D'Amico v. City of New York
| Citation | 132 F.3d 145 |
| Decision Date | 07 January 1998 |
| Docket Number | D,No. 638,638 |
| Parties | 11 NDLR P 191 Vito D'AMICO, Firefighter, Plaintiff-Appellant, v. The CITY OF NEW YORK; Joseph F. Bruno, Former Fire Commissioner; Carlos Rivera, Current Fire Commissioner, the City of New York; Thomas Dunphy, Lieut.; Matthew Murtagh, Deputy Asst. Chief; Patricia Bartels, Asst. Fire Commissioner, Defendants-Appellees. ocket 97-7273. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
F.W. Meeker, Jr., Richard A. Glovin, of counsel, New York City, for Plaintiff-Appellant.
Paul A. Crotty, Corporation Counsel of the City of New York, Deborah R. Douglas, Kristen M. Helmers, of counsel, New York City, for Defendants-Appellees.
Before: KEARSE and CARDAMONE, Circuit Judges, and LEISURE, District Judge. *
Vito D'Amico, plaintiff in the underlying action, appeals from a judgment of the United States District Court for the Southern District of New York (Griesa, C.J.), granting defendants' motion for summary judgment and dismissing D'Amico's Complaint alleging that the defendants violated the Rehabilitation Act of 1973 when they dismissed him from his position with the Fire Department of the City of New York ("FDNY"). For the reasons stated below, the judgment of the district court is affirmed.
D'Amico joined the FDNY in 1982. In 1987, he began to use cocaine. He started by using cocaine once per week, but by 1988, he either snorted or smoked cocaine almost daily. In April 1988, D'Amico was arrested for assault, possession of a controlled substance, and resisting arrest. Following this arrest, the FDNY referred D'Amico to counseling within the FDNY, but D'Amico did not at that time reveal the extent of his cocaine habit to his counselor. 1
In September 1988, the FDNY received an anonymous letter accusing D'Amico of using and selling cocaine. The FDNY ordered D'Amico to submit to a urine test on or about December 13, 1988. D'Amico tested positive for cocaine and the FDNY suspended him without pay. The FDNY lifted D'Amico's suspension in January, 1989, pending the outcome of disciplinary proceedings, reassigned him to light duty in February 1989, referred D'Amico to FDNY counseling, and arranged for him to enter an intensive outpatient drug treatment program at Smithers Alcoholism Treatment and Training Center ("Smithers").
Smithers informed the FDNY on April 7, 1989, that the facility had discharged D'Amico for failure to comply with his treatment agreement. Smithers's letter to the FDNY noted that D'Amico had engaged in "inappropriate behavior," and was absent from treatment for over a week. Smithers's internal record states that D'Amico admitted using alcohol on one occasion and cocaine on another occasion, during the course of the program. D'Amico vehemently denies using alcohol or cocaine during this period, and claims that he was drug-free from December 14, 1988, to the time of his discharge from the FDNY.
During this period, the FDNY charged D'Amico with four violations of FDNY Regulations. Charge 1 alleged that D'Amico was "absent without leave" on September 21, 1988, when he failed to report to the Bureau of Health Services. Charge 2 alleged that this absence violated his oath of office. Charge 3 alleged that on or about December 13, 1988, D'Amico used a controlled substance prohibited by New York Penal Law, in violation of the FDNY Regulations. Charge 4 alleged that the use of cocaine on or about December 13, 1988, violated an All Units Circular of the FDNY.
On March 14, 1989, the FDNY notified D'Amico that a pre-trial conference would be held on March 30 regarding the disciplinary charges. At the conference, D'Amico allegedly knowingly and falsely stated that he had not been discharged from Smithers. This statement formed the basis of the fifth charge brought against him in June 1989.
D'Amico returned to Smithers and entered an inpatient drug treatment program on April 17, 1989. D'Amico successfully completed the program on May 15, 1989. Smithers then informed the FDNY of D'Amico's completion.
Administrative Law Judge Ray Fleischhacker presided over a hearing on the disciplinary charges on June 23, 1989. 2 Judge Fleischhacker found D'Amico guilty of Charges 1-4, and not guilty of Charge 5. Judge Fleischhacker recommended that the FDNY terminate D'Amico because of his cocaine use. On September 8, 1989, Fire Commissioner Joseph Bruno terminated D'Amico, effective September 5, 1989. Commissioner Bruno stated:
In light of the grave responsibilities entrusted to a firefighter, the Respondent's continued employment with the Fire Department presents a significant risk, both to the general public and to his fellow firefighters.
D'Amico commenced this action on August 28, 1992, alleging that the FDNY violated the Rehabilitation Act of 1973 and Title 42, United States Code ("U.S.C."), Section 1983. Following discovery, Chief Judge Thomas P. Griesa granted the defendants' motion for summary judgment on all of the plaintiff's claims. See D'Amico v. City of New York, 955 F.Supp. 294 (S.D.N.Y.1997). D'Amico appeals the court's determinations regarding his claims under the Rehabilitation Act.
The Court of Appeals reviews a district court's grant of summary judgment de novo. See Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 23 (2d Cir.1994); see also Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 721 (2d Cir.1994); Taggart v. Time Inc., 924 F.2d 43, 45-46 (2d Cir.1991). The Court utilizes the same standard as the district court: summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful. See, e.g., Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir.1997); Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996); Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir.1995). The Court must draw all inferences in favor of the non-moving party. See Heilweil, 32 F.3d at 721; see also Taggart, 924 F.2d at 46. A court may grant summary judgment only when no rational jury could find in favor of the non-moving party. See Heilweil, 32 F.3d at 721; see also Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994).
The plaintiff in a suit brought under the Rehabilitation Act bears the initial burden of establishing a prima facie case under the Act. See Heilweil, 32 F.3d at 722. The burden then shifts to the employer. In a case where the employer relies on the plaintiff's handicap as the reason for the adverse employment decision, the employer must "rebut the inference that the handicap was improperly taken into account by going forward with evidence that the handicap is relevant to qualifications for the position." Doe v. New York Univ., 666 F.2d 761, 776 (2d Cir.1981); see also Heilweil, 32 F.3d at 722 (quoting Doe ). The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that he is qualified for the position despite his disability. See Teahan v. Metro-North Commuter R.R. Co., 951 F.2d 511, 515 (2d Cir.1991); see also Heilweil, 32 F.3d at 722.
The Rehabilitation Act, at the time of the events at issue here, provided that "[n]o 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...." 29 U.S.C. § 794(a) (1988). To establish a prima facie case of employment discrimination under the Rehabilitation Act, a plaintiff must prove that: (1) he is an "individual with a disability," (2) he was "otherwise qualified" for a position, (3) he was denied that position on the basis of his disability, and (4) the employer receives federal funds. See Borkowski v. Valley Centr. Sch. Dist., 63 F.3d 131, 135 (2d Cir.1995); see also Heilweil, 32 F.3d at 722; Doe, 666 F.2d at 774-75.
The parties agree that D'Amico satisfies prongs (3) and (4) of the prima facie case; the FDNY receives federal funding and terminated D'Amico based upon his cocaine use. The parties disagree about whether D'Amico is an "individual with a disability," and whether he is "otherwise qualified" to be a firefighter.
Substance abuse is a recognized disability for purposes of the Rehabilitation Act, and an employer may violate the Act by taking an adverse employment action against an employee who has overcome past substance abuse problems. See Teahan, 951 F.2d at 517, 518. The Act provides:
(i) For purposes of subchapter V of this chapter, the term "individual with a disability" 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 a disability 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[.]
29 U.S.C. § 706(8)(C) (1994).
The relevant time for assessing whether a plaintiff is a "current substance abuser" is the time of discharge. See Teahan, 951 F.2d at 518. In the instant case, plaintiff was discharged on September 8, 1989. However, the Court does not utilize that date as a fixed snapshot, but rather as a guidepost from which to determine whether the employer acted with justification. A current substance abuser is an individual whose "substance abuse problem is severe and recent...
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