ACA and FMLA Lawsuits

USC and Steve Sarkisian

On December 7th, former University of Southern California head football coach Steve Sarkisian filed a lawsuit against the school for failing to accommodate his disability which is alcoholism.  In our blog shortly after the incident, we discussed Sarkisian’s termination.  In August, the public got its first glimpse of his disability when he had a drunken outburst during USC’s prestigious “Salute to Troy” event for their boosters.  Sarkisian apologized and vowed for it to not happen again.  Following a loss on Sunday October 11th, Sarkisian was not at practice and athletic director Pat Haden said that he had left the team to seek treatment.  The following day he was officially terminated from his position at USC. 

The Americans with Disabilities Act covers alcoholism by stating, “While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a person who currently uses alcohol is not automatically denied protection.  An alcoholic is a person with a disability and is protected by the ADA if he/she is qualified to perform the essential functions of the job.  An employer may be required to provide an accommodation to an alcoholic.  However, an employer can discipline discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct.  An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.” (

The complaint alleges breach of contract, discrimination of the basis of a disability and invasion of privacy.  The University adamantly denies the accusations in the lawsuit, by stating that Sarkisian repeatedly denied that he had an alcohol problem and never asked for time off to get help for his alcohol problem. 

Terminating someone with a disability covered by the ADA can be very difficult and can find your company in potential lawsuits.  For our low monthly flat-rate fee, you can consult with our experienced attorneys as often as you’d like during the month, to make these tough decisions as simple as possible. 

 FMLA and ADA claims dismissed by court

In 2013, Mondelez Global employee, Frederick Capps, took FMLA leave days on February 11th and 12th due to a degenerative bone disease in 2002 which required two hip replacements.  He returned to work on the 13th, but on the 14th he called in saying that he would be arriving late due to pain in his hip, only to call in later saying that he was taking a full day off.  That evening, Capps went out to a pub to drink, and was arrested while he was driving home for driving under the influence.  His blood test showed that he had a .339% blood alcohol level, which is obviously quite higher than the .08% limit. He did not return to work until February 18th, but did not disclose of the DUI.


About a year later, the HR manager for Mondelez found out about the DUI arrest from a newspaper article and reviewed that the arrest was during the time that Capps had taken FMLA leave.  He was terminated for “dishonesty and misuse of FMLA leave.”


According to the lawsuit, Capps claims, “That Mondelez interfered with his FMLA benefits, retaliated against him for taking FMLA leave, and violated his rights under the Americans with Disabilities Act and the Pennsylvania Human Retaliations Act.”


The court did not agree with Capps claims for multiple reasons.  There was no FMLA interference because they granted his FMLA day, but he used it to go to the pub where he got intoxicated.  There was no FMLA retaliation because the employee was given FMLA leave and was not terminated for taking FMLA leave.  Capps also claimed that there was disability discrimination, which there was not because he could not argue that the employer failed to accommodate him at work.