actually fired.       The court reasoned that
    the word “current” within the statute prohibited an employer from
    firing an employee based on past substance abuse problems that the
    employee had overcome. That court feared that Metro-North’s theory
    would create a loophole which would expose recovering substance
    abusers to retroactive punishment.      Therefore, the court looked to
    the April 11, 1989, actual termination date to determine whether
    the drug use was current.     Id.; accord, Dauen v. Board of Fire and
    Police Commissioners of the City of Sterling, Ill., 
    656 N.E.2d 427
    10
    (Ill. App. Ct. 1995) (following Teahan); D’Amico v. City of New
    York, 
    132 F.3d 145
    (2d Cir. 1998).
    This Court has already, at least implicitly, rejected the
    Second Circuit’s approach.3        See McDaniel v. Mississippi Baptist
    Medical Center, 
    877 F. Supp. 321
    (S.D. Miss. 1995) (interpreting
    current user provision under the ADA), aff’d 
    74 F.3d 1238
    (5th Cir.
    1995) (table)4.       McDaniel was a recovered substance abuser who
    worked as an adolescent marketing representative for a substance
    abuse recovery program.      On or around September 2, 1992, McDaniel
    voluntarily entered a rehabilitation program after suffering a
    relapse. On September 1, the day before McDaniel entered the
    program, McDaniel’s employer notified him that he would not return
    to   his    current   position   but   might   be   transferred   within   the
    company. The employer subsequently fired McDaniel on September 20,
    1992.      See 
    id. at 324-26.
    McDaniel argued that he was not a current drug user on
    September 20, the date he was fired, and therefore he was protected
    3
    We note that our disagreement with the Teahan case is only
    with the narrow aspect of identifying the relevant date by which to
    determine whether an employee is a current user of illegal drugs.
    4
    On the appeal of the plaintiff McDaniel, this Court, in an
    unpublished opinion issued December 8, 1995, affirmed “essentially
    on the authorities cited and analysis made by the district court”
    in its opinion. McDaniel v. Mississippi Baptist Medical Center,
    No. 95-60038 (5th Cir. Dec. 8, 1995). As this Court’s opinion,
    though unpublished, was issued before January 1, 1996, it is
    precedential and binding on this panel. 5th Cir. R. 47.5.3.
    11
    by the ADA.5     The court disagreed, finding that the relevant
    adverse employment action was conveyed to McDaniel on September 1,
    before he entered the rehabilitation program.          See 
    id. At that
    time, McDaniel was a current user of illegal drugs.          Id.6    See also
    Grimes v. U.S. Postal Serv., 
    872 F. Supp. 668
    , 675 (W.D. Mo. 1994)
    (rejecting actual termination date as relevant point of inquiry
    where plaintiff had been arrested for drug possession in January
    but termination was not finalized until April).
    Similarly, the relevant adverse employment action in this case
    occurred on September 20, 1995, when Quintana and Mendoza informed
    Zenor that he would be terminated upon the expiration of his
    medical leave.       We do not share the Second Circuit’s fear that
    considering    the    notification   date,   rather   than     the    actual
    termination date, creates a loophole by which employers can punish
    recovered addicts. There is nothing to suggest that Columbia was in
    any way punishing Zenor.      Instead, Columbia was carrying out its
    rational and legally sound decision not to employ illegal cocaine
    users in its hospital pharmacy.
    Looking to the notification of termination date provides a
    fair remedy both to the employer and employee.        Otherwise, in this
    case, Columbia would effectively be penalized for allowing Zenor to
    5
    McDaniel in fact argued that he fell within the statute’s safe
    harbor, discussed infra.
    6
    We observe that neither the district court’s nor this Court’s
    opinion in McDaniel cites Teahan.
    12
    take a medical leave of absence rather than terminating him right
    away.    Such a ruling would encourage employers in Columbia’s
    position to hasten effectuation of employment decisions, which
    could have adverse effects for employees who would benefit from
    remaining in an employee status, such as by retaining employer-
    provided health and insurance benefits, during their recovery
    programs.
    Zenor suggests that he did not know with certainty whether he
    would   be   fired   on   September   20.   However,   this   argument   is
    untenable. Columbia representatives undisputably told Zenor he was
    being terminated September 20. Indeed, Zenor’s counsel argued such
    to the jury in his closing argument: “They came to the Landmark
    Center on September 20th of 1995, and they told him, Mr. Zenor, we
    know we’ve made some promises, but we’re going to fire you anyway.”
    Zenor admits in his testimony that at this September 20 meeting
    “they said they were planning to terminate me.”          Zenor’s witness
    Guy, Landmark’s director present at the meeting on Zenor’s behalf,
    testified on direct examination that at the meeting Columbia’s
    “Mrs. Mendoza repeated the fact that he [Zenor] would not be taken
    back on staff there upon completion of the program” and that he
    protested but the meeting “broke up with Tom [Zenor] was still not
    going back to Columbia.”       On cross-examination, Guy agreed “there
    was no doubt in your mind at the end of that meeting on September
    20th, that Columbia intended to fire Mr. Zenor.”              Furthermore,
    Guy’s letter dated September 21, written on Zenor’s behalf and
    13
    calling     Columbia’s       action    unfair,      also    reflects     that    Zenor
    understood that he was being fired.
    Nonetheless, Zenor persists in disputing that he understood
    the meaning of those statements.              Zenor testified that although he
    was told on September 20 that he would be fired, he retained “the
    impression” that he “might” get his job back because “she [Mendoza]
    didn’t say it was written in stone at that point that I might be,
    you know.      She didn’t say, you definitely will not get your job
    back.”      Such      speculation      or    confusion      on   Zenor’s      part    was
    unreasonable and cannot be attributed to any action or inaction by
    Columbia.      Finally, Zenor suggests that he was surprised and
    “emotionally     destroyed”       to   receive      his    termination       letter    on
    November 24.       This is likewise legally unavailing in light of the
    foregoing and the undisputed evidence that Mendoza wrote that
    letter at Zenor’s request, in order to help Zenor                       continue his
    health care benefits.
    Columbia decided to terminate Zenor on or before September 20,
    1995, and      that    decision     was     adequately     conveyed     to    Zenor    on
    September 20, 1995. The relevant employment action for Zenor’s ADA
    case thus occurred on September 20, 1995.                  Therefore, the question
    is whether Zenor, who had used cocaine on August 15, 1995, was
    currently engaging in the illegal use of drugs when Columbia
    informed him on September 20, 1995, of its decision to terminate
    him.     We conclude, as a matter of law, that he was.
    Under   the    ADA,    “currently”        means    that   the   drug    use    was
    14
    sufficiently recent to justify the employer’s reasonable belief
    that the drug abuse remained an ongoing problem.       See 143 Cong.
    Rec. H 103-01 (1997).     Thus, the characterization of “currently
    engaging in the illegal use of drugs” is properly applied to
    persons who have used illegal drugs in the weeks and months
    preceding a negative employment action. Shafer v. Preston Memorial
    Hospital Corp., 
    107 F.3d 274
    , 278 (4th Cir. 1997);         Collings v.
    Longview Fibre Co., 
    63 F.3d 828
    (9th Cir. 1995); McDaniel.
    In McDaniel, the district court held that an individual who
    had used drugs six weeks prior to being notified of his termination
    was not protected by the ADA.      Accord, Baustian v. Louisiana, 
    910 F. Supp. 274
    , 276-77 (E.D. La. 1996) (finding plaintiff who had used
    drugs seven weeks before termination to be a current drug user),
    reconsideration denied, 
    929 F. Supp. 980
    (E.D. La. 1996).           The
    Fourth and Ninth Circuits have similarly concluded that persons who
    had used illegal drugs in the weeks and months prior to being fired
    from their jobs were current drug users for purposes of the ADA.
    See Shafer v. Preston Memorial Hospital Corp., 
    107 F.3d 274
    , 278
    (4th Cir. 1997);    
    Collings, 63 F.3d at 833
    .    “Therefore, the fact
    that the employees may have been drug-free on the day of their
    discharge is not dispositive.”     
    Id. In Shafer,
      the   Fourth   Circuit   interpreted   the   phrase
    “currently engaging in the illegal use of drugs” to encompass a
    woman who had used illegal drugs approximately three weeks before
    15
    she was fired from her job, and had in the interim enrolled in a
    rehabilitation program. The plaintiff in that case argued that the
    term current should mean, “at the precise time,” or “at the exact
    moment.”     
    Id. at 277.
      The    Fourth    Circuit   rejected   that
    interpretation. The term “currently,” when modifying the phrase
    “engaging in the illegal use of drugs” should be construed in its
    broader sense, “mean[ing] a periodic or ongoing activity in which
    a person engages (even if doing something else at the precise
    moment) that has not yet permanently ended.”        
    Shafer, 107 F.3d at 278
    .    Indeed, “the ordinary or natural meaning of the phrase
    Id.     Thus, the 
    plaintiff who had
    engaged in illegal drug use three weeks before her termination was
    currently engaging in illegal drug use at the time she was fired.
    These holdings reflect Congress’s unambiguous intent that
    “[t]he [current user] provision is not intended to be limited to
    persons who use drugs on the day of, or within a matter of days or
    weeks before, the employment action in question.”         H.R. Rep. No.
    101-596, at 64 (1990) (emphasis added).        See also 143 Cong. Rec. H
    103-01 (1997) (“Current illegal use of drugs means illegal use of
    drugs that occurred recently enough to justify a reasonable belief
    that a person’s drug use is current or that continuing use is a
    real and ongoing problem.”).
    16
    The EEOC Compliance Manual on Title I of the ADA also supports
    this interpretation.
    “‘Current’ drug use means that the illegal use of drugs
    occurred recently enough to justify an employer’s
    reasonable belief that involvement with drugs is an on-
    going problem. It is not limited to the day of use, or
    recent weeks or days, in terms of an employment action.
    It is determined on a case-by-case basis.”   EEOC-M-1A
    Title VIII § 8.3 Illegal Use of Drugs (emphasis added).
    Additionally, the Second Circuit has suggested several factors
    which courts should examine to determine whether a person is a
    current substance abuser, including “the level of responsibility
    entrusted to the employee; the employer’s applicable job and
    performance   requirements;   the    level    of   competence   ordinarily
    required to adequately perform the task in question; and the
    employee’s past performance record.”         See 
    Teahan, 951 F.2d at 520
    ;
    
    D’Amico, 132 F.3d at 150
    .      Rather than focusing solely on the
    timing of the employee’s drug use, courts should consider whether
    an employer could reasonably conclude that the employee’s substance
    abuse prohibited the employee from performing the essential job
    duties.   See 
    Teahan, 951 F.2d at 520
    .
    Zenor admits to having used cocaine as much as five times a
    week for approximately two years and to having been addicted.          On
    September 20, 1995, Zenor had refrained from using cocaine for only
    five weeks, all while having been hospitalized or in a residential
    program. Such a short period of abstinence, particularly following
    such a severe drug problem, does not remove from the employer’s
    17
    mind a reasonable belief that the drug use remains a problem.
    Zenor’s position as a pharmacist required a great deal of care and
    skill, and Zenor admits that any mistakes could gravely injure
    Columbia’s patients.         Moreover, Columbia presented substantial
    testimony    about    the    extremely   high   relapse   rate     of   cocaine
    addiction.       Zenor’s own counselors, while supportive and speaking
    highly of Zenor’s progress, could not say with any real assurance
    that     Zenor    wouldn’t   relapse.        Finally,   Columbia    presented
    substantial evidence regarding the on-going nature of cocaine-
    addiction recovery.      The fact that Zenor completed the residential
    portion of his treatment was only the first step in a long-term
    recovery program.      Based on these factors, Columbia was justified
    in believing that the risk of harm from a potential relapse was
    significant, and that Zenor’s drug abuse remained an ongoing
    threat.
    Nonetheless, Zenor argues that because he voluntarily enrolled
    in a rehabilitation program, he is entitled to protection under the
    ADA’s “safe harbor” provision for drug users.              The safe harbor
    provides an exception to the current user exclusion of 42 U.S.C. §
    12114(a) for individuals who are rehabilitated and no longer using
    drugs.    See 42 U.S.C. § 12114(b):
    “(b) Rules of construction. Nothing in subsection (a)
    shall be construed to exclude as a qualified individual
    with a disability an individual who—
    “(1) has successfully completed a supervised
    drug rehabilitation program and is no longer
    engaging in the illegal use of drugs, or has
    18
    otherwise been rehabilitated successfully and
    is no longer engaging in such use; [or]
    “(2)   is  participating   in  a   supervised
    rehabilitation program and is no longer
    engaging in such use . . . .”
    However,    the   mere   fact    that   an   employee      has   entered   a
    rehabilitation program does not automatically bring that employee
    within the safe harbor’s protection. 
    McDaniel, 877 F. Supp. at 327
    -
    28. See also 
    Shafer, 107 F.3d at 278
    ; H.R. Conf. Rep. No. 101-596,
    at 64 (“This provision does not permit persons to invoke the Acts
    [sic] protection simply by showing that they are participating in
    a drug treatment program.”).         Instead, the House Report explains
    that the safe harbor provision applies only to individuals who have
    been drug-free for a significant period of time.               See 
    id. (“On the
    other hand, this provision recognizes that many people continue to
    participate in drug treatment programs long after they have stopped
    using drugs illegally, and that such persons should be protected
    under the Act.”) (emphasis added).
    Zenor argues that he should be protected by the safe harbor
    provision because he “self-reported” his addiction and voluntarily
    entered the     rehabilitation      program.      At   least    one   court   has
    distinguished    employees    who    voluntarily       seek    help   for   their
    addictions from those employees who are caught by employers using
    drugs.   See Grimes v. U.S. Postal Serv., 
    872 F. Supp. 668
    , 675
    (W.D. Mo. 1994) (denying federal employee’s Rehabilitation Act
    claim after employee was caught selling marijuana and noting that
    19
    the Act “is designed to protect a drug addict who voluntarily
    identifies his problem, seeks assistance, and stops using illegal
    drugs.”).
    However, other courts have rejected the proposition that a
    “chemically dependent person . . . who is currently engaging in
    illegal drug use[] can escape termination by enrolling himself in
    a drug treatment program before he is caught by the employer.”
    
    McDaniel 877 F. Supp. at 326
    ;       Baustian v. Louisiana, 
    901 F. Supp. 274
    (E.D. La. 1996) (holding that being drug free for seven weeks
    did   not   satisfy   statute’s   safe   harbor   provision   even   though
    plaintiff had enrolled in rehabilitation program);            
    Shafer, 107 F.3d at 278
    (rejecting plaintiff’s argument that she could not be
    fired after being caught with drugs merely because she enrolled in
    rehabilitation program before termination took effect).              These
    holdings better align with Congress’ explicit statement that a
    plaintiff may not evade termination merely by entering into a
    rehabilitation program, without first showing a significant period
    of recovery.     Thus, to the extent that Zenor’s claim of “self-
    reporting” is genuine, it does not propel Zenor into the safe
    harbor’s protection simply because he had entered a rehabilitation
    program before the adverse employment action was taken.
    For similar reasons, Columbia was free to find that Zenor was
    not a “qualified individual” even in the absence of the statutory
    exclusion for illegal drug users. A qualified individual under the
    20
    ADA must be able to perform essential job requirements.                 See 42
    U.S.C. § 12111.      The ADA directs courts to consider employers’
    definitions    of   essential   job   requirements.        See   42   U.S.C. §
    12111(8).      Columbia   reasonably       may   have   felt   that   having   a
    pharmacist who had recently been treated for cocaine addiction
    undermined the integrity of its hospital pharmacy operation.               See
    
    McDaniel, 877 F. Supp. at 328
    (finding it “not unreasonable or
    beyond the reach of the ADA for the Defendant [addiction recovery
    center] to find that it was essential to the performance of the
    marketing job not to have a recently relapsed person holding that
    job.”).     See also Copeland v. Philadelphia Police Dept, 
    840 F.2d 1139
    , 1149 (3d Cir. 1988) (under Rehabilitation Act, illegal drug
    user was not qualified for position of police officer because
    accommodation would be substantial modification of job and cast
    doubt on department’s integrity). Cf. Davis v. City of Dallas, 
    777 F.2d 205
    , 223-25 (5th Cir. 1985) (disqualification of police
    officer applicants for prior recent or excessive marijuana use
    supported by business necessity despite racially disparate impact).
    Such conclusions do not violate the ADA.
    Columbia was also entitled to consider the relapse rate for
    cocaine addiction in determining that Zenor was not qualified to
    work as a pharmacist.       See 
    Teahan, 951 F.2d at 520
    (directing
    courts to consider the likelihood of relapse in considering whether
    a recovering addict was “otherwise qualified” for a particular
    21
    position.)    As noted, cocaine addiction has a very high relapse
    rate, and the risk of harm from a potential relapse was great.              See
    
    D’Amico, 132 F.2d at 151
    (holding plaintiff’s history of cocaine
    addiction    coupled   with   risks    inherent      in    potential   relapse
    justified city’s termination of firefighter).7
    Finally, this evidence should be viewed in light of what was
    known to Columbia on the date it fired Zenor.             See 
    Teahan, 951 F.2d at 521
    (holding that inquiry into whether employee is otherwise
    qualified is “forward-looking”). Thus, the fact that Zenor has not
    thereafter    relapsed   does   not        affect   the    reasonableness   of
    Columbia’s decision on September 20, 1995.
    As an alternate basis for our holding, we determine that Zenor
    was not disabled within the meaning of the ADA.               The ADA defines
    disability, in relevant part, as “a physical or mental impairment
    that substantially limits one or more of the major life activities
    of [an] individual.”     42 U.S.C. § 12102(2)(A).8           Alternatively, a
    7
    Columbia also raises a serious question as to whether Zenor
    could have retained his pharmacy license.        All pharmacists
    practicing in Texas must be licensed by the Texas State Board of
    Pharmacy (Board). At the time Zenor was fired, Columbia reported
    his cocaine addiction to the Board. The Board apparently began an
    investigation, but, when Zenor subsequently failed to renew his
    license, the investigation ceased.     Clearly, one who is not
    licensed cannot be considered “otherwise qualified” for the
    position of pharmacist.
    8
    Major life activities include “functions such as caring for
    oneself, performing manual tasks, walking, seeing, hearing,
    speaking, breathing, learning, and working.”       See Hamilton v.
    Southwestern Bell Telephone Co., 
    136 F.3d 1047
    , 50 (5th Cir. 1998),
    citing 29 C.F.R. § 1630.2(i).
    22
    person may establish that she suffers from a disability if she has
    either “a record of such an impairment,” 42 U.S.C. § 12102(2)(B),
    or “[is] regarded as having such an impairment,” 42 U.S.C. §
    12102(2)(C).     Zenor argues that he was perceived as being a drug
    addict and therefore established a disability under the ADA.     See
    42 U.S.C. § 12102(2)(C). Thus, Zenor’s claim falls under the third
    “regarded as” or “perception” category.
    Under this “regarded as” or “perception” prong, a person will
    be treated as having a “substantially limiting impairment” if he
    shows that he:
    “(1) has an impairment which is not substantially
    limiting but which the employer perceives as constituting
    a substantially limiting impairment; (2) has an
    impairment which is substantially limiting only because
    of the attitudes of others toward such an impairment; or
    (3) has no impairment at all but is regarded by the
    employer as having a substantially limiting impairment.”
    Deas v. River West, L.P., 
    152 F.3d 471
    , 475 (5th Cir.
    1998), quoting Bridges v. City of Bossier, 
    92 F.3d 329
    ,
    332 (5th Cir. 1996).
    Zenor’s claim falls under the third sub-prong of perception
    cases:   Zenor argues that he was not a current drug user, but was
    regarded by Columbia as a drug addict.      Zenor thus attempts to
    establish a disability by citing testimony that Columbia officials
    regarded him as an addict.
    However, Zenor’s burden under the ADA is not satisfied merely
    by showing that Columbia regarded him as a drug addict: the fact
    that a person is perceived to be a drug addict does not necessarily
    mean that person is perceived to be disabled under the ADA.      See
    23
    Equal Employment Opportunity Commission v. Exxon Corp., 973 F.
    Supp. 612 (N.D. Tex. 1997) (holding that rehabilitated substance
    abusers are not automatically disabled but still “must prove they
    suffer from a ‘disability’ as that term is defined in 42 U.S.C. §
    12102(2).”), citing 
    Burch, 119 F.3d at 320-321
    ; Daigle v. Liberty
    Life Ins. Co., 
    70 F.3d 394
    , 395 (5th Cir. 1995).           Zenor must also
    show that Columbia regarded Zenor’s addiction as substantially
    limiting one of Zenor’s major life activities.            See 29 C.F.R. §
    1630.3 (noting that safe harbor provision “simply provides that
    certain individuals are not excluded from the definitions of
    152 F.3d 471 
    (5th Cir. 1998) (rejecting argument that
    employer regarded plaintiff as disabled merely because employer
    regarded plaintiff as suffering from seizure disorder); Bridges v.
    City   of   Bossier,    
    92 F.3d 329
    ,   336   n.11    (5th   Cir.   1996)
    (hemophilia).
    9
    The regulation goes on to state, “An individual erroneously
    regarded as using illegal drugs, for example, would have to show
    that he or she was regarded as a drug addict in order to
    demonstrate that he or she meets the definition of 119 F.3d 305 
    (5th Cir. 1997), this
    Court held that alcoholism is not a disability per se under the
    ADA.    The ADA requires an individualized inquiry to determine
    whether a particular plaintiff is disabled.              See 
    id. at 315
    (“The
    determination of whether an individual has a disability is not
    necessarily based on the name or diagnosis of the impairment the
    person has, but rather on the effect of that impairment on the life
    of the individual.”), quoting 29 C.F.R. Pt. 1630, App. (internal
    quotation marks omitted).         Thus, even a plaintiff who suffers from
    a condition such as alcoholism or drug addiction—or is perceived as
    suffering from such a condition—must demonstrate that the condition
    substantially     limits,    or    is    perceived     by   his       employer      as
    substantially    limiting,     his   ability     to   perform     a    major     life
    function.
    The alcoholic plaintiff in Burch produced no evidence that his
    alcoholism affected him in any way qualitatively different from the
    effect of alcohol on an “overindulging social drinker.” See Burch,
    119 F.23d at 316.    The fact that Burch felt the inebriating effects
    of alcohol more frequently than a social drinker did not transform
    his problem into a permanent impairment.              Furthermore, this Court
    refused to hold that the mere fact that Burch had undergone
    hospitalization     for     alcoholism       necessarily    gave      rise     to    a
    disability, or a record of disability.            See 
    id. at 317.
            Instead,
    we required Burch to prove that his alcoholism substantially
    25
    limited a major life activity, which Burch failed to do.                 See 
    id. at 318,
    n.10 (“Wherever Congress’s sympathies lie, we find no
    evidence    in   the    legislative         history   or     elsewhere    of     a
    congressionally conferred exemption for alcoholics from the rigors
    of the scheme set forth in the ADA.”).           But see Bryant v. Madigan,
    
    84 F.3d 246
    , 248 (7th Cir. 1996) (noting that “alcoholism and other
    forms of addiction are disabilities within the meaning of the
    ADA”); 
    Shafer, 107 F.3d at 277
    (“The parties do not dispute that
    drug addiction is a disability.”).
    Zenor argues that Columbia perceived him as substantially
    limited in the major life activity of working.               In this context,
    “[t]he term substantially limits means significantly restricted in
    the ability to perform either a class of jobs or a broad range of
    jobs in various classes as compared to the average person having
    comparable training, skills and abilities.” See Foreman v. Babcock
    & Wilcox Co., 
    117 F.3d 800
    , 805 (5th Cir. 1997), quoting 29 C.F.R.
    § 1630.2(j)(3) (1996) (internal quotation marks omitted).                      The
    inability to perform one specific job or a narrow range of jobs
    does not constitute substantial limitation on one’s ability to
    work. 
    Id. See also
    Deas v. River West, L.P., 
    152 F.3d 471
    (1998);
    
    Bridges, 92 F.3d at 335
    .
    In Deas, a perception case such as this one, we held that a
    seizure    disorder    was   not   a    substantial        limitation    on    the
    plaintiff’s ability to work, despite the fact that it prevented her
    26
    from working in her desired field.     The employer in Deas believed
    that the plaintiff’s seizure disorder prohibited her from working
    as an Addiction Technician in a substance abuse clinic, a job which
    required   “uninterrupted awareness or vigilance.”    
    Deas, 152 F.3d at 481
    .    In her disability discrimination suit, however, the
    plaintiff presented no evidence that her employer regarded her as
    unable to perform any job other than the specific position of an
    Addiction Technician in a substance abuse clinic.    Therefore, this
    Court affirmed the lower court’s summary judgment for the employer,
    finding no evidence from which a reasonable jury could infer that
    the employer regarded Deas as substantially limited in her ability
    to work.   
    Deas, 152 F.3d at 482
    .
    Similarly, in Bridges we held that hemophilia was not a
    disability under the ADA merely because it prevented the plaintiff
    from pursuing his chosen line of work as a firefighter.    The City
    refused to hire Bridges as a firefighter because it believed his
    hemophilia would render him a risk to himself and others were he to
    come into contact with the extreme trauma routinely encountered in
    firefighting.   
    Id. at 329.
      We approved the district court’s grant
    of judgment for the City, finding that the City perceived Bridges
    to be unable to perform only a narrow and limited class of jobs:
    firefighting.   Bridges asserted that the City also prevented him
    from becoming a municipal Emergency Medical Technician (EMT) or a
    municipal paramedic, since both municipal EMT’s and municipal
    27
    paramedics serve as back-up firefighters.                      Nonetheless, we held
    that one who is prohibited from performing only the jobs of
    firefighter     or    back-up      firefighter-EMT           (or   paramedic)       is    not
    disqualified from holding a broad range of jobs.                           See 
    id. at 334
    (“A ‘broad range’ [of jobs] implies more than two job types.”)
    (citing 29 C.F.R. Pt. 1630.2(j), App.).                    See also Talk v. Delta Air
    Lines, Inc., 
    165 F.3d 1021
    , 1025 (5th Cir. 1999) (“evidence of
    disqualification from a single position or a narrow range of jobs
    will not support a finding that an individual is substantially
    limited from the major life activity of working”).
    Likewise, Zenor presented no evidence that Columbia regarded
    him as limited in his ability to work in a broad range of jobs.
    Zenor    does   not   argue       that   he    was    qualified       for,    or    sought,
    alternative      employment        positions         at    Columbia    other       than    as
    pharmacist.      Nor is there any evidence that Columbia perceived
    Zenor as unable to perform any number of clerical, service-related,
    administrative,       or    even     other         medical    positions       within      the
    hospital.       As discussed above, Columbia maintained a policy of
    returning some employees to work after they had undergone addiction
    rehabilitation programs.             Clearly, therefore, Columbia does not
    view    all   persons      with    drug-related           problems    as    substantially
    limited in their ability to work.                    Here, however, Columbia felt
    that a recent cocaine addict was unqualified for one specific job:
    that of a pharmacist.         Columbia was entitled to conclude that if a
    28
    person is a pharmacist, cocaine addiction is not acceptable.
    As Zenor presented no evidence from which a reasonable jury
    could    conclude      that   Columbia      perceived       Zenor’s      addiction   to
    substantially impair his ability to work in a broad range or class
    of    jobs,    Zenor   failed       to   establish   that    he    was    regarded   as
    suffering from a disability within the meaning of the ADA.                       Nor,
    for the reasons discussed above, could a reasonable jury find that
    Zenor was an “otherwise qualified individual” for the position of
    a pharmacist.          Therefore, the district court correctly granted
    judgment as a matter of law for Columbia on Zenor’s ADA claim.
    II.    Breach of Contract
    The district court was also correct in granting judgment as a
    matter of law against Zenor’s breach of contract claim.                      Zenor was
    an at-will employee, and could be fired at any time and for any
    lawful    reason.        Columbia’s        “Drug-Free/Alcohol-Free           Workplace
    Policy” (Policy) in no way altered Zenor’s at-will employment
    status.
    Columbia distributed copies of the Policy to its employees,
    including Zenor, in 1993. The Policy prohibits the off-duty use of
    drugs or alcohol if, in the opinion of Columbia management, that
    use either impairs the employee’s performance or affects the
    company’s reputation or integrity. The policy states employees who
    violate       the   policy    may    be   terminated,       or    at   the   company’s
    discretion, may be required to complete a rehabilitation program
    29
    “as a condition of continued employment.”                   Zenor admits that he
    violated the Policy by bringing Columbia’s image into disrepute.
    However, Zenor argues that Columbia was nonetheless obligated to
    return him to work after he completed the rehabilitation program.
    The ACCESS portion of the Policy states in part:
    “[a]ny employee found to be using drugs or
    alcohol whose tests have been verified
    positive, shall be referred to the Employees
    Assistance Program [EAP].   The EAP provides
    assistance by:
    . . . .
    (f) Returning the employee back to the job
    (subject to availability) after successful
    completion of treatment.”
    Under    the   section    of     the    Policy      discussing     drug-testing
    procedures, and the sub-section entitled “disciplinary actions,”
    the Policy states: “Employees who test positive for drugs or
    alcohol will automatically be referred to the Employee Assistance
    Program, ACCESS, for counseling.                   Successful completion of a
    rehabilitation      program        will    be   a    condition     for    continued
    employment.” Finally, under its section entitled “Rehabilitation,”
    the Policy states:      “Return to work.            Employees who successfully
    complete rehabilitation will be returned to their same or similar
    position.”
    Zenor was an at-will employee.             Columbia’s Employee Handbook,
    which   Zenor   received      in    1991    when    he    began   his    employment,
    emphasized the at-will nature of Zenor’s employment and stated that
    employees could be fired any time and for any reason not prohibited
    by law.    The handbook expressly disclaimed the creation of any
    30
    contractual obligations.
    Texas law imposes a strong presumption in favor of at-will
    employment.      See, e.g., Montgomery County Hospital District v.
    Brown, 
    965 S.W.2d 501
    (Tex. 1998) (absent an express agreement to
    the contrary, Texas law presumes an at-will relationship between an
    employer and employee);      Federal Express Corp. v. Dutschmann, 
    846 S.W.2d 282
    (Tex. 1993).      Nonetheless, Texas courts have recognized
    that employment policies may, in limited circumstances, alter the
    at-will nature of the employment and create enforceable contractual
    rights.    See Vida v. El Paso Employees’ Federal Credit Union, 
    885 S.W.2d 177
      (Tex.   App.--El    Paso   1994,   no   writ).   To   create
    contractual rights, the policy must specifically and expressly
    limit the employer’s ability to terminate the employee. See 
    id. at 182.
       See also Figueroa v. West, 
    902 S.W.2d 701
    , 704 (Tex. App.--
    El Paso 1995, no writ).            The policy must contain an explicit
    contractual term altering the at-will relationship, and must alter
    that relationship “in a meaningful and special way.”             See 
    id. at 705.
      Texas courts have been reluctant to imply contractual rights
    from non-explicit statements or employment policies.             See, e.g.,
    
    Figueroa, 902 S.W.2d at 704
    .
    For example, Vida involved an employee who filed a grievance
    according to the company’s internal grievance procedure. See 
    Vida, 885 S.W.2d at 179
    .      After she was subsequently fired, Vida sued the
    company for wrongful discharge.        The employer had a written policy
    31
    stating that “‘[n]o employee shall be penalized for using its
    grievance   procedure.’”   
    Id. at 181.
       The   policy   narrowly   and
    explicitly restricted the employer’s right to terminate an employee
    for using the grievance procedure.         See 
    id. (“Although the
    at-will
    doctrine still governed the relationship between plaintiff and
    defendant in most areas, the employer made a specific pledge that
    it would not terminate (or otherwise retaliate against) an employee
    for a single, particular reason.”). Therefore, the court construed
    the policy as a valid alteration of the parties’ at-will employment
    status.
    Zenor argues that the Policy created an express agreement
    altering the at-will relationship between Zenor and Columbia.
    Zenor points to language in the Policy stating that employees who
    successfully complete the rehabilitation program may return to
    work.     Zenor argues that these statements created enforceable
    contract rights, prohibiting Columbia from terminating employees
    who successfully complete rehabilitation.
    However, on the very first page of the Policy, Columbia
    explicitly retains the discretion to decide whether to terminate
    the employee or allow the employee to return to work, by there
    stating:
    “Employees who violate any aspect of this policy are
    subject to disciplinary action, up to and including
    termination of employment. They may be required, at the
    company’s discretion, to participate in, and successfully
    complete a drug abuse treatment or rehabilitation program
    as a condition of continued employment.” (emphasis
    32
    added).
    Thus, unlike the employer in Vida, Columbia made no promise
    that employees who disclose their addictions will automatically be
    returned to work.      The decision is entirely left to Columbia’s
    discretion.      The Policy was unilaterally set by Columbia, and
    obligated Columbia to do very little.          See 
    Figueroa, 902 S.W.2d at 705
    .    The fact that the Policy may in general encourage or favor
    rehabilitation    of   its    employees     does   not   in    itself   obligate
    Columbia.     Compare 
    Vida, 885 S.W.2d at 181
    (finding an explicit
    assurance of the employer’s intent to limit its right to fire an
    employee for a narrow and specific reason) with Montgomery County
    Hospital District      v.    Brown,   
    965 S.W.2d 501
    ,      502   (Tex.   1998)
    (holding that general assurances of job security, and even promises
    that an employee will be fired only “for cause” or “for good
    reason” will not, without more, create a contractual relationship).
    Any promise to allow the employee to return to work is
    ambiguous and inferential at best.            Texas courts will not find
    contractual employment rights on such a basis.                 See, e.g., 
    Vida, 885 S.W.2d at 182
    ; 
    Figueroa, 902 S.W.2d at 704
    .
    Finally, Vida is distinguishable because the policy manual in
    that case contained no disclaimer of contractual rights, as does
    Columbia’s Employee Handbook.           Texas courts have held that a
    disclaimer such as that in Columbia’s Employee Handbook negates the
    existence of any implied contractual rights.                  See Figueroa, 
    902 33 S.W.2d at 704
    .
    “In numerous cases, discharged employees have attempted
    to recover for breach of contract by alleging that their
    employers’ personnel manuals contained enforceable
    promises altering the at-will relationship. [citations]
    Texas courts have generally rejected this theory,
    particularly where a specific disclaimer in the employee
    handbook warns the employee that the manual is intended
    to provide guidelines only and does not create
    contractual rights.”    
    Id. The disclaimer
    supports the presumption that Columbia did not
    intend for its policies to create contractual rights.10                This
    presumption   has   not   been   overcome     by   the     ambiguous   and
    contradictory Policy statements cited by Zenor.
    We also note that Columbia did not require Zenor to complete
    the   rehabilitation   program   as   a   condition   of   his   continued
    employment.   Zenor had already entered the detoxification unit and
    in fact had not contacted Columbia for eight days at the time of
    his August 23 conversation with Mendoza.      Although Zenor contacted
    Mendoza to ask whether his job would be secure if he entered
    Landmark, Zenor testified that his decision to enter Landmark had
    10
    The fact that the disclaimer is located in a different
    document from the Policy does not alter this conclusion.        The
    disclaimer did not limit itself to the words contained in the
    Employee Handbook, and the Handbook acknowledges that it is not a
    complete statement of company policy. Other statements of company
    policy are incorporated into the Handbook, and subject to the
    Handbook’s disclaimer. Moreover, the Policy itself incorporates
    the Handbook through the inclusion of an “Informed Consent for
    Drug/Controlled   Substance/Alcohol   Testing”   form   which   all
    employees, including Zenor, were required to sign.        The form
    incorporates the Handbook by requiring employees to certify that
    they had read and understood, among other documents, the Policy and
    the employee Handbook.
    34
    already been made at that time, and he would have entered Landmark
    and completed the program there even if Mendoza had told him on
    August 23 that he was terminated.        Moreover, Zenor did not contact
    ACCESS director Joe Provencio about his addiction, and never in
    fact   participated   in   the   ACCESS   program,   despite   Quintera’s
    recommendation that he do so.      The Policy, however, does not speak
    to substance abuse recovery programs generally, but only addresses
    Columbia’s ACCESS program.
    III. Promissory Estoppel
    The district court allowed Zenor’s promissory estoppel claim
    to go to the jury, and the jury returned a substantial award for
    Zenor. Afterwards, the court granted Columbia’s renewed motion for
    judgment as a matter of law, holding that Columbia made no promise
    upon which Zenor could reasonably rely.
    Texas courts apply the Restatement definition of promissory
    estoppel.   See, e.g., Trammel Crow Co. No. 60 v. William Jefferson
    Harkinson and Jeff Harkinson Investments, Inc., 
    944 S.W.2d 631
    (Tex. 1997);    “Moore” Burger, Inc. v. Phillips Petroleum Co., 
    492 S.W.2d 934
    , 937 (Tex. 1972).      “A promise which the promisor should
    reasonably expect to induce action or forbearance of a definite and
    substantial character on the part of the promisee [or a third
    party] and which does induce such action or forbearance is binding
    if injustice can be avoided only by enforcement of the promise.”
    
    Id., quoting Restatement
    (Second) of Contracts, § 90.              Thus,
    35
    promissory estoppel has four elements under Texas law: “(1) a
    promise, (2) foreseeability of reliance thereon by the promisor,
    and (3) substantial reliance by the promisee to his detriment . .
    . . [and (4)] a definite finding that injustice can be avoided only
    by the enforcement of the promise.” Clardy Manufacturing Co. v.
    Marine Midland Business Loans, Inc., 
    88 F.3d 347
    , 360 (5th Cir.
    1996) (internal citations and quotation marks omitted).11
    Contrary to Zenor’s assertions, the Policy does not promise to
    continue an employee’s employment after the employee self-reports
    a drug addiction.   Instead, as discussed above, the Policy states
    Columbia’s option of terminating that employee or allowing the
    employee to return to work upon completion of a rehabilitation
    11
    Zenor argues that Texas law does not impose the fourth
    requirement of a finding that justice requires enforcement of the
    promise.   Some Texas courts have listed only the first three
    elements of promissory estoppel, see Central Texas Micrographics v.
    Leal, 
    908 S.W.2d 292
    (Tex. App.--San Antonio, 1995, no writ) (“The
    elements of promissory estoppel are: (1) a promise, (2)
    foreseeabliity of reliance on the promise by the promisor, and (3)
    substantial detrimental reliance by the promisee.”), citing English
    v. Fischer, 
    600 S.W.2d 521
    , 524 (Tex. 1983). However, even cases
    listing only these three elements of promissory estoppel have
    recognized that estoppel applies to prevent injustice. See, e.g.,
    Sipco Services Marine, Inc. v. Wyatt Field Service Co., 
    857 S.W.2d 602
    , 605 (Tex. App.--Houston (1st Dist.), 1993, writ ref’d n.r.e.)
    (“The promise will be enforced if necessary to avoid injustice”);
    Donaldson v. Lake Vista Community Improvement Assoc., 
    718 S.W.2d 815
    , 817 (Tex. App.--Corpus Christi, 1986, writ ref’d n.r.e.)
    (“Estoppel is a doctrine to prevent injustice.”). Finally, the
    Texas Supreme Court in 1997 reiterated its adherence to the
    Restatement (Second) definition of promissory estoppel, which
    states that a promise will be binding “if injustice can be avoided
    only by enforcement of the promise.” See Trammel Crow Co. No. 60
    v. William Jefferson Harkinson and Jeff Harkinson Investments,
    Inc., 
    944 S.W.2d 631
    (Tex. 1997) (citations omitted).
    36
    program.     While   the   Policy    may   encourage   employees   to   seek
    assistance, it does not proscribe Columbia’s legal options once
    that happens.
    Further, it is questionable whether Texas law allows at-will
    employment to form the basis of a promissory estoppel claim.             In
    Roberts v. Geosource Drilling Services, Inc., 
    757 S.W.2d 48
    (Tex.
    App.--Houston (1st Dist.) 1988, no writ), an employee quit his job
    and prepared to move overseas in reliance on an employer’s promise
    of   overseas   employment.     The    employer   later   repudiated     the
    agreement. The Houston 1st District Court of Appeals held that the
    employee’s at-will status did not prevent his recovery under a
    promissory estoppel theory.         “It is no answer that the parties’
    written contract was for an employment-at-will, where the employer
    foreseeably and intentionally induces the prospective employee to
    materially change his position to his expense and detriment, and
    then repudiates its obligations before the written contract begins
    to operate.” See 
    id. at 50.
    However, Roberts has not been universally accepted in Texas
    appellate courts. The Houston 14th District Court of Appeals
    disagreed with Roberts in Collins v. Allied Pharmacy Management,
    Inc., 
    871 S.W.2d 929
    (Tex. App.--Houston (14th Dist.) 1994, no
    writ).     Collins held that a promise to provide future at-will
    employment cannot form the basis of a promissory estoppel claim.
    The Collins court reasoned that an at-will relationship creates no
    37
    assurances about future employment, because the employee could be
    fired at any time.          Any promise of employment is illusory, and
    reliance on such a promise is therefore unjustified.             See 
    Collins, 871 S.W.2d at 937
    (“Appellants relied upon an employment agreement
    for no specific length of time and with no clear limit on the
    employer’s freedom of action; accordingly, any promise was illusory
    and   reliance    on   it     was   based   upon   appellant’s    subjective
    expectations     and   was    unjustified.”).      Therefore,    the   at-will
    employment relationship could not form the basis of a promissory
    estoppel claim as a matter of law. See 
    id. Collins explicitly
    rejected Roberts, stating:
    “In our opinion, Roberts was wrongly decided; no Texas
    cases have cited it and we decline to follow it. Rather,
    we believe Roberts abrogates the employment at will
    doctrine in all cases where the employee must quit an
    existing job to find a new offer of employment. Also, we
    find it would be illogical to hold that an employee has
    no remedy if he is fired one week after commencing work,
    but may recover damages if the employer refuses to allow
    him to commence work at all. 
    Id. (citation omitted).
    See also Patterson v. Leal, 
    942 S.W.2d 692
    (Tex. App.--Corpus
    Christi, 1997,     writ      denied)   (recognizing   disagreement     between
    Collins and Roberts).
    We do not, however, undertake to resolve the conflict between
    Collins and Roberts.         Under the undisputed evidence here, Zenor’s
    reliance on the Policy was unreasonable as a matter of law.               The
    Policy did not limit Columbia’s discretion to terminate Zenor.
    Zenor has pointed to no place in the policy which contained any
    38
    exception for violators who “self-report” their transgressions.
    Zenor alleges that Mendoza encouraged Columbia employees to take
    advantage of the EAP and seek help for their problems.            However,
    these   statements   do    not   specifically   or    meaningfully   alter
    Columbia’s discretion to terminate Policy violators.            See Brown,
    
    965 S.W.2d 501
    .
    In any event, justice does not require the enforcement of any
    such “promise.”    In essence, Zenor’s claim is only that Columbia’s
    promise   of   continued   employment    induced   him   to   disclose   his
    addiction to his supervisors.12      However, Zenor had concealed his
    cocaine addiction from Columbia for two years, and revealed his
    addiction only at a time when he felt that his drug use threatened
    serious and immediate medical consequences.          Zenor’s argument that
    he could have otherwise fabricated a reason for his inability to
    report to work does not persuade us that justice requires that
    Zenor should be insulated from termination for his cocaine use and
    addiction.
    As the district court correctly observed,
    “In the case at hand, Zenor essentially claims that, if
    Columbia did not honor its alleged promises in the drug
    policy, Zenor would have continued to conceal his drug
    use from Columbia and would not have self-reported to
    rehabilitation. To be sure, the Court cannot in good
    conscience enforce a ‘promise’ which would in effect
    shift the blame of an employee’s continued drug
    dependency   on   the   employer  rather   than   where
    12
    Zenor does not in any way complain of his drug rehabilitation
    program as such. See note 13 infra.
    39
    responsibility for the dangerous habit rightfully lies:
    on the employee with the drug addiction.”
    We agree, and refuse to require a hospital to indefinitely
    continue its employment of a cocaine-addicted pharmacist.
    Finally, Zenor has produced no sufficient evidence that he
    suffered any damages legally available under a promissory estoppel
    theory of recovery.         Under Texas law, only reliance damages are
    recoverable for a promissory estoppel claim.                See Central Texas
    Micrographics v. Leal, 
    908 S.W.2d 292
    , 297 (Tex. App.--San Antonio
    1995, no writ). The jury awarded Zenor damages for mental anguish,
    past lost earnings and/or benefits, and future lost earnings and/or
    benefits.   These   awards     represent      compensatory    and   expectancy
    interests; none can be categorized as reliance damages.13
    Reliance damages seek to put the injured party in the position
    he would have been in had he not relied on the promise.                 See Fretz
    Construction Co. v. Southern National Bank of Houston, 
    626 S.W.2d 478
    (Tex. 1982).    See also Restatement (Second) of Contracts § 349
    (“As an alternative to the measure of damages stated in § 347, the
    injured   party   has   a   right   to    damages   based    on   his   reliance
    13
    Zenor does not claim he was in any way harmed by the drug
    rehabilitation program he underwent—indeed, he asserts he
    benefitted from it and he testified that on August 23, when he
    spoke to Mendoza (and Columbia then learned for the first time
    since August 15 where he was), he would have entered Landmark, as
    he did the next day, and completed its program regardless of
    whether he had then been told he could not return to Columbia. Nor
    does Zenor seek to recover any of the expenses of his drug
    rehabilitation program (or his detoxification).
    40
    interest,    including     expenditures     made     in   preparation   for
    performance or in performance, less any loss that the party in
    breach can prove with reasonable certainty the injured party would
    have suffered had the contract been performed.”).            Zenor has not
    proven any actual reliance damages or out-of-pocket expenses.           Cf.
    
    Leal, 908 S.W.2d at 299
    (allowing recovery after employee took low-
    salaried position in reliance on promise of bonus).
    Mental anguish damages are compensatory in nature, and do not
    represent an injured party’s reliance on a promise.             Therefore,
    they are    not recoverable under promissory estoppel.         Cf. Deli v.
    University of Minnesota, 
    578 N.W.2d 779
    (Minn. Ct. App. 1998)
    (denying emotional    distress    damages    under    promissory   estoppel
    theory).    Texas law generally does not allow mental anguish damages
    for breach of contract.      See, e.g., Latham v. Costello, 
    972 S.W.2d 66
    , 70 (Tex. 1998).      This principle extends to promissory estoppel
    claims since promissory estoppel claims are contractual in nature.
    See Comment d to Restatement (Second) Contracts, § 90.             Finally,
    Zenor’s mental anguish was not a direct result of Zenor’s reliance
    on the Policy, but was instead caused by losing his job.                See
    Federal Land Bank Assoc. v. Sloane, 
    825 S.W.2d 439
    (Tex. 1991)
    (denying mental anguish damages for action based on fraudulent
    misrepresentation, where parties’ mental anguish was not based on
    the misrepresentation but instead on their failure to obtain the
    benefit of the bargain).
    41
    Neither can future lost earnings and/or insurance benefits be
    classified    as    reliance    damages.         Future   earnings     represent
    expectancy damages.       Expectancy damages, which seek to give the
    injured-party the benefit of the bargain which should have been
    performed, are not recoverable under promissory estoppel.
    Furthermore, Zenor had no right to continued employment with
    Columbia.     Had Zenor not relied on the alleged promise, he would
    still be an at-will employee at Columbia.                 He could have been
    terminated at any time and for any lawful reason.            Therefore, Zenor
    could not have proven that he was entitled to any future earnings
    because he had no guarantee of future employment. See Jarboe v.
    Landmark Community Newspaper of Indiana, 
    644 N.E.2d 118
    , 122 (Ind.
    1994) (“In future wages, the employee has only an expectation of
    income, the recovery of which promissory estoppel will not support
    in an at-will employment setting.”), citing D & G Stout, Inc. v.
    Bacardi Imports, 
    923 F.2d 566
    , 569 (7th Cir. 1991).
    Nor can Zenor recover damages for past lost earnings and/or
    insurance    benefits    lost   to   date   of    trial   under   a   promissory
    estoppel theory.        Such an award necessarily presumes a term of
    employment during which time Columbia was prohibited from firing
    Zenor. Contra Wilder v. Cody Country Chamber of Commerce, 
    933 P.2d 1098
    (Wyo. 1997) (allowing recovery where employer promised not to
    fire employee before certain date).               To allow this measure of
    damages     would   directly    contravene       Texas’    strong     policy   of
    42
    supporting at-will employment relationships.     Furthermore, for
    reasons already discussed in this opinion, Zenor could not have
    reasonably believed that his employment was secure for any given
    any period of time.
    The district court did not err in granting Columbia’s renewed
    motion for judgment as a matter of law on Zenor’s promissory
    estoppel claim.
    Conclusion
    For the reasons stated, Zenor has shown no error in the
    district court’s grant of judgment as a matter of law in favor of
    Columbia on his ADA, contract, and promissory estoppel claims. The
    district court’s judgment dismissing Zenor’s suit is accordingly in
    all things
    AFFIRMED.
    43
    

Document Info

Docket Number: 98-50063

Filed Date: 5/31/1999

Precedential Status: Precedential

Modified Date: 12/21/2014

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