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April 22, 1997

JOHN COWAN, Plaintiff, against MaBSTOA., Defendant.

The opinion of the court was delivered by: WEINSTEIN

 Jack B.Weinstein, Senior District Judge

 I. Introduction

 Plaintiff alleges violation of his rights under the Rehabilitation Act, 29 U.S.C. § 701. He was fired for using cocaine. Because of his cocaine addiction and failure to participate in a drug treatment program, he was not qualified to perform his work. His misconduct in stealing from his employer provided another appropriate ground for non-discriminatory dismissal. Defendant's motion for summary judgment is granted.

 II. Facts

 Plaintiff, was employed by the Manhattan and Bronx Surface Transit Operating Authority ("M & B") as a superintendent at a bus depot, directing bus maintenance employees. He admitted that he was a cocaine abuser and was afforded treatment in the M & B employee assistance program for drug abusers. He claims that another employee humiliated him in public because of his drug addiction and that this caused him to abandon the treatment program in November 1993 and to return to using cocaine. In February 1994 plaintiff was arrested for stealing and selling M & B rock salt to support his cocaine habit. In his defense against a disciplinary charge, plaintiff submitted a letter dated May 1, 1994 admitting that he "suffered from and continues to suffer from a substance abuse problem". He was dismissed on June 3, 1994. Two years later on May 25, 1996, he commenced the instant suit.

 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 ...

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