                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-2001

Smith v. Davis
Precedential or Non-Precedential:

Docket 00-3268




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Recommended Citation
"Smith v. Davis" (2001). 2001 Decisions. Paper 99.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/99


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Filed May 7, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3268

RODNEY SMITH,
       Appellant

v.

JAMES M. DAVIS, individually and as Dir ector of the
Domestic Relations Section, Luzerne County Court of
Common Pleas; JOHN P. MULROY, individually and as
the Court Personnel coordinator for the Luzer ne County
Court of Common Pleas; JOSEPH COTTER, individually
and as the Supervisor of the Enforcement Of ficers for the
Domestic Relations; COURT OF COMMON PLEAS OF
LUZERNE COUNTY; LUZERNE COUNTY

On Appeal from the United States District Court
for the Middle District of Pennsylvania

District Judge: James M. Munley
(D.C. Civ. No. 96-cv-02223)

Argued: March 13, 2001

Before: ALITO and RENDELL, Circuit Judges,
SCHWARZER, Senior District Judge*

(Filed: May 7, 2001)



_________________________________________________________________
* The Honorable William W Schwarzer , Senior United States District
Judge for the Northern District of Califor nia, sitting by designation.
       PETER G. LOFTUS, ESQUIRE
        (ARGUED)
       The Loftus Law Firm, P.C.
       P.O. Box V, 1207 Main Street
       Waverly, PA 18471

       Attorney for Rodney Smith, Appellant

       SEAN P. McDONOUGH, ESQUIRE
        (ARGUED)
       75 Glenmaura National Boulevard
       Moosic, PA 18507

       Attorney for JAMES M. DAVIS,
       individually and as Director of the
       Domestic Relations Section, Luzerne
       County Court of Common Pleas
       Section, Luzerne County of Common
       Pleas; JOHN P. MULROY, individually
       and as the Court Personnel
       Coordinator for the Luzerne County
       Court of Common Pleas; JOSEPH
       COTTER, individually and as the
       Supervisor of the Enforcement
       Officers for the Domestic Relations;
       COMMON PLEAS COURT OF
       LUZERNE COUNTY, Appellees.

OPINION OF THE COURT

SCHWARZER, Senior District Judge.

Rodney Smith brought this civil rights action against
James M. Davis, Director of the Domestic Relations Section,
Luzerne County Court of Common Pleas, and other county
officers (the defendants), alleging violations of the
Americans with Disabilities Act, 42 U.S.C. S 12101 (ADA),
Title VII of the Civil Rights Act of 1964, 42 U.S.C. SS 2000e-
2000e-17, 42 U.S.C. SS 1983, 1988, 1985 and 1986, and
the Pennsylvania Human Relations Act. Smith, an African-
American male with a disability (alcoholism), was employed
by the County as a Probation Enforcement Officer from
March 6, 1989 until November 8, 1995, when he was

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terminated. The district court granted summary judgment
dismissing all of Smith's claims.

THE ADA CLAIM

The district court determined that Smith had failed to
establish a prima facie case under the ADA because he was
not a "qualified individual" within the meaning of the Act.
See Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d
Cir. 1998). It found that Smith had a history of absenteeism
which rendered him not qualified to per form his job
because he was unable to meet the attendance
requirements. It relied on the following facts: that on two
occasions in April and May 1995, Smith left work early
without prior approval; that from June thr ough September
1995, defendants became increasingly concer ned with
respect to excessive sick leave being utilized by Smith and
complaints from employees that Smith fr equently smelled of
alcohol; and that in October and November 1995, Smith left
work early claiming he was sick but was later spotted at
drinking establishments.

An employee who does not come to work on a r egular
basis is not "qualified," Tyndall v. National Educ. Centers,
31 F.3d 209, 213 (4th Cir. 1994), and an employer is not
obligated to accommodate absenteeism attributable to
alcoholism. See 42 U.S.C. S 12114(c); Salley v. Circuit City
Stores, Inc., 160 F.3d 977, 981 (3d Cir. 1998). However, the
District Court in this case erred in granting summary
judgment in favor of the defendants on the gr ound that
Smith failed to show that he was "qualified" for his position
and thus failed to make out a prima facie case on his ADA
claim. Smith admitted some of the facts on which the
District Court relied but denied others, in particular that he
left work without prior approval. When the summary
judgment record is viewed in the light most favorable to
Smith, we cannot say that a reasonable factfinder would
have to conclude that Smith was unqualified due to
excessive absenteeism. Therefore, this factual issue will
need to be resolved at trial. See St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 509-10 (1993).

Although Luzerne County is not entitled to summary
judgment on the ground that Smith failed to make out a

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prima facie case, Luzerne County would nonetheless be
entitled to summary judgment if it made a showing that
Smith's firing was for a legitimate reason, and Smith, in
turn, failed to create a genuine issue r egarding that issue.
Accordingly, we must examine whether Luzer ne County has
shown a legitimate reason for Smith's ter mination. It is
undisputed that Smith was told he was terminated for
"violation of Luzerne County's drug and alcohol policy." The
declarations submitted by his two supervisors, Cotter and
Mulroy, simply state that he was informed he was
terminated "as a result of his violation of Luzerne County's
Drug and Alcohol Policy." However, ther e does not seem to
be anything in the summary judgment recor d specifying
precisely what aspect of this policy Smith was found to
have violated. The appellees' brief contends, and the
District Court agreed, that Smith was fir ed for absenteeism,
but the supervisors' declarations do not mention
absenteeism, and the drug and alcohol policy contains no
provision about absenteeism or sick leave that applies to
Smith's termination. While absenteeism may have been
what defendants had in mind when they terminated him,
there is a genuine issue as to whether this r eason was
legitimate or pretextual, particularly since there is evidence
that Smith performed his duties to the apparent
satisfaction of his supervisors for over six years and carried
a case load substantially higher than his coworkers. It may
be that Smith was fired for some other legitimate reason
related to alcohol use, but without specific evidence that
Smith was fired for such a reason, summary judgment in
favor of the county cannot be sustained on those gr ounds.

The record thus raises an issue of fact as to whether
Smith's termination was for a legitimate, nondiscriminatory
reason or whether it was a pretext for discrimination in
violation of the ADA. Because the explanation pr ovided by
defendants--violation of the drug and alcohol policy--(apart
from not being the ground on which summary judgment
was granted) did not tell Smith what he did to bring about
his termination, it is not legally sufficient to entitle
defendants to judgment as a matter of law. Cf. T exas Dept.
of Community Affairs v. Burdine, 450 U.S. 248, 254-55
(1981); see also Impact v. Firestone, 893 F.2d 1189, 1194
(11th Cir. 1990) ("Appellant next ar gues that the record is

                               4
replete with nondiscriminatory reasons for[its employment
actions] . . . . The difficulty here, however, is that the
defendant never articulated to the magistrate that these
were in fact the reasons for the particular challenged
action") (quoting Uviedo v. Steves Sash & Door Co., 738
F.2d 1425, 1429 (5th Cir. 1984).) 1

TITLE VII

The District Court found that defendants had pr offered a
legitimate, nondiscriminatory reason for ter minating Smith
and that Smith had failed to demonstrate that the r eason--
absenteeism and violation of the drug and alcohol policy--
was merely pretextual.

It is not disputed that Smith established all but one of
the elements of a prima facie case under Title VII: He is an
African-American male, he was terminated, and he was
replaced by a white female. See Fuentes v. Perskie, 32 F.3d
759 (3d Cir. 1994). What we have said above with respect
to the remaining element--whether he was qualified for the
job--and with respect to the reason for the termination that
the defendants offered applies with equal force to this
claim. Therefore, summary judgment in favor of the
defendants on this claim cannot be affirmed.

RETALIATION

The District Court rejected Smith's retaliation claim for
failure to show that he suffered an adverse employment
action causally related to his filing a complaint with the
Pennsylvania Human Relations Commission. Smith ar gues
that harassment to which he was exposed befor e the filing
of the complaint increased afterward. W e find no error in
the dismissal of this claim.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The District Court held that Smith's claim for intentional
infliction of emotional distress was barr ed by the
Pennsylvania Worker's Compensation Act, which provides
_________________________________________________________________

1. Salley v. Circuit City Stores,Inc., 160 F.3d 977 (3d Cir. 1998),does
not
support the summary judgment in this case. Summary judgment was
granted there because Salley, who had admitted violating management
policies, was a current drug user and ther efore unprotected by the ADA.

                                5
the sole remedy for injuries allegedly sustained during the
course of employment. Smith does not challenge that ruling
on appeal.

CLAIMS UNDER SS 1983, 1985, 1986 AND 1988

The District Court dismissed the S 1983 claim essentially
because Smith's rights were not violated by his termination.
In view of our reversal of the summary judgment on the
civil rights claims, we will reverse the dismissal of the
S 1983 claim as well.

CONSPIRACY

The District Court dismissed this claim for lack of
evidence to support it. Smith does not challenge that ruling
on appeal.

CONCLUSION

We reverse the judgment with respect to the ADA, Title
VII, and S 1983 claims and remand for further proceedings.
We affirm the judgment with r espect to the remaining
claims.

REVERSED in part, AFFIRMED in part, and REMANDED.
Each party to bear its own costs.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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