Kennedy v. Department of Public Safety

Kennedy v. Department of Public Safety  (97-535); 168 Vt. 601; 719 A.2d 405

[Filed 24-Aug-1998]



                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-535

                               JUNE TERM, 1998

                                      
Stephen L. Kennedy                    }     APPEALED FROM:
                                      }
                                      }
     v.                               }     Washington Superior Court
                                      }
Vermont Department of Public Safety   }
                                      }     DOCKET NO. 502-9-95Wncv

  In the above-entitled cause, the Clerk will enter:


       Plaintiff, formerly a Vermont State Police officer, appeals from an
  order of the Washington Superior Court granting defendant Department of
  Public Safety, summary judgment on his Vermont Fair Employment Practices
  Act (VFEPA) suit.  We find there are no issues of material fact and that
  defendant is entitled to judgment as a matter of law.  We affirm.

       Plaintiff was a Vermont state trooper from 1977 to October 1993.  In
  December 1987, he was suspended for operating a cruiser while under the
  influence of alcohol.  In 1991, he was again suspended for operating his
  personal vehicle while under the influence of alcohol and for fraudulently
  obtaining a Massachusetts license while under suspension in Vermont. 
  Following a conviction for DUI on April 26, 1993, he was charged by the
  Commissioner of Public Safety with conduct unbecoming a state police
  officer and with lying during the investigation.  Acting pursuant to 20
  V.S.A. § 1922, the State Police Advisory Commission found that both charges
  were proven.  On October 7, 1993, the commissioner fired plaintiff. 
  Plaintiff appealed his firing to the Vermont Labor Relations Board which
  found that defendant had just cause for dismissal. Plaintiff then brought
  this action.

       Defendant moved for summary judgment on the basis of an affidavit of
  the commissioner, the findings and conclusions of the State Police Advisory
  Commission, and a copy of the applicable code of conduct.  Plaintiff
  objected, relying primarily on his own affidavit, which stated:  (1) he was
  an alcoholic at the time of the 1993 incident, but has now recovered; (2)
  he did not lie during the investigation, and to the extent he misstated
  facts, it was due to an alcoholic blackout; and (3) he knows of at least
  one other state police officer who was only suspended for DUI.  The
  superior court granted summary judgment, and plaintiff appealed.

       Plaintiff argues that genuine issues of material fact exist which
  prevented the superior court from granting summary judgment.  On appeal of
  summary judgment:

     [W]e apply the same standard as the trial court:  summary
     judgment is appropriate when the record clearly indicates there is
     no genuine issue of material fact and that the moving party is
     entitled to judgment as a matter of law.  In determining whether
     a genuine issue of material fact exists, we regard as true all
     allegations of the nonmoving party supported by admissible

 

     evidence, and we give the nonmoving party the benefit of all
     reasonable doubts and inferences.

  Lane v. Town of Grafton, 166 Vt. 148, 150, 689 A.2d 455, 456 (1996)
  (citations omitted).

       Plaintiff's claim is brought under VFEPA, 21 V.S.A. § 495(a)(1), which
  makes it unlawful for an employer to discriminate against a qualified
  handicapped individual.  To establish a prima facie case, plaintiff must
  show he is a qualified handicapped individual, he was discharged from his
  job, and the discharge occurred under circumstances giving rise to an
  inference of discrimination.  See Ross v. Times Mirror, Inc., 164 Vt. 13,
  24, 665 A.2d 580, 586-87 (1995).  Because the handicapped discrimination
  provisions of VFEPA are patterned on § 504 of the Rehabilitation Act of
  1973, 29 U.S.C. § 794, we look to interpretations of that statute in
  determining whether plaintiff has met the elements of his claim.  See State
  v. G.S. Blodgett Co., 163 Vt. 175, 180, 656 A.2d 984, 988 (1995); Hodgdon
  v. Mt. Mansfield Co., 160 Vt. 150, 165, 624 A.2d 1122, 1130 (1992).

       We accept that plaintiff is an alcoholic and that alcoholism is a
  disability protected by VFEPA.  We join, however, the numerous federal
  courts of appeal that have held that under the Rehabilitation Act, adverse
  employment actions taken for misconduct are not discriminatory even though
  the employee was an alcoholic and the misconduct was related to the misuse
  of alcohol. See, e.g., Williams v. Widnall, 79 F.3d 1003, 1006-07 (10th
  Cir. 1996) (Air Force employee who, while intoxicated, made threats against
  his supervisor and co-workers); Newland v. Dalton, 81 F.3d 904, 906 (9th
  Cir. 1996) (Navy employee who, while intoxicated, attempted to fire an
  assault weapon at patrons in a bar); Maddox v. University of Tenn., 62 F.3d 843, 848 (6th Cir. 1995) (assistant university football coach who, while
  intoxicated, drove dangerously, attempted to resist arrest for DUI, and
  lied to arresting officer); Despears v. Milwaukee County, 63 F.3d 635, 637
  (7th Cir. 1995) (maintenance worker, whose job responsibilities required
  him to have a valid operator s license, was convicted a fourth time for DUI
  and lost his license); Little v. F.B.I., 1 F.3d 255, 259 (4th Cir. 1993)
  (FBI agent who drank on duty).  Thus, we see no inference of discrimination
  in the alcohol-related misconduct charges that caused plaintiff s
  dismissal.  In the absence of such an inference in the record, plaintiff
  has not made out a prima facie case sufficient to withstand a summary
  judgment motion.

       In reaching this decision, we reject plaintiff s argument that he has
  raised an inference of discrimination by his statement that he never lied
  in the investigation and any untruthfulness was caused by an alcoholic
  blackout.  Plaintiff had the opportunity to contest the grounds for his
  dismissal with the Labor Board, and the Labor Board found against him. 
  Thus, the only conclusion supported by the record is that plaintiff lied. 
  Moreover, the issue before us is not whether plaintiff was correctly fired,
  but instead whether the termination raised an inference of discrimination. 
  Even a mistaken determination that he lied raises no such inference.

       Plaintiff s only possible theory is that the misconduct termination
  was a pretext for discrimination.  Although we do not have to reach this
  theory because plaintiff has failed to establish a prima facie case, see
  Graff v. Eaton, 157 Vt. 321, 324 n.3, 598 A.2d 1383, 1385 n.3 (1991) (issue
  of pretext arises only if plaintiff has made out prima facie case of
  discrimination and defendant has shown a nondiscriminatory motive for
  adverse action), we find no evidence in the record to support it.  It is
  not supported by the evidence that another officer received only a
  suspension for DUI; plaintiff twice received only a suspension after being
  found to have driven while intoxicated.


       Affirmed.





                              BY THE COURT:



                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                             James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice

                              _______________________________________
                              Edward J. Cashman, District Judge
                              Specially Assigned