This case was heard on remand after the U.S. Supreme Court held that the Ninth Circuit improperly found disparate impact liability where the Plaintiff only alleged disparate treatment. Hernandez quit in lieu of being fired when he failed a drug test.? ?After participating in a rehabilitation program, he applied for his old job back.?? His employer refused to hire him.?? The Court found that there was a genuine dispute over whether the employer fired Hernandez for having a record of drug and alcohol abuse ? which violates the ADA, 42 U.S.C. ?? 12102(2)(B)-(C);29 C.F.R. ? 1630.2(g)(2)-(3) ? or because the employer has a company policy against rehiring employees who violate company rules.? ?The alleged no-rehire policy was not in writing and the employer?s EEOC response did not mention the policy, instead it focused on Hernandez’s record of substance abuse.?? The Court found a jury could conclude that no company policy existed and was pretext for discriminating against Hernandez based on his disability. ?Interestingly, the Ninth Circuit took the unusual step of withdrawing a footnote in its initial decision, stating that the footnote had ?overstated? the record? by ?assuming ?that ?the ?employer ?had? a policy? that? was? uniformly? applied,? a? statement that was ?inconsistent with our basic holding in that initial decision.?? ?Hernandez v. Hughes Missile ?Systems ?Co., ?No. ?01-15512 ?(3/23/04; Reinhardt, Magill from 8th Cir. sitting by designation, Fisher).