After he was fired, Wilson did not speak with Sever for a week.
On August 28, 1995, Sever offered to rehire Wilson if he would
undergo alcohol treatment and testing. Instead of accepting that
offer, Wilson told Sever that he was trying to get a job in the
General President's office. Sever grew angry and told Wilson that
he had one week to decide. The next day, Sever called Wilson and
told him that he had decided not to rehire him When Wilson again
indicated his intention to work for the General President, Sever
told Wilson, "Don't think you're going to go around me." Def's
Statement of Material Facts at 12 ¶ 109.
On September 6, 1995, Sever asked Wilson once again to consider
working for him. Wilson neither accepted nor asked Sever to
rehire him. That same day, Sever prepared a confidential
memorandum detailing numerous verbal warnings about
insubordination that he had given Wilson during the past three
years. Sever Decl., Ex. A at 1. Although most of the misconduct
mentioned in the memorandum was related to Wilson's drinking, the
memorandum does not expressly mention Wilson's alcoholism or
suggest that any of the listed misconduct was alcohol-related.
On September 18, 1995, Sever informed Wilson that he had hired
a replacement and directed Wilson to remove his possessions from
the apartment they had shared in Virginia. Sever and Wilson have
not spoken since. In response to suggestions by those trying to
help Wilson obtain a job with the General President, Wilson
participated in an alcohol treatment program at Gateway Greenway,
in Pittsburgh, from September 20, 1995 until October 26, 1997.
On October 31, 1995, Sever sent Wilson a formal termination
letter that made Wilson's termination retroactive to August 28,
1995. Wilson was subsequently offered another job with the
Teamsters but refused it because it would not include backpay. He
filed this action on April 22, 1997.
To establish a prima facie case of discrimination under the
ADA, a plaintiff must prove: (1) that he had, or was regarded as
having, a disability; (2) that he was otherwise qualified for the
position from which he was fired; and (3) that an adverse
employment action was taken against him because of his
disability. See, e.g., Witter v. Delta Air Lines, Inc.,
138 F.3d 1366, 1369 (11th Cir. 1998); Adamczyk v. Chief, Baltimore County
Police Dept., 952 F. Supp. 259, 263 (D.Md. 1997). Wilson's case
founders on the first element.
The required analysis of the "disability" element has three
steps. See Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2202,
141 L.Ed.2d 540 (1998). The first step is to determine whether
the plaintiff has or is regarded as having an "impairment." The
second step is to identify the "life activity" upon which the
plaintiff relies and determine whether it is a "major life
activity" under the ADA. The third step is to determine "whether
the impairment substantially limited the major life activity."
Wilson does not claim that be has an "actual" disability, see
Pl.Oppos. to Mot. Summ.J. at 4-5, but rather that his employer
regarded him as having a disability. 29 C.F.R. § 1630.2(1);
Burch v. Coca-Cola Co., 119 F.3d 305, 322 (5th Cir.), cert.
denied, ___ U.S. ___, 118 S.Ct. 871, 139 L.Ed.2d 768 (1998).
Unquestionably, Sever regarded Wilson as an alcoholic. Alcoholism
is not, however, a disability per se. Burch, 119 F.3d at 316;
McKey v. Occidental Chem. Corp., 956 F. Supp. 1313 1317 (S.D.Tex.
1997). Cf. Deas v. River West, L.P., 152 F.3d 471, 479 (5th Cir.
1998) (suffering from epileptic seizures not per se disability).
A "disability" is "a physical or mental impairment that
substantially limits one or more of the major life activities of [an]
individual." 42 U.S.C. § 12102(2)(A).*fn1 "The determination
of whether an individual has a disability is not necessarily
based on the name or diagnosis of the impairment the person
has, but rather on the effect of that impairment on the life
of the individual." 29 C.F.R. § 1630(j). Cf. Bragdon,
118 S.Ct. at 2206-07 (declining to decide whether HIV infection
constitutes a per se disability and instead requiring an
individualized inquiry). Wilson's burden is thus to demonstrate
that Sever regarded him as being substantially limited in a major
life activity. 29 C.F.R. § 1630.2(j); Witter, 138 F.3d at
1369. In this case, of course, the major life activity that might
be implicated by Wilson's "impairment" is working.
29 C.F.R. § 1630.2(j)(3); Witter, 138 F.3d at 1369-70.
The instant motion for summary judgment asserts that Wilson
cannot sustain his burden. In the face of that challenge, Wilson
had the burden of producing some evidence which could sustain his
burden of proof at trial. Paquin v. Federal National Mortgage
Assoc., 119 F.3d 23, 27-28 (D.C.Cir. 1997) ("[T]he plain language
of Rule 56(c) mandates the entry of summary judgment . . .
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial.") (quoting Celotex v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986)).*fn2 Wilson has neither
adduced evidence on the point nor identified anything in the
record to establish that he was regarded, either by Sever or by
the Teamsters, as substantially limited in any major life
activity, including work. Wilson does argue, Pl.Oppos. to Def.'s
Mot. for Summ. J. at 6-9, that Sever's verbal abuse after he
found Alcoholics Anonymous literature in Wilson's bedroom and on
the morning he fired Wilson "demonstrates that Sever believed
that Plaintiff was unable to work because he was an alcoholic,"
id. at 8, but the argument is an attempt to drive the square peg
of Wilson's evidence into the round hole of the applicable test.
The verbal abuse may demonstrate Sever's bias against alcoholics
in general, but it says nothing about Sever's beliefs concerning
Wilson's ability to work. Indeed, to the extent that the record
contains any evidence at all about what work Sever thought Wilson
could do, it tends to show that Sever considered Wilson's ability
to work — even to be his chauffeur — unimpaired.*fn3
Wilson's failure to sustain his burden as to an essential
element of his prima fade case requires that the defense motion
for summary judgment as to his ADA claim be granted. That
disposition makes it unnecessary to address a number of other issues
raised by this motion: whether the actual cause of Wilson's
termination was alcoholism, or misconduct, or both; what
the standard of causation should be in an ADA firing case, see,
John L. Flynn, Mixed-Motive Causation Under the ADA; Linked
Statutes, Fuzzy Thinking, and Clear Statements, 83 Georgetown
L.J. 2009 (1995); or what effect, if any, should be given to the
revelation that Wilson secretly taped telephone conversations
with union officials after he was fired.
Wilson invokes this Court's discretionary power to assert
supplemental jurisdiction over his state law claims pursuant to
28 U.S.C. § 1367. Complaint at ¶ 4. Having disposed of
the only claim over which the Court has original jurisdiction,
however, I decline to assert supplemental jurisdiction.
28 U.S.C. § 1367(c)(3); Orange v. District of Columbia, 59 F.3d 1267,
1275 (D.C.Cir. 1995) (quoting United Mine Workers of America v.
Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966))
("[I]f the federal claims are dismissed before trial, . . . the
state claims should be dismissed as well.").
An appropriate order accompanies this memorandum.
Upon consideration of the defendant's motion for summary
judgment [#14], plaintiff's response thereto, and the full
record, it is this 17th day of March, 1999, for the reasons set
forth in the accompanying memorandum,
ORDERED that summary judgment is granted for the defendant as
to Count I. And it is
FURTHER ORDERED that Counts II, III, and IV are dismissed.