Flynn v. Raytheon Company ( 1996 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1019
SHAWN M. FLYNN,
Plaintiff, Appellant,
v.
RAYTHEON COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Cyr, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
Laurence E. Sweeney for appellant.
Douglas T. Schwartz, with whom David C. Casey and Peckham, Lobel,
Casey, Prince & Tye were on brief for appellee.
August 19, 1996
Per Curiam. Plaintiff Shawn Flynn appeals from a
Per Curiam
summary judgment order dismissing his Americans With Disabilities
Act ("ADA") claim against Raytheon Company for refusing to rehire
him after he had completed his fourth inpatient treatment program
for alcoholism. Following careful review of the entire record,
we affirm the district court judgment.
Over approximately nine years, Flynn compiled an
employment record marred repeatedly by alcohol-related
absenteeism and tardiness, interspersed with numerous sanctions
and renewed opportunities to meet Raytheon's minimum job
requirements. Raytheon finally fired him for reporting to work
while under the influence of alcohol, in direct violation of its
work rules. See also 42 U.S.C. 12114(c)(1), (2), (4). After
completing the fourth inpatient treatment program, Flynn
presented Raytheon with a progress report from his supervising
physician, proposed to submit to random alcohol testing, and
requested reinstatement. When Raytheon declined, Flynn filed the
present action. The district court ultimately granted summary
judgment for Raytheon, and Flynn appealed.
Flynn does not contend that Raytheon violated the ADA
by firing him, nor could he do so successfully. See id.
12114(c)(4) (acknowledging that employer may "hold an employee .
. . who is an alcoholic to the same qualification standards for
employment or job performance and behavior [as it] holds other
employees, even if any unsatisfactory performance or behavior is
related to the . . . alcoholism of such employee . . . .").
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Instead, he maintains that Raytheon's refusal to give him another
chance, by rehiring him on the terms he proposed, including
random alcohol testing, violated the ADA.
Flynn seems to contend that Raytheon conditionally
agreed to rehire him subject to evidence of successful
rehabilitation. He relies on a statement made by a Raytheon
representative during the union grievance proceeding that took
place following his firing and his completion of the fourth
inpatient treatment program. Flynn states that he was told "it
was too soon for [him to return to work, and if [he received] a
paycheck [he would] just . . . go out and get drunk again." At
the same time, according to Flynn, he was told that "once [he
had] proved [him]self then things could happen." (emphasis
added). He maintains that these representations generated a
trialworthy issue as to whether Raytheon would have rehired him
if it believed he was or could be rehabilitated.
The district court correctly concluded that Flynn did
not generate a trialworthy issue of material fact. First, the
language Flynn attributes to the Raytheon representative "once
[Flynn had] proved [him]self then things could happen."
constituted neither a promise that "things would happen" if and
when he proved himself, nor an evaluative assessment that Flynn
had yet proven himself, especially in the extant temporal context
described by the same Raytheon representative; viz., "it was too
soon for [Flynn to return to work and if [he received] a paycheck
[he would] just . . . go out and get drunk again." Although
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Flynn plainly would prefer the cart before the horse, Raytheon
acceded to no such arrangement. Even assuming the
language relied upon were subject to the interpretation urged by
Flynn, however, it would not give rise to an ADA claim. Flynn's
contention confuses a conditional promise to consider a future
request to rehire with a putative ADA-based obligation to rehire
at present. The ADA does not require an employer to rehire a
former employee who was lawfully discharged for repeated
disability-related failures to meet its legitimate job
requirements; viz., punctuality and sobriety. See 42 U.S.C.
12114(c); see also Siefken v. Village of Arlington Heights, 65
F.3d 664, 666 (7th Cir. 1995) ("A second chance . . . is not an
accommodation, as envisioned in the ADA.") (internal quotation
marks omitted) (rejecting ADA claim by employee who failed to
monitor his diabetes despite employer's legitimate expectation
that he would do so). As the Seventh Circuit explained in
Siefken, since the discharged employee was not asking for any
"accommodation" within the contemplation of the ADA, but simply
"another chance to allow him to change his monitoring
technique[,]" the ADA did not require the employer to afford him
another chance. Id. at 666-67.
Finally, Flynn cites no authority for the claim that
the ADA entitles him to a "second chance" to meet Raytheon's
legitimate work requirements, see id., nor for claiming, if
indeed he does, that a conditional promise to reconsider based on
a future rehiring request gave rise to an actionable ADA-based
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claim, cf. Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995)
("qualified individual with a disability" requirement under ADA
does not refer to "an individual's future ability to perform the
essential functions of his position," only to his present ability
to do so). Accordingly, even assuming the statements attributed
to Raytheon were made, as we must at summary judgment, McCabe v.
Life-Line Ambulance Serv., Inc., 77 F.3d 540, 544 (1st Cir.
1996), petition for cert. filed, 64 U.S.L.W. 3808 (U.S. May 29,
1996) (No. 95-1929), Flynn has not demonstrated a colorable ADA-
based right to rehiring. See Siefken, 65 F.3d at 666-67.
The district court judgment is affirmed.
The district court judgment is affirmed
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