

                      [NOT FOR PUBLICATION]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 &amp; 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
