* The Honorable Gerald W. Heaney, Circuit Judge of the United States Court of

Appeals for the Eighth Circuit, sitting by designation.

SUMMARY ORDER

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

Plaintiff Thomas Brennan appeals the decision of the United States District Court for the Southern District of New York (Barbara S. Jones, Judge) dismissing some of his claims, and granting summary judgment in favor of the defendants with respect to the others, in an action alleging that he was forced to resign from his position as a probationary police officer because he is a recovering alcoholic. We have considered all of Brennan's arguments and find them to be without merit.

1.

On January 13, 1992, Brennan was appointed a police officer with the New York City Transit Police Department ("NYCTPD"), for a two-year probationary period. He received high academic marks at the police academy, as well as positive on-duty performance ratings during his first year with the NYCTPD. On two occasions, however, Brennan was disciplined for serious misconduct involving, at least in part, his improper safeguarding of a firearm. The facts of these incidents are not in dispute.

In the first, Brennan left work late in the evening of July 16, 1992. He went out to two bars, where he consumed a total of four beers. At some point in the course of the evening, Brennan removed his service revolver and put it inside a blue gym bag he was carrying. When he boarded the subway to go home, he carried the gym bag with him. But the bag never made it off the subway. Instead, Brennan fell asleep during the ride, awoke disoriented, and exited the subway without the bag (and the gun). *fn1 Brennan pled nolo contendere at a disciplinary proceeding concerning the incident, and was suspended for three days. He stated that "this dereliction was not related to the use of alcohol, but [was instead] related to the fact that he had worked a late tour and had worked six hours of overtime the day before." Plaintiff's Response to Defendant NYCTPD's Rule 3G Statement and Plaintiff's Rule 3G Statement at P 21. Brennan has never altered his description of the cause of the mishap, and his account has not been seriously questioned.

In the second incident, police officers in the Bronx received a call early in the morning on February 10, 1993. The caller reported a suspicious male with a gun. The officers sent to follow up on the report found Brennan slouched against a mailbox, with six cigarettes in his mouth, apparently intoxicated. His gun, which was placed in his waistband, was loaded with only 13 rounds of ammunition, rather than the recommended full complement of 15 rounds. While the officers were taking him to the police station, Brennan told them that he dreamt he had shot two girls. Once Brennan's status as a transit police officer was discovered, he was subjected to a fitness-for-duty test, which he failed. Specifically, he tested positive for alcohol at above intoxication levels.

After this second incident, Brennan entered the NYCTPD's Employee Assistance Program ("EAP"), and was hospitalized at an inpatient treatment facility for alcohol detoxification and rehabilitation. The clinical director of that facility reported in Brennan's discharge notice (dated April 12, 1993) that Brennan's alcohol use "resulted in job jeopardy" and "contributed to a lack of relationships and social skills." The director also stated that Brennan "lacked an ability to involve himself in a 12 Step Recovery Program."

Following his release from the detoxification facility, Brennan remained in an outpatient alcoholism treatment program at St. Barnabas Hospital, completed the NYCTPD's EAP for alcoholism, and voluntarily attended Alcoholics Anonymous. He also returned to work, where he was placed on restricted duty in the NYCTPD Equipment and Supply Section. The NYCTPD kept possession of his gun.

On June 22, 1993, Brennan's EAP counselor -- himself a police officer and a recovering alcoholic -- recommended that Brennan be returned to full duty status. Additionally, the outpatient clinic at St. Barnabas reported that it would not be unreasonable to return Brennan to full duty. Nevertheless, he was kept on restricted duty status until the date of his resignation.

In July 1993, the NYCTPD Disciplinary Committee reviewed Brennan's record, including the investigative reports from both of these incidents. It recommended that Brennan's file be submitted to the Personnel Review Committee, which routinely reviews the records of probationary police officers to determine whether they should be given tenure, kept on probation for an extended period, or terminated. The Committee voted to end Brennan's employment, and so recommended to Defendant O'Connor. Brennan resigned on August 17, 1993. He alleges that he did so because he was told that if he did not quit, he would be fired.

2.

Plaintiff then filed this suit, claiming that he was forced to resign because of his alcoholism (even though he had achieved sobriety and was "otherwise qualified" to perform the duties of a transit police officer), in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. SEC. 12101 et seq., New York Executive Law SEC. 296, and the Fourteenth Amendment.

The district court dismissed Brennan's claims against the NYCTPD and the New York City Police Department (the NYCTPD's successor in interest) on the ground that they were entities that could not be sued. It dismissed the claims against defendants Rondinelli and O'Connor on the ground that they could not be sued in their individual capacities. And, proceeding to the merits, it held that Brennan had failed to demonstrate either that he was qualified and capable of performing the duties of a police officer, or that he had any due process interests that were implicated when the NYCTPD forced him to resign.

Brennan appeals the district court's ruling with respect to defendants Rondinelli and O'Connor, claiming that the court erred in not recognizing that he was suing them in their official rather than their individual capacities. Brennan also argues that the district court was wrong in concluding that he had failed to raise a genuine issue of material fact as to his fitness to serve as a police officer. Because we affirm the district court's ruling that Brennan failed to present evidence that he was fired in violation of his rights under the ADA or the New York Executive Law, we affirm without reaching the question of whether Rondinelli and O'Connor could be sued in their official capacities. *fn2

3.

The plaintiff bears the initial burden of establishing a prima facie case of disability discrimination. See Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 ( 2d Cir. 1996). To do so, he must show "(1) that he is an individual who has a disability within the meaning of the statute, (2) that an employer covered by the statute had notice of his disability, (3) that with reasonable accommodation, he could perform the essential functions of the position sought, and (4) that the employer has refused to make such accommodations." Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997). The parties do not dispute that Brennan, a recovering alcoholic, qualifies as a disabled individual under the ADA. Our inquiry, therefore, focuses on whether Brennan was "otherwise qualified" for the job of transit police officer -- whether, in other words, he was "able to perform the essential functions of that job, either with or without a reasonable accommodation." Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 135 (2d Cir. 1995).

4.

To make out a prima facie case of discrimination under the ADA, Brennan must show that he is now able to perform the "essential functions" of a transit police officer, either with or without an accommodation. See id. And this he has failed to do.

The Rules and Regulations of the NYCTPD require that "[a] male member of the department, while carrying his service or off duty revolver shall carry it in a holster worn on his person." NYCTPD R. & Regs. P 24.2. The rules also specify that officers "shall at all times exercise the utmost care in handling firearms," id. P 24.0, and that "extreme care shall be exercised in the use of a firearm, especially in the subway," id. P 24.1. These regulations are entirely consistent with the ADA, which permits an employer to impose a job requirement that its employees "shall not pose a direct threat to the health or safety of other individuals in the workplace." 42 U.S.C. SEC. 12113(b).

Brennan clearly violated these requirements when he removed his gun, placed it into a gym bag, carried the bag onto the subway, fell asleep during the subway ride, and either allowed the bag to be stolen while he slept or left it behind when he exited the subway. A reasonable jury could not find that the NYCTPD lacked good cause to conclude that an officer who is so careless with his weapon is not qualified to perform the duties of a police officer. And, because Brennan himself stated that his loss of his weapon was not a product of his alcoholism but instead resulted from normal work conditions -- tiredness caused by a late shift following an overtime shift on the previous day -- he cannot show that he is now an "otherwise qualified" individual, despite his previous alcoholism.

4.

For the same reason, Brennan's proposal that his disability could be accommodated by continued EAP monitoring of his progress in remaining sober is insufficient to constitute a showing that he would be "able to perform the essential functions of [his] job" with the accommodation. Borkowski, 63 F.3d at 135. Continuous monitoring by the EAP might be an effective accommodation to Brennan's alcoholism (insofar as his alcoholism affects his ability to do his job). But this is an issue that we need not and do not decide, since such monitoring would not solve the problem of Brennan's non-alcohol-related carelessness with his weapon.

5.

Similarly, Brennan has not shown that he could perform his duties "in a reasonable manner" despite his disability because his inability to perform the essential functions of his job was due, at least in part, to factors unrelated to his disability. For that reason, his claim under N.Y. Exec. Law SEC. 296 also fails.

The judgment of the district court is affirmed.