Daniel Pernice v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1865
DANIEL PERNICE,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 4441--Harry D. Leinenweber, Judge.
Argued December 5, 2000--Decided January 11, 2001
Before POSNER, EASTERBROOK, and EVANS, Circuit
Judges.
Evans, Circuit Judge. On August 27, 1998, Daniel
Pernice’s 20-year career with the City of
Chicago’s Department of Aviation came to an
unceremonious conclusion. He promptly filed this
lawsuit, alleging that by firing him the City
violated the Americans with Disabilities Act, 42
U.S.C. sec. 12101 et seq. Pernice now asks us to
reverse the district court’s dismissal of his
second amended complaint.
Pernice’s troubles began--or, more accurately,
were discovered by the City--on March 2, 1998,
when he was arrested and charged with disorderly
conduct and possession of cocaine. Although
Pernice was never convicted on these charges, he
voluntarily sought treatment for his "self-
acknowledged drug addiction." After completing a
one-week inpatient program at a drug
rehabilitation center in early June 1998, Pernice
continued treatment on an outpatient basis. On
June 25 Pernice requested medical leave from the
City "for the purpose of dealing with his ’drug
dependency,’" and the following day submitted a
letter to his superiors from his doctor,
explaining his need for treatment. Pernice
alleges that he has been drug-free ever since and
that he continues to attend Alcoholics Anonymous
and Narcotics Anonymous meetings.

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Even though Pernice was arrested while off
duty, the City took an interest in his conduct.
He was charged with various violations of City
personnel rules stemming from his arrest and was
terminated on August 27. After a hearing, the
City of Chicago Personnel Board upheld the
termination, finding that Pernice had purchased
cocaine at a bar and had become involved in an
altercation with Chicago police officers. The
personnel board also specifically found that
Pernice had been discharged for possession of a
controlled substance.
Pernice then brought this action. The first
amended complaint stated he was "allegedly
terminated" for violations of City personnel
rules prohibiting the possession of controlled
substances, violations of the Chicago Municipal
Code, and conduct unbecoming a public employee.
The City moved to dismiss, arguing that Pernice
failed to plead that he suffered from an ADA-
covered disability, and that he had pled himself
out of court by alleging he was discharged
because of his conduct, not because of any
alleged disability. Pernice’s memorandum in
opposition to the City’s motion took the position
that his possession of drugs was "an integral
part" of his disability--drug addiction--because
he could not be afflicted with that alleged
disability without necessarily possessing drugs.
The district court rejected Pernice’s argument,
holding that, according to the first amended
complaint, the City terminated Pernice for drug
possession, not because of any alleged
disability. Pernice pled himself out of court,
the district court held, because the ADA permits
employers to discipline disabled employees for
violations of rules that apply to all employees,
even if the violation of the rule is related to
a disability. The district court did, however,
permit Pernice to amend his complaint. He did so
only by adding the allegations that his "drug
addiction created a wholly involuntary need to
possess drugs," and that "[s]aid compulsion
resulted in his termination by the Defendant."
The court dismissed this second amended complaint
without further comment, and this appeal
followed.
Pernice does not seriously dispute that the
City could have fired him for his drug use
without running afoul of the ADA. It is well-
established that an employee can be terminated
for violations of valid work rules that apply to
all employees, even if the employee’s violations
occurred under the influence of a disability.
E.g., Palmer v. Circuit Court of Cook County,
Ill., 117 F.3d 351, 352 (7th Cir. 1997)
(upholding termination of employee whose threats

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against co-workers were triggered by mental
illness). This rule is particularly applicable to
employees who violate rules relating to drug or
alcohol abuse; indeed, the ADA contains a
specific provision stating that employers may
hold alcoholics and drug users "to the same
qualification standards for employment or job
performance and behavior that such entity holds
other employees, even if any unsatisfactory
performance or behavior is related to the drug
use or alcoholism of such employee." 42 U.S.C.
sec. 12114(c)(4)./1 For example, in Martin v.
Barnesville Exempted Village School District
Board of Education, 209 F.3d 931 (6th Cir.),
cert. denied, 121 S. Ct. 482 (2000), the Sixth
Circuit affirmed summary judgment in favor of a
school board which refused to promote the
plaintiff, an alcoholic, to a bus driver position
because of his earlier violation of a rule
forbidding the consumption of alcohol while on
duty. Although the ADA might protect a plaintiff
from adverse employment action taken because of
his alcoholism or drug addiction, it provides no
bar to discipline for employee misconduct. Id. at
935. See also Salley v. Circuit City Stores,
Inc., 160 F.3d 977, 981 (3d Cir. 1998) (affirming
summary judgment for ADA defendant which
terminated drug addict employee who reported to
work under the influence of drugs); Williams v.
Widnall, 79 F.3d 1003, 1007 (10th Cir. 1996)
(affirming summary judgment for Rehabilitation
Act defendant which terminated alcoholic employee
who threatened his supervisor and co-workers);
Collings v. Longview Fibre Co., 63 F.3d 828, 832-
33 (9th Cir. 1995) (affirming summary judgment
for ADA defendant which terminated drug addict
employees who admitted buying, selling, and using
drugs at work); Maddox v. University of
Tennessee, 62 F.3d 843, 847-48 (6th Cir. 1995)
(affirming summary judgment for ADA and
Rehabilitation Act defendant which terminated
alcoholic employee after his arrest for drunk
driving and public intoxication)./2 A contrary
rule would "require an employer to accept
egregious behavior by an alcoholic [or drug
addict] employee when that same behavior,
exhibited by a nondisabled employee, would
require termination." Williams, 79 F.3d at 1007.
Although the reasons for an employer’s decision
to take an adverse job action against an employee
are often questions of fact, courts have resolved
cases like this one at the pleading stage. In
Newland v. Dalton, 81 F.3d 904 (9th Cir. 1996),
for example, a civilian employee of the Navy was
terminated after he attempted to discharge an
assault rifle in a tavern. The Ninth Circuit
affirmed the dismissal of his Rehabilitation Act
claim, even though the complaint alleged that the
"drunken rampage" was the direct result of his

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alcoholism, because other facts in the complaint
demonstrated that he was fired for his
misconduct. Id. at 906. See also Little v.
F.B.I., 1 F.3d 255, 259 (4th Cir. 1993)
(affirming dismissal of alcoholic plaintiff’s
Rehabilitation Act claim when complaint indicated
he was terminated for being intoxicated while on
duty). Pernice’s second amended complaint suffers
from the same deficiency: it all but directly
alleges he was terminated for his criminal
misconduct, not because of a "disability."
Pernice attempts to finesse this problem by
arguing that the misconduct at issue, drug
possession, cannot be separated from his alleged
disability of drug addiction because his "drug
addiction created a wholly involuntary need to
possess drugs." This argument apparently is based
upon Despears v. Milwaukee County, 63 F.3d 635
(7th Cir. 1995), in which we held that an
employer did not violate the ADA when it demoted
a worker from a job involving driving after the
worker received his fourth drunk driving citation
and lost his driver’s license. The worker argued
that his alleged disability of alcoholism caused
him to lose his license, and we agreed. Id. at
636. But a cause is different from a compulsion,
and because the plaintiff made an independent
decision to drive while intoxicated, he had
failed to establish the necessary nexus between
his alcoholism and the demotion. Id./3 Pernice
essentially argues that his drug addiction
compelled him to possess drugs, and therefore any
employment action taken to address this criminal
misconduct necessarily implicates his alleged
disability.
Although we regard Pernice’s factual allegations
as true for purposes of the City’s motion to
dismiss, see Fredrick v. Simmons Airlines, Inc.,
144 F.3d 500, 502 (7th Cir. 1998), his artful
pleading cannot remove us entirely from reality.
As the Supreme Court has noted, "even among many
who consider alcoholism a ’disease’ to which its
victims are genetically predisposed, the
consumption of alcohol is not regarded as wholly
involuntary." Traynor v. Turnage, 485 U.S. 535,
550 (1988). This observation is equally true of
drug addiction. Moreover, many criminal laws
proscribing drug possession might be subject to
constitutional challenge if the act of possessing
drugs were truly involuntary. See Despears, 63
F.3d at 636-37. In short, Pernice is not like a
driver who without warning experiences an
epileptic seizure which causes him to veer onto
the sidewalk and strike a pedestrian. Whether or
not his alleged disability of drug addiction
created a wholly involuntary need to possess
drugs, Pernice made a conscious choice to
actually possess drugs. We therefore have little
trouble separating his misconduct from his

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alleged disability. The City may punish Pernice
for the former without violating any legal
protections he may possess because of the latter.
In a last-ditch effort to revive his claim,
Pernice contends he never meant to allege that
his termination was prompted by his drug arrest,
but rather the triggering event was his decision
to seek treatment for his addiction. In support
of this novel interpretation of the second
amended complaint, Pernice points out that it
states he was "allegedly terminated"/4 for drug
possession, implying that drug possession was
merely a pretext. In addition, Pernice argues
that the timing of his dismissal--5 months after
his drug arrest, but only 1 months after he
requested medical leave to deal with his
addiction--is consistent with the theory that he
was terminated only for seeking treatment.
We generally are inclined to permit plaintiffs
to hypothesize a new theory on appeal as long as
it can be reconciled with the written complaint.
E.g., Highsmith v. Chrysler Credit Corp., 18 F.3d
434, 439-40 (7th Cir. 1994). On the other hand,
a plaintiff may not respond to the dismissal of
his complaint by arguing "a case that was not
before the district court." Thomason v.
Nachtrieb, 888 F.2d 1202, 1205 (7th Cir. 1989).
Under this framework, Pernice’s new theory proves
too much. For one thing, the policy he apparently
ascribes to the City--that it retains current
drug users on its payroll, but terminates drug
users who seek treatment--is ludicrous. Moreover,
Pernice’s arguments before the district court
make clear he never intended that his second
amended complaint be read the way he asks us to
read it. For example, Pernice’s brief opposing
the City’s motion to dismiss plainly admits that
"[i]n August, 1998, the City fired Mr. Pernice
for violating personnel rules, stemming from his
March arrest." In addition, Pernice argued, as he
does on appeal, that his termination was related
to his alleged disability because drug addiction
is inextricably linked to possession of drugs.
This argument is necessary only because Pernice
agreed (and agrees) that he was terminated for
drug possession, not for seeking treatment for
his addiction. Clearly, Pernice dreamed up his
termination-for-treatment theory only after the
district court rejected his first, more plausible
theory. We will not subject the City of Chicago
to the expense of discovery on a theory that
could likely be the subject of a successful Rule
11 motion./5
Because Pernice has pled himself out of court
with the allegation that the City terminated him
for violations of valid rules applicable to all
employees, we affirm the district court’s

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dismissal of his second amended complaint.
/1 In addition, the ADA excludes from the definition
of "qualified individual with a disability" any
person currently using illegal drugs. 42 U.S.C.
sec. 12114(a). This exclusion does not apply to
people who no longer engage in the use of illegal
drugs, or who have sought or completed treatment,
however. 42 U.S.C. sec. 12114(b). Because the
second amended complaint alleges that, at the
time of his discharge, Pernice had ceased using
drugs and entered treatment, he is not
automatically excluded from the status of
"qualified individual with a disability." Whether
drug addiction constitutes a "disability" within
the meaning of the ADA is a separate question,
which we leave for another day.
/2 Only the Second Circuit has departed from this
rule. In Teahan v. Metro-North Commuter R.R. Co.,
951 F.2d 511, 516-17 (2d Cir. 1991), the court
reversed summary judgment for an employer which
fired an alcoholic employee for excessive
absenteeism. If a sufficient percentage of the
absences were caused by the employee’s
alcoholism, the court held, he could prevail in
his Rehabilitation Act claim. Id. Although resort
to authority interpreting the Rehabilitation Act
is appropriate in interpreting the ADA, Collings,
63 F.3d at 832 n.3, we decline to follow Teahan
as inconsistent with the great weight of
authority.
/3 Two of our sister circuits have criticized
Despears, both reading that case as affirming
summary judgment for the employer because the
plaintiff’s alcoholism was a partial cause, but
not the sole cause, of his demotion. See Baird ex
rel. Baird v. Rose, 192 F.3d 462, 469 n.7 (4th
Cir. 1999); McNely v. Ocala Star-Banner Corp., 99
F.3d 1068, 1077 (11th Cir. 1996). Such a reading
of Despears puts it at odds with a host of
decisions holding that the ADA prohibits
employment discrimination if a covered disability
is one motivating factor, even if not necessarily
the sole cause, of the adverse employment action.
But these cases misread Despears, which holds
only that the plaintiff’s alcoholism was a
partial cause of his drunk driving incident, but
that his drunk driving incident was the sole
cause of his demotion. 63 F.3d at 636-37.
/4 His "allegedly" is misplaced: he was terminated.
The complaint should read "He was terminated,
allegedly for drug possession."
/5 The City also argues that the personnel board’s
ruling precludes Pernice from alleging any cause
for his termination other than drug possession.

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In University of Tennessee v. Elliott, 478 U.S.
788, 795-96 (1986), however, the Supreme Court
held that a provision in Title VII directing the
EEOC to give "substantial weight" to the findings
of state administrative bodies, 42 U.S.C. sec.
2000e-5(b), indicated Congress’ intent that
common law issue preclusion not apply to the
findings of such bodies. Because Title I of the
ADA incorporates the same deferral procedures, 42
U.S.C. sec. 12117, Elliott’s reasoning applies
equally to ADA cases. Thomas v. Contoocook Valley
Sch. Dist., 150 F.3d 31, 39 & n.5 (1st Cir.
1998). Pernice therefore was not bound by the
personnel board’s finding that he was discharged
for drug possession.

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