
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 96-1019                                   SHAWN M. FLYNN,                                Plaintiff, Appellant,                                          v.                                  RAYTHEON COMPANY,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                                 Cyr, Circuit Judge,                      Coffin and Bownes, Senior Circuit Judges.                                         _____________________                                                                                      ____________________             Laurence E. Sweeney for appellant.             ___________________             Douglas T. Schwartz, with whom David C. Casey and Peckham, Lobel,             ___________________            ______________     _______________        Casey, Prince & Tye were on brief for appellee.        ___________________                                                                                      ____________________                                   August 19, 1996                                                                                      ____________________                    Per  Curiam.   Plaintiff  Shawn  Flynn  appeals from  a                    Per  Curiam                    ___________          summary judgment order dismissing his Americans With Disabilities          Act ("ADA") claim against Raytheon Company for refusing to rehire          him after he had completed his fourth inpatient treatment program          for alcoholism.  Following careful  review of the entire  record,          we affirm the district court judgment.                    Over   approximately  nine  years,  Flynn  compiled  an          employment   record   marred   repeatedly    by   alcohol-related          absenteeism and  tardiness, interspersed with  numerous sanctions          and  renewed  opportunities   to  meet  Raytheon's  minimum   job          requirements.  Raytheon  finally fired him for  reporting to work          while  under the influence of alcohol, in direct violation of its          work  rules.  See also 42 U.S.C.    12114(c)(1), (2), (4).  After                        ___ ____          completing   the  fourth   inpatient  treatment   program,  Flynn          presented Raytheon  with a  progress report from  his supervising          physician,  proposed to  submit  to random  alcohol testing,  and          requested reinstatement.  When Raytheon declined, Flynn filed the          present action.   The  district court ultimately  granted summary          judgment for Raytheon, and Flynn appealed.                    Flynn does  not contend that Raytheon  violated the ADA          by  firing him,  nor could  he  do so  successfully.   See id.                                                                    ___ ___          12114(c)(4) (acknowledging that employer  may "hold an employee .          . . who  is an alcoholic to the  same qualification standards for          employment or  job performance and  behavior [as it]  holds other          employees, even if any  unsatisfactory performance or behavior is          related to  the .  . .  alcoholism of  such employee  . .  . .").                                          2          Instead, he maintains that Raytheon's refusal to give him another                                                                    _______          chance,  by rehiring  him  on the  terms  he proposed,  including          ______          random alcohol testing, violated the ADA.                    Flynn  seems to  contend  that  Raytheon  conditionally          agreed  to   rehire  him   subject  to  evidence   of  successful          rehabilitation.   He  relies on  a statement  made by  a Raytheon          representative during  the union  grievance proceeding that  took          place following  his  firing and  his  completion of  the  fourth          inpatient treatment program.   Flynn states that he was  told "it          was too soon for [him to  return to work, and if [he received]  a          paycheck [he would] just  . . .  go out and get drunk again."  At          the  same time, according  to Flynn, he  was told that  "once [he          had]  proved  [him]self  then  things  could  happen."  (emphasis                                   ____          _____          added).   He  maintains  that these  representations generated  a          trialworthy issue as to  whether Raytheon would have rehired  him          if it believed he was or could be rehabilitated.                      The district court  correctly concluded that Flynn  did          not  generate a trialworthy issue  of material fact.   First, the          language Flynn attributes to the Raytheon representative    "once          [Flynn  had]  proved  [him]self  then things  could  happen."                                               ____         _____          constituted  neither a promise that "things  would happen" if and                                                       _____          when  he proved himself, nor  an evaluative assessment that Flynn          had yet proven himself, especially in the extant temporal context          described by  the same Raytheon representative; viz., "it was too                                                          ____          soon for [Flynn to return to work and if [he received] a paycheck          [he would]  just .  . . go  out and get  drunk again."   Although                                          3          Flynn plainly would  prefer the cart  before the horse,  Raytheon          acceded to no such arrangement.         Even     assuming     the          language relied upon were subject to the interpretation  urged by          Flynn, however, it would not give rise to an ADA  claim.  Flynn's          contention confuses  a conditional  promise to consider  a future                                                         ________    ______          request to  rehire with a putative ADA-based obligation to rehire                                                       __________          at present.   The ADA does  not require an  employer to rehire  a             _______          former  employee   who  was  lawfully  discharged   for  repeated          disability-related   failures   to   meet  its   legitimate   job          requirements; viz., punctuality  and sobriety.   See 42 U.S.C.                           ___                                ___          12114(c); see  also Siefken v.  Village of Arlington  Heights, 65                    ___  ____ _______     _____________________________          F.3d 664, 666 (7th Cir. 1995) ("A  second chance . . . is not  an          accommodation,  as envisioned  in the ADA.")  (internal quotation          marks  omitted) (rejecting ADA  claim by  employee who  failed to          monitor  his diabetes  despite employer's  legitimate expectation          that  he would  do  so).   As the  Seventh  Circuit explained  in          Siefken, since  the discharged  employee was not  asking for  any          _______          "accommodation" within  the contemplation of the  ADA, but simply          "another   chance  to   allow  him   to  change   his  monitoring                                         ___          technique[,]"  the ADA did not require the employer to afford him          another chance.  Id. at 666-67.                             ___                    Finally, Flynn  cites no  authority for the  claim that          the  ADA entitles  him to  a "second  chance" to  meet Raytheon's          legitimate  work  requirements, see  id.,  nor  for claiming,  if                                          ___  ___          indeed he does, that a conditional promise to reconsider based on          a  future rehiring request  gave rise to  an actionable ADA-based                                          4          claim, cf.  Myers  v. Hose,  50  F.3d 278,  283  (4th Cir.  1995)                 __   _____     ____          ("qualified individual  with a disability" requirement  under ADA          does  not refer to "an individual's future ability to perform the                                              ______          essential functions of his position," only to his present ability                                                            _______          to do so).  Accordingly, even assuming  the statements attributed          to Raytheon were made, as we must at summary  judgment, McCabe v.                                                                  ______          Life-Line  Ambulance  Serv., Inc.,  77  F.3d 540,  544  (1st Cir.          _________________________________          1996), petition for cert.  filed, 64 U.S.L.W. 3808 (U.S.  May 29,                 ________ ___ ____   _____          1996) (No. 95-1929), Flynn has  not demonstrated a colorable ADA-          based right to rehiring.  See Siefken, 65 F.3d at 666-67.                                    ___ _______                    The district court judgment is affirmed.                    The district court judgment is affirmed                    _______________________________________                                          5
