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USCA1 Opinion

[NOT FOR PUBLICATION]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, Lob

___________________

______________

____________

Casey, Prince & Tye were on brief for appellee.


___________________

____________________

August 19, 1996


____________________

Per

Curiam.

Plaintiff

Shawn

Flynn

appeals from

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

employment

approximately

record

absenteeism and

and

renewed

requirements.

while

work

marred

nine

years,

repeatedly

Flynn

by

tardiness, interspersed with

opportunities

Raytheon

to

meet

an

alcohol-related

numerous sanctions

Raytheon's

finally fired him for

compiled

minimum

job

reporting to work

under the influence of alcohol, in direct violation of its

rules.

See also 42 U.S.C.


___ ____

12114(c)(1), (2), (4).

After

completing

the

fourth

presented Raytheon

physician,

inpatient

with a

proposed to

present action.

The

progress report from

submit

requested reinstatement.

treatment

to random

program,

Flynn

his supervising

alcohol testing,

and

When Raytheon declined, Flynn filed the

district court ultimately

granted summary

judgment for Raytheon, and Flynn appealed.

Flynn does

by

firing him,

not contend that Raytheon

nor could

he

do so

successfully.

12114(c)(4) (acknowledging that employer

. . who

is an alcoholic to the

employment or

violated the ADA

See id.
___ ___

may "hold an employee .

same qualification standards for

job performance and

behavior [as it]

holds other

employees, even if any

unsatisfactory performance or behavior is

related to

alcoholism of

the .

. .

such employee

. .

. .").

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

agreed

to

seems to

rehire

rehabilitation.

He

him

contend

that

subject

to

relies on

Raytheon

evidence

a statement

conditionally

of

successful

made by

a Raytheon

representative during

place following

his

the union

firing and

inpatient treatment program.

grievance proceeding that

his

completion of

the

Flynn states that he was

took

fourth

told "it

was too soon for [him to

return to work, and if [he received]

paycheck [he would] just

. . .

the

had]

same time, according

proved

added).

He

go out and get drunk again."

to Flynn, he

[him]self

then
____

maintains

that these

trialworthy issue as to

things

was told that

could
_____

At

"once [he

happen."

(emphasis

representations generated

whether Raytheon would have rehired

him

if it believed he was or could be rehabilitated.

The district court

not

correctly concluded that Flynn

generate a trialworthy issue

of material fact.

did

First, the

language Flynn attributes to the Raytheon representative

"once

[Flynn

had]

constituted

when

proved

[him]self

then things
____

neither a promise that "things

he proved himself, nor

could
_____

happen."

would happen" if and


_____

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

Flynn plainly would

prefer the cart

before the horse,

acceded to no such arrangement.

Even

assuming

language relied upon were subject to the interpretation

Flynn, however, it would not give rise to an ADA

contention confuses

request to

claim.

promise to consider
________

the

urged by

Flynn's

a future
______

rehire with a putative ADA-based obligation to rehire


__________

at present.
_______

former

a conditional

Raytheon

The ADA does

employee

disability-related

who

not require an

was

lawfully

failures

to

requirements; viz., punctuality


___

12114(c); see
___

also Siefken v.
____ _______

employer to rehire

discharged

meet

its

and sobriety.

for

repeated

legitimate

job

See 42 U.S.C.
___

Village of Arlington Heights, 65


_____________________________

F.3d 664, 666 (7th Cir. 1995) ("A

accommodation,

marks

omitted) (rejecting ADA

monitor

that

as envisioned

his diabetes

he would

do

Siefken, since
_______

second chance . . . is not

in the ADA.")

claim by

so).

As the

the discharged

(internal quotation

employee who

despite employer's

an

failed to

legitimate expectation

Seventh

Circuit explained

employee was not

asking for

in

any

"accommodation" within

the contemplation of the

ADA, but simply

"another

allow

his

chance

technique[,]"

to

change

monitoring

Id. at 666-67.
___

Finally, Flynn

ADA entitles

legitimate

to

the ADA did not require the employer to afford him

another chance.

the

him
___

work

him to

cites no

a "second

requirements, see

authority for the

chance" to

id.,

nor

claim that

meet Raytheon's

for claiming,

if

___

___

indeed he does, that a conditional promise to reconsider based on

future rehiring request

gave rise to

an actionable ADA-based

claim, cf.
__

Myers
_____

v. Hose,
____

("qualified individual

does

50

F.3d 278,

283

(4th Cir.

with a disability" requirement

1995)

under ADA

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

Life-Line Ambulance Serv., Inc.,


_________________________________

1996), petition for cert.


________ ___ ____

F.3d 540,

544

(1st Cir.

filed, 64 U.S.L.W. 3808 (U.S.


_____

1996) (No. 95-1929), Flynn has

based right to rehiring.

77

judgment, McCabe v.
______

May 29,

not demonstrated a colorable ADA-

See Siefken, 65 F.3d at 666-67.


___ _______

The district court judgment is affirmed.


The district court judgment is affirmed
_______________________________________

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