seq., and Count II was a claim for breach of contract pursuant
to 28 U.S.C. § 1367.
On February 23, 1999, Quigley moved to amend his complaint. The
court granted this motion and Quigley filed his Amended Complaint
on March 18, 1999. The Amended Complaint consists of three
counts. Both Count I and Count II are claims for disability
discrimination under the ADA and Count III is a claim for breach
of contract pursuant to 28 U.S.C. § 1367. Count I alleges that
Austeel violated the ADA by terminating Quigley's employment
because of his status as a recovering drug addict.*fn3 Count II
alleges that Austeel violated the ADA by terminating Quigley's
employment because of a perceived disability. Count III alleges
that Austeel breached its employment agreement with Quigley by
demoting him and terminating his employment.
The matter is currently before the court on Austeel's motion
for summary judgment pursuant to Federal Rule of Civil Procedure
56(c). Austeel contends that it is entitled to judgment as a
matter of law on Count I and Count II because (1) Quigley is not
a "qualified individual with a disability" under the ADA and (2)
even if Quigley is a "qualified individual with a disability,"
his disability does not substantially limit any major life
activity. Austeel also contends that it is entitled to judgment
as a matter of law on Count III because (1) the employment
agreement is a management directive not a contract, and (2) even
if it is a contract, Austeel has not violated the terms of it.
A. Standard for deciding a motion for summary judgment
A motion for summary judgment is proper "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED.R.CIV.P.
56(c). A genuine issue of material fact exists for trial when, in
viewing the record and all reasonable inferences drawn therefrom
in a light most favorable to the non-moving party, a reasonable
jury could return a verdict for the non-movant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986); Smith v. Severn, 129 F.3d 419, 425 (7th
The burden is on the moving party to show that no genuine
issues of material fact exist. Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson,
477 U.S. at 256, 106 S.Ct. 2505. Once the moving party presents a
prima facie showing that he is entitled to judgment as a matter
of law, the non-moving party may not rest upon the mere
allegations or denials in its pleadings but must set forth
specific facts showing that a genuine issue for trial exists.
Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S.
at 256-57, 106 S.Ct. 2505; Schroeder v. Lufthansa German
Airlines, 875 F.2d 613, 620 (7th Cir. 1989).
B. Counts I and II — ADA claims
Austeel contends that Quigley has not satisfied his burden in
establishing his employment discrimination case under the ADA.
More specifically, Austeel alleges that Quigley has not
established a claim based on the ADA because Quigley is not a
"qualified individual with a disability."
The ADA prohibits covered entities*fn4 from discriminating
against a "qualified
individual with a disability because of the disability."
42 U.S.C. § 12112(a). A "qualified individual with a disability" is
defined as "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."
Id. § 12111(8).
As in any other employment discrimination case, Quigley must
establish that Austeel terminated his employment in violation of
the ADA by either direct or indirect means. See DeLuca v. Winer
Indus., Inc., 53 F.3d 793, 797 (7th Cir. 1995). Quigley does not
set forth any direct evidence that Austeel discharged him because
of a disability or because Austeel regarded him as disabled;
instead, he provides circumstantial evidence. Thus, this court
will examine Quigley's evidence within the McDonnell Douglas
burden-shifting framework. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see Leffel
v. Valley Financial Servs., 113 F.3d 787, 792 (7th Cir. 1997)
("Although this analysis derives from Title VII cases, [the
Seventh Circuit finds] . . . no reason . . . not to apply it to
Under McDonnell Douglas, Quigley must first establish, by a
preponderance of the evidence, a prima facie case of employment
discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct.
1817. To establish a prima facie case, Quigley must show: (1) he
is disabled within the meaning of the ADA; (2) his work
performance met Austeel's legitimate expectations; (3) he was
subjected to an adverse employment action; and (4) the
surrounding circumstances indicate that his disability was the
reason for the adverse employment action. See Patterson v.
Chicago Assoc. for Retarded Citizens, 150 F.3d 719, 725 (7th
Cir. 1998). If Quigley establishes a prima facie case, the burden
of production shifts to Austeel to articulate a legitimate,
non-discriminatory reason for its allegedly biased employment
decision. See Gorbitz v. Corvilla, Inc., 196 F.3d 879, 882 (7th
Cir. 1999). If Austeel meets its burden, Quigley must show, by a
preponderance of the evidence, that Austeel's stated reason is
nothing more than pretext. See Leffel, 113 F.3d at 792.
1. Whether Quigley's past drug abuse is a "disability" under
In this case, Austeel contends that Quigley fails to establish
his prima facie case in both Count I and Count II because he
fails to establish the first element — a disability within the
meaning of the ADA. In order to survive Austeel's motion for
summary judgment, Quigley must show that he suffers from a
"disability" as the term is defined by the ADA. See Homeyer v.
Stanley Tulchin Assocs., Inc., 91 F.3d 959, 961 (7th Cir. 1996).
The ADA defines a "disability" as "(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 an
impairment; or (C) being regarded as having such an impairment."
42 U.S.C. § 12102(2). Thus, for Quigley to establish the first
element of his prima facie case, he must either (1) have an
actual disability; (2) have a record of a disability; or (3) be
regarded as having a disability. Sutton v. United Airlines,
Inc., 527 U.S. 471, 119 S.Ct. 2139, 2144, 144 L.Ed.2d 450
(1999). The ADA's definition of a "disability" does not include
an individual "who is currently engaging in the illegal use of
drugs." 42 U.S.C. § 12114(a). However, the ADA creates a
safe-harbor provision for individuals who have successfully
completed or are participating in a supervised drug
rehabilitation program and are no longer using illegal drugs.
See id. § 12114(b).
Quigley asserts that he is a "qualified individual with a
disability" under the ADA, because, although he previously abused
illegal drugs, he successfully completed a supervised drug
and is no longer using any illegal drugs. Thus, he alleges that
he fits within the safe-harbor provision. Austeel, however,
contends that Quigley is not a "qualified individual with a
disability" under the ADA, because Quigley's drug use is too
current to place him within the safe-harbor provision.
Quigley relies on the term "stable" to bring himself under the
safe-harbor protection of the ADA. He also relies upon the
possible factual dispute as to his "stability" to contend that
the court cannot rule on the issue of current drug use in this
summary judgment motion. However, the ADA does not rely upon
"stability" as a definition for current drug use, nor has any
court interpreting the ADA. Quigley's reliance on McDaniel v.
Mississippi Baptist Medical Center, 877 F. Supp. 321 (S.D.Miss.
1994), for the proposition that the plaintiff's stability is part
of the determination as to whether he is a current drug user is
misplaced. The determination is based upon the length of the
plaintiff's recovery not the stability. This is evident from
reading more than just the sentence upon which Quigley
continuously relies. After reviewing the legislative history, the
court in McDaniel states:
As shown by the evidence, a supervised rehabilitation
program can continue long past inpatient treatment
and a definition of "no longer engaging in such use"
can be read to mean that the person has been in
recovery long enough to have become stable. The court
finds that Congress intended for this exception to
mean that the recovery must be for some longer period
[which was two and a half to three weeks] than
Plaintiff has presented here in this case, that this
exception applies to a long term recovery program,
and to a long term abstinence from drug use, not an
Id. at 327-28. In this case, Quigley's inpatient recovery
program lasted for ten days and he was drug free for a total
period of one month before Austeel terminated his employment.
This certainly does not qualify as the intended long term
recovery. See Baustian v. State of Louisiana, 910 F. Supp. 274,
276-77 (E.D.La. 1996) (finding that a drug-free period of seven
weeks before termination was not sufficiently long enough under
the ADA); see also Collings v. Longview Fibre Co., 63 F.3d 828,
833 (9th Cir. 1995) ("As the regulations indicate . . . `the term
`currently engaging' is not intended to be limited to the use of
drugs on the days of, or within a matter of days or weeks before,
the employment action in question. Rather, the provision is
intended to apply to the illegal use of drugs that has occurred
recently enough to indicate that the individual is actively
engaged in such conduct.'" Thus, plaintiff's drug involvement
within the weeks and months prior to termination indicates
current use. (citing 29 C.F.R. § 1630.3 App.)); Wormley v.
Arkla, Inc., 871 F. Supp. 1079, 1084 (E.D.Ark. 1994) ("[E]ntering
a rehabilitation program does not immediately convert a "current"
user into an individual with a disability protected under the
ADA."). Therefore, Quigley's treatment does not place him within
the safe-harbor provision for "current" drug use, and thus,
Quigley is not disabled within the meaning of the ADA.
Accordingly, Quigley has failed to establish the first element of
his prima facie case for both Count I and Count II.
However, even if Quigley's rehabilitation program was
sufficiently long enough under the ADA, he still fails under
Count I to establish that he is a qualified individual with a
disability under the ADA because he has not shown that his
alleged disability substantially limits a major life activity and
under Count II to establish that Austeel regarded Quigley's
disability as substantially limiting a major life activity. The
court will first address the additional failure under Count I and
then will address the additional failure under Count II.
2. Whether Quigley's disability substantially limits a major
In order to survive Austeel's motion for summary judgment on
Quigley must not only establish that he suffers from a disability
as defined by the ADA, but also, that his disability
substantially limits a major life activity. 42 U.S.C. § 12102(2).
Quigley has failed to do so.
Quigley has failed to assert in his Amended Complaint that his
alleged disability substantially limits any major life activity.
"EEOC regulations interpret the ADA to define the phrase `major
life activities' to include `functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.'" Patterson, 150
F.3d at 725 (quoting 29 C.F.R. § 1630.2(j)(3)(i)). The only one
of these `major life activities' even mentioned in his Amended
Complaint and summary judgment response is working.*fn5 However,
in his Amended Complaint, Quigley asserts: "At no time during the
period of . . . [his] employment with Austeel did his disability
impact his ability to properly complete the duties assigned him
as an employee of Austeel." (Am.Compl. at 3, ¶ 3; see also D.'s
12(M) Statement at 13-14, ¶¶ 52-53 (stating that his drug use did
not affect his work).) Because Quigley admits that his drug use
did not impact his work, Quigley has failed to establish that his
alleged disability substantially limits the major life activity
of working. Thus, Quigley has again failed to meet his burden of
establishing his prima facie case. Accordingly, the court grants
Austeel's motion for summary judgment on Count I of Quigley's
3. Whether Austeel regarded Quigley's disability as
substantially limiting a major life activity
In order to survive Austeel's summary judgment motion on Count
II, Quigley must establish that Austeel regarded him as having a
disability that substantially limits a major life activity. In
other words, Quigley must show that Austeel mistakenly believes
"either that . . . [he] has a substantially limiting impairment
that . . . [he] does not have or that . . . [he] has a
substantially limiting impairment when, in fact, the impairment
is not so limiting." Sutton, 119 S.Ct. at 2150. It seems that
Quigley is arguing that Austeel regarded his alleged disability
to substantially limit the major life activity of working.