United States Court of Appeals
For the First Circuit
No. 02-1063
GEORGE BAILEY,
Plaintiff, Appellant,
v.
GEORGIA-PACIFIC CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Boudin, Chief Judge,
Gibson,* Senior Circuit Judge,
and Torruella, Circuit Judge.
Donald F. Brown, for appellant.
Charles Harvey, with whom Harvey & Frank, was on brief, for
appellee.
October 9, 2002
*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
TORRUELLA, Circuit Judge. Plaintiff-appellant George
Bailey seeks review of the district court's entry of judgment on
his claim of disability discrimination. Bailey's employer defends
the rationale supporting the district court's decision and advances
several alternate grounds on which it might prevail. Although our
reasoning differs from that of the district court, we affirm.1
I.
George Bailey is an alcoholic who first began abusing
alcohol in 1976. Since then, he has intermittently sought
counseling and treatment. Unfortunately, these efforts have been
unsuccessful, and recovery has eluded him.
Defendant-appellee Georgia-Pacific Corporation ("Georgia-
Pacific") is a manufacturer and distributor of tissue, pulp, and
paper products. In 1987, Bailey began working as a paper handler
at Georgia-Pacific's paper mill in Woodland, Maine. Although
Bailey's alcohol addiction persisted throughout his tenure as a
Georgia-Pacific employee, he was generally able to fulfill his
employment responsibilities. A few exceptions are noteworthy.
Over the course of his employment, Bailey was regularly called upon
to work overtime shifts. On a small number of occasions, he had
been drinking when he received such calls and declined to come in
1
Chief Judge Boudin votes to affirm the judgment on the ground
set forth by the district court and sees no reason to reach the
alternative ground addressed in this opinion. The panel majority
agrees that the district court's ground is correct but believes
that the disability issue is the preferred ground for affirmance.
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for the extra shifts. Also, in August 1998, Bailey was sent home
from work upon arrival one day because his supervisor believed that
Bailey had been drinking. This incident led Georgia-Pacific to
place Bailey under a "last chance" agreement, the terms of which
required him to attend counseling for alcohol abuse.2
Bailey's difficulties outside of work were far more
serious. Starting in 1985 and continuing for the next several
years (including the time of his employment at Georgia-Pacific),
Bailey accumulated numerous convictions for operating a motor
vehicle while intoxicated ("OUI"). In February of 1999, Bailey was
again arrested for OUI. Pursuant to an agreement with prosecutors,
Bailey pleaded guilty to the OUI charge and was sentenced on
March 23, 1999, to serve a four-month term of incarceration.
The day after his sentencing, Bailey's criminal-defense
attorney contacted Georgia-Pacific to ask whether the company would
be willing to supervise Bailey if he returned to work as part of a
work-release program. Although Georgia-Pacific had previously
supervised at least three other incarcerated employees on
work-release, some convicted of felonies, they refused to do so for
2
Once an employee is exposed to severe disciplinary jeopardy,
usually discharge, a "last chance" agreement may be offered by the
employer or sought by a union representing the employee in an
attempt to salvage the individual's job and rehabilitate him. Such
agreements are common in areas of drug and alcohol abuse, and
generally provide that further instances of specified misconduct by
the employee will result in termination. See Elkouri & Elkouri,
How Arbitration Works 920 (5th ed. 1997).
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Bailey. Unable to take advantage of the work-release program,
Bailey was forced to use his available vacation and sick leave
while incarcerated. By the end of March 1999, however, his leave
time had been depleted, and he was not due to be released until
July. Georgia-Pacific notified Bailey of his termination in a
letter dated April 1, 1999, explaining,
Your attorney tells us that you will be
incarcerated for a period of at least four
more months. Your attorney may have informed
you that the company is not interested in
participating in a work release program for
the period of your imprisonment.
All Georgia-Pacific employees are expected to
be available for work as scheduled. You have
used all of your remaining vacation time since
your incarceration began. Because you have
not been and will not be available for work
during your imprisonment, your employment is
terminated for cause, effective today.
After exhausting the relevant administrative procedures,
Bailey filed suit against Georgia-Pacific on February 21, 2001.
His complaint contains three counts: Count I alleges that Georgia-
Pacific violated the Americans with Disabilities Act ("ADA"), 42
U.S.C. §§ 12101-12213; Count II is a cognate claim under the Maine
Human Rights Act ("MHRA"), Me. Rev. Stat. tit. 5, §§ 4551-4634; and
Count III is a common-law tort claim for negligent infliction of
emotional distress.
Following discovery, Georgia-Pacific moved for summary
judgment on all claims. The district court, assuming that Bailey
was "a qualified individual with a disability" under both the ADA
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and MHRA, concluded that Bailey had failed to adduce evidence that
he was terminated because of his disability. Bailey v.
Georgia-Pacific Corp., 176 F. Supp. 2d 3, 9-10 (D. Me. 2001). The
district court reasoned that Bailey had shown that Georgia-Pacific
terminated him because of his alcohol-related misconduct, but that
the ADA specifically allows employers to subject alcoholics to the
same work rules applicable to non-alcoholic employees. Id. (citing
42 U.S.C. § 12114(c)(4)). The district court further determined
that Georgia-Pacific was not required to participate in the work-
release program as a reasonable accommodation to Bailey's
alcoholism. Id. at 11. Finally, the court exercised its
discretion to decline jurisdiction over Bailey's remaining state-
law claim. Id. (citing 28 U.S.C. § 1367(c)). The district court
entered judgment accordingly, and this timely appeal followed.
II.
A. Standard of review
Summary judgment is appropriate where "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). In
ruling on a motion for summary judgment, the court must examine the
record evidence "in the light most favorable to, and drawing all
reasonable inferences in favor of, the nonmoving party." Feliciano
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de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5
(1st Cir. 2000). We review the district court's ruling on summary
judgment de novo. EEOC v. Unión Independiente de la Autoridad de
Acueductos y Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir.
2002).
B. Disability discrimination3
Title I of the ADA generally prohibits discrimination in
employment against qualified persons with disabilities. 42 U.S.C.
§ 12112(a). In addition to forbidding disparate treatment of those
with disabilities, the ADA makes it unlawful for an employer to
fail to provide reasonable accommodations for the known physical or
mental limitations of otherwise qualified individuals with
disabilities, unless the accommodations would impose an undue
hardship on the operation of the business. Id. § 12112(b)(5)(A);
see also García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638,
646 n.9 (1st Cir. 2000).
To establish a claim under the ADA, Bailey must prove by
a preponderance of the evidence: 1) that he was disabled within the
meaning of the ADA; 2) that he was qualified to perform the
essential functions of the job, either with or without a reasonable
accommodation; and 3) that the employer took adverse action against
3
The parties agree that this case does not touch upon any
important distinctions between the ADA and the MHRA. We therefore
apply the same legal standards to Bailey's disability-
discrimination claims under both state and federal law. See
Bilodeau v. Mega Indus., 50 F. Supp. 2d 27, 32 (D. Me. 1999).
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him because of the disability. See Carroll v. Xerox Corp., 294
F.3d 231, 237 (1st Cir. 2002); García-Ayala, 212 F.3d at 646;
Criado v. IBM Corp., 145 F.3d 437, 441 (1st Cir. 1998). For
purposes of its opinion, the district court assumed, without
deciding, that Bailey satisfied the first element of his claim --
namely, that he was disabled within the meaning of the ADA.
However, Georgia-Pacific argues that Bailey cannot meet his burden
of production on this element. We find Georgia-Pacific's argument
on this account persuasive and affirm the judgment of the district
court accordingly. See Burns v. State Police Ass'n of Mass., 230
F.3d 8, 9 (1st Cir. 2000) (noting that we "may affirm the entry of
summary judgment on any sufficient ground revealed by the record").
The ADA defines "disability" as: (A) a physical or mental
impairment that substantially limits one or more of the major life
activities of an individual; (B) a record of such an impairment; or
(C) being regarded as having such an impairment. 42 U.S.C.
§ 12102(2). Bailey argues that he is a qualified individual with
a disability under each of the three definitions. We address
seriatim Bailey's arguments on each definition.
1. Impairment substantially limiting
a major life activity
We apply a three-part analysis when considering
disability under § 12102(2)(A). First, we consider whether
Bailey's condition constitutes a mental or physical "impairment."
Bragdon v. Abbott, 524 U.S. 624, 631 (1998); Carroll, 294 F.3d at
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238. Second, we identify the life activities upon which Bailey
relies to determine whether they constitute "major life
activities." Id. at 238. Major life activities are only those
that are "of central importance to daily life." Toyota Motor Mfg.,
Ky., Inc. v. Williams, 122 S. Ct. 681, 691 (2002). Third, we must
determine whether the impairment substantially limits the major
life activity identified. Lebrón-Torres v. Whitehall Labs., 251
F.3d 236, 239-40 (1st Cir. 2001). To be substantially limiting,
the impairment's impact must be permanent or long-term. Toyota
Motor, 122 S. Ct. at 691. Bailey bears the burden of establishing
each of these elements.
There is no question that alcoholism is an impairment for
purposes of the first prong of analysis under the ADA.4 See Evans
v. Fed. Express Corp., 133 F.3d 137, 139 (1st Cir. 1998); see also
Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294
F.3d 35, 46 (2d Cir. 2002), petition for cert. filed, 70 U.S.L.W.
3698 (May 03, 2002) (No. 01-1624); Miners v. Cargill
Communications, Inc., 113 F.3d 820, 823 n.5 (8th Cir. 1997); Office
4
While not specifically excluded from the ADA's protections,
alcoholism is nevertheless treated differently than other
impairments and disabilities. For example, the ADA specifically
authorizes an employer to prohibit the consumption of alcohol at
the workplace and require that employees not be under the influence
of alcohol at work. 42 U.S.C. § 12114(c)(1)-(2). In addition, an
employee suffering from alcoholism can be held to the "same
qualification standards for employment or job performance and
behavior" as other employees are held, "even if any unsatisfactory
performance or behavior is related to the . . . alcoholism of such
employee. Id. § 12114(c)(4).
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of the Senate Sergeant at Arms v. Office of Senate Fair Employment
Practices, 95 F.3d 1102, 1105 (Fed. Cir. 1996). This conclusion is
reinforced by the statute's legislative history. See H.R. Rep. No.
101-485(II), at 51 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 333
(noting that "physical or mental impairment" includes "drug
addiction and alcoholism"); accord H.R. Rep. No. 101-485(III), at
28 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 451.
Although Bailey's alcoholism qualifies as an
"impairment," it does not follow automatically that Bailey is also
"disabled" within the meaning of § 12102(2). See Toyota Motor, 122
S. Ct. 681, 690 ("Merely having an impairment does not make one
disabled for purposes of the ADA . . . ."); Lessard v. Osram
Sylvania, Inc., 175 F.3d 193, 197 (1st Cir. 1999) ("Under the ADA,
not all impairments lead to protection."). Whether a person has a
disability under the ADA is an "individualized inquiry." Sutton v.
United Air Lines, Inc., 527 U.S. 471, 483 (1999) (citing Bragdon,
524 U.S. at 641-42). Thus, it is usually insufficient to submit
evidence of a medical diagnosis of an impairment. See Toyota
Motor, 122 S. Ct. at 691. An ADA plaintiff must offer evidence
demonstrating that the limitation caused by the impairment is
substantial in terms of his or her own experience. See id. at
691-92. Alcoholism is no exception; courts have generally refused
to recognize alcoholism as a per se disability under the ADA. See
Reg'l Econ. Cmty. Action Program, 294 F.3d at 47; Burch v.
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Coca-Cola Co., 119 F.3d 305, 316-17 (5th Cir. 1997). Evidence that
alcoholics, in general, are impaired is inadequate to show a
substantial limitation of one or more major life activities.
Burch, 118 F.3d at 316-17.
Bailey claims that his alcoholism substantially limits
the major life activity of working.5 See 29 C.F.R. § 1630.2(i)
(stating that major life activities include "working"). In order
to prove that his impairment substantially interferes with the
major life activity of working, Bailey must make a weighty showing.
Proof that an individual cannot "perform a single, particular job
does not constitute [proof of] a substantial limitation in the
major life activity of working." Lebrón-Torres, 251 F.3d at 240;
see also Santiago-Clemente v. Executive Airlines, Inc., 213 F.3d
25, 32 (1st Cir. 2000) ("To be substantially limited in the major
life activity of working, [the plaintiff] must be precluded from
more than a particular job."). Instead, Bailey must prove that he
is "significantly restricted in the ability to perform either a
class of jobs or a broad range of jobs in various classes as
5
We note that there is some doubt as to whether the Supreme Court
will ultimately accept "working" as a major life activity under the
ADA. See Sutton, 527 U.S. at 492 (assuming without deciding that
working constitutes a major life activity but observing the
"conceptual difficulty in defining 'major life activities' to
include work"). But we assume here, as we have done before, that
Bailey has identified a valid major life activity. See Carroll,
294 F.3d at 238-39 (accepting arguendo that working is a major life
activity); Gelabert-Ladenheim v. Am. Airlines, Inc., 252 F.3d 54,
58 (1st Cir. 2001) (same).
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compared to the average person having comparable training, skills
and abilities." 29 C.F. R. § 1630.2(j)(3)(i) (emphases added);
accord Carroll, 294 F.3d at 239-40; Whitney v. Greenberg,
Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d 30, 33 (1st Cir. 2001).
Bailey's summary judgment evidence is not up to this ambitious a
task.
Proof that one is limited in the ability to perform
either a class or broad range of jobs would usually entail evidence
concerning the accessible geographic area, the numbers and types of
jobs in the area foreclosed due to the impairment, and the types of
training, skills, and abilities required by the jobs. See 29
C.F.R. § 1630.2(j)(3)(ii)(A)-(C); see also Duncan v. Wash. Metro.
Area Transit Auth., 240 F.3d 1110, 1115-16 (D.C. Cir.) (en banc)
("[T]he ADA requires a plaintiff . . . to produce some evidence of
the number and types of jobs in the local employment market in
order to show he is disqualified from a substantial class or broad
range of such jobs . . . ."), cert. denied, 122 S. Ct. 49 (2001).
By contrast, all that Bailey's evidence establishes is that he
experienced difficulties in a single job. Even then, these
difficulties were isolated and, for the most part, not momentous.
For example, the record shows that Bailey was
occasionally unable to accept overtime shifts, yet there is no
indication that such assignments were required for continued
employment or that declining overtime adversely affected Bailey's
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standing with his employer. The record also shows that, on a
single occasion, Bailey was sent home by his employer for having
allegedly consumed alcohol just before his shift. Even when viewed
in the light most favorable to Bailey, these isolated problems
cannot be seen as substantially limiting his ability to work in his
own job, much less in a class or broad range of jobs. See
Santiago-Clemente, 213 F.3d 25 at 32-33 (concluding former flight
attendant failed to show temporary hearing loss was disability
under ADA because she offered "no evidence of how many jobs call
for this ability, or that she was precluded from any class of
jobs"). Moreover, to the extent his later alcohol-related
incarceration prevented him from performing in a broad range of
jobs, the inability to work was only short-term in nature and
therefore was not a substantial limitation. See Toyota Motor, 122
S. Ct. at 691. Hence, we conclude that Bailey's alcoholism was not
a "disability" within the meaning of § 12102(2)(A).
2. Record of disability
Bailey also contends that he is entitled to the
protection of the ADA under § 12102(2)(B), which defines a
disability as having "a record" of a disability under
§ 12102(2)(A). The purpose of this provision is largely to protect
those who have recovered or are recovering from substantially
limiting impairments from discrimination based on their medical
history. See H.R. Rep. No. 101-485(II), at 52 (1990), reprinted in
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1990 U.S.C.C.A.N. 330, 334. To qualify as disabled under
§ 12102(2)(B), Bailey must prove that he has a history of, or has
been misclassified as having, an impairment that substantially
limited a major life activity. 29 C.F.R. § 1630.2(k).
Bailey's evidence cannot create a genuine dispute of fact
on this issue. Although there is doubtlessly a record of Bailey's
impairment of alcoholism, along with records of various problems
arising from Bailey's addiction, there is no evidence of records
indicating that Bailey's alcoholism significantly interfered with
a major life activity, such as working. "A record or history of an
impairment is not sufficient to show disability; the record must be
of an impairment [that] substantially limited a major life
activity." 9 Lex K. Larson, Employment Discrimination § 153.04[4],
at 153-51 (2d ed. 2001); see also Santiago-Clemente, 213 F.3d 25 at
33 ("[T]he recorded impairment must be one that substantially
limited a major life activity."). We therefore conclude that
Bailey cannot establish a disability under § 12102(2)(B).
3. Regarded as disabled
Finally, Bailey argues that his employer "regarded" him
as disabled. See 42 U.S.C. § 12102(2)(C). As the Supreme Court
observed in Sutton:
There are two apparent ways in which
individuals may fall within this statutory
definition: (1) a covered entity mistakenly
believes that a person has a physical
impairment that substantially limits one or
more major life activities, or (2) a covered
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entity mistakenly believes that an actual,
nonlimiting impairment substantially limits
one or more major life activities. In both
cases, it is necessary that a covered entity
entertain misperceptions about the individual
-- it must believe either that one has a
substantially limiting impairment that one
does not have or that one has a substantially
limiting impairment when, in fact, the
impairment is not so limiting.
527 U.S. at 489. Bailey argues that Georgia-Pacific correctly
regarded him as having the impairment of alcoholism but mistakenly
believed that his alcoholism significantly interfered with the
major life activity of working. See 29 C.F.R. § 1630.2(l).
A plaintiff claiming that he is "regarded" as disabled
cannot merely show that his employer perceived him as somehow
disabled; rather, he must prove that the employer regarded him as
disabled within the meaning of the ADA. See Giordano v. City of
N.Y., 274 F.3d 740, 748 (2d Cir. 2001). Since Bailey contends that
Georgia-Pacific perceived him to be substantially limited in the
major life activity of working, he must show that he was perceived
as being unable to work in either a class of jobs or a broad range
of jobs in various classes as compared with the average person
having comparable training, skills, and abilities. See 29 C.F.R §
1630.2(j)(3)(i).
Here, the evidence shows that Georgia-Pacific believed,
at most, that Bailey was unable to meet the requirements of his
particular job, primarily because Bailey's temporary incarceration
would prevent him from reporting for work before he depleted his
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accrued leave time. Since Bailey adduces no evidence that his
employer thought he was unfit for either a class or a broad range
of jobs, his "regarded as" claim of disability must fail. See
Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 524 (1999)
(concluding that summary judgment is proper where ADA plaintiff
fails to show that he is "regarded as unable to perform a class of
jobs").
III.
For the reasons stated above, the judgment of the
district court is affirmed.
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