
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  9 of the opinion delete  the last six lines of          the  carryover  paragraph  starting  with "See  also  Lussier  v.                                                     ___  ____  _______          Runyon,."          ______                            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 Karen            ____________________             ______________________      _____        B. Hoffman were on brief for appellant.        __________            Michael M.  DuBose, Assistant  United States  Attorney, with  whom            __________________        Jay P.  McCloskey,  United  States  Attorney, and  David  R.  Collins,        _________________                                  __________________        Assistant United States Attorney, were on brief for appellee.                                  ____________________                                    June 14, 1995                                 ____________________                      BOWNES, Senior Circuit Judge.   Plaintiff-appellant                      BOWNES, Senior Circuit Judge.                              ____________________            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                                        __________                      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                                            ____________________            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."                                         -2-                                          2            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                                         -3-                                          3            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                                                          _____            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                                         -4-                                          4            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            _____ ____            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                                         -5-                                          5            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,                                                              _____ ____            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                                                    __ ____            of all matters adjudicated  by the magistrate judge, affirmed            the Recommended Decision and granted summary judgment for the            Navy.                                         -6-                                          6                               II.  Standard of Review                               II.  Standard of Review                                    __________________                      We  review a  grant  of summary  judgment de  novo,                                                                __  ____            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.                    _________    ___________________________________            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,                                                               _________            No.  94-2220, slip  op.  at 8  (quoting  Anderson v.  Liberty                                                     ________     _______            Lobby, Inc., 477 U.S. 242, 248 (1986)).  An issue of material            ___________            fact  is genuine "if the  evidence is such  that a reasonable            jury could return a verdict for the nonmoving party."  Id.                                                                   ___                      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                                                   ____    ______________            Systems, Inc., 50 F.3d 1115, 1121 (1st Cir. 1995).                  _____________                                   III.  Discussion                                   III.  Discussion                                         __________                      Leary  makes two  arguments on  appeal.   First, he            contends that  the  district  court  overlooked  two  genuine                                         -7-                                          7            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                                                                      ___            Johnston  v. Horne, 875 F.2d 1415 (9th Cir. 1989); Johnson v.            ________     _____                                 _______                                         -8-                                          8            United States Postal  Serv., 861 F.2d  1475, 1478 (10th  Cir.            ___________________________            1988),  cert.  denied, 493  U.S.  811  (1989); McGuinness  v.                    _____  ______                          __________            United States  Postal Serv.,  744 F.2d  1318, 1321  (7th Cir.            ___________________________            1984).   Other circuits,  ours included, have  permitted such            claims to be brought under both   501 and   504.   See, e.g.,                                                               ___  ____            Taub v. Frank,  957 F.2d 8, 10 (1st Cir.  1992) (deciding a              ____    _____            504 suit by 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   501 and    504); Smith v.                                                                 _____            United States  Postal  Serv., 742  F.2d  257, 260  (6th  Cir.            ____________________________            1984); Prewitt v.  United States Postal Serv.,  662 F.2d 292,                   _______     __________________________            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,            ___            continues  to   require  a  showing   that  the   plaintiff's            disability was  the sole  reason for the  defendant's adverse                                ____                                         -9-                                          9            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  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                                         -10-                                          10            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,                        ___  ____   ____    _____________________________            Retardation & Hosps., 10 F.3d 17, 24 (1st Cir. 1993); Little,            ____________________                                  ______            1  F.3d at 257; Fuller v. Frank,  916 F.2d 558, 561 (9th Cir.                            ______    _____            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            ___  ____            qualified  individual with a disability").  In this case, the                                            ____________________            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).                                         -11-                                          11            "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                                         -12-                                          12            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                                               ___  ______    ___________            Commuter R. Co., 951 F.2d 511, 515 (2d Cir. 1991) (assuming a            _______________            causal  relationship  between employee's  alcoholism  and his            absenteeism), cert. denied,  113 S. Ct. 54 (1992),  we reject                          _____ ______            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.                                                                _____            Tufts Univ. Sch.  of Medicine,  976 F.2d 791,  795 (1st  Cir.            _____________________________            1992), cert. denied, 113 S. Ct. 1845 (1993).                   _____ ______                                         -13-                                          13                      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.                         ______            No.  12,  1977  WL  17999  at  *1).    See  also  Copeland v.                                                   ___  ____  ________            Philadelphia Police Dep't, 840 F.2d 1139, 1149 (3d Cir. 1988)            _________________________            ("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);                                    _____ ______            Wilber v.  Brady, 780 F.  Supp. 837, 840 (D.  D.C. 1992) (the            ______     _____            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                                      ____            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.                                         -14-                                          14                      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                                          ________            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                                         -15-                                          15            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                                                           ___  _________            Furniture, Inc. v.  NLRB, 550 F.2d 1292 (1st Cir. 1977).  The            _______________     ____            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                                         -16-                                          16            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                                        __________                      For the foregoing reasons, we affirm the district                                          -17-                                          17            court's order granting  summary judgment  for the  defendant-            appellee.                                         -18-                                          18
