USCA1 Opinion

July 17, 1995

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________

No. 95-1027

ARTHUR J. LEARY,

Plaintiff, Appellant,

v.

JOHN H. DALTON, SECRETARY OF THE NAVY,

Defendant, Appellee.

____________

ERRATA SHEET

The

opinion of

this

court issued

on

June 14,

1995,

is

amended as follows:

On page

the

carryover

Runyon,."
______

9 of the opinion delete

paragraph

starting

the last six lines of

with "See
___

also
____

Lussier
_______

v.

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.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Bownes, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

____________________

J. Joseph McKittrick, with whom

____________________

McKittrick Law Offices

______________________

and Ka
__

B. Hoffman were on brief for appellant.

__________

Michael M. DuBose, Assistant

__________________

Jay P. McCloskey,
_________________

United

States

United States

Attorney, and

Attorney, with

David R. Colli
________________

Assistant United States Attorney, were on brief for appellee.

____________________

June 14, 1995

____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
____________________

Arthur

Plaintiff-appellant

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

spent

in

jail

intoxicated.

filed

denied requested

suit

following

his

leave for

arrest

the time

for

driving

an

in

the

United States

of the Navy.

alcoholic

and,

handicap"1 within

1973,

while

After exhausting administrative remedies, Leary

District

Court

District of Maine against defendant-appellee John

Secretary

that he

29 U.S.C.

for the

H. Dalton,

Leary's complaint alleged that he is

therefore,

the meaning

701-797b

an

"individual

with

of the Rehabilitation

("Act"),

and that

the

Act of

Navy

discriminated

against

terminating his

Leary appeals

him

in

employment on

the

violation

of

the basis of

district court's

judgment in favor of the Navy.

the

Act

by

his disability.

order granting

summary

After carefully reviewing the

record and considering Leary's arguments, we affirm.

I.
I.

Background
Background
__________

Beginning October

1, 1984,

Leary was

the Navy as a

WG-10 electrician in Shop 97

Between

and 1989,

1985

Leary

received

employed by

at the Shipyard.

numerous incentive

____________________

1.
the

In 1992, the Rehabilitation Act was amended to substitute

term

"disability"

promulgated under
term "handicap."

for

the Act,

"handicap."

The

however, continue to

regulations
employ the

-22

awards

and

was "Suggestor

Leary became

of

the Month"

in

March, 1989.

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

arrested

second

August

26, 1989,

by state police

while

off

in Concord,

offense of driving

duty, Leary

New Hampshire,

while intoxicated,

was

for a

driving after

license revocation, possessing marijuana, possessing cocaine,

transporting

controlled

assaulting a police

drug,

officer.

resisting

Leary was

arrest,

incarcerated in New

Hampshire at the Merrimack County Jail, subject to a

cash bail.

Unable to

until September

on August 28,

13, 1989.

When he

failed to report to work

1989, without having either requested leave in

placed on unauthorized leave

of

$10,000

make bail, Leary remained incarcerated

advance or notified his supervisor of his

date

and

his arrest,

absence, Leary was

status ("Z leave").

Leary had

accumulated 129.5

As

of the

hours of

earned

annual leave.

called

Richard

Foreman, to

On

Lavoie,

request on

August

29, 1989,

Temporary

Leary's

Leary's sister

Service

Shop

General

behalf that

he be

granted

earned

annual leave to cover the

period of his absence.

August

30,

called

1989, Leary

emergency annual

himself

leave during

-33

his

Lavoie to

incarceration.

On

request

Leary's

request

was

denied and

he was

carried on Z leave status

returned to

informed

that he

would be

until he returned to duty.

the Shipyard after twelve

Leary

consecutive work days

of unauthorized absence.

Upon his

denial of his request for

emergency annual leave through the

union

grievance

consideration

process,

by

Shipyard

but

return, he appealed

after

management,

hearing

the

the

and

due

grievance

was

denied.

By letter

notice

of

dated

the Navy's

October 3,

proposed

1989, Leary

action to

remove

received

him from

government service for the

following reasons: (i) his arrest

on

charges set forth supra; (ii) his

_____

August 26, 1989 on the

failure to report to work on August 28, 1989, and his failure

to

shop

request leave in advance

officials as to the

or to notify

reason for his

his unauthorized absence during

September

13,

1989.

his supervisor or

absence; and (iii)

the period August 28 through

On October

19,

1989, Leary

and his

representatives met with Gary Alamed, Administrative Officer,

to

make

an oral

meeting, and

reply to

apparently for

the

proposed action.

the first time,

At this

Leary made

it

known that he had problems with alcohol and drugs and that he

considered

himself

stated that he was

Shipyard's

December

to be

protected by

Act.

He also

seeking help for these problems

from the

Employee Assistance

4, 1989,

Program.

Leary received

the

By

notice of

letter

dated

the Shipyard's

-44

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

Navy's

decision with

the

Merit

Systems

Protection

("MSPB"), in which he alleged discrimination on the

the

Board

basis of

disability and reprisal for

claimed

disparate

his union activity.

treatment,

alleging

disabled employees had been granted leave

On

April

9,

1990,

after

an

that

He also

other,

non-

for incarceration.

evidentiary

hearing,

the

Administrative Law Judge ("ALJ") sustained the Navy's action.

With respect to Leary's claim

of discrimination on the basis

of

found

disability,

established

that he

the

ALJ

was disabled

that,

due to

although

Leary

alcohol and

drug

dependency, the unauthorized absence for which he was removed

was

neither caused by, nor

disability.

Accordingly, the ALJ concluded that Leary failed

to establish a prima

under the

entirely a manifestation of, his

Act.

facie case of disability discrimination

The ALJ

also concluded

that there was

no

support for

Leary's claim

inter alia, that

_____ ____

treatment, finding,

the employees alleged to

leave for incarceration

they

of disparate

were assigned

have been granted

were not similarly situated

to different

shops and

because

supervisors, or

because they were absent for fewer than five consecutive days

and

therefore did

not run

afoul of

-55

Navy leave

policy, or

because

the supervisor

granting

leave was

not aware

that

leave was requested to cover jail time.

By

final order

dated January

denied

Leary's petition

for review

Leary

thereafter sought

review of

with

On

the Equal

that,

although

before the

the final

Employment Opportunity

August 19, 1993, the

10, 1992,

the MSPB

full Board.

MSPB decision

Commission ("EEOC").

EEOC affirmed, finding, inter alia,

_____ ____

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

based on disability.

make out a

claim of

discrimination

On September

24, 1993, Leary filed

the district court alleging

disparate treatment.

summary judgment.

judge,

who,

motion

be

On

discrimination under the Act and

April 28, 1994, the Navy

The motion was

on September

granted

on

a complaint in

19,

the

referred to a

1994,

ground

moved for

magistrate

recommended that

that

Leary

failed

the

to

establish a prima facie case of discrimination under the Act.

On

October

magistrate

3,

1994,

Leary

judge's Recommended

filed

his

Decision.

objection

to

the

On October

26,

1994, the district court, having made a de novo determination

__ ____

of all matters adjudicated

by the magistrate judge, affirmed

the Recommended Decision and granted summary judgment for the

Navy.

-66

II.
II.

We

evaluating the

review a

Standard of Review
Standard of Review
__________________

grant

facts and

of summary

judgment de
__

inferences that may

novo,
____

reasonably be

drawn therefrom in the light most favorable to the

nonmoving

party.

Morrissey v. Boston Five Cents Sav. Bank, F.S.B., No.

_________
___________________________________

94-2220, slip op.

at 7

(1st Cir.

judgment is appropriate only

May 15,

the affidavits, if any,

issue

as to any material

on file, together

show that there

fact and that

is no genuine

the moving party is

entitled to a judgment as a matter

of law."

56(c).

"'that might

material

outcome of the

No.

fact is

suit under the

94-2220, slip

op.

at 8

one

is genuine "if the

Fed. R. Civ. P.

governing law.'"

(quoting

Lobby, Inc., 477 U.S. 242, 248 (1986)).

___________

fact

Summary

if "the pleadings, depositions,

answers to interrogatories, and admissions

with

1995).

affect

the

Morrissey,
_________

Anderson v.
________

Liberty
_______

An issue of material

evidence is such

that a reasonable

jury could return a verdict for the nonmoving party."

Id.

___

The

nonmoving party

allegations or denials of

forth

Fed. R.

rest upon

the mere

[its] pleading, but . . . must set

specific facts showing

for trial."

"may not

that there is

Civ. P. 56(e);

a genuine issue

Coll v. PB Diagnostic
____
______________

Systems, Inc., 50 F.3d 1115, 1121 (1st Cir. 1995).

_____________

III.
III.

Leary

contends that

makes two

the

district

Discussion
Discussion
__________

arguments on

court

-77

appeal.

overlooked

First, he

two

genuine

issues

of

alcoholism

material

fact:

-- "manifested

whether

itself

his

as, or

disability

resulted in,

--

the

actions which led to his consequent incarceration and absence

from

work," and

termination; and

therefore

whether, with

disparate treatment,

granted

leave for

merely

reprimanded

conduct.

constituted the

regard to his

other non-disabled Navy

their periods

Leary argues

(rather

than

reason for

his

allegation of

employees were

of incarceration,

terminated)

in the alternative that the

or were

for

their

district

court

should

have applied

"but for"

test

to determine

whether he was terminated because of his alcoholism.

We

Although

the

begin by

ironing

procedural

wrinkle.

the district court decided this case under

Rehabilitation

disability

Act,

29

discrimination

by

federal funds), Leary actually

U.S.C.

out

791, in his

affirmative

duty

U.S.C.

794

non-federal

invoked

(prohibiting

recipients

501 of the

complaint.

Section

every

"department,

on

504 of

of

Act, 29

501(b) imposes an

agency,

and

instrumentality . . . in the executive branch" of the federal

government

to

provide

adequate

hiring,

advancement opportunities for individuals

Some circuits view

placement,

and

with disabilities.

501, accordingly, as the exclusive right

of

action

for

federal

employees

who

suffer

disability

discrimination in the course of their direct employment.

Johnston
________

See
___

v. Horne, 875 F.2d 1415 (9th Cir. 1989); Johnson v.

_____
_______

-88

United States Postal Serv., 861 F.2d

___________________________

1475, 1478 (10th

Cir.

1988),

cert.
_____

denied, 493
______

U.S.

United States Postal Serv.,

___________________________

1984).

Other circuits,

504 suit by a

(1989); McGuinness
__________

744 F.2d

1318, 1321

ours included, have

claims to be brought under both

Taub v. Frank,
____
_____

811

501 and

957 F.2d 8, 10 (1st Cir.

v.

(7th Cir.

permitted such

504.

See, e.g.,
___ ____

1992) (deciding a

federal postal employee and setting

forth the

elements of a prima facie case under that section); Little v.

______

FBI, 1 F.3d 255 (4th Cir. 1993) (noting that federal employee
___

sued employing agency under

both

United States Postal Serv., 742

____________________________

1984); Prewitt v.
_______

501 and

F.2d

504); Smith v.
_____

257, 260

United States Postal Serv.,

__________________________

(6th

Cir.

662 F.2d 292,

304 (5th Cir. 1981).

The

differences between

significant in some cases

explain).

under

in

be

we shall

Not only is it unclear whether the right of action

light of

recent

the

causation.

two

501, it is also unclear,

amendments to

sections

the Rehabilitation

require

the

same

showing

Act,

of

As amended in 1992, both sections now incorporate

liability standards

Disabilities Act

See 29 U.S.C.
___

continues

sections may

(though not this one, as

504 overlaps with that in

whether

the

the two

to

disability was

of Title

I of

of 1990 ("ADA"), 42

791(g), 794(d).

require

the sole
____

the Americans

U.S.C.

with

12111-12117.

Section 504 alone, however,

showing

that

reason for the

the

plaintiff's

defendant's adverse

-99

action.

See 29
___

U.S.C.

794(a) ("No

otherwise qualified

individual with a disability . . . shall, solely by reason of

___________________

her or his disability, be excluded from the participation in,

_____________________

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

Executive agency

or by

(emphasis added).

the United States

And, to

obvious whether

which

Postal Service.")

The precise relationship between the ADA's

liability standards and the

settled.

by any

compound these

the 1992

accrued and

sole causation test is not

difficulties, it

amendments apply to

was administratively

well

is not

Leary's suit,

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

agrees on appeal that his claim arises

he bears the burden

not reach here.

under

Leary

504, and that

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

plaintiff

any claim

must first

under

the Rehabilitation

establish that

-1010

s/he has

Act,

the

a disability

covered

by

"individual

the Act.

with

The

governing regulations

a [disability]"

as

one

who

define an

"(i) Has

physical or mental impairment which substantially limits

or

more of such person's

record

such

major life activities;

one

(ii) Has a

of such an impairment; or (iii) Is regarded as having

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,

____
_____________________________

Retardation & Hosps., 10 F.3d 17, 24 (1st Cir. 1993); Little,

____________________
______

F.3d at 257; Fuller v. Frank,

______
_____

916 F.2d 558, 561 (9th Cir.

1990).

For the purposes

that Leary

is an

of this appeal,

alcoholic and

the Navy concedes

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,

the essential functions of the position in

29 C.F.R.

See
___

also
____

qualified

1614.203(a)(6)

29 U.S.C.

794

can perform

question . . . ."

(implementing 29 U.S.C.

(protecting only

individual with a disability").

791).

the "otherwise

In this case, the

____________________

2.

We note that the

(for purposes of

statute was amended in 1990

793

and 794 as these sections

to exclude
relate to

employment) from the term "individual with a disability" "any

individual who is
prevents such
job in

an alcoholic whose current

individual from

question

current alcohol

or

whose

abuse, would

use of alcohol

performing the duties

employment, by

reason

constitute a direct

property or the safety of others."

29 U.S.C.

of the
of

such

threat to

706(8)(C)(v).

-1111

"essential function[]"

unless

leave is

is showing up for

authorized.

work as scheduled,

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

third

element of his

leave

will

example,

to establish either the

claim.

be granted

serious

only for

accident or

employee's

immediate family,

which

employee

the

has no

consider incarceration to be a

leave of

any kind.

It

or

second or the

is the Navy's

bona

fide reasons

illness

other

control.

policy that

or

death

-- for

in the

circumstances

The

Navy does

over

not

bona fide reason for granting

To grant leave to employees serving time

in jail, says the Navy, is to violate the public's confidence

in

the Navy and its

one of the

the

Navy

personnel, the maintenance

"Bedrock Standards of

Personnel."

of which is

Conduct for Department

Accordingly,

the

Human

of

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

unauthorized

days.

absence

According

to

excessive unauthorized absence as

for more

the Navy's

than

five

consecutive work

"Schedule of

Disciplinary

Offenses and Recommended Remedies for Civilian Employees," an

employee's

excessive

unauthorized

-1212

absence

--

twelve

consecutive

work

disciplinary

days, in

Leary's

action ranging from

for a first offense.

case --

may

result in

reprimand to removal, even

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

"manifestation" of his alcoholism, cf.

___

incarceration

was

Teahan v. Metro-North
______
___________

Commuter R. Co., 951 F.2d 511, 515 (2d Cir. 1991) (assuming a
_______________

causal

relationship

between employee's

absenteeism), cert. denied,

_____ ______

alcoholism

113 S. Ct. 54 (1992),

and his

we reject

the argument that Leary should have been allowed to draw upon

his accrued annual leave

as a "reasonable accommodation" for

his disability.

Leary does

First,

not dispute

the Navy's

contention that he neither advised the Navy of his alcoholism

nor sought accommodation

to

of any kind until after he returned

duty following his incarceration.

shows,

the Navy

denied Leary's

without knowing the nature

his incarceration.

We have

So far

as the record

initial requests

of the incident that

for leave

resulted in

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.

Tufts Univ. Sch. of Medicine,

_____________________________

976 F.2d 791,

795 (1st

Cir.

1992), cert. denied, 113 S. Ct. 1845 (1993).

_____ ______

-1313

Second, even if Leary had given the Navy sufficient

notice

of

his

need

for

accommodation,

the

Act

neither

prevents

employers

alcoholism

protects

12,

. . [to]

alcoholics

misconduct.

No.

from

holding

"persons

suffering

from

reasonable

rules

of conduct,"

nor

from

the

consequences

of

their

own

Little, 1 F.3d at 258 (quoting 43 Op. Att'y Gen.

______

1977

WL

17999

at

*1).

See
___

also
____

Copeland v.
________

Philadelphia Police Dep't, 840 F.2d 1139, 1149 (3d Cir. 1988)
_________________________

("a

police department

cannot properly

is

justified in

accommodate a

its ranks

. .

. ."),

Wilber v.
______

Brady, 780 F.
_____

with disabilities]

user of illegal

cert. denied,
_____ ______

Rehabilitation Act is not

concluding that

490 U.S.

Supp. 837, 840 (D.

it

drugs within

1004 (1989);

D.C. 1992) (the

designed to "insulate [individuals

from disciplinary actions which

would be

taken against any employee regardless of his status").

have

observed,

government entities

authority

to determine

execution

of their

function

of

appropriateness of

safeguard

unlawful'

omitted).

none

of

are necessary

'arbitrary,

"It

courts

agency employment

to

is

to the

not

evaluate

standards but

the

only to

otherwise

10

(citation

Navy's no-leave-for-incarceration

policy is

given

Taub,
____

capricious

the

or

standards."

these,

the discretionary

missions.

federal

against

The

what policies

assigned

the

have

As we

957

F.2d

the importance

of

at

maintaining

public's confidence in the integrity of the armed forces.

-1414

the

We hold that the Navy may

leave-for-incarceration

policy

disabled and non-disabled alike.

Act

does not

individual

to

reasonably apply its no-

all

its

Because the

require otherwise, Leary

with

of

[disability]"

Rehabilitation

is not

who

employees,

with

a "qualified

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

disability

placed

was not a reason

Leary on

for his termination.

unauthorized

sought to connect

follows that Leary's

leave status

before he

ever

his incarceration to his alcoholism.

The

record leaves us with no doubt that the Navy

leave policy

The Navy

to Leary without regard to

ultimately discharged

applied its no-

his disability, and

Leary because and only

because of his

excessive unauthorized absence.

Leary, however, argues that

material fact

between his

as

to whether

is a

sufficient

nexus

disability and the behavior that resulted in his

removal to establish

disability.

there

there is a question of

that he was

Disregarding

discharged because of

arguendo
________

Leary's

failure

his

to

establish

disability,

that

and

he

his

is

qualified

individual

to

the

failure

rebut

with

Navy's

non-

discriminatory justification for his discharge,

and focusing

our inquiry solely on

preceded his

the chain of events that

removal, we find any causal nexus insufficient as a matter of

-1515

law to establish

a reasonable

We would reach the same

the "but for" test of

our

"mixed

fact

is that,

relation

cases.

See
___

Coletti's
_________

NLRB, 550 F.2d 1292 (1st Cir. 1977).

____

alcoholism and

Leary would not have

placed in need of

bail.

to apply

causation that Leary appropriates from

notwithstanding his

related conduct,

discrimination.

conclusion even if we were

motive" labor

Furniture, Inc. v.
_______________

inference of

The

alcohol-

been incarcerated and

emergency leave had he

been able to

make

Leary's own brief states that "[h]e was incarcerated .

. . because

he was unable to

cannot be argued that

inability

associated

to

make

post a . .

. cash bail."

It

the circumstances of incarceration and

bail

with Leary's

are

uniquely

disability.

or

even

specially

Whatever relationship

may exist between

to

his alcoholism and the

events giving rise

this case, Leary has not shown facts sufficient to defeat

summary judgment

removed

from

with

respect

government

to his

service

on

claim

the

that

he

was

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.

refers to two

days

employees who requested leave

or less, and a third

request was denied,

He

periods of five

employee whose eighteen-day leave

although he was

not discharged.

These

-1616

cursory submissions do not

that there

set forth "specific facts showing

is a genuine issue

for trial."

Fed.

R. Civ. P.

56(e).

IV.
IV.

Conclusion
Conclusion
__________

For the foregoing reasons, we affirm the district

-1717

court's order granting

appellee.

summary judgment

for the

defendant-

-1818