UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL ADAMCZYK,
Plaintiff-Appellant,

v.
                                                                   No. 97-1240
CHIEF OF POLICE OF BALTIMORE
COUNTY; BALTIMORE COUNTY,
MARYLAND,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Harvey, II, Senior District Judge.
(CA-96-1103-H)

Submitted: January 20, 1998

Decided: January 30, 1998

Before WILLIAMS and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael Marshall, SCHLACHMAN, BELSKY & WEINER, P.A.,
Baltimore, Maryland, for Appellant. Virginia W. Barnhart, County
Attorney, Gregory E. Gaskins, Assistant County Attorney, Towson,
Maryland, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

This case arose following Michael Adamczyk's demotion from the
rank of lieutenant to corporal within the Baltimore County Police
Department ("Police Department"). Adamczyk asserted that he was
demoted because of his disabilities--alcoholism and depression--in
violation of both the Americans with Disabilities Act ("ADA")1 and
the Rehabilitation Act.2 The Police Department moved for summary
judgment, asserting that Adamczyk was demoted because of his mis-
conduct, not because of any disability. The district court granted the
Police Department's motion for summary judgment, holding that
Adamczyk failed to establish he was demoted because of his
disabilities.3 The district court also held that the Police Department
was not required to accommodate Adamczyk.4 Finding no error, we
affirm.

Adamczyk worked with the Police Department for over fourteen
years, rising in rank from recruit to lieutenant. On June 30, 1994,
Adamczyk attended a Police Department shift party, and his actions
at that party were brought to the attention of the Department's Inter-
nal Affairs Section ("IAS"), which began an investigation into Adam-
czyk's alleged misconduct. During the shift party, Adamczyk made
sexually explicit comments, simulated male masturbation, and
insulted female officers present. The IAS investigation also revealed
that Adamczyk gave his police badge to a county commissioner for
her use in case she was stopped on her way home from the party. Dur-
_________________________________________________________________
1 See 42 U.S.C.A. §§ 12101-12213 (West 1995 & Supp. 1997).
2 See 29 U.S.C.A. §§ 701-797b (West 1985 & Supp. 1997).

3 See Adamczyk v. Chief, Baltimore County Police Dep't, 952 F. Supp.
259, 260-61 (D. Md. 1997).

4 Id.

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ing the IAS investigation, Adamczyk also "pressured" another officer
to reveal the type of questions being asked about him.

The investigation resulted in Adamczyk's being charged admin-
istratively with several counts of misconduct. Following a hearing on
the charges, the administrative board found Adamczyk guilty of seven
counts of police misconduct, including one count of violating the
Department's rule prohibiting an officer from relinquishing his police
badge. The board's recommendations for demotion and transfer were
later accepted by the Chief of Police.

Adamczyk asserts that he is an alcoholic and that his misconduct
was a product of that disability. Adamczyk contends that his demo-
tion therefore violated the ADA and the Rehabilitation Act. He con-
tinues that the Defendants failed to reasonably accommodate his
disability when he was not given an opportunity to seek treatment
prior to his demotion. The Police Department counters that Adamczyk
was demoted solely on the basis of his misconduct and that at the time
IAS began its investigation, Adamczyk had not revealed his alcohol-
ism. In fact, the record established that Adamczyk did not even seek
treatment for alcoholism until after he learned an investigation of his
misconduct had begun.

We review the district court's summary judgment de novo.5 Sum-
mary judgment is appropriate when there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter
of law.6 We review the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.7

To establish a violation of the Rehabilitation Act and Titles I and
II of the ADA, a plaintiff must prove: (1) that he has a disability; (2)
that he is otherwise qualified for the employment or benefit in ques-
tion; and, (3) that he was excluded from the employment or benefit
_________________________________________________________________
5 See Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995);
Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir. 1993).
6 See Fed. R. Civ. P. 56(c).
7 See Ross v. Communications Satellite Corp, 759 F.2d 355, 364 (4th
Cir. 1985).

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due to discrimination solely on the basis of the disability.8 We have
previously recognized that alcoholism is a handicapping condition
within the meaning of the Rehabilitation Act.9 However, an employer
subject to the Rehabilitation Act "must be permitted to terminate its
employee on account of egregious misconduct, irrespective of
whether the employee is handicapped."10 Thus, an alcoholic employee
may be held to the same standard of performance and behavior as
other employees, even if the unsatisfactory performance or behavior
is related to the employee's alcoholism.11

Even construing the evidence in the light most favorable to him, we
conclude that Adamczyk was demoted because of his misconduct, not
because of his alcoholism. Adamczyk was found guilty of several
counts of conduct unbecoming a police officer, in addition to violat-
ing Police Department rules. Therefore, he has failed to establish that
he was deprived of any employment or benefit due to discrimination
solely on the basis of the disability.

Adamczyk contends that since at the time of the administrative
hearing, the board knew he was an alcoholic, Defendants had a duty
to accommodate him by permitting him to seek treatment before
demoting him. We disagree. First, as the district court noted, Adamc-
zyk is not a federal employee, so he cannot avail himself of those pro-
cedures designed to benefit alcoholic employees of federal agencies.12
In addition, as we have already noted, an employer may fire an
employee because of egregious misconduct, even if the employee suf-
fers from a disability such as alcoholism.13

Because we conclude that Adamczyk failed to state a disability dis-
crimination claim under either the ADA or the Rehabilitation Act,
_________________________________________________________________
8 See Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1264-65
n.9 (4th Cir. 1995) (substantially identical statutory language of the ADA
and the Rehabilitation Act permits singular analysis).
9 See Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir. 1989).
10 Little v. FBI, 1 F.3d 255, 259 (4th Cir. 1993).
11 See Little, 1 F.3d at 258.
12 See Rodgers, 869 F.2d at 259.
13 See Little, 1 F.3d at 258.

                    4
based upon the sound reasoning of the district court in its comprehen-
sive opinion, we affirm the district court's order granting summary
judgment. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED

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