Leary v. Dalton

• Decision Date: 05 May 1995
• Docket Number: No. 95-1027,95-1027
• Citation: 58 F.3d 748
• Parties: 4 A.D. Cases 1165, 10 A.D.D. 1, 6 NDLR P 368 Arthur J. LEARY, Plaintiff, Appellant, v. John H. DALTON, Secretary of the Navy, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 748

58 F.3d 748

4 A.D. Cases 1165, 10 A.D.D. 1, 6 NDLR P 368

Arthur J. LEARY, Plaintiff, Appellant, v. John H. DALTON, Secretary of the Navy, Defendant, Appellee.

No. 95-1027.

United States Court of Appeals First Circuit.

Heard May 5, 1995.

Decided June 14, 1995.

J. Joseph McKittrick, with whom McKittrick Law Offices and Karen B. Hoffman were on brief, for appellant.

Michael M. DuBose, Asst. U.S. Atty., with whom Jay P. McCloskey, U.S. Atty., and David R. Collins, Asst. U.S. Atty., were on brief, for appellee.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

BOWNES, Senior Circuit Judge.

Plaintiff-appellant Arthur J. Leary, a civilian employee of the Portsmouth Naval Shipyard ("Shipyard") and the United States Navy, was removed from government service for "excessive unauthorized absence" after he was denied requested leave for the time that he spent in jail following his arrest for driving while intoxicated. After exhausting administrative remedies, Leary filed suit in the United States District Court for the District of Maine against defendant-appellee John H. Dalton, Secretary of the Navy. Leary's complaint alleged that he is an alcoholic and, therefore, an "individual with a handicap" ¹ within the meaning of the Rehabilitation Act of 1973, 29 U.S.C. Secs. 701-797b ("Act"), and that the Navy discriminated against him in violation of the Act by terminating his employment on the basis of his disability. Leary appeals the district court's order granting summary judgment in favor of the Navy. After carefully reviewing the record and considering Leary's arguments, we affirm.

I. Background

Beginning October 1, 1984, Leary was employed by the Navy as a WG-10 electrician in Shop 97 at the Shipyard. Between 1985 and 1989, Leary received numerous incentive awards and was "Suggestor of the Month" in March, 1989. Leary became a Union Shop Steward in March, 1988 and rose to the rank of Chief Steward for his shop area in January, 1989. On his last performance appraisal, covering the period June 1, 1988 through May 31, 1989, he received a rating of "highly satisfactory."

On August 26, 1989, while off duty, Leary was arrested by state police in Concord, New Hampshire, for a second offense of driving while intoxicated, driving after license revocation, possessing marijuana, possessing cocaine, transporting a controlled drug, resisting arrest, and assaulting a police officer. Leary was incarcerated in New Hampshire at the Merrimack County Jail, subject to a $10,000 cash bail. Unable to make bail, Leary remained incarcerated until September 13, 1989. When he failed to report to work on August 28, 1989, without having either requested leave in advance or notified his supervisor of his absence, Leary was placed on unauthorized leave status ("Z leave"). As of the date of his arrest, Leary had accumulated 129.5 hours of earned annual leave. On August 29, 1989, Leary's sister called Richard Lavoie, Temporary Service Shop General Foreman, to request on Leary's behalf that he be granted earned annual leave to cover the period of his absence. On August 30, 1989, Leary himself called Lavoie to request emergency annual leave during his incarceration. Leary's request was denied and he was informed that he would be carried on Z leave status until he returned to duty. Leary returned to the Shipyard after twelve consecutive work days of unauthorized absence. Upon his return, he appealed the denial of his request for emergency annual leave through the union grievance process, but after a hearing and due consideration by Shipyard management, the grievance was denied.

By letter dated October 3, 1989, Leary received notice of the Navy's proposed action to remove him from government service for the following reasons: (i) his arrest on August 26, 1989 on the charges set forth supra; (ii) his failure to report to work on August 28, 1989, and his failure to request leave in advance or to notify his supervisor or shop officials as to the reason for his absence; and (iii) his unauthorized absence during the period August 28 through September 13, 1989. On October 19, 1989, Leary and his representatives met with Gary Alamed, Administrative Officer, to make an oral reply to the proposed action. At this meeting, and apparently for the first time, Leary made it known that he had problems with alcohol and drugs and that he considered himself to be protected by the Act. He also stated that he was seeking help for these problems from the Shipyard's Employee Assistance Program. By letter dated December 4, 1989, Leary received notice of the Shipyard's decision to remove him from government service, effective December 11, 1989, for excessive unauthorized absence during the period August 28, 1989, through September 13, 1989.

On December 21, 1989, Leary filed an appeal of the Navy's decision with the Merit Systems Protection Board ("MSPB"), in which he alleged discrimination on the basis of a disability and reprisal for his union activity. He also claimed disparate treatment, alleging that other, non-disabled employees had been granted leave for incarceration. On April 9, 1990, after an evidentiary hearing, the Administrative Law Judge ("ALJ") sustained the Navy's action. With respect to Leary's claim of discrimination on the basis of a disability, the ALJ found that, although Leary established that he was disabled due to alcohol and drug dependency, the unauthorized absence for which he was removed was neither caused by, nor entirely a manifestation of, his disability. Accordingly the ALJ concluded that Leary failed to establish a prima facie case of disability discrimination under the Act. The ALJ also concluded that there was no support for Leary's claim of disparate treatment, finding, inter alia, that the employees alleged to have been granted leave for incarceration were not similarly situated because they were assigned to different shops and supervisors, or because they were absent for fewer than five consecutive days and therefore did not run afoul of Navy leave policy, or because the supervisor granting leave was not aware that leave was requested to cover jail time.

By final order dated January 10, 1992, the MSPB denied Leary's petition for review before the full Board. Leary thereafter sought review of the final MSPB decision with the Equal Employment Opportunity Commission ("EEOC"). On August 19, 1993, the EEOC affirmed, finding, inter alia, that, although his problems with alcohol and drug abuse constituted a disability covered by the Act, Leary had failed to establish a sufficient causal nexus between his disability and his termination to make out a claim of discrimination based on disability.

On September 24, 1993, Leary filed a complaint in the district court alleging discrimination under the Act and disparate treatment. On April 28, 1994, the Navy moved for summary judgment. The motion was referred to a magistrate judge, who, on September 19, 1994, recommended that the motion be granted on the ground that Leary failed to establish a prima facie case of discrimination under the Act. On October 3, 1994, Leary filed his objection to the magistrate judge's Recommended Decision. On October 26, 1994, the district court, having made a de novo determination of all matters adjudicated by the magistrate judge, affirmed the Recommended Decision and granted summary judgment for the Navy.

II. Standard of Review

We review a grant of summary judgment de novo, evaluating the facts and inferences that may reasonably be drawn therefrom in the light most favorable to the nonmoving party. Morrissey v. Boston Five Cents Sav. Bank, F.S.B., 54 F.3d 27, 31 (1st Cir.1995). Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A material fact is one " 'that might affect the outcome of the suit under the governing law.' " Morrissey, 54 F.3d at 31 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). An issue of material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The nonmoving party "may not rest upon the mere allegations or denials of [its] pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Coll v. PB Diagnostic Systems, Inc., 50 F.3d 1115, 1121 (1st Cir.1995).

III. Discussion

Leary makes two arguments on appeal. First, he contends that the district court overlooked two genuine issues of material fact: whether his disability--alcoholism--"manifested itself as, or resulted in, the actions which led to his consequent incarceration and absence from work," and therefore constituted the reason for his termination; and whether, with regard to his allegation of disparate treatment, other non-disabled Navy employees were granted leave for their periods of incarceration, or were merely reprimanded (rather than terminated) for their conduct. Leary argues in the alternative that the district court should have applied a "but for" test to determine whether he was terminated because of his alcoholism.

We begin by ironing out a procedural wrinkle. Although the district court decided this case under Sec. 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794 (prohibiting disability discrimination by non-federal recipients of federal funds), Leary actually invoked Sec. 501 of the Act, 29 U.S.C. Sec. 791, in his complaint. Section 501(b) imposes an affirmative duty on every "department, agency, and instrumentality ... in the executive branch" of the federal government to provide adequate hiring, placement, and advancement opportunities for individuals with disabilities. Some...