Opposition Brief — Metro-North Commuter Railroad v. Teahan
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—— an-25 HS
IN THE @FFICE OF THE aan |
Supreme Court of the United States
OcTOBER TERM, 199]
METRO-NORTH COMMUTER RAILROAD COMPANY,
| Petitioner.
vs.
JOHN TEAHAN,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
SusAN E. WEINER
347 Madison Avenue
New York, New York 10017
(212) 878-7214
Counsel of Record
RICHARD K. BERNARD
C. Sue BARNETT
Counsel
QUESTIONS PRESENTED
Petitioner Metro-North Commuter Railroad (“Metro-North”)
terminated the employment of respondent John Teahan who was
excessively absent from work because of his addiction to alcohol
and drugs. Teahan underwent treatment for his alcohol and drug
addiction prior to the date that disciplinary proceedings required
under his collective bargaining agreement to effect termination
of his employment were completed. Because he claims to have
been rehabilitated at the time his employment was actually ter-
minated, Teahan asserts that Metro-North violated Section 504
of the Rehabilitation Act of 1973, which prohibits discrimina-
tion against the handicapped. The decision reversing the grant
of summary judgment to Metro-North and remanding the case
for trial raises the following questions:
i. Whether the exclusion of an employee “who is an alcoholic
whose current use of alcohol prevents such individual from per-
forming the duties of the job in question” from the definition
of “individuals with handicaps” in Section 504 means that the
employee's current use of alcohol is to be assessed when the
employee fails to perform those duties or when the employer
actually terminates his employment?
2. Whether the “otherwise qualified” determination to be
made in assessing whether a handicapped person is entitled to
the protection of Section 504 is to be made as of the time the
employee commits disciplinary offenses or whether it is to be
made as of the actual date the employer terminates the employ-
ment relationship?
LIST OF PARTIES
The Petitioner in this action is Metro-North Commuter
Railroad Company, which is a subsidiary of the Metropolitan
Transportation Authority.
The Respondent in this action is John Teahan.
iil
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .......-----------> i
BIGOT OF PARTIES... ... 6-0-0 c cece eee eesee: ii
TABLE OF CONTENTS.......------:2ssece? iii
TABLE OF AUTHORITIES ........------+::> Vv
OPINIONS BELOW ........-----:::erctctee l
JURISDICTION ........----:see seer cette 2
STATUTES INVOLVED ........-----::2:200°: 2
STATEMENT OF THE CASE ........------->: 2
REASONS FOR GRANTING THE WRIT....... 5
I. The Court of Appeals’ Decision Upsets the
Carefully-Crafted Scheme of the
Rehabilitation Act and Raises Issues of Vital
Importance to Section 504 (and Section 503)
Employers ...... PILE Pee eee ETE ES 5
A. The Court of Appeals’ Holding Ignores
the Plain Meaning of the Word “Current”
in Section 706(8)........----+2:eseeee? 7
B. The Court of Appeals’ Holding Ignores the
- Commonsense Meaning of Section 504 ... 10
Il. The Court of Appeals’ Decision Affects Other
ENS IOD IPO SE Ee ELLER ee 12
CONCLUSION
iv
Page
I 055.5555 Shakes coe nn se dan ees A-1
Opinion of the Court of Appeals, December 27,
igs Saas s dees bak ea chet hank ke 63 A-]
Judgment of the Court of Appeals, entered
EE PE hod danke eeu scawakassexs B-1
Opinion and Order of the District Court, March
SE SS 5 ae ST AEA ON EK KOASAS C-]
Text of Statutes Involved ..................... D-1
Award No. 114 of Special Board of Adjustment
re ee er rae ee E-]
TABLE OF AUTHORITIES
Cases Page
Anderson v. University of Wisconsin, 841 F.2d
737 (7th Cir. 1988).......----ee eee eee 1]
Burka v. New York City Transit Authority, 739
F. Supp. 814 (S.D.N.Y. 1990) ....------++->- 2
Burka v. New York City Transit Authority, 680
F. Supp. 590 (S.D.N.Y. 1988) ...---------->- 9, 13
Butler v. Thornburgh, 900 F.2d 871 (5th Cir.),
cert. denied, 111 S.Ct. 555 (1990) .......-.--- 8-9, 11
Callicote v. Cheney, 744 F. Supp. 3 (D.D.C.
Perr ere Pen ree cas 8
Camporeale v. Airborne Freight Corp., 732 F.
Supp. 358 (E.D.N.Y.), aff without opinion,
923 F.2d 842 (2d Cir. 1990) .....-.-------+>> 12
Giaquinto v. New York Telephone Co., 135
A.D.2d 928, 522 N.Y.S.2d 329 (3d Dept. 1987) 12
Lemere v. Burnley, 683 F. Supp. 275 (D.D.C.
Ror re errr ere kts, 8, 11-12
IR ics ion sae e sn ncn + sos MO 8
Magel v. Federal Reserve Bank, 776 F. Supp. 200
ee | eee ere ane 13
Mantolete v. Bolger, 767 F.2d 1416 (9th Cir.
I oss has cen page eee 1]
Matzo v. Postmaster General, 685 F. Supp. 260
(D.D.C. 1987), aff'd without opinion, 861 F.2d
1290 (D.C. Cir. 1988) 12
vi
Cases Page
Railway Labor Executives’ Ass'n v. Burley, 839
F.2d 575 (9th Cir. 1988) rev'd on other grounds
sub nom., Skinner v. Railway Labor
Executives’ Ass'n, 489 U.S. 602 (1989) ........ 9
Richardson v. United States Postal Service, 613 F.
Supp. SEhe GARG Be 5a as vc bavhacueens 1]
Rodgers v. Lehman, 869 F.2d 253 (4th Cir. 1989) 8
Southeastern Community College v. Davis, 442
.. See Gee ois Se ree ee 10
Stevens v. Stubbs, 576 F. Supp. 1409 (N.D. Ga.
NOD is 0 00405 65.500 064050 em ee 12
Taub v. Frank, F.2d , 1992 WL 26047
(hot COR) GPa OB, Bee cc G, CA knee eis ll
Walker v. Weinberger, 600 F. Supp. 757 (D.D.C.
VEY vik sv ots esr etneshee kien es 8
Whitlock v. Donovan, 598 F. Supp. 126 (D.D.C.
1984), aff'd without opinion, 790 F.2d 964
(orGs. Gir, SERED s « xs'v ks ba eee eae one 7-8
Wimbley v. Bolger, 642 F. Supp. 481 (W.D.
Tenn. 1986), aff'd without opinion, 831 F.2d
298 (6th Cir. 1987)........ Pe et ear eee 12
United States v. Southern Management Corp.,
F.2d , 1992 WL 15568 (4th Cir.) (Feb.
is BOD 9 cet ce dec tunswevedhtssaceaensxes 13
Statutes and Regulations
29 U.S.C. §706(8) (1990) ............00.000000... 2, 7-10
29 U.S.C. §791 (1990) .............0...000000.. 8, 11-12
Vii
99 U.S.C. §793 (1990) .....---- eee reer
99 U.S.C. §794 (1990) ....-.--- ere eee
42 U.S.C. §290dd-1 (1986) ......------ eres
49 U.S.C. §3602 (1990) ......---- cere eee:
42 U.S.C. §12101, et seq. (1990) ...-.-------->-
45 U.S.C. §151, et seq. (1986) .....------ +++:
N.Y.Exec.L. §292(21) (McKinney 1982 & Supp.
os Ria ce hese ek ate eee o nny ee sees
N.Y.Exec.L. §296(1)(a) (McKinney 1982)........
Pa. Stat. Ann. Tit. 43, §955(a) (Purdon) ........
99 C.F.R. §1613.702(f) (i978) ....------ +--+
99 C.F.R. §1613.703 (1978) ......------- e+
99 C.F.R. §1613.704(a) (1978) ......---- 22220
12
rene
No. 91-
IN THE
Supreme Court of the United States
Ocroser TERM, 1991
METRO-NORTH COMMUTER RAILROAD COMPANY,
Petitioner,
vs.
JOHN TEAHAN,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Petitioner Metro-North Commuter Railroad Company respect-
fully prays that a writ of certiorari issue to review the judgment
of the United States Court of Appeals for the Second Circuit
entered January 31, 1992.
OPINIONS BELOW
The District Court’s opinion is not reported (S.D.N.Y. March
29, 1991). The Court of Appeals’ opinion is reported at 951 F.2d
511 (2d Cir. 1991).
JURISDICTION
The opinion of the Court of Appeals was filed on December
27, 1991, and judgment was entered on January 31, 1992. This
Court has jurisdiction under 28 U.S.C. §1254(1).
STATUTES INVOLVED
29 U.S.C. §706(8) (1990).
29 U.S.C. §794 (1990).
STATEMENT OF THE CASE
Respondent John Teahan brought this action under the
Rehabilitation Act of 1973, 29 U.S.C. §791, et seg. (“Rehabilita-
tion Act”), to challenge his dismissal on April 11, 1988 from the
employ of petitioner Metro-North Commuter Railroad Com-
pany (“Metro-North”), which, as a recipient of federal finan-
cial assistance, is subject to Section 504 of the Rehabilitation
Act, 29 U.S.C. §794.
Teahan had worked for Metro-North in the “safety-sensitive”
position of telephone and telegraph maintainer, see Burka v.
New York City Transit Authority, 739 F. Supp. 814, 825 (S.D.N_Y.
1990), from Metro-North’s inception in 1983. Pursuant to Sec-
tion 2 of the Railway Labor Act, 45 U.S.C. §152 (“RLA”), the
rates of pay, rules and working conditions of his employment
were governed by a collective bargaining agreement between
Metro-North and the International Brotherhood of Electrical
Workers (“IBEW”), the designated representative of Teahan’s
craft.
During the five-year period 1983-87, Teahan’s absenteeism
was, by his own admission, excessive, and, during this time, he
was, by his own admission, an unrehabilitated alcoholic and
drug addict. He incurred 19 unauthorized absences in 1984 and
47 in 1985. (A3)' In early 1986, he entered a 30-day rehabilita-
tion program at Parkview Hospital in Yorktown Heights, New
' References to “A__” are to the Court of Appeals’ opinion, reproduced in Ap-
pendix A to this Petition.
York, but he quickly relapsed, incurring 58 unauthorized
absences in 1986 and 53 in 1987. (A3) His supervisors progressive-
ly disciplined him with warning letters, record suspensions and
actual suspensions for his unauthorized absences. (A3) On
December 28, 1987, after he had incurred unauthorized absences
on December 10-11 and December 17-18, 1987, his supervisor
commenced formal disciplinary proceedings to dismiss him.
Before receiving official notice of the disciplinary charge, Teahan
informed his supervisors of his substance abuse problem and
entered an in-patient rehabilitation program at Conifer Park
Rehabilitation Center in Scotia, New York, which he completed
about one month later. (A3-4) As required under the IBEW
agreement, Metro-North returned Teahan to work on January
28, 1988 following his release from that program and pending
final disposition of the disciplinary proceedings mandated by
that agreement. (A4)
On April 11, 1988, some 10 weeks after Teahan’s return to work
and following the completion of disciplinary proceedings con-
ducted pursuant to the IBEW agreement, Metro-North dismissed
him. (A4) The IBEW appealed the dismissal to the special board
of adjustment established by the IBEW and Metro-North pur-
suant to Section 3 of the RLA, 45 U.S.C. §153 Second. The board,
chaired by a neutral agbitrator, denied the claim, finding “no
doubt” that Teahan’s record “constitute|d] excessive absenteeism,
and [that] such conduct is of course particularly detrimental
‘o the Carrier in the railroad industry.” (E2)? The board rejected
the IBEW’s appeals for leniency on Teahan’s behalf, finding that
his “previous record [was] not supportive of any request for le-
niency and certainly cannot mitigate the sanction imposed.” (E2)
Teahan then commenced this action, claiming that Metro-
North had unlawfully discriminated against him because of a
handicap in violation of the Rehabilitation Act.
Metro-North moved for summary judgment, arguing that
Teahan could not make out a prima facie case of discrimination
? References to “E___” are to Award No. 114 of Special Board of Adjustment
No. 934, reproduced in Appendix E to this petition.
under Section 504: (1) because at the time he incurred the
absences for which Metro-North terminated his employment,
Teahan did not come within the definition of “individuals with
handicaps” in Section 706(8) as his admitted substance abuse
prevented him “from performing the duties of the job in ques-
tion”; (2) because his admittedly excessive absenteeism rendered
him not “otherwise qualified” within the meaning of Section
504; and (3) because he could not show he had been
discriminated against “solely by reason of . . . his handicap”
within the meaning of Section 504.
In granting Metro-North’s motion, the District Court: (1)
declined to construe the word “current” in Section 706(8) but
found a question of material fact as to whether Teahan was
rehabilitated and within the protection of Section 504 at the
date of his dismissal (C6)*; (2) found a question of material fact
as to whether Teahan was “otherwise qualified” at the date of
his dismissal (C6-7); and (3) apparently assuming that Teahan
had made out a prima facie case, held that Metro-North had
presented a legitimate, nondiscriminatory reason for its action
— Teahan’s excessive absenteeism — which he had failed to rebut
with any evidence of discrimination. (C7-9)
> At the time Metro-North terminated Teahan’s employment, Section 706(8)
provided:
For purposes of sections 793 and 794 of this title as such sections
relate to employment, such term [“individuals with handicaps "]
does not include any individual who is an alcoholic or drug user
whose current use of alcohol or drugs prevents such individual
from performing the duties of the job in question or whose employ-
ment, by reason of such current alcohol or drug abuse, would con-
stitute a direct threat to property or the safety of others.
29 U.S.C. §706(8)(B)(1986). The 1990 amendment to Section 706, reproduced
in Appendix D to this Petition (D1), which resulted in different sections covering
users of illegal drugs and alcoholics, makes no substantive difference to the
analysis. (See Al8-19.)
* References to “C___” are to the District Court's opinion, reproduced in Ap-
pendix C to this Petition.
On appeal, the Second Circuit Court of Appeals reversed and
remanded, holding: (1) the question whether the employer
discriminated solely by reason of a handicap is to be answered
in the affirmative if the employer acted on the basis of behavior
which plaintiff can prove is causally attributable to the handi-
cap (Al2-13); (2) the question whether an employee's substance
abuse is “current” is a question of fact to be determined as of
the actual date of termination, not as of the time of his
disciplinary infractions or as of the time of the employer's in-
itiation of disciplinary proceedings against him (A18-19); and
(3) the question whether an employee is “otherwise qualified”
is a question of fact to be determined as of the actual date of
his termination, with his past disciplinary record being only one
of several factors the District Court is to take into account.
(A20-21)
REASONS FOR GRANTING THE WRIT
This petition seeks review only of the Court of Appeals’
holdings that the relevant date for the determination of the ques-
tions whether an employee's alcoholism is “current” and whether
he is “otherwise qualified” is the date of the actual termination
of his employment. We do not ask the Court to review the Court
of Appeals’ holding as to the causation element of the prima
facie case under Section 504.
I. The Court of Appeals’ Decision Upsets the Carefully-
Crafted Scheme of the Rehabilitation Act and Raises
Issues of Vital Importance to Section 504 (and Sec-
tion 503) Employers.
The Court of Appeals’ holdings that an employer must deter-
mine (i) whether an employee is a “current” alcoholic and (ii)
whether the employee is “otherwise qualified” as of the effec-
tive date of the employee's termination flout both the com-
monsense meanings of Section 706(8) and Section 504, respec-
tively, when applied to an already existing employment rela-
tionship, and Congress’ intent as to an employer's ability to
discipline an employee whose alcoholism results in unques-
tionably unacceptable performance.
The Court of Appeals decided two important questions of law
which have not been but should be decided by this Court to
clarify employers’ Section 504 (and other) liability to employees
who are unrehabilitated substance abusers at the time they com-
mit disciplinary infractions. The effect of the Court of Appeals’
first holding will be an unseemly race between the employee
to enter treatment and the employer to impose final discipline,
which will penalize with Section 504 liability an employer whose
delay in implementing appropriate and permissible discipline
is caused by its compliance with its obligations under the ap-
plicable collective bargaining agreement (or other legal obliga-
tion). If the employer loses the “race,” the Court of Appeals’
holding that the “otherwise qualified” determination is likewise
to be made as of the date of actual discharge will require an
employer to “forgive” disciplinary infractions committed by
unrehabilitated substance abusers who do not seek treatment
until after the fact. Thus the Court of Appeals’ decision imposes
an oppressive double burden upon an employer: it cannot ter-
minate the employment of a “current” alcoholic if the employee
claims to be rehabilitated or rehabilitating before the end of
the disciplinary process, and it cannot consider him not “other-
wise qualified” solely on account of past offenses, no matter how
egregious, if the employee can show the offenses were causally
related to his substance abuse.
In its imposition of both a “present-time inquiry” and a
“forward-looking inquiry” (A21), the Court of Appeals requires
the employer to be prescient. First, the employer must predict
at the time the employee commits a disciplinary infraction
whether his substance abuse will still be current at the comple-
tion of the disciplinary process. Second, if the employee claims
at any point in the disciplinary process to be rehabilitated or
rehabilitating, the employer must predict whether the employee's
rehabilitation will be effective and whether, if it may not be,
he will be “otherwise qualified” to perform his job duties in the
future. If the finder of fact happens to disagree with the
employer's predictions, the employer faces certain Section 504
liability to an employee whose job performance had been unac-
ceptable. Most employers cannot terminate a current substance
abuser’s employment instantaneously upon his commission of
ee
a dismissible offense because of collective bargaining agreements
or other legal obligations. Thus the employer's only safe course
is inaction — to refrain from imposing discipline and “wait and
see” for an indefinite period of time. Meanwhile, the employer's
operational and safety concerns are compromised in a way Con-
gress clearly did not intend.
A. The Court of Appeals’ Holding Ignores the Plain
Meaning of the Word “Current” in Section 706(8).
Section 706(8) excludes “current” alcoholic employees from
protection under both Section 503, 29 U.S.C. §793, which ap-
plies to federal contractors, and Section 504. (D1) Although
Teahan conceded that the absences for which Metro-North ter-
minated his employment were excessive (A3), the Court of Ap-
peals held that, where there is a delay between an employee's
disciplinary infractions and the employer's final discipline, the
determination whether an employee's “current use of alcohol
prevents [him] from performing the duties of the job in ques-
tion” is “a present-time inquiry” to be determined as of the date
of the employer’s final disciplinary action. (A21)
The Second Circuit is the first court directly to construe this
statutory language and hence there is no direct conflict among
courts. Other courts, however, have assumed the plain mean-
ing of this and similar statutes — that they do not protect
employees whose alcoholism causes performance problems for
which dismissal is justified.
In Whitlock v. Donovan, 598 F. Supp. 126 (D.D.C. 1984), affd
without opinion, 790 F.2d 964 (D.C. Cir. 1986), plaintiff was
a federal employee with 23 years of service who had struggled
with alcoholism since the age of 10. At the time of the termina-
tion of his employment he was unrehabilitated, id. at 128-29,
although that event prompted him finally to obtain treatment,
so that by the time of trial he had “been sober for more than
a year following seven months of intensive in-patient treatment.
wee =
* References to “D__” are to the text of the statutes we discuss, reproduced
in Appendix D.
The district court noted that “[f]ederal alcoholic employees
who are using alcohol excessively are protected under only one
section of the Act, Section 501° [29 U.S.C. §791, (D2)], whereas
other federally employed individuals who are handicapped by
other conditions or are rehabilitated alcoholics also enjoy the
protection of Section 504 of the Act.” Jd. at 129. The court held
that, because “[t]here is no question here that the plaintiff was
currently using alcohol and was in need of rehabilitation at the
time of the incidents giving rise to this suit,” he “is not protected
by Section 504.” Jd. at 129 n.3 (quoting H. R. Rep. 1149, 95th
Cong., 2d Sess. 22-23, reprinted in 1978 U.S. Code Cong. & Ad.
News 7312, 7333-34). See also Lemere v. Burnley, 683 F. Supp.
275, 276 n.1 (D.D.C. 1988).
Other courts have also used “current” to mean “contem-
poraneously” with the disciplinary infractions. Butler v. Thorn-
burgh, 900 F.2d 871 (5th Cir.), cert. denied, 111 S.Ct. 555 (1990),
is identical on its facts to the instant case in that the alcoholic
former FBI agent had become rehabilitated by the time his
employment was terminated. Jd. at 872-73. Even though the
FBI was notified some months before it terminated Butler's
employment that his “prognosis will be excellent for recovery
and prolonged abstinence” and even though he had abstained
from drinking for some nine months before his termination, id.
at 872-73, the court found that “the recurring incidents that
precipitated . . . [his] termination reveal him to have been a
* By its very terms Section 50] requires the federal government to exert substan-
tial affirmative efforts to assist the handicapped, and the regulations pro-
mulgated by the Equal Employment Opportunity Commission require the
federal government to be a “model employer of the handicapped.” 29 C.F.R.
§1613.703 (1978). Thus case law developed under that statute generally re-
quires federal employers affirmatively to assist an unrehabilitated employee
in overcoming his illness and prohibits federal employers from taking
disciplinary action for unsatisfactory performance related to that illness un-
til they have exhausted a lengthy “reasonable accommodation” obligation. See,
e.g., Rodgers v. Lehman, 869 F.2d 253, 258-59 (4th Cir. 1989); McElrath v.
Kemp, 741 F. Supp. 245 (D.D.C. 1990); Callicote v. Cheney, 744 F. Supp. 3
(D.D.C. 1990); Walker v. Weinberger, 600 F. Supp. 757, 761-62 (D.D.C. 1985);
Whitlock, 598 F. Supp. at 131. Non-federal employers are not subject to these
requirements.
current dysfunctional alcoholic at the time of his firing.” Id. at
874 (emphasis added). The court held that the Hughes Act, 42
U.S.C. §290dd-1, “embraces both prior alcohol abusers, and cur-
rent abusers who are functional in their jobs, but not current
dysfunctional abusers.” 900 F.2d at 874.’ Thus, in the context
of disciplinary offenses caused by alcoholism, the court used the
word “current” to mean current at the time the employee com-
mitted the offenses which resulted in the termination of his
employment, not current at the time of the final discipline. See
also Railway Labor Executives’ Ass’n v. Burley, 839 F.2d 575,
591 (9th Cir. 1988), rev'd on other grounds sub nom., Skinner
v. Railway Labor Executives Ass'n, 489 U.S. 602 (1989) (where
plaintiff challenged post-incident drug and alcohol testing
regulations promulgated by the Federal Railroad Administra-
tion, the court held that it had not stated a claim under Sec-
tion 504 because “[t]he regulations do not mandate any
discriminatory treatment . . . of those who ‘flunk’ the drug or
alcohol tests” and because “[i]t appears from the plain language
of the statute that only alcoholics or drug abusers whose prob-
lems are under control are protected from discriminatory treat-
ment” (emphasis added)); Burka v. New York City Transit
Authority, 680 F. Supp. 590, 600-01 (S.D.N.Y. 1988) (where
employees challenged disciplinary action based upon positive
drug test results, the court held that they had not stated a claim
under Section 504 because they had not shown that their positive
test results were attributable to their participation in a rehabilita-
tion program).
"In reaching its holding, the Court in Butler construed the following language
in the Hughes Act (the Comprehensive Alcohol Abuse and Alcoholism Preven-
tion, Treatment and Rehabilitation Act of 1970):
(b) (1) No person may be denied or deprived of Federal civilian
employment or a Federal professional or other license or right sole-
ly on the ground of prior alcohol abuse or prior alcoholism.
(c) This section shall not be construed to prohibit the dismissal from
employment of a Federal civilian employee who cannot properly
function in his employment.
42 U.S.C. §290dd-1(b)(1), (c) (1986).
10
This Court should resolve the question whether Congress in-
tended Section 504 (and Section 503) employers, upon penalty
of liability, to forego disciplining employees who have been
dysfunctional in their jobs but who have become “rehabilitated
or rehabilitating,” Burka, 680 F. Supp. at 600, by the time the
employer can act.
B. The Court of Appeals’ Holding Ignores the Com-
monsense Meaning of Section 504.
In Southeastern Community College v. Davis, 442 U.S. 397,
406 (1979), this Court held that “[a]n otherwise qualified per-
son is one who is able to meet all of a program’s requirements
in spite of his handicap.” Teahan has conceded that his absences
from work were excessive (A3), and the board upheld his
dismissal under the collective bargaining agreement (E2). Thus
Teahan indisputably failed to satisfy Metro-North’s legitimate
criteria for performance.
Yet the Court of Appeals held that the question whether an
employee who has committed dismissible offenses is “otherwise
qualified” is to be determined as of the date of the final dismissal,
rather than as of the time of his commission of the offenses or
the initiation of disciplinary procedures. (A20) The “forward-
looking inquiry” the court has imposed (A21) means that Sec-
tion 504 requires an employer to “accommodate” an alcoholic
by “forgiving” performance problems caused by his alcoholism
once he enters rehabilitative treatment, even if those problems
constituted an indisputably proper basis for a contemporaneous
disciplinary decision. This is not what Congress intended in the
“otherwise qualified” prong of Section 504 as applied to cur-
rent employees who are substance abusers. See 124 Cong. Rec.
30323 (Sept. 20, 1978).
We know of no case interpreting Section 504 to require a non-
federal employer to “accommodate” a rehabilitating alcoholic
by “forgiving” the transgressions he committed while his prob-
lem was active and which gave rise to disciplinary action. Sec-
tion 501, unlike Section 504, requires “affirmative action” and
does not use the term “otherwise qualified” to modify “individuals
a en ee
1]
with handicaps” (D2). The federal employer is on notice from
the language of Section 501 and from the fact that “current”
alcoholics are not excluded from its protections that the employer
must be on the “lookout” for signs that an employee's perfor-
mance problems are attributable to current alcoholism. Yet
notwithstanding the clearly greater burden Congress imposed
upon federal employers in Section 501, the Court of Appeals has
held Metro-North to an even higher standard of accommoda-
tion than that applicable to federal employers. See Mantolete
v. Bolger, 767 F.2d 1416, 1425 (9th Cir. 1985) (emphasizing that
burdens imposed upon federal employers under Section 501 are
greater than those imposed upon Section 504 employers)
(Rafeedie, J., concurring).
The court's imposition of a “forward-looking inquiry” is con-
trary to the statutory scheme and to the understanding other
courts have expressed that the relevant time for determining
whether an employee is “otherwise qualified” under Section 504
is the time of the unsatisfactory performance. See, e.g., Taub
v. Frank, __F. 2d__, 1992 WL 26047 (st Cir.) (Feb. 18, 1992)
(in affirming grant of summary judgment to employer where
drug-addicted employee had committed disqualifying drug-
related criminal offenses, court held the employee was not
“otherwise qualified” and the employer was not required to “ac-
commodate” by abrogating its established standards); Ander-
son v. University of Wisconsin, 841 F.2d 737, 740-41 (7th Cir.
1988) (in affirming grant of summary judgment to university
which had refused readmission under its retentions program to
alcoholic law student, court held the student was not “other-
wise qualified”); Richardson v. United States Postal Service, 613
F. Supp. 1213, 1215-16 (D.D.C. 1985) (in granting summary judg-
ment to employer where employee contended his disqualifying
off-duty criminal conduct was caused by his alcoholism, court
held plaintiff was not “otherwise qualified” and employer had
no duty under Section 504 to accommodate retroactively). Cf.
Butler, 900 F. 2d at 875-76 (in Section 501 case, court held
rehabilitating alcoholic had “shown himself incapable of safely
performing his duties” (citing 29 C.F.R. §1613.702(f)); Lemere,
683 F. Supp. at 280 (in granting summary judgment to employer
in Section 501 case, court held alcoholic employee to have lost
12
status of “qualified handicapped employee” by virtue of her
two-year pattern of unscheduled absences (quoting 29 C.F.R.
§1613.704(a)).
And regardless of the particular disability which causes it,
courts have viewed excessive, unauthorized absenteeism, measured
contemporaneously with the absences, sufficient to render an
employee not “otherwise qualified” and therefore not protected
by Section 504 as a matter of law. See, e.g., Matzo v. Postmaster
General, 685 F. Supp. 260, 263 (D.D.C. 1987), affd without
opinion, 861 F.2d 1290 (D.C. Cir. 1988) (court found manic
depressive employee who had been unable for approximately 15
months “to report for work and remain on duty” not “otherwise
qualified,” notwithstanding the remission of her illness); see also,
e.g., Wimbley v. Bolger, 642 F. Supp. 481, 485 (W.D. Tenn. 1986),
affd without opinion, 831 F.2d 298 (6th Cir. 1987) (unscheduled
absences rendered employee not “qualified,” citing 29 C.F.R.
§1613.704(a)); Stevens v. Stubbs, 576 F. Supp. 1409, 1415 (N.D.
Ga. 1983) (Section 501 “does not protect absenteeism or employees
who take excessive leave and are unable to perform the prere-
quisites of their jobs”); cf., e.g., Camporeale v. Airborne Freight
Corp., 732 F. Supp. 358, 367-68 (E.D.N.Y.), affd without opinion,
923 F.2d 842 (2d Cir. 1990) (dismissal from employment for ex-
cessive absenteeism caused by depression not unlawful discrimina-
tion under the New York Human Rights Law, N.Y. Exec.L. §§
292(21), 296(1)(a) (McKinney 1982 & Supp. 1989)); Giaquinto
v. New York Telephone Co., 135 A.D.2d 928, 522 N.Y.S.2d 329
(3d Dept. 1987) (same with respect to excessive absences caused
by illnesses requiring hospitalization).
This Court should resolve the question whether Congress in-
tended Section 504 employers, upon penalty of liability, to forego
disciplining an alcoholic employee whose transgressions render
him unqualified to perform his job if he enters rehabilitative treat- °
ment prior to the effective date of the discipline. ;
II. The Court of Appeals’ Decision Affects Other Statutes.
Immediate review of the issues raised by the Court of Ap-
peals’ decision is particularly warranted in light of other statutes,
both federal and state, which courts construe in accordance with
a Ny
13
precedent under Section 504, and in light of the imminent ef-
fective date of Title I of the Americans with Disabilities Act,
Pub. L. 101-336 (July 26, 1990) (to be codified at 42 U.S.C.
§12101, et seq.) (“ADA”).
The Court of Appeals’ opinion is the first appellate decision
to address expressly the meaning of “current” under the
Rehabilitation Act and the date as of which an employer must
determine whether a substance absuer is “otherwise qualified”
to perform his job. Although the opinion is inconsistent with
the understanding evinced by other courts’ decisions, the Court
of Appeals’ express rulings on these issues will have a profound
and rippling effect on the application of the Rehabilitation Act
and other statutes. For example, other federal statutes use the
word “current” to define the substance abusers excluded from
the protection they provide for discrimination against the handi-
capped. See, e.g., United States v. Southern Management Corp.,
—F.2d_, 1992 WL 15568 (4th Cir.) (Feb. 3, 1992) (construing
Fair Housing Act provision excluding “current, illegal use of or
addiction to a controlled substance” from the term “handicap,”
42 U.S.C. §3602 (h) (1990), consistently with Section 706(8)).
Courts also rely upon Section 504 precedent in construing state
non-discrimination statutes. See, e.g., Magel v. Federal Reserve
Bank, 776 F. Supp. 200, 203 (E.D. Pa. 1991) (relying upon “anal-
ogous” Section 504 precedent to construe Pennsylvania Human
Relations Act, 43 P.S. §955 (a)); Burka, 680 F. Supp. at 601 (rely-
ing upon Section 504 precedent in dismissing, along with claims
under Section 504, claims asserted under the “corollary pro-
vision” of the New York Human Rights Law, N.Y.Exec.L. §296
(1)).
Moreover, the district courts’ interpretation of the ADA will
no doubt be influenced by the Court of Appeals’ decision. The
ADA applies to private sector employers (ADA, §101(5)) and ex-
cludes from the definition of “qualified individual with a
disability” an “employee or applicant who is currently engag-
ing in the illegal use of drugs, when the covered entity acts on
the basis of such use” (ADA, §104(a)). In defining “current,” the
Court of Appeals has already suggested that Congress did not
mean what it clearly said in both the 1990 amendment to Section
14
706(8) and in Section 104(a) of the ADA — that an employer
can refuse to hire or can dismiss an employee solely on the basis
of his status as a user of illegal drugs. (See Al9 n.2.)
The ADA codifies a principle we had thought to be true of
Section 504 (see 124 Cong. Rec. 30323 (Sept. 20, 1978)) — that
an employer
may hold an employee who engages in the illegal use
of drugs or who is an alcoholic to the same qualifica-
tion standards for employment or job performance
and behavior that such entity holds other employees,
even if any unsatisfactory performance or behavior
is related to the drug use or alcoholism of such
employee... .
(ADA, §104(c)(4)). But the Court of Appeals’ holdings that the
actual date of termination is the operative date for assessing both
substance abuse and employee qualification has negated this
principle, not only for Section 504 employers but also for ADA
employers as well.
Pra <5 dt
15
CONCLUSION
For the foregoing reasons, petitioner respectfully requests the
Court to issue a writ of certiorari to review and reverse the deci-
sion of the United States Court of Appeals for the Second Circuit.
Respectfully submitted,
SUSAN E. WEINER
347 Madison Avenue
New York, New York 10017
(212) 878-7214
Counsel of Record
RICHARD K. BERNARD
C. Sue BARNETT
Counsel
APPENDIX
A-l
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
->—
No. 120—August Term 1991
(Submitted August 29, 1991
Decided December 27, 1991)
Docket Nos. 91-7431, 91-7501
7
JOHN TEAHAN,
Plaintiff-Appellant-
Cross-Appellee,
—VvVi—
METRO-NORTH COMMUTER RAILROAD COMPANY,
Defendant-Appellee-
Cross-Appellant.
Before:
OAKES, Chief Judge,
FEINBERG and CARDAMONE, Circuit Judges.
—
John Teahan appeals from the April 9, 1991 judgment
of the United States District Court for the Southern Dis-
trict of New York (Lowe, J.) granting Metro-North Com-
muter Railroad Company’s motion for summary judgment
A-2
and dismissing appellant’s complaint under § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794.
Reversed and remanded.
>
C. SUE BARNETT, Labor Counsel, Office of
the General Counsel, Metro-North Com-
muter Railroad, New York, New York,
filed a brief for Defendant-Appellee.
PATRICK M. WALL, New York, New York
(Graham, Campaign & McCarthy, P.C.,
New York, New York, of counsel), filed a
brief for Plaintiff-Appellant.
>
CARDAMONE, Circuit Judge:
Appellant is an alcoholic who claims that his disease
constitutes a handicap under § 504 of The Rehabilitation
Act of 1973. This section of the Labor Law aims to bal-
ance the statutory guarantee of equal opportunity for the
handicapped person so that he or she may become a con-
tributing member of the workforce against the rightful
concern of an employer that is the recipient of federal
funds to preserve the effectiveness of its programs. For an
employer to assume that simply because of a handicap an
individual is unable to function in a given employment
context stereotypes that person, seeing him, as it were,
through a glass, darkly. To view a handicapped person in
such a simplistic way effects the discrimination forbidden
by § 504. At the same time nothing in the statute prevents
an employer from making a decision based on the job-
A-3
related attributes of a person’s handicap. It is the close
interplay of these two notions, that is, between a handicap
and its attributes, that we must analyze and resolve on this
appeal.
BACKGROUND
John Teahan was employed by Metro-North Commuter
Railroad (Metro-North) as a telephone and telegraph
maintainer from 1983 to 1988. Concededly, through these
five years his alcohol and drug abuse led to his being
unexcusedly absent from work on numerous occasions.
Teahan agrees that his absences—19 in 1984, 47 in 1985,
58 in 1986, and 53 in 1987—were excessive. On March 7,
1986 appellant voluntarily enrolled in a 30-day rehabili-
tation program at Parkview Hospital in Yorktown Heights,
New York. After his discharge from this program, he
relapsed into further drug and alcohol abuse and contin-
ued to incur unauthorized absences from work. Metro-
North progressively disciplined Teahan for his absences,
including warning letters, three and five day record sus-
pensions, and 14 and 30 day actual suspensions. In the
late fall of 1987 he informed his employer of his sub-
Stance abuse problem.
The incidents of absenteeism giving rise to this liti-
gation occurred in December, 1987. Teahan was absent
without permission on December 10, 11, 17, and 18. On
December 28, 1987 Metro-North charged Teahan by
letter that his failure on those dates to notify his work
location of his inability to come to work, in light of
his previous record, constituted excessive absenteeism.
On December 28—before receiving this charge letter—
Teahan had voluntarily entered a substance abuse reha-
bilitation program at Conifer Park Rehabilitation Center
A-4
in Scotia, New York (Conifer Park). This time appellant
successfully completed the program and returned to work
on January 28, 1988. From that date until his dismissal on
April 11, 1988 he was not absent from work and appears
to have otherwise fully performed the requirements of his
job.
Meanwhile, following its charge letter, from December
28, 1987 to April 11, 1988 Metro-North pursued Teahan’s
dismissal under disciplinary procedures set forth in its
collective bargaining agreement with the International
Brotherhood of Electrical Workers (IBEW). See 45 U.S.C.
§ 151 et seq. It was only in accordance with this agree-
ment that Metro-North had permitted Teahan to return to
work on January 28. ,
IBEW appealed the April dismissal unsuccessfully
through the two levels of review established under the
collective bargaining agreement. The Special Board of
Adjustment that heard the final appeal upheld the
employer’s actions, concluding that Teahan’s dismissal
due to excessive absenteeism was justified and that his
“previous record [was] not supportive of any request
for leniency and certainly cannot mitigate the sanction
imposed.” No reference was made in the decision to
Teahan’s work record since his successful completion of
the Conifer Park program.
THE PROCEEDINGS BELOW
Appellant filed suit against his employer Metro-North
in the United States District Court for the Southern Dis-
trict of New York (Lowe, J.), alleging that his April 11,
1988 dismissal violated § 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794 (Act). The complaint asserted that
A-5
as a drug and alcohol abuser he was an “otherwise qual-
ified individual with handicaps” covered by the Act, and
that he was dismissed by Metro-North “solely by reason
of” his handicap. Metro-North moved for summary judg-
ment contending that appellant was unable to make out a
prima facie case under § 504.
The district court granted Metro-North’s motion on
April 5, 1991. It ruled that § 504 required Teahan to prove
that he (1) is a “handicapped person” under the Act, (2)
who is “otherwise qualified,” and (3) was terminated
“solely by reason of” his handicap. Metro-North concedes
Teahan’s position is one that is part of a program receiv-
ing federal financial assistance, the fourth element of a
§ 504 claim. The district judge found genuine issues of
material fact existed as to elements (1) and (2), but
granted summary judgment in favor of Metro-North on
element (3). With respect to this element, Judge Lowe
believed Metro-North had not relied on Teahan’s handicap
and had shown a nondiscriminatory reason for firing him
(excessive absenteeism), and that this shifted the burden
of proof to Teahan to show that Metro-North’s asserted
reason was pretextual, which he failed to carry.
On appeal Teahan argues that because the ground upon
which he was terminated was his excessive absenteeism,
and since his absenteeism was “caused by” his substance
abuse problem, the district court improperly shifted the
burden to him to present evidence of pretext. We agree
and for the reasons discussed below therefore reverse.
A-6
DISCUSSION
1. Burden of Proof under § 504.
We start with the statute. Section 504 in relevant part
provides:
No otherwise qualified individual with handicaps
. Shall, solely by reason of her or his handicap,
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.
In Doe v. New York University, 666 F.2d 761 (2d Cir.
1981), we laid out two alternatives to use in deciding dis-
crimination suits under § 504, depending on whether the
employer disclaims any reliance on the employee’s hand-
icap or acknowledges reliance on the handicap in its
employment decision. Because the statute does not bar an
employer from considering an employee’s handicap, a
§ 504 action often is not susceptible to the burden-shift-
ing order of proof regularly employed in discrimination
suits. See also Alexander v. Choate, 469 U.S. 287, 298
(1985) (handicapped persons are not ordinarily situated
similarly to the nonhandicapped). Where an employer's
actions have no relation to an employee’s handicap, that
is, where the employer “disclaims reliance” on the hand-
icap, the analysis developed in McDonnell Douglas Corp.
v. Green, 4)1 U.S. 792 (1973) and Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981), for
suits under Title VII of the Civil Rights Act of 1964 is
appropriate. In other words, at the final step the employee
has the burden to prove that the employer’s given reason
for the action taken was a pretext for discrimination and
the employee must show that the employer’s action had a
se rt rc ee
A-7
disparate impact. See also Prewitt v. United States Postal
Service, 662 F.2d 292, 305 n.19 (5th Cir. 1981) (approv-
ing of disparate impact analysis in § 504 context).
Although Teahan concedes he offered no evidence of
disparate impact or treatment, he nonetheless contends
that summary judgment was improper because Doe’s other
§ 504 approach should have been applied. His suit, he
continues, is the more typical one where an employer
acknowledges that in taking adverse action against an
employee it relied on plaintiff’s handicap, which may be
a permissible and appropriate factor to consider with
respect to an employee’s qualifications. In such cases,
after complainant proves a prima facie case, the employer
is required to rebut the inference that the handicap was
improperly considered by demonstrating that it was rel-
evant to the job qualifications. See Doe, 666 F.2d at 776:
Pushkin v. Regents of University of Colorado, 658 F.2d
1372, 1387 (10th Cir. 1981) (placing burden on defendant
to show handicap-related inability of plaintiff to meet job
requirements). The plaintiff, of course, bears the ultimate
burden of proving that despite his handicap he is quali-
fied. See Doe, 666 F.2d at 776-77.
The initial question then is whether Metro-North fired
Teahan “solely by reason of” his handicap, thereby
relying on his handicap. The district court concluded that
because Metro-North terminated him or. account of absen-
teeism, it was noi relying on his alcoholism. The Sig-
nificant difference, as set forth above, is that where
the employer relies on an employee’s handicap for
its employment decision, the employer has the burden
of proving the handicap is relevant to the job require-
ments.
A-8
2. The “Reason” for Teahan’s Dismissal
Teahan’s contention that he was fired because he was
an alcoholic presents a question of fact as to whether his
excessive absenteeism was caused solely by his substance
abuse. Only if the only reason for his absenteeism was
appellant’s alcoholism do we reach the second portion of
his argument, that is, his claim that he was fired “solely
by reason of” his handicap. Although the causal connec-
tion between absenteeism and alcoholism is ordinarily a
question of fact, not properly capable of resolution under
a Rule 56 motion, we must examine the facts in the light
most favorable to the party against whom summary judg-
ment was granted, and therefore assume the existence of
the causal relationship here. See, e.g., Bailey v. Hartford
Fire Ins. Co., 565 F.2d 826, 830 (2d Cir. 1977). Hence, we
must determine whether an employee who has excessive
unexcused absences from work as the result of alcoholism
is terminated “solely by reason of” his handicap when his
employer relies on the absenteeism to terminate his
employment. Analysis of the legislative purpose under-
lying the statute and of the case law interpreting § 504
suggests the answer is “yes.”
We turn first to examine § 504 which simply provides
that “an otherwise qualified handicapped individual” not
be discharged from federally funded employment “solely
by reason of his handicap.” An employer obviously may
not assume that because a person has a handicap, he or
she is unable to function in a given work context.
Although the Act forbids discrimination based on stereo-
types, an employer is entitled to make employment deci-
sions based on the “actual attributes of the handicap.” See
Anderson v. University of Wisconsin, 841 F.2d 737, 740
(7th Cir. 1988). See also Southeastern Community College
A-9
v. Davis, 442 U.S. 397, 405 (1979) (Section 504 “indi-
cat[es] only that mere possession of a handicap is not a
permissible ground for assuming an inability to function
in a particular context”); School Bd. of Nassau County v.
Arline, 480 U.S. 273, 284 (1987) (basic purpose of § 504
“is to ensure that handicapped individuals are not denied
jobs or other benefits because of the prejudiced attitudes
or the ignorance of others”). Metro-North insists that Tea-
han was terminated because of his excessive absenteeism,
which it concluded was an actual attribute of his handi-
Cap.
We recognize that Metro-North may use its established
criteria for employee performance without violating
§ 504. But it does not inevitably follow that termination
for conduct resulting from a handicap is not termination
“solely by reason of” that handicap. By equating the
employer’s motivation for firing with the employee’s con-
duct, the relevant § 504 inquiry collapses; that is to say,
absenteeism resulting from alcoholism is a factor that
bears on whether an employee is “otherwise qualified” for
the position, but absenteeism is irrelevant to whether he
was terminated in the first place “solely by reason of” his
handicap.
The “solely by reason of” inquiry is designed to weed
out § 504 claims where an employer can point to conduct
or circumstances that are causally unrelated to the plain-
tiff’s handicap. See, e.g., Smith v. Barton, 914 F.2d 1330,
1340 (9th Cir. 1990) (employer’s asserted reason budget
constraints and restructuring); Ross v. Beaumont Hosp..,
687 F. Supp. 115, 118 (E.D. Mich. 1988) (plaintiff’s abu-
Sive behavior was significant factor in employer’s deci-
sion); Norcross v. Snead, 573 F. Supp. 533, 544 (W.D.
Ark. 1983) (reasons for hiring individual other than plain-
tiff were greater experience and better prior work record);
A-10
Assa’ad-Faltas v. Com. of Va., 738 F. Supp. 982, 987
(E.D. Va. 1989) (failure to allege her handicap served as
reason for employer’s actions precluded plaintiff from
stating § 504 claim).
That an employee be terminated “solely by reason of”
his handicap is a necessary element of a § 504 claim. But
an employee may be terminated “solely by reason of” his
handicap even though the employer disclaims any reliance
on it. That is the reason why in such a case the employer
has the burden of showing the handicap is relevant to the
employee’s work in order to rebut the inference that the
handicap was improperly considered. A plaintiff is enti-
tled to challenge as pretextual an assertion that the
employer is not relying on the employee’s handicap. But
when the employer does not disclaim reliance on the
handicap, the “solely by reason of” element is by defini-
tion satisfied. The question then becomes whether the
employee is qualified despite his or her handicap to per-
form the essential functions of the job. See Arline, 480
U.S. at 287 n.17. The district court erred when it con-
cluded that appellant was not fired “solely by reason of”
his handicap. As a result of that ruling, Teahan was not
given an opportunity to show that he was a handicapped
individual protected by § 504 or that he was “otherwise
qualified” for the position despite his alcoholism.
In assessing the reasons prompting the firing, the dis-
trict court’s discussion distinguishes between a handicap
and its consequences. But the handicap and its conse-
quences are distinguished for purposes of § 504 only in
assessing whether or not the firing was discriminatory. If
the consequences of the handicap are such that the
employee is not qualified for the position, then a firing
because of that handicap is not discriminatory, even
though the firing is “solely by reason of” the handicap.
A-11
See Wegner, The Antidiscrimination Model Reconsidered:
Ensuring Equal Opportunity Without Respect to Handicap
Under Section 504 of the Rehabilitation Act of 1973, 69
Cornell L. Rev. 401, 485 (whether defendant states legit-
imate, non-discriminatory reason for exclusion of plain-
tiff is one of causation, not justification).
An example may help to illustrate this point. An
employee has one leg shorter than the other, Causing him
to limp, which we assume is a “handicap” under § 504.
The limp causes the worker to make a loud “thump” when
he takes a step. He is fired, his employer says, because of
the thumping. Under the district court’s analysis the
employee may not maintain a suit under § 504 because
the handicap is the limp, not the thump; hence the worker
was not fired “solely by reason of” his handicap, but
rather because of an attribute caused by the handicap.
This analysis misinterprets Doe’s holding that when
an employer “disclaims any reliance” on a plaintiff's
handicap, the burden is automatically shifted to the plain-
tiff to disprove the employer’s proffer of a legitimate (i.e.,
nondiscriminatory) reasor for the termination. 666 F.2d
at 776. “Disclaims any reliance” refers to any reliance;
an employer “relies” on a handicap when it justifies
termination based on conduct caused by the handicap.
An employer does not “rely” on a handicap when it
can point to behavior that is not causally related to that
handicap.
Returning again to the limping employee, the district
court’s analysis would mean that when the employer
disclaims reliance—in the absence of establishing the
employer’s asserted reason as pretextual—the worker is
not given an opportunity to show that he is “otherwise
qualified.” Yet, the proper analysis is that the causal
A-12
connection between the limp (handicap) and the thump
(symptomatic manifestation of the handicap) is such that
the employer did “rely” on the handicap.
The difficulty with the district court’s reasoning there-
fore is that it would allow an employer to “rely” on any
conduct or circumstance that is a manifestation or symp-
tomatic of a handicap, and, in so doing, avoid the burden
of proving that the handicap is relevant to the job quali-
fications. The conduct associated with or which is a man-
ifestation of a handicap is quite relevant, as distinct from
the handicap itself, in assessing whether a worker is “oth-
erwise qualified,” and therefore, whether the termination
was justified. For example, in this very case it may be
that, despite two and one-half months of good work, there
is sufficient likelihood of relapse, which together with
job-related conduct, could render Teahan not “otherwise
qualified.” Any such conduct is, of course, not pertinent
when assessing the reason for the termination. Numerous
courts have at least implicitly agreed with this view
insofar as § 504 suits have been entertained when an
employee’s termination was prompted by substance
abuse-related or -induced conduct. See, e.g., Rodgers v.
Lehman, 869 F.2d 253, 254 (4th Cir. 1989); Callicotte
v. Cheney, 744 F. Supp. 3, 4 (D. D.C. 1990); McElrath v.
Kemp, 741 F. Supp. 245, 246 (D. D.C. 1989); Nisperos
v. Buck, 720 F. Supp. 1424, 1426 (N.D. Cal. 1989); see
also Walker v. Weinberger, 600 F. Supp. 757, 761 (D. D.C.
1985).
We hold therefore that termination by an employer sub-
ject to the Act which is justified as being due to absen-
teeism shown to be caused by substance abuse is
termination “solely by reason of” that substance abuse for
purposes of § 504. In sum, whether or not absenteeism is
“caused” by a handicap is a question of fact. We note that
A-13
the relevant inquiry is into the causal connection of those
absences. We need not now decide the precise contours of
Causality necessary to satisfy this element of a § 504
claim. If only a small percentage of Teahan’s absences
can be shown to have been “caused” by his alcoholism,
and a sufficiently great number of absences are not so
caused, such would provide grounds for Metro-North to
terminate appellant as not prompted solely by reason of
his handicap.
3. “Handicapped Individual”
Because the district court concluded that Teahan was
not terminated “solely by reason of” his handicap and
therefore failed to establish the third necessary element of
his § 504 claim, it did not address whether Teahan was an
“individual with handicaps” covered by the Act. As a
preliminary matter, it is clear that substance abuse is a
“handicap” for purposes of the Rehabilitation Act. See,
e.g., Rodgers, 869 F.2d at 258; Callicotte, 744 F. Supp. at
4; Walker, 600 F. Supp. at 761; Wallace v. Veterans
Admin., 683 F. Supp. 758 (D. Kan. 1988); Whitlock v.
Donovan, 598 F. Supp. 126, 129 (D. D.C. 1984); 43 Op.
Atty. Gen. April 12, 1977.
Metro-North asserts that despite his handicap, Teahan
is not within the protection of § 504 due to the second
sentence of § 706(8)(B). At the time of Teahan’s dismis-
sal this section provided that for purposes of § 504, as
that section relates to employment, “handicapped indi-
vidual”
does noi include any individual who is an alcoholic
or drug abuser whose current use of alcohol or drugs
Pry
A-14
prevents such individual from performing the duties
of the job in question. . .!
Of course, if Teahan is not a “handicapped individual”
covered by § 504, no claim under that section may lie
against Metro-North. E.g. Arline, 480 U.S. at 279; Doe,
666 F.2d at 774. The crux of the parties’ competing view-
points is whether or not Teahan was a “current” abuser of
drugs and alcohol at the “relevant time.”
Metro-North asserts that the “relevant time” to assess
Teahan’s status as a “current” abuser of alcohol and drugs
is when the decision to terminate is made. That date here
would be on December 28, 1987 when Teahan was noti-
fied that disciplinary charges would be brought—before
he completed the Conifer Park program. On that date
appellant was a current abuser of alcohol and drugs who,
according to his employer, was not within the protection
of § 504. See Heron v. McGuire, 803 F.2d 67, 69 (2d Cir.
1986) (plaintiff whose current drug habit renders him
unfit to perform job unprotected by § 504). Appellant
insists, on the other hand, that the “relevant time” to
assess his status as a substance abuser is on April 11,
1988 when he was actually fired—after successfully com-
pleting the Conifer Park program.
It is clear that insofar as the Rehabilitation Act evinces
a general recognition of substance abuse as a disease, dis-
crimination on the basis of such a handicap is antithetical
to one of the goals of the Act—to ensure that handicapped
1 In 1990, § 706(8)(B) was amended, Pub. L. 101-336 § 512(c), and
§ 706(8)(c)(i) now provides that “the term ‘individual with handicaps’
does not include an individual who is currently engaging in the illegal
use of drugs, when [an employer] acts on the basis of such use,” and
§ 706(8)(c)(v) now provides that “the term ‘individual with handicaps’
does not include any individual who is an alcoholic whose current use
of alcohol prevents such individual from performing the duties of the job
in question. . .”
A-15
persons are not victimized in the employment context by
archaic or stereotypical assumptions concerning their
handicap. See Arline, 480 U.S. at 284. But nothing in the
language, history or precedents interpreting § 504 suggest
that this provision is designed to insulate handicapped
individuals from the actual impact of their disabilities.
See Alexander, 469 U.S. at 300 (“Davis struck a balance
between the statutory rights of the handicapped to be inte-
grated into society and the legitimate interests of federal
grantees in preserving the integrity of their programs”).
Consequently, we must be wary lest § 504 be applied as a
haven to protect substance abusers who have not in the
past sought—nor do they seek in the present—help. See
Burka v. New York City Transit Authority, 680 F. Supp.
590, 597 (S.D.N.Y. 1988).
It is against this background that the meaning of the
word “current” in § 706(8)(B) must be determined. It
would defeat the goal of § 504 to allow an employer to
justify discharging an employee based on past substance
abuse problems that an employee has presently overcome.
See Walker, 600 F. Supp. at 762 (use of pre-treatment
alcohol-related problems for disciplinary purposes is
inconsistent with legislative perception of alcoholism as
a disease). The statute plainly is designed to protect reha-
bilitated or rehabilitating substance abusers from retro-
active punishment by employers. See Burka, 680 F. Supp.
at 599; Nisperos, 720 F. Supp. at 1427; see also Tinch v.
Walters, 765 F.2d 599, 603 (6th Cir. 1985) (a recovered
alcoholic is an individual with handicaps within the mean-
ing of the Rehabilitation Act). Yet, we recognize that the
present facts pose a scenario different from that envi-
sioned in the statute. Here, the employee’s past substance
abuse is relied on by the employer not to exact retroactive
punishment, but to deal with a built-in delay between its
A-16
decision to terminate Teahan and actual date of his
release, attributable to its compliance with procedures
mandated under its collective bargaining agreement.
Nevertheless, although we have found no case law
addressing this point, we think the relevant time for
assessment of Teahan’s “current” status is the time of his
actual firing. This view best comports with the legislative
purpose of ensuring that rehabilitated or rehabilitating
individuals are not discriminated against on the basis of
past substance abuse. The provision excluding current
substance abusers from the protection of § 504 ensures
that the integration of the handicapped into the workforce
is not an overly burdensome process, financially or
otherwise, for the employer. See Alexander, 469 U.S. at
299-300; see also Heron, 803 F.2d at 69. The relevant
burden in this context is the extent to which an employer
subject to the Act is required to alter its working envi-
ronment and the impact such change would have on main-
taining its own standards for acceptable job performance.
See, e.g., Davis, 442 U.S. at 413 (section 504 “imposes no
requirement upon an educational institution to lower or to
effect substantial modifications of standards to accom-
modate a handicapped person”).
The burden imposed upon Metro-North may not be
deemed to outweigh the Act’s purpose affording substance
abusers an opportunity to overcome their handicap and
become as fully integrated into the workforce as possible.
In light of the fact that the procedures utilized by the
IBEW were within the scope of those granted employees
under the collective bargaining agreement, Metro-North’s
argument that it could not, by reason of its legal obliga-
tions, win the race to final discipline before the employee
enters the sanctuary of a hospital is way wide of the mark.
The reason for that delay in the case at hand is irrelevant;
A-17
the pivotal inquiry is whether allowing the employee to
utilize the delay to seek treatment unreasonably preju-
dices the employer.
The appellate procedures available to a disciplined
employee under the labor agreement were known by
Metro-North and were part and parcel of Teahan’s
employment. See J./.Case Co. v. National Labor Rela-
tions Board, 321 U.S. 332, 335 (1944) (a collective bar-
gaining agreement “results in an accord as to the terms
which . . . govern [employment]”). His employment
encompassed those review procedures he was entitled to
invoke when the employer sought to initiate disciplin-
ary action against him. As a consequence, appellant’s
employment was not terminated until these procedures
had been complied with. See John Wiley & Sons, Inc. v.
Livingston, 376 U.S. 543, 550 (1964) (“the collective
[bargaining] agreement covers the whole employment
relationship”).
We are unpersuaded that assessing Teahan’s status as a
Current substance abuser as of the date of actual discharge
amounts to such an interference with or is such an unfair
Surprise to Metro-North as to overcome the legislative
goal of encouraging substance abusers to seek treatment.
Further, because Teahan enrolled in the Conifer Park
program beforce receiving official notice of disciplinary
charges—and in light of his apparent recovery—we are
loathe to classify him as a continuing substance abuser
seeking a safe haven under § 504.
The language of the statute itself supports this con-
clusion. It was triggered upon Teahan’s being “excluded
from the participation in, . . . denied the benefits of, or
. . Subjected to discrimination.” It is more logical to
rule that Metro-North’s action that subjected it to § 504
A-18
was the date of Teahan’s actual discharge, not the time
when that decision was made.
It may well be, as Metro-North states, that the rule it
“propose[s] would apply only where competing legal obli-
gations prohibit the employer from acting immediately.”
We cannot share this optimism regarding any such rule
that may be enunciated. Permitting an employer to raise
competing obligations, legal or otherwise, as a reason
preventing it from finally terminating an employee
concurrently with the decision presents difficulties as to
when that decision was made. In addition, adopting such
an argument creates a potential loophole that exposes
rehabilitating substance abusers to the type of retroactive
punishment that the Act expressly seeks to prevent.
Moreover, a determination that Teahan’s status as a
Current substance abuser is to be made as of the date of
actual termination does not finally resolve the matter, as
the legislative history of § 706 relating to current sub-
Stance abusers states:
[t]he provision is not intended to be limited to per-
sons who use drugs on the day of, or within a matter
of days or weeks before, the action in question.
Rather the provision is intended to apply to a person
whose illegal use of drugs occurred recently enough
to justify a reasonable belief that a person’s drug use
is current.
H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 4 (1990),
reprinted in 1990 U.S. Code Cong. & Admin. News 596.
As noted in footnote 1, § 706(8)(B) was amended so as
to result in different sections covering illegal drug users
and alcoholics. For purposes of the issues presented, this
amendment has no substantive effect on our analysis.
A-19
Thus, though the reference is only to illegal drug use, we
regard this merely as a result of the Statutory separation of
illegal drug users and alcoholics, rather than as indicative
of any congressional purpose to assess differently a “cur-
rent” illegal drug user from a “current” alcoholic.
Hence, Teahan’s status as a current substance abuser as
of April 11, 1988 is a question of fact that requires reso-
lution on remand. Specifically, it must be determined
whether on the date of discharge Metro-North held a rea-
sonable belief that Teahan had a current substance abuse
problem. “Current” is to be determined in light of the sec-
tion in which it appears; that is, whether the employee’s
Substance abuse problem is severe and recent enough so
that the employer is justified in believing that the
employee is unable to perform the essential duties of his
job.? See Simpson v. Reynolds Metals Co.., Inc., 629 F.2d
1226, 1231 n.8 (7th Cir. 1980); Burka, 680 F. Supp. at
600.
Undoubtedly, the resolution of this issue will in large
part turn on several factors: the level of responsibility
entrusted to the employee; the employer’s applicable job
and performance requirements; the level of competence
ordinarily required to adequately perform the task in ques-
tion; and the employee’s past performance record. Dis-
2 The 1990 amendment excludes from coverage a current alcoholic
“whose current use of alcohol prevents [him] from performing the duties
of the job in question . . .” and a current illegal drug user “when
{an employer} acts on the basis of such use.” Because both types
of substance abusers were Previously similarly classified under
§ 706(8)(B), we find no reason to interpret “act[{ing] on the basis of such
[illegal drug) use” so as to encompass anything more or less than would
justify termination of a “current” alcoholic. See generally 43 Op. Atty.
Gen. April 12, 1977 (making no distinction between drug abusers
and alcoholics for purposes of assessing whether manifestations of the
handicap prevent individual from meeting basic requirements of posi-
tion).
A-20
tinct from the analysis undertaken when an employee is
terminated “solely by reason of” his handicap is the exam-
ination required to determine whether an employee is a
“current” substance abuser for purposes of § 706(8)(B).
The latter examination involves a determination of how
the conduct that is a manifestation or symptomatic of the
handicap bears upon the employee’s ability to perform
the essential duties of his job. Consequently, if an
employer reasonably can establish that, on the date
an employee is finally terminated, his substance abuse
problem is such as to prevent him or her from per-
forming his essential duties, the employee then is a
“current substance abuser” excluded from the coverage of
§ 504.
4. “Otherwise Qualified”
Because the district court concluded that Teahan had
failed to establish one element of his § 504 claim, it did
not decide whether Teahan was “otherwise qualified.”
Such is also a question of fact that must be resolved on
remand. Only if it is found that Teahan was not a current
substance abuser as of April 11 need the district court
undertake to determine whether Teahan was, as of April
11, “otherwise qualified,” in spite of his handicap, for the
job in question. Relevant to resolution of this fact ques-
tion is, for example, the likelihood of relapse and future
absenteeism by Teahan, even if he was not as of that date
a “current” substance abuser. See Doe, 666 F.2d at 777;
Anderson, 841 F.2d at 740; Mantolete v. Bolger, 767 F.2d
1416, 1422 (9th Cir. 1985); cf. New York State Ass'n For
Retarded Children v. Carey, 612 F.2d 644, 650 (2d Cir.
1979) (likelihood must be more than a “remote possibil-
ity”).
A-21
The record does not reveal any job-related conduct
other than absenteeism stemmed from Teahan’s substance
abuse. Yet our discussion should not be read as preclud-
ing the possibility that some other job-related manifes-
tation of Teahan’s abuse problem might be relevant in
deciding whether he is “otherwise qualified.” It is not
possible to enumerate exhaustively all the factors that go
into making such a determination for it requires consid-
eration not only of the conduct that is symptomatic of the
handicap, but also the work the employee performs and
how the two interact. In other words, whether conduci is
job-related depends as much on the job as on the conduct.
Inasmuch as Teahan’s responsibilities bear on public
Safety concerns, any conduct demonstrated to be a man-
ifestation of his handicap that is likely to occur in the
future and which may implicate those public safety con-
cerns is a matter the district court should consider in
determining whether he is “otherwise qualified.”
The two questions of whether the substance abuse prob-
lem is current enough so as to preclude the employee
from being able to perform the essential duties of his job
as of the date of actual termination (a present-time
inquiry), and whether the employee’s handicap is such
that he is not qualified to perform the essential duties of
the job in question (a forward-looking inquiry), are not
mutually exclusive. This is because whether an employee
is adequately performing his job as of the date of termi-
nation for purposes of deciding whether he is a “current”
Substance abuser focuses on the individual employee and
on how he is presently performing; whether the employee
is “otherwise qualified” as of the date of termination is
forward-looking and enables the employer to consider
how the employee will perform as compared to non-
handicapped individuals. See Doe, 666 F.2d at 776; cf.
A-22
Anderson, 841 F.2d at 741 (relevant question in assessing
if one is “otherwise qualified” is not whether student
plaintiff can adequately perform, but whether defendant
institution would have admitted student with same aca-
demic qualifications who was not handicapped).
Finally, we also note that although § 504 does not
prevent an employer from requiring a handicapped
employee be able to satisfy reasonable job-related
requirements, e.g., Prewitt, 662 F.2d at 307; Stutts v. Free-
man, 694 F.2d 666, 669 (11th Cir. 1983), a defendant will
bear a heavy burden in attempting to show that freedom
from past substance abuse, in and of itself, is an essential
job-related requirement. See Nisperos, 720 F. Supp. at
1428-1429. The parties raise a question regarding the
extent to which an employer’s duty to “reasonably accom-
modate” the handicapped employee bears upon a deter-
mination as to whether the employee is “otherwise
qualified.” See Davis, 442 U.S. at 410-11; Arline, 480
U.S. at 287 n.17. This question need not be resolved until
the district court first makes a finding as to whether Tea-
han was “otherwise qualified.”
CONCLUSION
Accordingly, the district court’s judgment of April 9,
1991 granting summary judgment in favor of Metro-North
is reversed and the case is remanded with directions to
the district court to reinstate appellant’s complaint and
to conduct further proceedings consistent with this opin-
ion.
B-1
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse in the
City of New York, on the 27th day of December, one thousand
nine hundred and ninety-one.
PRESENT: HON. JAMES L. OAKES, Chief Judge
HON. WILFRED FIENBERG
HON. RICHARD J. CARDAMONE
Circuit Judges,
JOHN TEAHAN,
Plaintiff-Appellant-Cross-Appellee,
-v- 91-7431, 91-7501
METRO-NORTH COMMUTER RAILROAD COMPANY,
Defendant-Appellee-Cross-Appellant. |
Appeal from the United States District Court for the Southern
District of New York.
This cause came on to be heard on the transcript of record
from the United States District Court for the Southern District
of New York and was argued by counsel.
ON CONSIDERATION WHEREOE. it is now hereby OR-
DERED, ADJUDGED and DECREED that the judgment of
said district court is reversed and the action be and it hereby
is remanded to the district court for further proceedings con-
sistent with the opinion of this court.
This Document was _— ELAINE B. GOLDSMITH, Clerk
entered on the By: /s/Edward J. Guardaro
Docket on 1-31-92 Edward J. Guardaro,
Issued as Mandate Deputy Clerk
Jan. 24, 1992
C-]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOHN TEAHAN,
Plaintiff, OPINION AND
ORDER
-against-
METRO-NORTH COMMUTER RAILROAD 88 CIV. 5376
COMPANY, (MJL)
Defendant.
APPEARANCES:
GRAHAM, CAMPAIGN & McCARTHY
36 West 44th Street
New York, New York 10036
BY: PATRICK M. WALL
ROBERT BERGEN, General Counsel
Metro-North Commuter Railroad
347 Madison Avenue
New York, New York 10017
BY: C. SUE BARNETT
MARY JOHNSON LOWE, DJ.
Before this Court is defendant’s motion for summary judg-
ment pursuant to Fed.R.Civ.P. 56. Plaintiff opposes the motion.
For the reasons set forth below, defendant’s motion is granted.
BACKGROUND
Plaintiff John Teahan (“Teahan”), formerly employed by
defendant Metro-North Commuter Railroad (“Metro-North”),
brings this action pursuant to Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. 794. In particular, Teahan alleges that
he was willfully, knowingly, and intentionally terminated by
C-2
Metro-North solely on the basis of his physical disability as a
reformed alcoholic. ‘Teahan further alleges that Metro-North
established a discriminatory policy in direct contradiction of
federal law including the Rehabilitation Act of 1973, 29 U.S.C.
701 et seq., and the Comprehensive Alcohol Abuse and
Alcoholism Prevention, Treatment and Rehabilitation Act of
1970, 42 U.S.C. 290dd-1.
Teahan worked for Metro-North as a telephone and telegraph
maintainer from Metro-North’s inception in 1983 until his ter-
mination on April 11, 1988. Complaint at 45; Answer at 1.
Metro-North is a subsidiary public benefit corporation duly
organized and existing by virtue of the laws of the State of New
York, a recipient of federal funds within the meaning of 29 U.S.C.
794, and an employer within the meaning of 29 U.S.C. 701 et
seq. Complaint at {4 6-8; Answer at 1.
During 1983 to 1987, Teahan incurred excessive unauthorized
absences due to an alcohol and/or drug addiction. Teahan was
absent from work a total of 19 days in 1984, 47 days in 1985,
and 139 days in 1986. Complaint at ¢{ 11-14; Defendant's Trial
Brief at 1. His supervisors progressively disciplined him for these
absences. Complaint at ¢ 16; Defendant's Trial Brief at 1-2.
In early 1986, Teahan sought help for his problems from
Metro-North’s Employee Assistance Program (“EAP”) and under-
went voluntary hospitalization at Parkview Hospital from March
7, 1986 through April 8, 1986. Complaint at ¢{ 17-18; Defend-
ant’s Trial Brief at 2. Neither program proved successful,
however, and Teahan soon resumed his use of alcohol and drugs,
and his established pattern of excessive absenteeism, missing 53
days of work during 1987. Complaint at ¢¢ 13-15; Plaintiff's Trial
Brief at 3-4.
On December 10-11, and 17-18, 1987, Teahan incurred addi-
tional unauthorized absences. Complaint at ¢ 15. Metro-North
filed formal disciplinary charges against him on December 28,
1987. Connor Affidavit at ¢ 2.
After incurring the unauthorized absences on December 17 and
18, Teahan entered and successfully completed a month-long
C.3
treatment program at the Conifer Park Rehabilitation Center
in Scotia, New York, on December 28, 1987. Complaint at
{ 20-21. In accordance with the controlling agreement between
Metro-North and Teahan’s union, the International Brotherhood
of Electrical Workers (“IBEW”), Metro-North returned Teahan
to work after his hospitalization on January 28, 1988. Complaint
at { 22; Connor Affidavit at { 4; Defendant’s Trial Brief at 3.
After returning to work, Teahan was not absent from his assigned
duties for any reason up to the day of his termination on April
11, 1988. Complaint at 4 22; Joint Pre-Trial Order at q 5(1). In
addition, he reported weekly to Metro-North’s EAP for counsel-
ing until his termination. Complaint at 423; Joint Pre-Trial Order
at ¢ 5(m).
On April 11, 1988, following a disciplinary trial, Metro-North
dismissed Teahan, citing his unauthorized December 1987
absences and his history of “excessive absenteeism” as reasons
for his discharge. Complaint at ¢ 28; Connor Affidavit at 14 2,
4.6.
The IBEW appealed his dismissal to Special Board of Adjust-
ment No. 934, established by the IBEW and Metro-North pur-
suant to the Railway Labor Act, 45 U.S.C. 15] et seq. The chair-
man and neutral member, Louis E. Seltzer, heard and rejected
the IBEW’s appeal fur leniency on Teahan’s behalf and denied
the grievance. Connor Affidavit at q 6.
On July 29, 1988, Teahan filed this action against Metro-North
alleging wrongful termination due to his physical disability and
discriminatory policies and practices in violation of Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. 794: Trial briefs
' Teahan has apparently abandoned his claim under the Comprehensive
Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act
of 1970, 42 U.S.C. 290dd-1. This claim only appears in the complaint and joint
pre-trial order, but not in the Plaintiff's Memorandum of Law, or Plaintiff's
Memorandum of Law in Opposition to Defendant's Motion for Summary
Judgement. Further, Section 201 of the 1970 Rehabilitation Act, 42 U.S.C.
290dd-1, provides in pertinent part:
“No person may be denied or deprived of Federal civilian employ-
ment or a Federal professional or other license or right solely
(Footnote continued)
C-4
by both parties and a joint pre-trial order were filed with this
Court, and the case was placed on the “ready trial” calendar.
Before trial, the position of Labor Counsel at Metro-North
changed hands. After reviewing the case for trial, the new Labor .
Counsel requested permission to move for summary judgment,
which this Court granted.
DISCUSSION
In a motion for summary judgment, the moving party has
the burden of showing that the record before the court establishes
“that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317 (1986). Metro-North, as the party
without the ultimate burden of proof at trial, may rely on the
record to show an absence of material fact. Jd. at 322-23. Once
Metro-North has satisfied its burden of proof, Teahan has an
affirmative obligation to come forward with evidence upon
which a jury could reasonably find in his favor in order to with-
stand the motion. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-49 (1986). The substantive law defines when a genuine
issue exists. Id. at 248.
Section 504 of the Rehabilitation Act of 1973 provides in per-
tinent part that “[n]o otherwise qualified individual with handi-
caps in the United States, as defined in section 706(8) of this
title, shall, solely by reason of her or his handicap, be excluded
from participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving
Federal financial assistance...” 29 U.S.C. § 794 (1988).
on the ground of prior alcohol abuse or prior alcoholism.” 42 US.C j
290dd-1(b) (1).
Section 201 applies solely to federal agencies and federal civilian employees.
See H.R. Report No. 91-1663, 91st Cong., 2nd Sess., reprinted in 1970 U.S. Code
Cong. & Admin. News 5719, 5729. Since Metro-North is not a federal agency,
and there is no implied cause of action under Section 20] against private
employers or unions, Florey v. Air Line Pilots Ass'n Int1., 439 F. Supp. 165,
172 (D. Minn. 1977), affd 575 F.2d 673 (8th Cir. 1978), it is not subject to
the provisions of Section 201 or the regulations promulgated thereunder.
Therefore, this aspect of Teahan’s claim will not be considered.
C-5
In order to make out a case based on the violation of § 504,
a plaintiff must prove (1) that he is a “handicapped person” under
the Act, (2) that he is “otherwise qualified” for the position, (3)
that he was terminated from the position solely by reason of
his handicap, and (4) that the position exists as part of a pro-
gram or activity receiving Federal financial assistance. Doe v.
New York University, 666 F.2d 761, 774-775 (2d Cir. 1981). Since
the parties do not dispute that Metro-North satisfies the last ele-
ment, only the first three elements will be discussed.
As to the first element, Metro-North argues that Teahan has
not shown that he was handicapped within the meaning of § 504
at the relevant time. The relevant portion of the Rehabilitation
Act provides that:
For purposes of sections 793 and 794 of this title as
such sections relate to employment, [the term “in-
dividuals with handicaps”] does not include any in-
dividual who is an alcoholic or drug abuser whose cur-
rent use of alcohol or drugs prevents such individual
from performing the duties of the job in question, or
whose employment, by reason of such current alcohol
or drug abuse, would constitute a direct threat to pro-
perty or the safety of others.
29 U.S.C. 706(8)(B) (1988). Since Teahan’s particular handicap
is alcohol and drug addiction, he must show that he was
rehabilitated or rehabilitating to be protected under the Act.
Burka v. New York City Transit Authority, 680 F. Supp. 590,
597-600 (S.D.N.Y. 1988). This protection is extended to encourage
those with alcohol and drug problems who have not done so
to seek treatment, while not providing “those same abusers with
assurances of safe haven in the workplace” if they should choose
to ignore help. Jd. at 600. To determine whether any facts re-
garding this element are genuinely at issue, the moving party
must show that, taking the record as a whole, the evidence could
not lead a rational trier of fact to find for the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
974, 587 (1986) (citing First Nat7 Bank v. Cities Serv. Co., 391
U.S. 253, 289 (1968)). Under this standard, Metro-North fails
C-6
to establish that no genuine issue of fact exists. At the time the
decision was made to terminate Teahan’s employment, he had
successfully completed a program at Conifer Park Rehabilita-
tion Center. After returning to work, he did not miss a day of
work for any reason until his termination on April 11, 1988.
Based on this evidence, a rational trier of fact could reasonably
find that Teahan was rehabilitated, and therefore within the
protection of the Act at the time he was discharged.
Metro-North claims, however, that the relevant time to deter-
mine whether Teahan’s current use of alcohol or drugs prevented
his performing the duties of his job is at the time of his absences,
not at the time the decision was made to terminate his employ-
ment. Since there is no case law directly on point on this issue,
the court is being asked to interpret the meaning of the word
“current” as it is used in 29 U.S.C. 706(8)(B). However, because
the plaintiff's claim fails on other grounds as discussed below,
the Court declines to construe the statutory language at this time.
As to the second element of the claim, Metro-North contends
that Teahan has failed to show that he was otherwise qualified
for his position as telephone and telegraph maintainer. Under
§ 504, an “otherwise qualified” person is one who is able to meet
all of a program’s requirements “in spite of his handicap.”
Southeastern Community College v. Davis, 442 U.S. 397, 406
(1979). In the employment context, an otherwise qualified per-
son is one who can perform “the essential functions” of the job
in question. School Bd. of Nassau County v. Arline, 480 U.S.
273, 287 n.17 (1987) (citing 45 C.F.R. § 84.3(k) (1985)). Metro-
North claims that because Teahan has a record of excessive
absences, he cannot be depended upon to report to work, and
was therefore not “otherwise qualified” for the position.
However, Metro-North again fails to establish that there is no
genuine issue of fact. Teahan worked for Metro-North in his
capacity as a telephone and telegraph maintainer for ten years.
This evidence supports his qualifications for the position and
capability of fulfilling the “essential functions” of the job. After
returning to work, Teahan did not miss a day of work for any
reason until the day of his termination. Since his prior absences
were allegedly due to his alcohol and drug addiction, and there
a i i
C-7
is evidence to support his rehabilitation, a rational trier of fact
could find that Teahan was capable of reporting to work at the
time of his termination. Viewing the record as a whole, there
is sufficient evidence to lead a rational trier of fact to find for
Teahan, therefore raising a genuine issue of fact. Matsushita,
475 U.S. at 587.
Finally, Metro-North claims that since Teahan was terminated
solely due to his record of excessive absences, Teahan has failed
to make out a prima facie case of discrimination based on his
handicap. On this element, Metro-North succeeds. Under § 504,
the plaintiff must prove that he was terminated “solely by reason
of his or her handicap.” 29 U.S.C. § 794 (1988). In deciding
whether an employer impermissibly took into consideration an
employee's handicap, courts apply the McDonnell Douglas three-
part test used in suits alleging violations of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Doe, 666 F.2d at
776; Norcross v. Sneed, 755 F.2d 113, 116-17 (8th Cir. 1985).?
In order to make a prima facie case, the plaintiff must do more
than merely claim to be in a protected group. See Zahorik v.
Cornell Univ., 729 F.2d 85 (2d Cir. 1984) (plaintiff who alleged
sex discrimination in denial of tenure failed to raise a disputed
issue of fact when tenure was denied in the context of a dispute
regarding the candidate’s academic qualifications, and the
Statistical evidence was insufficient). Instead, the plaintiff must
show that he or she was rejected under circumstances which give
* In suits such as this, where the employer claims no reliance on the emplovee's
handicap in the decision to terminate, the plaintiff, who has the ultimate
burden of proving by a fair preponderance of the evidence that the defend-
ant discriminated against him on the basis of an impermissible factor, may
make a prima facie case by showing that he was qualified for the position
and was terminated under circumstances indicating discrimination on the basis
of an impermissible factor. The burden then shifts to the defendant to rebut
the presumption of discrimination by coming forward with evidence that the
plaintiff was terminated for a legitimate reason. The plaintiff must then prove
the reason was not true, but a pretext for impermissible discrimination. While
the burden of production shifts once a plaintiff offers a prima facie case, the
burden of persuasion remains upon the plaintiff at all times. Doe v. New York
University, 666 F.2d 761, 776 (2d Cir. 1981) (citing McDonnell Douglas Corp.
v. Green. 411 U.S. 792 (1973) and Texas Dep't of Community Affairs v. Bur-
dine, 450 U.S. 248 (1981)).
C-8
rise to an inference of unlawful discrimination. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Ab-
sent direct evidence of discrimination, Trans World Airlines, Inc.
v. Thurston, 469 U.S. 111, 121 (1985), the plaintiff may raise an
inference with evidence of disparate treatment, McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), or, in the case
of a facially neutral policy or requirement that is challenged
because it adversely affects handicapped persons, with evidence
of adverse impact. Alexander v. Choate, 469 U.S. 287 (1985).
Cf., e.g., Woodbury t. New York City Transit Authority, 832
F.2d 764 (2d Cir. 1987) (reversing judgment for plaintiffs in Ti-
tle VII and 42 U.S.C. § 1981 case in which plaintiff claimed
discriminatory treatment where the court misread statistical
evidence and where anecdotal evidence of leniency toward white
officers was insufficient to show discriminatory intent); War-
ren v. Quality Care Service Corp., 603 F. Supp. 1174 (W.D.N_Y.
1985) (granting employer’s motion for summary judgment in
Title VII and 42 U.S.C. § 1981 case where plaintiff failed to pro-
duce any evidence that he was disciplined more severely than
similarly situated white employees).
Here, Metro-North argues that Teahan has only claimed to
be in a protected group and fails to present any evidence of
disparate treatment. Further, Metro-North presents evidence that
its decision to terminate Teahan was based on a legitimate, non-
discriminatory reason, namely Teahan’s excessive absences. Con-
nor Affidavit at 4q 2, 4-6. Viewing the record as a whole, the
Court is satisfied that Metro-North has produced evidence of
a non-discriminatory reason for terminating Teahan, thereby
shifting the burden of production to the plaintiff.
Teahan argues that Metro-North has not shown that he can-
not prove disparate treatment and for this reason, the motion
should be denied. This assertion is clearly erroneous. Once the
- burden of production has shifted, the plaintiff must present af-
firmative evidence from which a jury might return a verdict
in plaintiffs favor to survive a summary judgment motion.
Anderson, 477 U.S. at 256-57. Here, Teahan fails to meet his
burden of production. Teahan’s assertion that Metro-North knew
he had an alcohol and drug problem is insufficient proof of
C-9
discriminatory intent to survive a summary judgment motion.*
Teahan presents no evidence that raises an inference of disparate
treatment or impact. Nor does he present evidence that raises
an inference that Metro-North’s reason for termination was a
pretext for discrimination. In fact, Teahan fails to present any
affidavits, deposition, or other evidence at all in opposition to
Metro-North’s motion. By failing to present evidence to rebut
Metro-North’s case, Teahan fails to raise a genuine issue of
material fact regarding discriminatory treatment.
Where a party, who will have the burden of proof at trial,
fails to establish an element essential to that party’s case, sum-
mary judgment is appropriate. Celotex, 477 U.S. at 322-23.
Teahan fails to establish that he was terminated from the posi-
tion solely by reason of his handicap, an element essential to
his claim. Therefore, Metro-North’s motion for summary judg-
ment is granted.
It Is So Ordered.
Dated: New York, New York
March 29, 199]
/s/Mary Johnson Lowe
United States District Judge
* There is apparently a dispute as to when Metro-North first learned of Teahan’s
addiction. By his own admission, Teahan did not tell his supervisors of his
addiction until sometime in November or December, 1987. Teahan Deposi-
tion at 17, 27. Even assuming Metro-North knew of Teahan’s problem at the
time of his termination, this is insufficient evidence of discrimination in light
of Metro-North’s nondiscriminatory reason for termination. and Teahan’s
failure to meet his burden of producing evidence of pretext.
D-1
APPENDIX D
Section 706(8) provides, in pertinent part:
(C)(i) For purposes of subchapter V of this chapter, the term
“individual with handicaps” does not include an individual who
is currently engaging in the illegal use of drugs, when a covered
entity acts on the basis of such use.
(ii) Nothing in clause (i) shall be construed to exclude as an
individual with handicaps an individual who —
(I) has successfully completed a supervised drug
rehabilitation program and is no longer engaging in
the illegal use of drugs, or has otherwise been
rehabilitated successfully and is no longer engaging
in such use;
(II) is participating in a supervised rehabilitation
program and is no longer engaging in such use: or
(III) is erroneously regarded as engaging in such use,
but is not engaging in such use:
except that it shall not be a violation of this chapter for a covered
entity to adopt or administer reasonable policies or procedures,
including but not limited to drug testing, designed to ensure
that an individual described in subclause (I) or (II) is no longer
engaging in the illegal use of drugs.
(v) For purposes of sections 793 and 794 of this title as such
sections relate to employment, the term “individual with handi-
caps” does not include any individual who is an alcoholic whose
current use of alcohol prevents such individual from perform-
ing 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)(i), (v) (1990).
i ee a reac gsa
D.2
Section 501 provides, in pertinent part:
§ 791. Employment of individuals with handicaps
(a) Interagency Committee on Handicapped Employees;
establishment; membership; co-chairmen; availability of other
Committee resources; purpose and functions
There is established within the Federal Government an In-
teragency Committee on Handicapped Employees (hereinafter
in this section referred to as the “Committee”), comprised of
such members as the President may select, including the follow-
ing (or their designees whose positions are Executive Level IV
or higher): the Chairman! of the Equal Employment Oppor-
tunity Commission (hereafter in this section referred to as the
“Commission”), the Administrator of Veterans’ Affairs, and the
Secretary of Labor, the Secretary of Education, and the Secretary
of Health and Human Services. The Secretary of Education and
the Chairman! of the Commission shall serve as co-chairpersons
of the Committee. The resources of the President’s Committees
on Employment of People With Disabilities and on Mental
Retardation shall be made fully available to the Committee. It
shall be the purpose and function of the Committee (1) to pro-
vide a focus for Federal and other employment of individuals
with handicaps, and to review, on a periodic basis, in coopera-
tion with the Commission, the adequacy of hiring, placement,
and advancement practices with respect to individuals with hand-
icaps, by each department, agency, and instrumentality in the
executive branch of Government, and to insure that the special
needs of such individuals are being met; and (2) to consult with
the Commission to assist the Commission to carry out its respon-
sibilities under subsections (b), (c), and (d) of this section. On
the basis of such review and consultation, the Committee shall
periodically make to the Commission such recommendations
for legislative and administrative changes as it deems necessary
or desirable. The Commission sha!l timely transmit to the ap-
propriate committees of Congress any such recommendations.
D-3
(b) Federal agencies; affirmative action program plans
Each department, agency, and instrumentality (including the
United States Postal Service and the Postal Rate Commission)
in the executive branch shall, within one hundred and eighty
days after September 26, 1973, submit to the Commission and
to the Committee an affirmative action program plan for the
hiring, placement, and advancement of individuals with handi-
caps in such department, agency, or instrumentality. Such plan
shall include a description of the extent to which and methods
whereby the special needs of employees with handicaps are being
met. Such plan shall be updated annually, and shall be reviewed
annually and approved by the Commission if the Commission
determines, after consultation with the Committee, that such
plan provides sufficient assurances, procedures and commitments
to provide adequate hiring, placement, and advancement op-
portunities for individuals with handicaps.
29 U.S.C. § 791 (a)-(b) (1990).
Section 503 provides, in pertinent part:
§ 793. Employment under Federal contracts
(a) Amount of contracts or subcontracts; provisions for employ-
ment and advancement of qualified individuals with handi-
caps; regulations
Any contract in excess of $2,500 entered into by any Federal
department or agency for the procurement of personal property
and nonpersonal services (including construction) for the United
States shall contain a provision requiring that, in employing per-
sons to carry out such contract, the party contracting with the
United States shall take affirmative action to employ and ad-
vance in employment qualified individuals with handicaps as
defined in section 706(8) of this title. The provisions of this sec-
tion shall apply to any subcontract in excess of $2,500 entered
into by a prime contractor in Carrying out any contract for the
procurement of personal property and nonpersonal services (in-
cluding construction) for the United States. The President shall
D-4
implement the provisions of this section by promulgating regula-
tions within ninety days after September 26, 1973.
29 U.S.C. § 793 (a)(1990).
Section 504 provides, in pertinent part:
§ 794. Nondiscrimination under federal grants and programs;
promulgation of rules and regulations
(a) Promulgation of rules and regulations
No otherwise qualified individual with handicaps in the
United States, as defined in section 706(8) of this title, shall,
solely by reason of her or his handicap, 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.
The head of each such agency shall promulgate such regula-
tions as may be necessary to carry out the amendments to this
section made by the Rehabilitation, Comprehensive Services,
and Developmental Disabilities Act of 1978. Copies of any
proposed regulation shall be submitted to appropriate authoriz-
ing committees of the Congress, and such regulation may take
effect no earlier than the thirtieth day after the date on which
such regulation is so submitted to such committees.
29 U.S.C. § 794 (a)(1990).
E-]
SPECIAL BOARD OF ADJUSTMENT NO. 934
AWARD NO. 114
DOCKET NO. IBE 88/NY102(D)
J. TEAHAN
PARTIES TO DISPUTE:
SYSTEM COUNCIL NO. 7
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS
and
METRO-NORTH COMMUTER RAILROAD COMPANY
STATEMENT OF CLAIM:
Appeal of dismissal for excessive absences made effective
by Notice of Discipline dated April 11, 1988.
FINDINGS:
1, 1983; that it has jurisdiction of the parties and the subject
matter, and that the parties were given due notice of the
Hearing.
Claimant was absent without permission on December 10,
11, and 17, 1987, and was absent from his assigned position on
those days as well as on December 18th, when he marked-off
but without permission. The record discloses that Claimant did
not inform the Carrier on numerous occasions that he would
be absent from work. In addition, he was consistently
unavailable for bargained for and compensated service. Claim-
ant’s attendance record reveals chronic absenteeism for several
years, viz. in 1985 he was absent forty eight work days; in 1986
he was absent fifty eight work days; and in 1987 he was absent
E-2
fifty three work days. There is no doubt that this constitutes
excessive absenteeism, and such conduct is of course particularly
detrimental to the Carrier in the railroad industry.
Claimant failed to improve his attendance record after
progressive discipline. Notwithstanding the claim to the con-
trary, Claimant received a fair and impartial trial and was af-
forded all his rights, privileges and due process. The record in-
dicates that Claimant was in fact absent on the dates in ques-
tion, and his previous record is not supportive of any request
for leniency and certainly cannot mitigate the sanction imposed.
AWARD:
The claim is denied.
/s/T. J. Dwyer /s/Raymond Burney
T. J. DWYER RAYMOND BURNEY
Organization Member Carrier Member
/s/Lewis E. Seltzer
LOUIS E. SELTZER
Chairman and Impartial Arbitrator
DATE:
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.