E. Michael Salley v. Circuit City Stores, IncE. Michael Salley v. Circuit City Stores, Inc
OPINION OF THE COURT
E. Miсhael Salley appeals from the judgment of the district court in favor of the defendant, Circuit City Stores, Inc. (“Circuit City”), in a case that he brought under the Americans with Disabilities Act (“ADA”),
Salley sued under the ADA and the Pennsylvania Human Rights Act (“PHRA”). The District Court granted summary judgment against him on the grounds that he was a “current” drug user who was fired for such use. We will affirm the judgment of the District Court, though on different grounds, i.e. that no reasonable jury could conclude that Salley was discharged for his disability rather than his drug use and concomitant violations of Circuit City’s drug policy.
I.
Salley, who is forty-six years old, has engaged in the illеgal use of drugs for large portions of his adult life. At approximately age seventeen, Salley became addicted to heroin. He remained addicted to heroin for approximately the next thirteen years, during which time he also became addicted to alcohol. He participated in several inpatient and outpatient recovery programs of various lengths in an attempt to control his addiction to alcohol and heroin. He ultimately succeeded, and was able to abstain from the consumption of alcohol or illegal drugs from
In August 1988, Circuit City hired Salley as a video sales counselor. He performed well enough that he was brought into management in 1989 or 1990. In early 1990, he became a store manager. One of Salley’s specific responsibilities was to enforce Circuit City management policies, including its drug policy, which provided that managers “will work to ensure that employees are free from the effects of alcohol and illegal substances, whether consumed on or off Company property.” (Appendix at 43). In 1991, he informed a superior of his past drug addiction, but also told him, truthfully, that he had been successfully abstinent for years. The superi- or reassured him that no action would be taken against him.
In the fall of 1993, Salley resumed drinking alcohol. Late that year or early in 1994, Salley discovered that a subordinate of his, Kevin Heavner (now deceased), used drugs. He began to use heroin with Heavner, using Heavner’s drug connections to purchase heroin. From April to August 1994, his renewed addiction continued. Salley used heroin at least once a day, and eventually spent between $500 and $600 each week on the drug. He sometimes left work during his lunch break to use heroin, and often worked while under the influence of heroin, though the use did nоt affect his performance. However, when Salley did not take heroin regularly, he would experience withdrawal symptoms that would distract him at work and prevent him from performing to his maximum potential. In general, his heroin addiction did not prevent him from performing his job functions properly. Salley never engaged in heroin use on Circuit City’s premises.
On August 24, 1994, Salley sought treatment through Circuit City’s confidential employee assistance program. On August 29, he began detoxification treatments. On September 16, apparently prompted by rumors of Salley’s inappropriate behavior, Circuit City’s Loss Prevеntion Department interviewed him on various matters, including his possible drug use and connection to Kevin Heavner’s drug use. When the investigation began, Salley first refused to cooperate, based on the advice of the people who were treating his addiction at the time; they appаrently assured him on several occasions that the details of his treatment would be kept confidential, and encouraged him to take steps to preserve his confidentiality. As a result, in the Loss Prevention interview Salley was evasive and he lied about his recent drug use.
By September 19, Salley had consulted an attorney, and he offered to give a written statement. Two days later, he worked with the Loss Prevention investigator to formulate a signed, handwritten statement. In this statement, Salley admitted to engaging in the use of alcohol and heroin; to using heroin on a regular basis before work, aftеr work, and occasionally during lunch breaks. In addition, Salley admitted to violating management policies and his own management responsibilities by failing to report Heavner’s drug use; to purchasing heroin through He-avner; to using heroin with Heavner; and to telling unspecified lies and refusing to cooperate during the earlier interviews. Although Salley maintains that he signed the September 21 statement under duress, he concedes that to the best of his knowledge all the information set forth in the statement is accurate.
On September 23, Circuit City fired Salley. After he lost his job, he resumed heroin use and went through sevеral cycles of treatment and relapse before stabilizing. Thereafter, he brought suit, alleging that he had been fired in violation of the ADA and the PHRA. Circuit City responded that Sal-ley was lawfully fired for violating Circuit City’s drug policy by engaging in the use of illegal drugs to the knowledge of other employees, discussing drugs at the workplace, being under the influence of drugs at work, arriving late because of drug use, and failing to report an employee’s [Heavner’s] drug use. The District Court granted Circuit City’s motion for summary judgment on the grounds that Salley was a “current” drug user and was therefore unprotected by the ADA. 1
Salley argues that the District Court was wrong to grant summary judgment against him on the grounds that he was “currently” using drugs when fired and so was not protected by the ADA. Circuit City responds that, properly understood, “current” use includes use within a few weeks of an adverse employment action, and that in any event Salley failed to raise an inference of discrimination against him on the basis of his disability of drug and alcohol addiction when it fired him for drug-related misconduct. Although Salley raises interesting issues about the meaning of
II.
Circuit City asserts that there is no evidence that Salley was fired because of his
Salley’s claim of handicap discrimination derives essentially from the fact that he revealed his history of addiction to a supervisor a few years before his relapse into addiction.
Kelly v. Drexel University,
No action was taken оn Salley’s revelations. It was only when Circuit City discovered evidence that his drug use was no longer just a past problem that the Loss Prevention department acted. Other employees were aware of his drug use; he discussed drugs at the workplace; he reported to work under the influence of drugs; he was late because of his drug use and sometimes left work to use drugs; and he failed to report a subordinate’s drug use, instead engaging in drug use with that subordinate. Circuit City legitimately feared that such acts would be harmful to its business.
Salley has offered no evidence to suggest that drug policy violations were tоlerated for non-addicts but used to justify firing addicts. In fact, Salley has failed to state exactly why he thinks he was fired for his addiction instead of his misconduct. He alleges that information from his treatment was revealed to Circuit City management in violation of Circuit City’s supposed promises of confidentiality, but this dоes not relate to his claim of disability discrimination, even if it is true. No reasonable jury could conclude on the record before us that Salley was fired for his addiction, as opposed to the misconduct Circuit City investigated.
The holding that drug-related misconduct is a legitimate, non-discriminatory reаson for termination is supported by
The application of a facially neutral policy to a disabled employee may be an unlawful ground for termination if the employee’s violation stems from his or her disability; the employer may not use established policies regulating behavior tо short-circuit the required analysis of whether the employee can perform the essential functions of the job with a reasonable accommodation. For example, an employer might require that a job be performed standing but a plaintiffs disability might prevent him or her from standing all the timе. If a seating accommodation could reasonably be provided, then the employee’s inability to comply with the employer’s otherwise legitimate policy would not preclude the employee from making a valid ADA claim. But Congress has decided to treat drug and alcohol аddiction differently from other disabilities by ensuring that employers do not have to go through the accommodation process in these cases.
See Den Hartog v. Wasatch Academy,
III.
Although Salley has made admirable attempts to overcome his drug addiction, he
Notes
. Although they are not bound to do so, Pennsylvania courts generally interpret the PHRA in accord with its federal counterparts, among them the ADA.
See Kelly v. Drexel Univ.,
.
"Current” drug use means that the illegal use of drugs occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is an on-going problem. It is not limited to the day of use, or reсent weeks or days, in terms of an employment action. It is determined on a case-by-case basis.
Equal Employment Opportunity Commission, Technical Assistance Manual on the Employment Provisions (Title I) of the ADA § 8.3 (1992). This section of the ADA ensures that current use, even if it is a natural consequence of аn addiction disability, may be grounds for termination under the ADA. Congress has obviated the need for us to determine the metaphysical question whether use is part and parcel of an addiction disability; if the use is current, the ADA does not apply.
We note that we have found no case in which a three-week period of abstinence has been considered long enough to take an employee out of the status of "current” user. Other courts have found "current” use when presented with periods of abstinence as long or longer than Salley's.
See, e.g., Collings v. Longview Fibre Co.,