Sullivan v. Neiman Marcus Group, Inc.

United States Court of Appeals
For the First Circuit

No. 03-1606

JOHN F. SULLIVAN,

Plaintiff, Appellant,

v.

THE NEIMAN MARCUS GROUP, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti Saris, U.S. District Judge]

Before

Lipez, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.

Andrew Kisseloff with whom Mitchell Notis, Annenberg & Levine
and The Hale and Dorr Legal Services Center of Harvard Law School
were on the brief, for appellant.
John M. Simon with whom Carol Chandler and Stoneman, Chandler
& Miller LLP were on brief, for appellee.

February 13, 2004
 LIPEZ, Circuit Judge. This case, which requires us to

assess whether an employee's alcoholism constituted a disability

under the Americans with Disabilities Act ("ADA"), illustrates the

difficulties of invoking work as the major life activity

substantially limited by an impairment such as alcoholism. The

case comes to us on an appeal from a summary judgment ruling

against the plaintiff.

I.

We begin our analysis by presenting a brief overview of

the relevant facts, which are drawn primarily from the district

court opinion, the briefs, and the joint appendix. In reviewing

the entry of summary judgment, we are mindful that we must view the

record evidence "in the light most favorable to, and draw[] all

reasonable inferences in favor of, the nonmoving party." Feliciano

de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5

(1st Cir. 2000).

Plaintiff-Appellant John F. Sullivan has had a history of

problems with alcohol. In the mid 1980s, he enrolled in treatment

at the Long Island Shelter Detox Center in Boston. He joined the

Alcoholics Anonymous program in 1988 and has subsequently undergone

other forms of treatment. Still, his problems with alcohol have

persisted.

Sullivan also has a long and seemingly successful

employment history in the retail sector. During the mid 1980s, at

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approximately the same time that he was dealing with his

alcoholism, he was working in the Infant-Toddler Department at

Jordan Marsh in Boston. After being laid off from that position

when the economy slowed in the late 1980s, he took a series of

retail jobs over the next five to seven years. Those positions

ranged from selling office supplies and jewelry to planning and

stocking the opening of a new health and nutrition store. While he

did not stay at any of these jobs for an extended period of time,

he did not leave them for disciplinary reasons. Around 1994

Sullivan took a sales job with Brooks Brothers in Boston, where he

excelled and was eventually promoted to a low-level management

position. However, he resigned that position in July 1998 because

he grew unhappy with the work environment and because he wanted to

advance his sales career.

Sullivan was hired by Neiman Marcus as a sales associate

in its Boston store in March, 1999. By June of that year he had

been promoted to Assistant Manager of the store's Gift Gallery,

where he was responsible for supervising one employee, Ramon Lora.

Sullivan remained in this position until Susan Parker, Neiman

Marcus's Human Resources Manager, sent him a letter on September

10, 1999, informing him that he had been terminated effective

August 25, 1999.

Neiman Marcus claims that it made the actual decision to

terminate Sullivan on August 12, 1999 in response to his behavior

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on the previous day, when he left work to go to lunch with a number

of his co-workers at a local Mexican restaurant. Laura Lane,

Neiman Marcus’s Human Resource Coordinator in Boston, was among the

co-workers who attended that lunch, and she later wrote a

memorandum to Susan Parker detailing Sullivan’s behavior at the bar

and after lunch. According to Lane, Sullivan ordered a vodka and

cranberry juice with lunch. He did not consume that drink during

lunch, but she claimed that he was "acting kind of strange," "was

talking more boisterous than normal," "didn't seem himself," and

"sounded intoxicated." Sullivan remained in the bar area of the

restaurant after his co-workers returned to the store. According

to Neiman Marcus, Lane reported these observations to Parker later

that afternoon, but by the time the two spoke, Sullivan had called

Parker, told her that his father had medical problems, and

requested to leave early. Parker granted his request.

Later that same afternoon, Ramon Lora supposedly informed

Parker that he was resigning his position because he did not

respect Sullivan and could no longer work for a person he did not

respect. He said that Sullivan frequently drank at work and was

drunk during the day and that Sullivan abused Lora when he drank.

Lora also gave this information to Neiman Marcus’s Loss Prevention

Manager, Paul Karbowski, and said that Sullivan had been drinking

vodka out of a soda bottle in the Gift Gallery stock room.

Karbowski searched the desk that Sullivan used and found an empty

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bottle of Absolut vodka and a bottle of Mountain Dew in one of the

drawers. Based on this information, Parker concluded that Sullivan

had been drinking during work hours.

Sullivan did not report to work on August 12 or 13 and

did not call the store. Parker called Neiman Marcus's corporate

headquarters on August 12 and supposedly decided to terminate him

on that day. Sullivan called Parker on August 16 and informed her

that he had a problem with alcohol and was entering an alcohol

rehabilitation program. According to Sullivan, Parker informed him

that he could have the time off from work to attend the

rehabilitation program, and that he should speak with her when the

program ended. After being discharged from the rehabilitation

program on August 24, Sullivan contacted Parker by telephone, and

she informed him that she needed to talk with him concerning the

termination of his employment. Although they agreed to meet the

next day, Sullivan did not attend the meeting. Neiman Marcus sent

Sullivan a letter on September 10, 1999, informing him that his

employment had been terminated on August 25, 1999, for violation of

company policies concerning the use of alcohol on the job.

Sullivan filed a complaint with the Equal Employment

Opportunity Commission (EEOC) on April 18, 2000 and received a

right to sue letter on May 31, 2001. He then filed suit against

Neiman Marcus in the United States District Court, alleging that

Neiman Marcus failed to make a reasonable accommodation to his

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disability or, in the alternative, that it illegally discriminated

against him in response to his disability. Neiman Marcus claimed

that he had been fired because he had consumed alcohol during the

work day in violation of company rules and not because he was an

alcoholic. It also claimed that the decision to terminate him had

been made before he notified the company that he was entering the

rehabilitation program to address an alcohol problem. On this

basis, with appropriate supporting documentation, Neiman Marcus

sought summary judgment.

In response, submitting his own documentation, Sullivan

denied drinking on the job and denied the misconduct attributed to

him by co-workers on August 11 during and after the lunch at the

Mexican restaurant. For a variety of reasons set forth in the

summary judgment record, he insisted that the Neiman Marcus

investigation into his misconduct was inadequate. Although he did

not dispute that he put the vodka bottle in his desk found by

Neiman Marcus's Loss Prevention Manager, Paul Karbowski, he said

that his brother borrowed his suit jacket and put the bottle in the

inside pocket of the jacket when he was done. Sullivan then put

the vodka bottle in the desk but insists that he did not drink the

alcohol. More generally, Sullivan claimed that Neiman Marcus did

not decide to terminate him for misconduct on August 12. Instead,

they decided to terminate him after he informed the company on

August 16 that he had to undergo treatment for alcoholism. In his

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view, the company made that decision because of its concerns about

his alcoholism rather than misconduct on the job.

After reviewing the summary judgment record, the district

court granted summary judgment in favor of Neiman Marcus,

concluding that "[t]here is no evidence from which a reasonable

factfinder could infer that plaintiff was fired for a disability

(i.e., alcoholism) rather than his employer's rational belief, even

if mistaken, . . . that he engaged in on-the-job possession of

alcohol and intoxication in violation of company policy." This

appeal followed.

II.

Although Neiman Marcus defends the ground for the

district court decision on appeal, it focuses initially on a

different ground for affirmance--the absence of evidence in the

summary judgment record that Sullivan was disabled within the

meaning of the ADA.1 We may affirm the "district court's grant of

summary judgment on any basis that is manifest in the record."

John G. Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d

26, 37 (1st Cir. 2003). "Further, it is well settled that [t]he

mere existence of a scintilla of evidence is insufficient to defeat

1
Unfortunately, Sullivan did not address this issue in his
opening appellate brief and did not file a reply brief. He also
failed to raise his "failure to accommodate" claim on appeal;
therefore, we consider that issue to be waived. See Cashmere &
Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 284 F.3d 302, 309 (1st
Cir. 2002).

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a properly supported motion for summary judgment. Consequently, a

party opposing summary judgment must present definite, competent

evidence to rebut the motion." Torres v. E.I. Dupont De Nemours &

Co., 219 F.3d 13, 18 (1st Cir. 2000) (internal quotations and

citations omitted). We choose to focus on the disability issue,

which is largely unencumbered by the dispute over historical facts

in the summary judgment record. In so doing, we do not necessarily

mean to express disagreement with the district court's alternative

rationale.

Title I of the Americans With Disabilities Act (codified

at 42 U.S.C. § 12112) prohibits covered employers from

"discriminat[ing] against a qualified individual with a disability

because of the disability of such individual in regard to job

application procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and other terms,

conditions, and privileges of employment." 42 U.S.C. § 12112(a).

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). Sullivan did not allege that he had a record of

disability as defined under the ADA; therefore, we will only

consider whether the summary judgment record established that he

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had an actual impairment or whether the company regarded him as

being impaired.

A. Actual Impairment

As we have previously held, "[t]here is no question that

alcoholism is an impairment . . . under the ADA." Bailey v.

Georgia-Pacific Corp., 306 F.3d 1162, 1167 (1st Cir. 2002).

However, mere impairment without more is insufficient to establish

that a claimant is disabled under the ADA. In order to have a

viable claim, a plaintiff must demonstrate that his impairment

substantially limits one or more of his major life activities.

Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195,

(2002); Lessard v. Osram Sylvania, Inc., 175 F.3d 193, 197 (1st

Cir. 1999) ("Under the ADA, not all impairments lead to protection.

Only those impairments which substantially limit a major life

activity do so.") (citation omitted). Major life activities are

those activities that are of "central importance to daily life."

Toyota Motor Mfg., 534 U.S. at 197. These include, inter alia,

basic actions such as seeing, hearing, speaking, breathing,

performing manual tasks, lifting, and reaching. 29 C.F.R. Pt.

1630, App. (2004).

Sullivan claims that work was the major life activity

that was substantially impaired by his alcoholism. We will, as we

have done in the past, assume without deciding that work may

constitute a major life activity. See, e.g., Whitlock v. Mac-Gray,

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Inc., 345 F.3d 44, 46 n.1 (1st Cir. 2003); Bailey, 306 F.3d at 1168

n.5; Carroll v. Xerox Corp., 294 F.3d 231, 239 n.7 (1st Cir. 2002);

Gelabert-Ladenheim v. American Airlines, Inc., 252 F.3d 54, 58 (1st

Cir. 2001). We take this approach because the Supreme Court has

not yet accepted work as a major life activity within the meaning

of the ADA. See, e.g., Sutton v. United Air Lines, Inc., 527 U.S.

471, 492 (1999) ("[a]ssuming without deciding that working is a

major life activity" because both parties accepted that it was and

because that determination was not essential to the case). Indeed,

the Supreme Court has observed that there are "conceptual

difficulties inherent in the argument that working could be a major

life activity" under the ADA. Toyota Motor Mfg., 534 U.S. at 200.2

In our view, one of these difficulties poses a significant Catch-22

dilemma for an ADA claimant such as Sullivan. To be eligible for

ADA protection, he must demonstrate that he is a "qualified

individual" for the position at issue. See 42 U.S.C. § 12112(a)

("No covered entity shall discriminate against a qualified

individual with a disability. . . .") (emphasis added); see

generally id. at § 12111(8) (defining "qualified individual with a

2
In Toyota Motor Mfg., the Court did not elaborate on these
difficulties, but it referenced its Sutton opinion in which it
observed that "it seems 'to argue in a circle to say that if one is
excluded . . . by reason of [an impairment, from working with
others] . . . then that exclusion constitutes an impairment, when
the question you're asking is, whether the exclusion itself is by
reason of handicap.'" Sutton, 527 U.S. at 492 (quoting Tr. of Oral
Arg. in School Bd. v. Arline, O.T. 1986, No. 85-1277, at 15
(argument of Solicitor General)).

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disability" as "an individual with a disability who, with or

without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds or

desires"). By demonstrating that his ability to work is

substantially impaired, he may demonstrate that he is unqualified

for the job and, therefore, excluded from ADA protection. If he

does not introduce such evidence, however, he may fail to show that

he was substantially impaired.3

An employee who claims that alcoholism impairs his

ability to work faces this conundrum in statutory form. The ADA

explicitly allows an employer to "hold an employee who . . . is an

alcoholic to the same qualification standards for employment or job

performance and behavior that such entity holds other employees,

even if any unsatisfactory performance or behavior is related to

the . . . alcoholism of such employee." 42 U.S.C. § 12114(c).

This statutory provision means that an employee who tries to use

deficiencies in his job performance as evidence that alcoholism

substantially impairs his ability to work is likely to establish

3
We recently made the same point in Calero-Cerezo v. United
States Dep't Justice, No. 02-2643, 2004 WL 67928, at *13 (1st Cir.
Jan. 14, 2004); see also Steven S. Locke, The Incredible Shrinking
Protected Class: Redefining the Scope of Disability under the
Americans with Disabilities Act, 68 U. Colo. L. Rev. 107, 127
(1997) ("Employers are more frequently using this dilemma to their
advantage, arguing both that a plaintiff is not disabled, and that
she is so disabled that she is not qualified.").

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the unhelpful proposition, for ADA coverage, that he cannot meet

the legitimate requirements of the job.

Even if Sullivan could navigate these conceptual hurdles,

he still must make a "weighty showing" to prove that his impairment

substantially interferes with his ability to work. Bailey, 306

F.3d at 1168. "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.'" Id. (quoting

Lebrón-Torres v. Whitehall Labs., 251 F.3d 236, 240 (1st Cir.

2001). Instead, the claimant must demonstrate 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 compared to

the average person having comparable training, skills and

abilities." Bailey, 306 F.3d at 1168 (quoting 29 C.F.R. §

1630.2(j)(3)(i)) (emphasis in original). This demonstration

generally requires the introduction of evidence on 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." Bailey, 306 F.3d at

1168 (citing 29 C.F.R. § 1630.2(j)(3)(ii)(A)-(C)). Accordingly, if

"jobs utilizing [his] skills (but perhaps not his . . . unique

talents) are available, [he] is not precluded from a substantial

class of jobs. Similarly, if a host of different types of jobs are

available, [he] is not precluded from a broad range of jobs."

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Sutton, 527 U.S. at 492. Finally, he must also show that he is not

just temporarily precluded from those jobs; he must show that the

impact of his impairment is permanent or at least that it is long

term. Toyota Motor Mfg., 534 U.S. at 198 (citing 29 CFR §§

1630.2(j)(2)(ii)-(iii)).

Sullivan has not come close to presenting such evidence.

Indeed, perhaps aware of the danger that his evidence might

establish that he was unqualified for the job at Neiman Marcus, he

presented virtually no evidence demonstrating that his alcoholism

had a deleterious effect on his ability to work at Neiman Marcus or

elsewhere. In fact, Sullivan presented significant evidence

demonstrating that his alcoholism has not interfered with his

ability to work. In response to a deposition question, he insisted

that "I was doing a satisfactory job [at Neiman Marcus] before I

went into treatment. I felt I would be a much better employee

after going to treatment." When he was asked to elaborate,

Sullivan added: "I believe that I gained some spiritual growth

while I was in treatment and I was going to take that to help

perform my job better." When asked whether his "alcoholism

limit[s] [him] in any way from doing just things in life

generally," Sullivan replied that "if it was untreated . . . it

could begin to affect my professional life" and that "I wouldn't be

at my peak performance levels."

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 Sullivan also testified that he worked successfully at

other jobs both before and after his time at Neiman Marcus. At

Brooks Brothers, he was one of the top two sellers in Boston and

among the top thirty-eight in the nation. After he left Neiman

Marcus, he worked thirty hours per week as a bus driver and

occasionally as a server with a catering company. He further

testified at his deposition that he expected his bus job to turn

into a full-time position. Considering all of this evidence in the

light most favorable to Sullivan, there is simply no showing here

that his alcoholism has substantially interfered with his ability

to work.

B. Regarded As Being Impaired

We also cannot conclude that Neiman Marcus regarded

Sullivan as being substantially impaired within the meaning of the

ADA. By protecting employees from discrimination based on their

employer's mistaken impression that they are disabled, Congress

recognized that "'society's accumulated myths and fears about

disability and disease are as handicapping as are the physical

limitations that flow from actual impairment.'" Sutton, 527 U.S.

at 489 (quoting School Bd. of Nassau Cty. v. Arline, 480 U.S. 273,

284 (1987)). See also Sutton, 527 U.S. at 484-90 (stating that the

"purpose of the regarded as prong is to cover individuals 'rejected

from a job because of the myths, fears and stereotypes associated

with disabilities'") (quoting 29 C.F.R. § 1630, App. & §

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1630.2(l)). Accordingly, there are two ways in which an employee

can demonstrate that his employer regarded him as disabled:

(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 entity mistakenly believes that
an actual, nonlimiting impairment
substantially limits one or more major life
activities.

Sutton, 527 U.S. at 489.

Alcoholics can be fully-functioning and productive

employees who do not experience any substantial limitation in their

ability to work. Employers who harbor misperceptions and prejudice

about alcoholics may not recognize the abilities of these employees

and may regard them as being substantially impaired even though

they are not. Theoretically, an employee subject to this mistaken

belief could qualify as disabled under the "regarded as" prong of

the ADA, as elaborated in Sutton, without confronting the Catch-22

dilemma posed by proof of actual impairment, which runs the risk of

establishing that the employee is unqualified for the job. That

is, Sullivan could argue, as he essentially did, that his

alcoholism did not affect his ability to do his job at Neiman

Marcus. Rather, the company unfairly believed that, as an

alcoholic, he could not do the job.

However, this theoretical possibility can founder because

of the proof requirements when working is the major life activity

at issue under the "regarded as" prong. According to the

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precedents, the employee must demonstrate not only that the

employer thought that he was impaired in his ability to do the job

that he held, but also that the employer regarded him as

substantially impaired 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." Murphy v.

United Parcel Service, Inc., 527 U.S. 516, 523 (1999) (quoting 29

C.F.R. § 1630(j)(3)(i)); Bailey, 306 F.3d at 1170 (affirming

summary judgment based on the plaintiff's failure to demonstrate

that the employer regarded him as "unfit for either a class or a

broad range of jobs").

In an answer to an interrogatory, Sullivan claimed that

Neiman Marcus either "believed that a person who had previously

suffered from alcoholism could not satisfactorily perform his or

her job, or . . . it simply was not willing to employ someone who

had the stigma of having either suffered from the disease of

alcoholism or who had the stigma or having been treated in an

alcohol rehabilitation/detoxification facility for alcoholism."

When he was pressed to explain how he knew that Neiman Marcus

thought that alcoholics could not satisfactorily perform their

jobs, he said it was "[b]ecause of the actions they took [against

him]."

We rejected a similar argument in Bailey, where we

observed that "[a] plaintiff claiming that he is 'regarded' as

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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." Bailey, 306 F.3d

at 1169 (emphasis in original). We concluded that nothing in that

record, including Bailey's termination, demonstrated that the

plaintiff's employer considered him to be "unfit for either a class

or a broad range of jobs. . . ." Bailey, 306 F.3d at 1170.

Similarly, Sullivan failed to present any evidence beyond

his own termination demonstrating that Neiman Marcus may have

believed that he could not perform the essential functions of

either a class of jobs or a broad range of jobs in various classes.

In both Bailey and this case, the employers were aware of the

plaintiff's "problems with alcohol" but claimed that they

terminated the plaintiffs for job performance reasons rather than

their status as alcoholics. Even if, for purposes of summary

judgment, we accept Sullivan's contention that Neiman Marcus

terminated him because of their concern that alcoholism impaired

his ability to do his job rather than the job misconduct cited by

the company, Sullivan has not demonstrated that Neiman Marcus

considered him to be limited in his ability to work in a broad

range of jobs required by the rigorous standards of the ADA.4 In

4
The approach to the "regarded as" prong that the Supreme
Court took in Murphy has been subjected to a significant amount of
academic criticism. See, e.g., Claudia Center & Andrew J.
Imparato, Redefining "Disability" Discrimination: A Proposal to
Restore Civil Rights Protections for All Workers, 14 Stan. L. &

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fact, he did not even mention the broad range of jobs requirement

in his brief. Accordingly, we conclude that Sullivan did not

establish that the company regarded him as "disabled" within the

meaning of the ADA.

Affirmed.

Pol'y Rev. 321, 328 (2003) (claiming that the "class of jobs"
approach has made it "virtually impossible" for a claimant to
establish a "regarded as" claim); Miranda Oshige McGowan,
Reconsidering the Americans with Disabilities Act, 35 Ga. L. Rev.
27, 123 (2000) (claiming that the potential class of employees who
could state a valid "regarded as" claim is "vanishingly small"
because, inter alia, "[n]o employer evaluates an applicant's
fitness to do some other employer's work"). However, the Supreme
Court has not altered the Murphy precedent.

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