Bailey v. Georgia-Pacific Corp.

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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