Defendant the City of New Orleans (the "City") moved for summary judgment or in the alternative for abstention. Said motion was submitted on September 10 1996. Upon review of the pleadings affidavits deposition testimony exhibits and the applicable law Court finds the motion is without merit for the reasons set forth below.

FACTS

Plaintiff Eric Montegue ("Montegue") contends that he was denied "reinstatement" at his former job at the New Orleans Fire Department on account of his past drug addiction.

The following facts are not disputed. Montegue was terminated from his job as a fire fighter in the New Orleans Department of Fire on May 24 1991 on grounds that he tested positive for cocaine and marijuana metabolites during a random drug screening test administered while Montegue was on duty.

After his termination Montegue successfully completed a drug rehabilitation treatment program in September and October 1991.

In 1993 Montegue requested to be reemployed by the New Orleans Fire Department pursuant to the Rule V Section 9.6 of the Rules of Civil Service Commission. Rule V Section 9.6 provides an opportunity for reinstatement with probationary status to any employee who has been terminated for failure to complete a drug screening test upon submission of completion of a certified drug treatment program.

Montegue's request for reinstatement was denied without explanation on April 5 1993. Montegue filed a complaint under the American with Disabilities Act (the "ADA") 42 U.S.C. Sec 12111 et seq. with the New Orleans Office of the Equal Employment Opportunity Commission ("EEOC") and was issued a right to sue letter on June 14 1995.

PROCEDURAL BACKGROUND

In light of Defendant's alternative motion to abstain a brief discussion of the procedural posture of this case is warranted.

Montegue staged a two-pronged plan of redress: first he protested his termination; second he protested the denial of reinstatement. First Montegue sued the City Civil Service Commission (the "Commission") for violation of his due process rights in connection with his termination. Second Montegue sued the City of New Orleans alleging that its failure to rehire him on account of his former drug use violated his rights under the ADA.

The City Civil Service Commission was dismissed from this suit in 1995 following its issuance of a decision in Montegue's appeal of his termination. Montegue appealed the Commission's decision to the Fourth Circuit Court of Appeal and has applied for supervisory writs to the Louisiana State Supreme Court. The matter pending in state court concerns Montegue's termination and bears no relation on this court's disposition of Montegue's ADA claims against the City for failure to rehire.

DISCUSSION

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Here Defendant moves Court for summary judgment on grounds that Montegue is not protected under the ADA and that the City's refusal to reinstate Montegue is supported by nondiscriminatory reasons.

Plaintiff alleges that in denying his request for reemployment the City discriminated against him on the basis of his disability in violation of the ADA. The ADA prohibits employers from discriminating against a qualified individual with a disability because of the disability. 42 U.S.C. SEC. 12112(a). To sustain a claim of disability discrimination plaintiff may prove discrimination by direct evidence of discrimination or by the indirect method of proof set for Title VII actions in McDonnell Douglas Corp. v. Green 411 U.S. 792 802 93 S. Ct. 1817 1824 36 L. Ed. 2d 668 (1973). Daigle v. Liberty Life Insurance Company 70 F.3d 394 396 (5th Cir. 1996)(noting that the analysis for age discrimination claims dictated by the en banc Court in the final Rhodes opinion would dictate the degree of proof necessary for a successful ADA discrimination as well).

The indirect method of proving discrimination in employment is set out in Rhodes v. Guiberson Oil Tools 75 F.3d 989 992-993 (5th Cir. 1996) which states:

Under the Supreme Court's McDonnell Douglas-Burdine framework the plaintiff first must establish a prima facie case of discrimination; once established the prima facia case raises an inference of unlawful discrimination. The burden of proof then shifts to the defendant to proffer a legitimate nondiscriminatory reason for its employment action. The defendant may meet this burden by presenting evidence that if believed by the trier of fact would support a finding that unlawful discrimination was not the cause of the employment action. If the defendant meets its burden the presumption raised by plaintiff's prima facie case disappears. However the plaintiff is accorded the opportunity to demonstrate that the defendant's articulated rationale was merely a pretext for discrimination. 75 F.3d at 992-993 citing St. Mary's Honor Center v. Hicks 509 U.S. 502 113 S. Ct. 2742 125 L. Ed. 2d 407 (1993); Texas Dep't of Community Affairs v. Burdine 450 U.S. 248 252-53 101 S. Ct. 1089 1093 67 L. Ed. 2d 207 (1981); McDonnel Douglas 411 U.S. at 802.

STANDARD FOR SUMMARY JUDGMENT

In Rhodes the Fifth Circuit set out the analysis applicable for summary judgment for claims of employment discrimination based on age. This analysis also applies to employment discrimination claims based on disability under the ADA. Daigle 70 F.3d at 396. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the pleadings depositions and affidavits if any show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. F.R.Civ. P. 56(c).

The Rhodes court specifically addressed the evidence sufficient for either party to prevail on a motion for summary judgment:

To sustain a finding of discrimination circumstantial evidence must be such as to allow a rational factfinder to a make a reasonable inference that age was a determinative reason for the employment decision. The factfinder may rely on all the evidence in the record to draw this inference of discrimination. In tandem with a prima facie case the evidence allowing rejection of the employer's proffered reasons will often perhaps usually permit a finding of discrimination without additional evidence. Thus a jury issue will be presented and a plaintiff can avoid summary judgment and judgment as a matter of law if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that age was a determinative factor in the actions of which plaintiff complains. The employer of course will be entitled to summary judgment if the evidence taken as a whole would not allow a jury to infer that the actual reason for the discharge was discriminatory. Rhodes 75 F.3d at 994.

Before such analysis however the parties must make satisfy their respective burdens of production.

PRIMA FACIE CASE

To state a prima facia case under the ADA plaintiff must prove the following: (1) he suffers from a disability; (2) he is a qualified individual; and (3) he or she was subject to an adverse employment action because of his disability. Stradley v. Lafourche Communications Inc. 869 F. Supp. 442 443 (E.D.La. 1994) citing Chandler v. City of Dallas 2 F.3d 1385 1390 (5th Cir. 1993). Plaintiff claims disability as a former drug addict. Under the ADA the term "disability with respect to an individual, means:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; (C) being regarded as having such impairment.

42 U.S.C. SEC. 12102. Montegue claims that he has a record of former drug addiction.

Drug addiction is not expressly listed as a physical or mental impairment" in the implementing regulations for the equal employment provisions contained in title 1 of the ADA. 29 C.F.R. SEC. 1630.2. The ADA implementing guidelines for other sections of the ADA and the EEOC Technical Assistance Manual for the Americans with Disabilities Act all support a finding that drug addiction is considered a disability under the ADA.

Drug addiction is listed as a "physical or mental impairment" in the implementing regulations for the title 2 of the ADA which provides for nondiscrimination in state and local government services. 28 C.F.R. SEC. 35.104(1)(ii). Drug addiction is also listed as a "physical or mental impairment" in the regulations for nondiscrimination in employment for public entities not subject to title 1 of the ADA. 28 C.F.R. SEC. 41.31(b). Further Section 8.5 of the Equal Employment Opportunity Commission Technical Assistance Manual for the American with Disabilities Act specifically states

Persons addicted to drugs but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully are protected by the ADA from discrimination on the basis of past drug addiction.

Though the ADA appears to protect recovering addicts it specifically does not protect persons "currently engaging in the illegal drug use." 42 U.S.C SEC. 12114(a). Thus discrimination against current illegal drug users is not prohibited. Discrimination based on former illegal drug use is prohibited if the individual has "successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs . . ." 42 U.S.C. SEC. 12114(b).

Courts recognize that section 12114(b) creates a "safe harbor" for recovering addicts. Baustian v. State of Louisiana 910 F. Supp. 274 275 (E.D. La. 1996) citing McDaniel v. Mississippi Baptist Medical Center 877 F. Supp. 321 (S.D.Miss. 1995). In Baustian Court stated that section 12114(b) applies to a long-term recovery program and requires that the person has been drug-free for a considerable period and in recovery long enough to have become stable. Id. Court held that seven weeks was not a sufficient period of abstention from drug use to avoid being classified as current drug use.

Montegue has claims to have disability because he is a former addict. Montegue claims that he was not currently engaging in illegal drug use in 1993 at the time he requested reinstatement. Montegue completed a certified substance abuse program in 1991 more than one year prior to his request for reinstatement. Thus Court has no reason to believe that he is not a "stable" former drug addict for the purposes of this motion. Thus Montegue has established the first element of his prima facie case.

Plaintiff also appears to be a "qualified individual with a disability." The term qualified individual with disability means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 42 U.S.C. SEC. 12111(8). Montegue served as a fire fighter in the Department of Fire City of New Orleans for nearly ten years prior to his termination. During his tenure of service Montegue maintains that he was not disciplined reprimanded or suspended. Further his termination appears to have been based on his failure of the drug screening test and was not reflective of his job performance. The only reason Montegue might be deemed "unqualified" for the job concerns the basis for his termination which is discussed below. Court finds that for the purposes of this summary judgment motion Montegue has satisfied the second element of his prima facie case by showing that he is a qualified individual with a disability.

Finally Plaintiff claims that he was subject to an adverse employment actions because of his disability. The challenged "employment action" is the City's failure to rehire him in 1993. The implementing regulations of the ADA employment provisions specifically apply to "rehiring" and "any other term condition or privilege of employment." 28 C.F.R. SEC. 41.52(c)(2) and (9). *fn1

Montegue sought reemployment at the Fire Department. This attempt can be viewed as both an application for "rehire" and the enforcement of a privilege of employment afforded for recovered substance abusers under the Rules of the Civil Service Commission. *fn2

Courts recognize that rehiring decisions are actionable under the ADA. The actionability of a decision to "rehire" has been distinguished from a decision regarding "reinstatement." Jablonski v. Chas. Levy Circulating Co. 888 F. Supp. 84 (N.D.Ill. 1995). In Jablonski plaintiff's employment was terminated prior to the effective date of the ADA. After the effective date of the ADA Jablonski unsuccessfully sought reinstatement and also applied to be rehired by the same company. First Court held that the alleged reinstatement decision was not actionable. Second Court acknowledged the distinction between "reinstatement" and "rehiring" based on a Ninth Circuit case which stated:

A discharged employee who seeks to be reinstated is really litigating the unfairness of the original discharge because only if the original discharge was discriminatory is he entitled to be reinstated as if he had never ceased working for the employer. The word reinstatement must be employed in this connection as the equivalent of uninterrupted employment . . . The concept of a discriminatory refusal to rehire is a different concept. If a person--whether a former employee or not--applies for reemployment . . . the employer has committed a separate and distinct unfair . . . practice. 888 F. Supp. at 85 citing Collins v. United Air Lines Inc. 514 F.2d 594 596-597 (9th Cir. 1975) quoting NLRB v. Textile Machine Works 214 F.2d 929 932 (3d Cir. 1954).

Based on this reasoning the Jablonski court held that Jablonski alleged a discriminatory refusal to rehire which constituted "fresh acts of discrimination independent of her termination." 888 F. Supp. at 85.

Montegue alleges that the City's refusal to rehire him not his original termination violated his rights under the ADA. In Jablonski and Collins reinstatement is viewed as a remedy for wrongful termination rather than an independent employment decision. Montegue's request for reinstatement constituted an application for reemployment with the Fire Department and the denial of the request was an independent employment decision. Given the referenced distinction between reinstatement and rehiring Montegue clearly falls into the latter category. Montegue's request for "reinstatement" was not a remedy for wrongful termination.

In this instance there is another reason why the City's refusal to rehire plaintiff is actionable under the ADA. As mentioned the opportunity for reinstatement is a privilege afforded certain qualified civil servants under the Civil Service Commission Rules. The opportunity for reinstatement is not connected to a finding that the initial termination was wrongful. Indeed the Rule provides a strong incentive for persons terminated for failure of a drug screening test: they may get their old job back if they prove that they have successfully treated their addiction and agree to certain other requirements.

Court finds the alleged denial of reinstatement is actionable under the ADA. Thus for the purposes of this summary judgment plaintiff has satisfied the third element of his prima facie case by showing that he was subject to an adverse employment action on account of his drug addiction after he successfully completed a drug treatment program.

DEFENDANT'S REASONS FOR NOT REHIRING

Defendant may overcome the inference of unlawful discrimination raised by plaintiff's prima facies case by articulating a legitimate nondiscriminatory reason for the challenged employment action. As stated in Rhodes The employer, of course, will be entitled to summary judgment if the evidence taken as a whole would not allow a jury to infer that the actual reason for the discharge was discriminatory. 75 F.3d at 994.

Although the City originally denied Montegue's request for reinstatement without explanation the City contends that Fire Department Chief Warren McDaniels stated two legitimate nondiscriminatory reasons for refusing to rehire Montegue: (1) plaintiff had committed "two crimes in that he tested positive for two illegal or controlled substances"; and (2) the extremely safety sensitive nature of a fire-fighter's job. Court discusses each proffered explanation in turn.

The City contends that Montegue was not rehired because he committed two crimes. Montegue failed a drug screening test. The presence of marijuana and cocaine metabolites in one's urine is not a crime and Montegue was never charged or convicted of any crime in connection with the drug screening procedure.

By "two crimes" the City appears to in fact mean two violations of department regulations. Chief McDaniels stated in deposition testimony that it is Department "policy" not to rehire persons who are terminated for violation of a departmental regulation. Chief McDaniels indicated that since Montegue was terminated for violation of a departmental regulation his reinstatement request would be denied whether or not he had been rehabilitated. (McDaniels Depo. at 43). The "policy" reference by Chief McDaniels is not a documented policy. Plaintiff contends that neither the City of New Orleans nor the Fire Department maintain a written policy regarding the rehiring of employees terminated for violating the substance abuse policy.

The City contends that it refused to reemploy Montegue because of the extremely safety sensitive nature of the firefighter's job. Defendant argues that refusal to rehire a former drug addict in this instance is permissible on grounds that it is "job-related and consistent with business necessity". 28 C.F.R. SEC. 1630.15. In order to assert this defense defendant must usually also show that "such performance cannot be accomplished with reasonable accommodation as required under the implementation guidelines. Id. The City cites Section 8.7 of the EEOC Technical Assistance Manual, which states in relevant part,

An employer can fire or refuse to hire a person with a past history of illegal drug use, even if the person no longer uses drugs, in specific occupations, such as law enforcement, when an employer can show that this policy is job-related and consistent with business policy.

The City argues that this justification should apply to fire fighters as well.

There are several flaws in the City's argument. First, the City has not demonstrated that a refusal to rehire drug addicts is in fact job-related and consistent with business necessity." Second even though both law enforcement and fire fighters have jobs concerned with public safety they are not faced with the same job tasks. For example a police officer is more likely expected to interface with current illegal drug users and drug contraband. A law enforcement officer with a prior history of drug use may broadcast a message to drug criminals or the public that drug use is permissible. Fire fighters extinguish fires; they are not charged with enforcing the law or investigating drug offenses. While there may be other justifications for application of the "job-related" defense in this instance the City has not provided those justifications nor supporting relevant law on this issue. Finally the City has not demonstrated that "such performance cannot be accomplished without reasonable accommodation." The City has not demonstrated that it is in fact entitled to claim the job-related defense. As such the City's second reason for refusing to rehire Montegue is insufficient to preclude a rational jury from inferring that the City's refusal to rehire Montegue was motivated by its concerns about his former drug addiction.

Taken together Court finds that the City's nondiscriminatory explanations are insufficient to warrant summary judgment. A factual issue exists as to whether the Department had a blanket policy prohibiting the rehire of persons who had previously violated departmental regulations. Moreover the City's second explanation creates a reasonable inference that Montegue's former drug addiction was a determinative factor in the City's refusal to rehire him. Finally Court rejects the City's contention that it can discriminate on the basis of Montegue's past illegal drug as a matter of law and the City has failed to establish the factual predicate to warrant such a finding.

ABSTENTION

The City has moved in the alternative that Court abstain from deciding this case on the basis of the Pullman abstention doctrine. Railroad Commission of Texas v. Pullman Co. 312 U.S. 496 61 S. Ct. 643 85 L. Ed. 971 (1941). The City contends that because Montegue is still appealing his termination in state court, Court should abstain from exercising its jurisdiction over the instant case. Court rejects the City's alternative motion on grounds that Pullman abstention is not applicable.

Under the Pullman abstention doctrine federal court abstention is required if state law is uncertain and a state court's clarification of state law might make a federal court's constitutional ruling unnecessary.

A court should consider three factors in deciding whether or not to abstain: (1) whether the disposition of a question of state law involved in the case can eliminate or narrow the scope of the federal constitutional issue; (2) whether the state law question presents difficult obscure or unclear issues of state law; and (3) whether a federal decision could later conflict with subsequent state court resolutions concerning the same regulatory program or scheme thus engendering more confusion. High Ol' Times Inc. v. Busbee 621 F.2d 135 139 (5th Cir. 1980).

The City asserts that if the Louisiana State Supreme Court reverses the Commission's ruling Montegue will be reinstated and his ADA claims would be moot. Court disagrees.

Pullman abstention is inappropriate in the instant case because there is no constitutional issue before this court. In this action Montegue challenges the lawfulness of the City's refusal to rehire him under the ADA. As discussed above Court finds the City's refusal to rehire Montegue is an independent employment action cognizable under the ADA. Adjudication of Montegue's ADA claim is not contingent upon a finding that his original termination was wrongful. Further Montegue stated in his opposition memorandum to the City's motion for summary judgment that he is not challenging the wrongfulness of his termination in this action. Thus a decision regarding the lawfulness of Montegue's termination would not bear on this court's determination of Montegue's ADA claims.

CONCLUSION

For the reasons stated Court finds that defendant's motion for summary judgment or in the alternative a motion to abstain are without merit. Accordingly

IT IS ORDERED that The City of New Orleans' motion for summary judgment or in the alternative a motion to abstain is DENIED.