MEMORANDUM AND OPINION ORDER
Renard Peyton ("Peyton") has sued his ex-employer Otis Elevator
Company ("Otis"), asserting that Otis violated the Americans with
Disabilities Act ("ADA," 42 U.S.C. § 12101-12117*fn1) (1) by
terminating his employment because of his asserted disability of
alcoholism, (2) by not accommodating that claimed disability and
(3) by failing to rehire him because of that claimed disability.
Otis now moves for summary judgment under Fed.R.Civ.P. ("Rule")
Both sides have complied with this District Court's local rules
that at the time of the parties' filings were General Rules 12(M)
and 12(N), but that have respectively been redesignated as LR
56.1(a) and LR 56.1(b) effective September 1, 1999 in compliance
with the directive that all District Courts' rules must be
renumbered to conform to the numbering of the Rules to which they
relate.*fn2 Otis' Rule 56 motion is now fully briefed and ready
for decision. For the reasons set out in this memorandum opinion
and order, the motion is granted and this action is dismissed.
Summary Judgment Standards
Familiar Rule 56 principles impose on Otis the burden of
establishing the lack of a genuine issue of material fact
(Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986)). For that purpose this Court must
"read the record in the light most favorable to the non-moving
party," although it "is not required to draw unreasonable
inferences from the evidence" (St. Louis N. Joint Venture v. P &
L Enters., Inc., 116 F.3d 262, 265 n. 2 (7th Cir. 1997)). While
"this general standard is applied with added rigor in employment
discrimination cases, where intent is inevitably the central
issue" (McCoy v. WGN Continental Broad. Co., 957 F.2d 368,
370-71 (7th Cir. 1992)), that does not negate the potential for
summary judgment in cases where a movant plainly satisfies the
Rule 56 standards (Washington v. Lake County, 969 F.2d 250, 254
(7th Cir. 1992)). In those terms summary judgment is appropriate
if the record reveals that no reasonable jury could conclude that
Peyton was treated in a statutorily prohibited discriminatory
fashion (see Fuka v. Thomson Consumer Elecs., 82 F.3d 1397,
1402 (7th Cir. 1996) and cases cited there). And as the ensuing
discussion demonstrates, that standard dooms Peyton's claims.
What follows in the Facts section (and in the later factual
discussion) is culled from the parties' submissions. And as with
every summary judgment motion, this Court accepts nonmovant
Peyton's version of any disputed facts where his position is
arguably supported by the record.
Otis first hired Peyton in 1991 but terminated his employment
that same year because of unexcused absences (O.56.1(a) ¶¶ 4-6).
Peyton was hired again by Otis on February 26, 1997 as an
elevator construction helper (id. ¶ 3) At that time Peyton knew
of Otis' policies that all employees must notify Otis and call
off of work when they are going to be absent or late and that
unexcused absences could result in termination (id. ¶¶ 7-9)
On March 21 and April 4, 1997 Peyton failed to appear for work
and did not phone Otis to call off of work (id. ¶ 10). Peyton
consequently received an oral warning for absenteeism for the
first infraction and a written warning for the second (id. ¶¶
11-12). At some point during the same time frame Peyton also met
with an Otis field operations manager who told him that more
unexcused absences would result in Peyton's termination.*fn3 At
that meeting the manager had a letter of termination in his hand,
but it was torn up after the oral warning (O.56.1(a) Ex. 3
("Peyton Dep.") 64). Even though the manager specifically asked
Peyton "what the problem was,  I told him I can't tell him. I
couldn't tell him" (id).
On April 29, 1997, less than a month after his second unexcused
absence, Peyton failed to appear for work on time, but he says
that he called off of work by 10 a.m. (P. 56.1(b) ¶ 10). Over the
phone he told Otis that the reason for his absences was that "he
couldn't stop drinking" (P. 56.1(b) ¶ 17). That was the first
time that Otis had notice that Peyton might have a condition that
could possibly be labeled as a disability (O.56.1(a) ¶ 16). That
same day Otis terminated Peyton's employment (id. ¶ 14).
Peyton also claims that after he was terminated he requested an
accommodation from Otis by calling the company to seek treatment
for his drinking problem, and that Otis referred him to a
treatment center (P. 56.1(b) Ex. A at 74). Peyton received
inpatient treatment from that center, plus outpatient treatment
from another facility (id. at 87-88). During the summer of
1997, after the completion of his inpatient care and during his
outpatient treatment, he reapplied to Otis (id. at 100-02) but
Otis declined to rehire him (O.56.1(a) ¶ 22).
Positions of the Parties
Otis claims Peyton was terminated and not rehired because of
his unexcused absences, while Peyton asserts both decisions were
reached solely on account of his alcoholism. Peyton further
claims that Otis had a duty to accommodate his presumed
disability once Otis became aware of its existence.
As this Court has observed in Tomasello v. Delta Air Lines,
Inc., 8 F. Supp.2d 1090, 1092 (N.D.Ill. 1998) (quotation marks,
footnote and citations omitted), ADA's general prohibition
against disability discrimination*fn4 has been separated into
1. claims alleging discrimination under the
specific terms of the statute by failing to make
reasonable accommodations for known disabilities; and
2. claims charging disparate treatment as between
disabled and nondisabled employees.
Peyton's first and third ADA claims, which are in the second
category, will be discussed in tandem while his second claim,
which is in the first category, will be discussed last.
Disparate Treatment Claims
Peyton's first and third claims are respectively that he was
fired and was not rehired because he is an alcoholic. Though
alcoholism is a presumed disability for ADA purposes,*fn5
nevertheless an employer "may hold an employee . . . who is an
alcoholic to the same qualification standards for . . . job
performance and behavior that such entity holds other employees,
even if any unsatisfactory performance or behavior is related to
the . . . alcoholism of such employee" (Section 12114(c)(4)).
Hence "so long as the reason for discharge was for conduct that
any person would have been disciplined for doing, the fact that
alcoholism may have caused the conduct does not lead to an ADA
violation" (Carroll v. Illinois Dep't of Mental Health and
Developmental Disabilities, 979 F. Supp. 767, 770 (C.D.Ill.
1997)). Peyton's alcoholism thus does not transform unexcused
absences into acceptable ones. But if Otis actually terminated
Peyton's employment or did not rehire him on the basis of his
disability, Otis would be liable under ADA.
To evaluate the existence or nonexistence of a prima facie case
for disparate treatment under ADA, a court may employ the
familiar McDonnell Douglas approach imported from other
employment discrimination statutes. For that purpose Peyton would
have to "prove*fn6 that (1) he is a member of a protected class;
(2) his work performance met the employer's legitimate job
expectations; (3) his employment was terminated; and . . . (4)
employees not in the protected class were treated more favorably"
(DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir. 1995)
But there is no need to go through that formulation here. Like
many others, this Court has often made observations in the
employment discrimination context like those it voiced in Moore
v. NutraSweet Co., 836 F. Supp. 1387, 1395 (N.D.Ill. 1993)
(quotation marks and corresponding case citation omitted):
[T]he plaintiff's prima facie showing in these cases
frequently cannot be analyzed wholly discretely from
the plaintiff's showing of pretext, so that it is
preferable to collapse the inquiry and focus on the
showing of pretext, a position that our Court of
Appeals also has taken on occasion (see, e.g., its
decision affirming this Court in McCoy, 957 F.2d at
And our Court of Appeals has similarly continued to follow the
approach, where appropriate, of jumping ahead to the ultimate
discrimination question rather than focusing on the prima facie
case, even when it is questionable whether plaintiff has met the
latter requirement. This opinion thus turns directly to whether
Peyton has demonstrated that Otis' stated reasons for terminating
his employment and not rehiring him were a pretext for
McCoy, 957 F.2d at 372 (citations and quotation marks
omitted) sets out Peyton's task on the pretext issue:
To establish pretext, an employee must ultimately
show by a preponderance of the evidence either (1)
that the employer was more likely motivated by a
discriminatory reason, or (2) that the employer's
proffered reason is unworthy of credence. Where, as
here, the plaintiff attempts to show the employer's
proffered rationale is incredible, he need not
present any direct evidence of discrimination. As
this court has explained, a plaintiff may simply
attack the credibility of the employer's proffered
reason for termination. . . .
If the proffered reason is not in fact incredible, "general
averments" will not satisfy Peyton's burden, and he "must produce
some independent evidence showing that the company's motives are
not believable" (Roberts v. Separators, Inc., 172 F.3d 448, 452
(7th Cir. 1999)).
Wrongful Termination Claim
As the Facts section has set out, it is undisputed that
before his discharge Peyton had three unexcused absences that he
knew could result in his termination. Otis ascribes Peyton's
firing to those absences, supporting that contention with the
affidavit of Michael Schwalbach together with the documentation
of warnings given to Peyton in that respect (O.56.1(a) Ex. 4 ¶¶
5, 7 and attached exhibits). Otis has also provided records
documenting the firing of other employees for absenteeism
(O.56.1(a) Ex. 3A).
Because Otis has thus offered a valid and far from incredible
reason for the termination,*fn7 Peyton must show that the reason
was pretextual. But Peyton merely cites his "belief" that he was
terminated on account of his alcoholism (see P. 56.1(b) ¶¶ 20-21,
Peyton Dep. 114-17).*fn8 As already stated, Roberts teaches
that such "general averments" are insufficient to create a
genuine issue of material fact. While Otis did learn of Peyton's
alcoholism on the day he was discharged,*fn9 that same day
marked his third unexcused absence — after he had already been
warned that any repetition meant his job. Hence the timing of
Peyton's termination casts no suspicion on Otis' motives.
To rebut Otis' contention that Peyton was not rehired because
of his prior record of absenteeism, he again points to nothing in
the record, instead merely reciting his own belief that Otis'
refusal to take him back stemmed from its having learned that he
is an alcoholic (P. 56.1(b) ¶ 22). Again that conclusory
assertion does not satisfy the need to show that Otis' stated
reason is a mere pretext.
But Peyton argues that because he had received treatment for
his alcoholic disability, his prior absenteeism (induced by that
very alcoholism) was no longer relevant. Section 12114(c)(4)
precludes such an argument because it does not require an
employer to give any special concessions to misconduct caused by
drugs or alcohol (see Thomas v. Mississippi State Dep't of
Health, 934 F. Supp. 768, 773-74 (S.D.Miss. 1996), holding an
employer not liable under ADA for its failure to rehire a former
employee because of his poor pretermination performance caused by
his drug addiction, even though the employee had since received
Peyton's claim is further undercut by the framing of the second
prong of the prima facie case in the past tense: Peyton has to
demonstrate that "his work performance met the employer's
legitimate job expectations" (DeLuca, 53 F.3d at 797) (emphasis
added)). Not having met those expectations in the past, Peyton is
not now accorded the right to demonstrate his current capacity to
satisfy his employer (see Myers v. Hose, 50 F.3d 278, 283 (4th
Cir. 1995) (emphasis in original) ("qualified individual with a
disability" requirement under ADA refers to that individual's
present ability, not to his "future ability to perform the
essential functions of his position").
Nor can this failure-to-rehire claim be viewed as a failure by
Otis to accommodate Peyton. As Siefken v. Village of Arlington
Heights, 65 F.3d 664, 666 (7th Cir. 1995) has put it, "`A second
chance' . . . is not an accommodation, as envisioned in the ADA."
Just as in Siefken, Peyton is not now asking for an
accommodation within the contemplation of ADA — instead he admits
he has already had treatment — but simply seeks "another chance
to allow him" to fulfill Otis' legitimate job expectations
(id. at 666-67).
It is clear that Peyton has not met his summary judgment burden
of showing some genuine issue of material fact as to either his
wrongful-termination or failure-to-rehire claim. Both of those
Best v. Shell Oil Co., 107 F.3d 544, 547-48 (7th Cir. 1997)
teaches that if Peyton is to prevail on his remaining claim via
the prima facie case approach, he must establish (1) that he had
a "disability" as defined by ADA, (2) that Otis was aware of that
disability and (3) that he was "qualified" for the position in
question, with or without reasonable accommodations. But once
more the prima facie analysis is not necessary because Otis has
put forth a valid and non-discriminatory reason for terminating
Peyton and because that reason existed before Otis had any notice
of disability. Peyton's problems with getting himself to work had
expressly put his employment at risk, and ADA's plain language
dictates that an employee's alcoholism does not give him a
reprieve — in this case an accommodation instead of a pink slip —
that would not be available to a non-alcoholic.
Adamczyk v. Chief, Baltimore County Police Dep't, 952 F. Supp. 259,
265 (D.Md. 1997) has dealt with the same situation in like
To permit an employee to [request an accommodation
after alcohol-induced misconduct] would allow any
employee, who drunkenly misbehaved and whose employer
had no knowledge at the time of such misbehavior that
the employee was an alcoholic, to evade punishment by
declaring himself disabled.
Otis was not obligated under ADA to offer Peyton treatment
instead of termination just because it learned, after it had
already reached a legitimate decision to fire him, that Peyton's
alcoholism was the cause of his problems.
Indeed, it is not simply that Peyton divulged his disability
only on the verge of — that is, immediately before — being fired.
As set out in the Facts section, Peyton had been fired once
before for absenteeism, he was aware of Otis' policy on
absenteeism and he had been warned several times — once when a
letter of termination was torn up. Hence he had to know that he
was facing termination when he called Otis at 10 a.m. on April
29, 1997, and it was only then that he told Otis he had a problem
with alcohol. For the purposes of accommodation, because prior
misconduct was thus involved, Peyton effectively placed his
employer in the position of having no notice at all.
That scenario places this claim within the logic of Beck v.
University of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir.
An employee has the initial duty to inform the
employer of a disability before ADA liability may be
triggered for failure to provide accommodations — a
duty dictated by common sense lest a disabled
employee keep his disability a secret and sue later
for failure to accommodate.
Just so, an employee cannot keep an alcoholism problem a secret
up until the moment that he or she is in danger of being fired
and expect the revelation and the threat of a lawsuit to erase
all of his or her prenotice misconduct.
To summarize, Peyton's failure-to-accommodate claim fails
precisely because ADA does not sanction misconduct by employees
caused by alcoholism, but instead holds them to the same standard
as everyone else. That claim too must be dismissed.
Peyton has not identified a genuine issue of material fact that
could establish, or even create a reasonable inference, (1) that
Otis terminated his employment because of his presumed disability
of alcoholism, (2) that Otis failed to accommodate that condition
before terminating him or (3) that Otis failed to rehire him
because of that problem. Hence Otis is entitled to a judgment as
a matter of law. Its summary judgment motion as to all of
Peyton's ADA claims is therefore granted, and this action is
dismissed with prejudice.