A. Standard for Summary Judgment
Summary judgment is appropriate when "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56(c); Anderson v. Liberty Lobby Inc. 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 586, 106 S. Ct. 1348, 1355, 89 L. Ed. 2d 538 (1986).
B. The Rehabilitation Act
1. Legislative History
The Rehabilitation Act is designed to "promote and expand employment opportunities in the public and private sectors for handicapped individuals and to place such individuals in employment." 29 U.S.C. § 701. It addresses problems created by unwarranted bias, accumulated myths and fears about disability keeping handicapped qualified workers out of the marketplace workplace. Exec. Order No. 12,640, 3 C.F.R. 571 (1989).
Drug use is a serious social problem. Curing addicts is a national policy. Congress therefore included past drug users within the protections of the Act. (29 U.S.C. §§ 791, 194). The Act provides support and assistance to those who attempt to overcome their addiction. Davis v. Bucher 451 F. Supp. 791, 795 (E.D.Pa. 1978). Nevertheless, the legislative history and section 7 of the 1978 amended statute made it clear that a rehabilitated and rehabilitating drug abuser could be discharged if his condition prevented him from performing his job or constituted a threat to property or public safety. "The intent of Congress is not to force employers to hire alcoholics or drug dependent persons to perform jobs for which their condition makes them unsuited." 124 Cong. Rec. 30,324. "Handicapped individual . . . does not include . . . current alcohol or drug abuse[rs] . . . constituted a direct threat to property or the safety of others." 29 U.S.C. § 706(7)(B) (1978). The statute encourages users of illegal narcotics to seek treatment, but does not provide a safe haven in the workplace should they choose to use drugs. Burka v. New York City Transit Authority, 680 F. Supp. 590, 600. (S.D.N.Y. 1988).
2. Rehabilitation Act Standards
The Rehabilitation Act makes it unlawful for any entity receiving federal funds to discriminate against an "otherwise qualified individual with a disability." 29 U.S.C. § 794. To establish a case of employment discrimination under this statute, a plaintiff must show: i) he is an "individual with a disability"; ii) he was "otherwise qualified" for a position; iii) he was terminated solely on the basis of his disability; and iv) the employer receives federal funds. School Bd. of Nassau County v. Arline, 480 U.S. 273, 284, 107 S. Ct. 1123, 1129, 94 L. Ed. 2d 307 (1987); Bates v. Long Island Railroad Company, 997 F.2d 1028, 1035 (2d Cir. 1993); Little v. F.B.I. 1 F.3d 255, 257 (4th Cir. 1993); Maddox v. University of Tennessee 62 F.3d 843, 846 (6th Cir. 1995); Despears v. Milwaukee County 63 F.3d 635, 636 (7th Cir. 1995); Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995); Newland v. Dalton, 81 F.3d 904, 1996 WL 183178 (9th Cir.1996). If proof of any of these elements is lacking, the claim must fail. Sedor v. Frank 42 F.3d 741, 746 (2d Cir. 1994).
a. Individual with a disability
Substance abuse is a disability under the Rehabilitation Act. Teahan v. Metro-North Commuter R.R. 951 F.2d 511, 517 (2d Cir. 1991). An employer violates the statute by discharging an employee for past addiction.
Participating in a rehabilitation program or completing such a program while fully abstaining is evidence of cure. Teahan v. Metro-North Commuter R.R. 951 F.2d 511, 513, 518 (successfully completed a substance abuse rehabilitation program; not using drugs when work resumed). The Rehabilitation Act is designed to protect drug addicts who voluntarily identify their problem, seek assistance, and stop using illegal drugs. Grimes v. U.S. Postal Service 872 F. Supp. 668, 675 (W.D.Mo. 1994). An employee is not protected when he is currently engaging in illegal drug use. Teahan v. Metro-North Commuter R.R., 951 F.2d at 518, supra.
The statute explicitly provides that a person "currently engaged in the illegal use of drugs" does not have a disability within the meaning of the law. Section 706(8)(C) of title 29 states:
(i) . . . the term "individual with a disability does not include an individual who is currently engaging in the illegal use of drugs, when a covered entity acts on the basis of such use.
(ii) Nothing . . . shall be construed to exclude as an individual with a disability . . . who-