USCA1 Opinion
July 17, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1027
ARTHUR J. LEARY,
Plaintiff, Appellant,
v.
JOHN H. DALTON, SECRETARY OF THE NAVY,
Defendant, Appellee.
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ERRATA SHEET
The opinion of this court issued on June 14, 1995, is
amended as follows:
On page 9 of the opinion delete the last six lines of
the carryover paragraph starting with "See also Lussier v.
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Runyon,."
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UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 95-1027
ARTHUR J. LEARY,
Plaintiff, Appellant,
v.
JOHN H. DALTON, SECRETARY OF THE NAVY
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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J. Joseph McKittrick, with whom McKittrick Law Offices and Karen
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B. Hoffman were on brief for appellant.
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Michael M. DuBose, Assistant United States Attorney, with whom
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Jay P. McCloskey, United States Attorney, and David R. Collins,
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Assistant United States Attorney, were on brief for appellee.
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June 14, 1995
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BOWNES, Senior Circuit Judge. Plaintiff-appellant
BOWNES, Senior Circuit Judge.
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Arthur J. Leary, a civilian employee of the Portsmouth Naval
Shipyard ("Shipyard") and the United States Navy, was removed
from government service for "excessive unauthorized absence"
after he was denied requested leave for the time that he
spent in jail following his arrest for driving while
intoxicated. After exhausting administrative remedies, Leary
filed suit in the United States District Court for the
District of Maine against defendant-appellee John H. Dalton,
Secretary of the Navy. Leary's complaint alleged that he is
an alcoholic and, therefore, an "individual with a
handicap"1 within the meaning of the Rehabilitation Act of
1973, 29 U.S.C. 701-797b ("Act"), and that the Navy
discriminated against him in violation of the Act by
terminating his employment on the basis of his disability.
Leary appeals the district court's order granting summary
judgment in favor of the Navy. After carefully reviewing the
record and considering Leary's arguments, we affirm.
I. Background
I. Background
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Beginning October 1, 1984, Leary was employed by
the Navy as a WG-10 electrician in Shop 97 at the Shipyard.
Between 1985 and 1989, Leary received numerous incentive
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1. In 1992, the Rehabilitation Act was amended to substitute
the term "disability" for "handicap." The regulations
promulgated under the Act, however, continue to employ the
term "handicap."
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awards and was "Suggestor of the Month" in March, 1989.
Leary became a Union Shop Steward in March, 1988 and rose to
the rank of Chief Steward for his shop area in January, 1989.
On his last performance appraisal, covering the period June
1, 1988 through May 31, 1989, he received a rating of "highly
satisfactory."
On August 26, 1989, while off duty, Leary was
arrested by state police in Concord, New Hampshire, for a
second offense of driving while intoxicated, driving after
license revocation, possessing marijuana, possessing cocaine,
transporting a controlled drug, resisting arrest, and
assaulting a police officer. Leary was incarcerated in New
Hampshire at the Merrimack County Jail, subject to a $10,000
cash bail. Unable to make bail, Leary remained incarcerated
until September 13, 1989. When he failed to report to work
on August 28, 1989, without having either requested leave in
advance or notified his supervisor of his absence, Leary was
placed on unauthorized leave status ("Z leave"). As of the
date of his arrest, Leary had accumulated 129.5 hours of
earned annual leave. On August 29, 1989, Leary's sister
called Richard Lavoie, Temporary Service Shop General
Foreman, to request on Leary's behalf that he be granted
earned annual leave to cover the period of his absence. On
August 30, 1989, Leary himself called Lavoie to request
emergency annual leave during his incarceration. Leary's
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request was denied and he was informed that he would be
carried on Z leave status until he returned to duty. Leary
returned to the Shipyard after twelve consecutive work days
of unauthorized absence. Upon his return, he appealed the
denial of his request for emergency annual leave through the
union grievance process, but after a hearing and due
consideration by Shipyard management, the grievance was
denied.
By letter dated October 3, 1989, Leary received
notice of the Navy's proposed action to remove him from
government service for the following reasons: (i) his arrest
on August 26, 1989 on the charges set forth supra; (ii) his
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failure to report to work on August 28, 1989, and his failure
to request leave in advance or to notify his supervisor or
shop officials as to the reason for his absence; and (iii)
his unauthorized absence during the period August 28 through
September 13, 1989. On October 19, 1989, Leary and his
representatives met with Gary Alamed, Administrative Officer,
to make an oral reply to the proposed action. At this
meeting, and apparently for the first time, Leary made it
known that he had problems with alcohol and drugs and that he
considered himself to be protected by the Act. He also
stated that he was seeking help for these problems from the
Shipyard's Employee Assistance Program. By letter dated
December 4, 1989, Leary received notice of the Shipyard's
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decision to remove him from government service, effective
December 11, 1989, for excessive unauthorized absence during
the period August 28, 1989, through September 13, 1989.
On December 21, 1989, Leary filed an appeal of the
Navy's decision with the Merit Systems Protection Board
("MSPB"), in which he alleged discrimination on the basis of
a disability and reprisal for his union activity. He also
claimed disparate treatment, alleging that other, non-
disabled employees had been granted leave for incarceration.
On April 9, 1990, after an evidentiary hearing, the
Administrative Law Judge ("ALJ") sustained the Navy's action.
With respect to Leary's claim of discrimination on the basis
of a disability, the ALJ found that, although Leary
established that he was disabled due to alcohol and drug
dependency, the unauthorized absence for which he was removed
was neither caused by, nor entirely a manifestation of, his
disability. Accordingly, the ALJ concluded that Leary failed
to establish a prima facie case of disability discrimination
under the Act. The ALJ also concluded that there was no
support for Leary's claim of disparate treatment, finding,
inter alia, that the employees alleged to have been granted
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leave for incarceration were not similarly situated because
they were assigned to different shops and supervisors, or
because they were absent for fewer than five consecutive days
and therefore did not run afoul of Navy leave policy, or
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because the supervisor granting leave was not aware that
leave was requested to cover jail time.
By final order dated January 10, 1992, the MSPB
denied Leary's petition for review before the full Board.
Leary thereafter sought review of the final MSPB decision
with the Equal Employment Opportunity Commission ("EEOC").
On August 19, 1993, the EEOC affirmed, finding, inter alia,
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that, although his problems with alcohol and drug abuse
constituted a disability covered by the Act, Leary had failed
to establish a sufficient causal nexus between his disability
and his termination to make out a claim of discrimination
based on disability.
On September 24, 1993, Leary filed a complaint in
the district court alleging discrimination under the Act and
disparate treatment. On April 28, 1994, the Navy moved for
summary judgment. The motion was referred to a magistrate
judge, who, on September 19, 1994, recommended that the
motion be granted on the ground that Leary failed to
establish a prima facie case of discrimination under the Act.
On October 3, 1994, Leary filed his objection to the
magistrate judge's Recommended Decision. On October 26,
1994, the district court, having made a de novo determination
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of all matters adjudicated by the magistrate judge, affirmed
the Recommended Decision and granted summary judgment for the
Navy.
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II. Standard of Review
II. Standard of Review
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We review a grant of summary judgment de novo,
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evaluating the facts and inferences that may reasonably be
drawn therefrom in the light most favorable to the nonmoving
party. Morrissey v. Boston Five Cents Sav. Bank, F.S.B., No.
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94-2220, slip op. at 7 (1st Cir. May 15, 1995). Summary
judgment is appropriate only if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). A material fact is one "'that might affect the
outcome of the suit under the governing law.'" Morrissey,
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No. 94-2220, slip op. at 8 (quoting Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material
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fact is genuine "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Id.
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The nonmoving party "may not rest upon the mere
allegations or denials of [its] pleading, but . . . must set
forth specific facts showing that there is a genuine issue
for trial." Fed. R. Civ. P. 56(e); Coll v. PB Diagnostic
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Systems, Inc., 50 F.3d 1115, 1121 (1st Cir. 1995).
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III. Discussion
III. Discussion
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Leary makes two arguments on appeal. First, he
contends that the district court overlooked two genuine
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issues of material fact: whether his disability --
alcoholism -- "manifested itself as, or resulted in, the
actions which led to his consequent incarceration and absence
from work," and therefore constituted the reason for his
termination; and whether, with regard to his allegation of
disparate treatment, other non-disabled Navy employees were
granted leave for their periods of incarceration, or were
merely reprimanded (rather than terminated) for their
conduct. Leary argues in the alternative that the district
court should have applied a "but for" test to determine
whether he was terminated because of his alcoholism.
We begin by ironing out a procedural wrinkle.
Although the district court decided this case under 504 of
the Rehabilitation Act, 29 U.S.C. 794 (prohibiting
disability discrimination by non-federal recipients of
federal funds), Leary actually invoked 501 of the Act, 29
U.S.C. 791, in his complaint. Section 501(b) imposes an
affirmative duty on every "department, agency, and
instrumentality . . . in the executive branch" of the federal
government to provide adequate hiring, placement, and
advancement opportunities for individuals with disabilities.
Some circuits view 501, accordingly, as the exclusive right
of action for federal employees who suffer disability
discrimination in the course of their direct employment. See
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Johnston v. Horne, 875 F.2d 1415 (9th Cir. 1989); Johnson v.
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United States Postal Serv., 861 F.2d 1475, 1478 (10th Cir.
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1988), cert. denied, 493 U.S. 811 (1989); McGuinness v.
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United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir.
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1984). Other circuits, ours included, have permitted such
claims to be brought under both 501 and 504. See, e.g.,
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Taub v. Frank, 957 F.2d 8, 10 (1st Cir. 1992) (deciding a
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504 suit by a federal postal employee and setting forth the
elements of a prima facie case under that section); Little v.
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FBI, 1 F.3d 255 (4th Cir. 1993) (noting that federal employee
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sued employing agency under both 501 and 504); Smith v.
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United States Postal Serv., 742 F.2d 257, 260 (6th Cir.
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1984); Prewitt v. United States Postal Serv., 662 F.2d 292,
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304 (5th Cir. 1981).
The differences between the two sections may be
significant in some cases (though not this one, as we shall
explain). Not only is it unclear whether the right of action
under 504 overlaps with that in 501, it is also unclear,
in light of recent amendments to the Rehabilitation Act,
whether the two sections require the same showing of
causation. As amended in 1992, both sections now incorporate
the liability standards of Title I of the Americans with
Disabilities Act of 1990 ("ADA"), 42 U.S.C. 12111-12117.
See 29 U.S.C. 791(g), 794(d). Section 504 alone, however,
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continues to require a showing that the plaintiff's
disability was the sole reason for the defendant's adverse
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action. See 29 U.S.C. 794(a) ("No otherwise qualified
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individual with a disability . . . shall, solely by reason of
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her or his disability, be excluded from the participation in,
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be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any
Executive agency or by the United States Postal Service.")
(emphasis added). The precise relationship between the ADA's
liability standards and the sole causation test is not well
settled. And, to compound these difficulties, it is not
obvious whether the 1992 amendments apply to Leary's suit,
which accrued and was administratively pending before the
amendments took effect.
We therefore regard the applicability of 504 and
its sole causation test in this federal employment suit as an
open question; but one that we need not reach here. Leary
agrees on appeal that his claim arises under 504, and that
he bears the burden of demonstrating that he was terminated
"solely by reason of" his disability. More importantly, we
think that the judgment for the Navy should be affirmed, even
assuming in Leary's favor that disability discrimination need
only be a reason, as opposed to the sole reason, for his
termination.
In any claim under the Rehabilitation Act, the
plaintiff must first establish that s/he has a disability
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covered by the Act. The governing regulations define an
"individual with a [disability]" as one who "(i) Has a
physical or mental impairment which substantially limits one
or more of such person's major life activities; (ii) Has a
record of such an impairment; or (iii) Is regarded as having
such an impairment." 29 C.F.R. 1614.203. It is well
settled that alcoholism is a disability within the meaning of
the Act.2 See, e.g., Cook v. Department of Mental Health,
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Retardation & Hosps., 10 F.3d 17, 24 (1st Cir. 1993); Little,
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1 F.3d at 257; Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.
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1990). For the purposes of this appeal, the Navy concedes
that Leary is an alcoholic and is therefore an individual
with a disability.
Leary must also show that with respect to his
employment, he is a "qualified individual with a [disability]
who, with or without reasonable accommodation, can perform
the essential functions of the position in question . . . ."
29 C.F.R. 1614.203(a)(6) (implementing 29 U.S.C. 791).
See also 29 U.S.C. 794 (protecting only the "otherwise
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qualified individual with a disability"). In this case, the
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2. We note that the statute was amended in 1990 to exclude
(for purposes of 793 and 794 as these sections relate to
employment) from the term "individual with a disability" "any
individual who is an alcoholic whose current use of alcohol
prevents such individual from performing the duties of the
job in question or whose employment, by reason of such
current alcohol abuse, would constitute a direct threat to
property or the safety of others." 29 U.S.C. 706(8)(C)(v).
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"essential function[]" is showing up for work as scheduled,
unless leave is authorized. Finally, regardless of which
section of the Act applies, Leary must show at a minimum that
his disability was a reason -- if not the sole reason -- for
his discharge.
Leary fails to establish either the second or the
third element of his claim. It is the Navy's policy that
leave will be granted only for bona fide reasons -- for
example, a serious accident or illness or death in the
employee's immediate family, or other circumstances over
which the employee has no control. The Navy does not
consider incarceration to be a bona fide reason for granting
leave of any kind. To grant leave to employees serving time
in jail, says the Navy, is to violate the public's confidence
in the Navy and its personnel, the maintenance of which is
one of the "Bedrock Standards of Conduct for Department of
the Navy Personnel." Accordingly, the Human Resources
Department of the Shipyard uniformly advises supervisors and
employees that it is never appropriate to approve leave of
any kind to cover the period of an employee's incarceration.
The Navy defines excessive unauthorized absence as
unauthorized absence for more than five consecutive work
days. According to the Navy's "Schedule of Disciplinary
Offenses and Recommended Remedies for Civilian Employees," an
employee's excessive unauthorized absence -- twelve
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consecutive work days, in Leary's case -- may result in
disciplinary action ranging from reprimand to removal, even
for a first offense. It appears, then, that Leary was placed
on unauthorized leave status, denied leave for incarceration,
and discharged for excessive unauthorized absence, all in
accordance with established Navy policies.
Even assuming that Leary's incarceration was a
"manifestation" of his alcoholism, cf. Teahan v. Metro-North
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Commuter R. Co., 951 F.2d 511, 515 (2d Cir. 1991) (assuming a
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causal relationship between employee's alcoholism and his
absenteeism), cert. denied, 113 S. Ct. 54 (1992), we reject
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the argument that Leary should have been allowed to draw upon
his accrued annual leave as a "reasonable accommodation" for
his disability. First, Leary does not dispute the Navy's
contention that he neither advised the Navy of his alcoholism
nor sought accommodation of any kind until after he returned
to duty following his incarceration. So far as the record
shows, the Navy denied Leary's initial requests for leave
without knowing the nature of the incident that resulted in
his incarceration. We have said, in the context of a 504
suit, that an institution "can be expected to respond only to
what it knows (or is chargeable with knowing)." Wynne v.
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Tufts Univ. Sch. of Medicine, 976 F.2d 791, 795 (1st Cir.
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1992), cert. denied, 113 S. Ct. 1845 (1993).
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Second, even if Leary had given the Navy sufficient
notice of his need for accommodation, the Act neither
prevents employers from holding "persons suffering from
alcoholism . . . [to] reasonable rules of conduct," nor
protects alcoholics from the consequences of their own
misconduct. Little, 1 F.3d at 258 (quoting 43 Op. Att'y Gen.
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No. 12, 1977 WL 17999 at *1). See also Copeland v.
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Philadelphia Police Dep't, 840 F.2d 1139, 1149 (3d Cir. 1988)
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("a police department is justified in concluding that it
cannot properly accommodate a user of illegal drugs within
its ranks . . . ."), cert. denied, 490 U.S. 1004 (1989);
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Wilber v. Brady, 780 F. Supp. 837, 840 (D. D.C. 1992) (the
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Rehabilitation Act is not designed to "insulate [individuals
with disabilities] from disciplinary actions which would be
taken against any employee regardless of his status"). As we
have observed, government entities have the discretionary
authority to determine what policies are necessary to the
execution of their assigned missions. "It is not the
function of the federal courts to evaluate the
appropriateness of agency employment standards but only to
safeguard against 'arbitrary, capricious or otherwise
unlawful' standards." Taub, 957 F.2d at 10 (citation
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omitted). The Navy's no-leave-for-incarceration policy is
none of these, given the importance of maintaining the
public's confidence in the integrity of the armed forces.
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We hold that the Navy may reasonably apply its no-
leave-for-incarceration policy to all of its employees,
disabled and non-disabled alike. Because the Rehabilitation
Act does not require otherwise, Leary is not a "qualified
individual with a [disability]" who with reasonable
accommodation could have fulfilled the "essential function[]"
of attending work as scheduled. 29 C.F.R. 1614.203(a)(6).
From our discussion above, it follows that Leary's
disability was not a reason for his termination. The Navy
placed Leary on unauthorized leave status before he ever
sought to connect his incarceration to his alcoholism. The
record leaves us with no doubt that the Navy applied its no-
leave policy to Leary without regard to his disability, and
ultimately discharged Leary because and only because of his
excessive unauthorized absence.
Leary, however, argues that there is a question of
material fact as to whether there is a sufficient nexus
between his disability and the behavior that resulted in his
removal to establish that he was discharged because of his
disability. Disregarding arguendo Leary's failure to
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establish that he is a qualified individual with a
disability, and his failure to rebut the Navy's non-
discriminatory justification for his discharge, and focusing
our inquiry solely on the chain of events that preceded his
removal, we find any causal nexus insufficient as a matter of
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law to establish a reasonable inference of discrimination.
We would reach the same conclusion even if we were to apply
the "but for" test of causation that Leary appropriates from
our "mixed motive" labor relation cases. See Coletti's
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Furniture, Inc. v. NLRB, 550 F.2d 1292 (1st Cir. 1977). The
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fact is that, notwithstanding his alcoholism and alcohol-
related conduct, Leary would not have been incarcerated and
placed in need of emergency leave had he been able to make
bail. Leary's own brief states that "[h]e was incarcerated .
. . because he was unable to post a . . . cash bail." It
cannot be argued that the circumstances of incarceration and
inability to make bail are uniquely or even specially
associated with Leary's disability. Whatever relationship
may exist between his alcoholism and the events giving rise
to this case, Leary has not shown facts sufficient to defeat
summary judgment with respect to his claim that he was
removed from government service on the basis of his
disability.
Leary also argues that there is a genuine issue of
material fact as to whether other non-disabled Navy employees
were granted leave for incarceration or were simply
reprimanded rather than removed for unauthorized absence. He
refers to two employees who requested leave periods of five
days or less, and a third employee whose eighteen-day leave
request was denied, although he was not discharged. These
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cursory submissions do not set forth "specific facts showing
that there is a genuine issue for trial." Fed. R. Civ. P.
56(e).
IV. Conclusion
IV. Conclusion
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For the foregoing reasons, we affirm the district
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court's order granting summary judgment for the defendant-
appellee.
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