Salley v. Circuit City Stores, Inc.

• Decision Date: 19 November 1998
• Docket Number: No. 97-1947,97-1947
• Parties: 8 A.D. Cases 1407, 14 NDLR P 6 E. Michael SALLEY, Appellant, v. CIRCUIT CITY STORES, INC.
• Court: U.S. Court of Appeals — Third Circuit

Page 977

160 F.3d 977

8 A.D. Cases 1407, 14 NDLR P 6

E. Michael SALLEY, Appellant, v. CIRCUIT CITY STORES, INC.

No. 97-1947.

United States Court of Appeals, Third Circuit.

Argued Sept. 25, 1998.

Decided Nov. 19, 1998.

H. Francis DeLone, Jr. (Argued), Wayne, PA, for Appellant, E. Michael Salley.

G. Thompson Bell, III (Argued), Jeffrey D. Bukowski, Stevens & Lee, Reading, PA, for Appellee, Circuit City Stores, Inc.

Before: BECKER, Chief Judge, WEIS, and GARTH, Circuit Judges.

OPINION OF THE COURT

BECKER, Chief Judge.

E. Michael 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"), 42 U.S.C. §§ 12101-12117 (1994). Salley overcame a long-term addiction to heroin and alcohol and remained drug-free for ten years. During that time, he became a Circuit City store manager. Unfortunately for Salley and for Circuit City, he suffered a relapse into drug and alcohol addiction. Although he sought treatment after several months of relapse, Circuit City discovered his drug use and other apparent violations of company drug policy. These violations included Salley's missing work time because of drug use and his alleged drug involvement with a subordinate, whose drug use he failed to report. Circuit City fired him two days after Salley signed a statement admitting his misconduct.

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 illegal 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 approximately June 1983 until the fall of 1993.

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 superior 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 not 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 Prevention 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 apparently 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, after 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 Heavner; 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 several 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 Salley 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

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. The court will exercise plenary review over a District Court's grant of summary judgment. See Olson v. General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir.1996). We apply the same test the District Court should have applied in the first instance. See Lawrence v. National Westminster Bank, New Jersey, 98 F.3d 61, 65 (3d Cir.1996). We must therefore determine whether the record, when viewed in the light most favorable to Salley, shows that there is no genuine issue of material fact and that Circuit City was entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 329-30 (3d Cir.1995).

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 42 U.S.C. § 12114(a) and (b), the drug and alcohol use provisions of the ADA, we will reserve these difficult questions for another day. If Circuit City's actions had been based on its discovery of Salley's drug use alone, we would have to decide whether his use was current, but because Salley's misconduct extended beyond simple use to work-related misbehavior we resolve the case on those grounds. ²

II.

Circuit City asserts that there is no evidence that Salley was fired because of his addiction, as opposed to his misconduct. Circuit City is correct. Even if Salley has made out a prima facie case of discrimination, which he has not, Circuit City has proffered a legitimate, non-discriminatory reason for firing him--his violation of management policies. To defeat summary judgment at this point, the plaintiff has the burden of producing evidence from which a fact finder could reasonably either disbelieve the employer's articulated legitimate reasons or believe that a discriminatory reason was more likely than not a cause of the employer's action. See Olson, 101 F.3d at 951.

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, 94 F.3d 102 (3d Cir.1996), affirming summary judgment for an employer under the ADA, held that "the mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that perception caused the adverse employment action." Id. at 109. In this case, the District Court found that there was a "complete absence of evidence from which a fact finder could reasonably conclude that Defendant's reasons for discharging Plaintiff were pretextual." Slip Op. at 22. We agree.

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