Teahan v. Metro-North Commuter R. Co.

• Decision Date: 27 December 1991
• Docket Number: METRO-NORTH,No. 120,D,120
• Parties: 57 Fair Empl.Prac.Cas. (BNA) 1138, 57 Empl. Prac. Dec. P 41,193, 60 USLW 2444, 2 A.D. Cases 84, 2 NDLR P 230 John TEAHAN, Plaintiff-Appellant-Cross-Appellee, v.COMMUTER RAILROAD COMPANY, Defendant-Appellee-Cross-Appellant. ockets 91-7431, 91-7501.
• Court: U.S. Court of Appeals — Second Circuit

Page 511

951 F.2d 511

57 Fair Empl.Prac.Cas. (BNA) 1138,

57 Empl. Prac. Dec. P 41,193, 60 USLW 2444,

2 A.D. Cases 84, 2 NDLR P 230

John TEAHAN, Plaintiff-Appellant-Cross-Appellee, v. METRO-NORTH COMMUTER RAILROAD COMPANY Defendant-Appellee-Cross-Appellant.

No. 120, Dockets 91-7431, 91-7501.

United States Court of Appeals, Second Circuit.

Submitted Aug. 29, 1991.

Decided Dec. 27, 1991.

C. Sue Barnett, Labor Counsel, Office of the Gen. Counsel, Metro-North Commuter R.R., New York City, filed a brief for defendant-appellee.

Patrick M. Wall, New York City (Graham, Campaign & McCarthy, P.C., New York City, of counsel), filed a brief for plaintiff-appellant.

Before OAKES, Chief Judge, FEINBERG and CARDAMONE, Circuit Judges.

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 balance the statutory guarantee of equal opportunity for the handicapped person so that he or she may become a contributing 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-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 rehabilitation program at Parkview Hospital in Yorktown Heights, New York. After his discharge from this program, he relapsed into further drug and alcohol abuse and continued to incur unauthorized absences from work. Metro-North progressively disciplined Teahan for his absences, including warning letters, three and five day record suspensions, and 14 and 30 day actual suspensions. In the late fall of 1987 he informed his employer of his substance abuse problem.

The incidents of absenteeism giving rise to this litigation 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 rehabilitation program at Conifer Park Rehabilitation Center 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 agreement 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 District 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 as a drug and alcohol abuser he was an "otherwise qualified 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 judgment 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 receiving 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.

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 discrimination suits under § 504, depending on whether the employer disclaims any reliance on the employee's handicap 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-shifting order of proof regularly employed in discrimination suits. See also Alexander v. Choate, 469 U.S. 287, 298, 105 S.Ct. 712, 718-19, 83 L.Ed.2d 661 (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 handicap, the analysis developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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 disparate impact. See also Prewitt v. United States Postal Service, 662 F.2d 292, 305 n. 19 (5th Cir.1981) (approving 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 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 on account of absenteeism, it was not relying on his alcoholism. The significant 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 requirements.

                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 relevant 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 qualified.   See Doe, 666 F.2d at 776-77
                

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...