ADA Decisions, Lawrence A Beatty, Plaintiff v City of Wheaton, a municipal corporation, Defendant., U.S. District Court, N.D. Illinois, 6 ADD ¶6-130, (Feb. 11, 1999)

Nordberg, District Judge: Plaintiff Lawrence A. Beatty (“Beatty”) has filed a two-count complaint against Defendant City of Wheaton (“the City”), based on the circumstances surrounding his termination from employment with Defendant's Public Works/Sewer Division. In Count I, Beatty alleges employment discrimination in violation of the Americans with Disabilities Act of 1991, 42 U.S.C. §§12111-12213 (“ADA”). Count II claims that the City breached Beatty's employment contract by failing to follow the ADA-related policies expressed in the City's personnel manual (“Manual”). The case is now before the Court on the City's motion to dismiss Count II pursuant to Federal Rule of Civil Procedure 12(b)(6). It is also here pursuant to the Court sua sponte raising the issue of the sufficiency of the Count I claim, by reason of Beatty's alleged employment termination prior to requesting accommodation under the ADA, with supplemental briefing requested, received, and considered by the Court.

BACKGROUND

On February 2, 1996, after working in the City's department of public works for about seventeen years, Beatty receive notice that he was being terminated from his job as a maintenance specialist, effective immediately, for failing to inform the City that his driver's license had been revoked and for operating City vehicles and equipment without a valid Illinois driver's license. Beatty, an admitted alcoholic, had lost his license in connection with a DUI conviction. At the time he received the notice of discharge, Beatty was on long-term disability leave for a work-related injury.

On February 5, 1996, Beatty appealed his termination pursuant to the procedures in the Manual. [1] In the notice of appeal directed to the City Personnel Analyst who had prepared his discharge notification, Beatty requested a conference with the City Manager in order to present his case and to discuss potential ADA-related accommodation issues. On February 28, 1996, Beatty sent a letter to the City Manager in which he again requested a time to respond in person to the circumstances of his termination. This letter also advised the City Manager that Beatty had not knowingly violated City regulations, asked that the City grant Beatty a reasonable accommodation in the form of a 90-day unpaid leave of absence to complete a supervised alcohol rehabilitation program, and requested that the City stay Beatty's dismissal pending completion of that program.

On May 24, 1996, the City Manager met with Beatty and his attorney. After this meeting, on June 4, 1996, the City Manager informed Beatty of his decision to sustain the termination pursuant to Chapter 24 of the Manual, which provides for the immediate discharge of an employee whose driver's license has been revoked. (See Mem. in Response to Court's Inquiry Ex. D.) Beatty claims that the City's failure to grant his request for an accommodation violated the ADA-related policies in the Manual as well as the “safe harbor” provisions of the ADA. See 29 C.F.R. §1630.3(b)(2). Beatty also asserts that the City's failure to follow the Manual's ADA policies constituted a breach of his employment contract.

DISCUSSION

Section 102 of the ADA provides that: no covered entity shall discriminate against a qualified individual with a disability because of the disability of such an individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. §12112(a). Under the Act, a “qualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that [the] individual holds or desires.” 42 U.S.C. §12111(8). In the present case, the City is undisputably a covered entity. However, what is not readily apparent is whether Beatty fits within the definition of a qualified individual with a disability. The City argues that he does not because he did not have an employment position when he requested accommodation. Beatty, on the other hand, contends that his termination did not become final until he received the City Manager's written notification on or about June 4, 1996. Therefore, he still held an employment position on February 28, 1996 when he requested accommodation.

The Seventh Circuit has determined that a former employee who was not the victim of disability-related discrimination during her employment did not have a cognizable claim under §102 because she no longer had an “employment position,” nor was she applying for one, with her former employer. E.E.O.C. v. CNA Ins. Cos., [3 ADD ¶3-054] 96 F.3d 1039, 1045 (7th Cir. 1996). See also Gonzales v. Garner Food Servs., Inc., [3 ADD ¶3-012] 89 F.3d 1523 (11th Cir. 1996) (holding that former employee had no standing under the ADA to challenge limitations on AIDS-related medical expenses in employer's health benefits plan, which plaintiff still had via continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA))

Reed v. Shepard, [57 EPD ¶40,927] 939 F.2d 484, 492-93 (7th Cir. 1991) (concluding that “events subsequent to and unrelated to” employment cannot constitute a violation of the anti-retaliatory provision of 42 U.S.C. §2000e-3(a)(1), which is incorporated by reference into the ADA); cf. Veprinsky v. Fluor Daniel, Inc., [68 EPD ¶44,140] 87 F.3d 881, 890-91 (7th Cir. 1996) (finding former employee entitled to relief under Title VII for retaliatory conduct with a nexus to employment where former employee's protected interest arose during course of employment). Here, as in CNA Ins. Co., Beatty does not allege that, during his tenure as a maintenance specialist, the City discriminated against him because he was an alcoholic. Nor does he claim to have sought accommodation under the ADA before he received the notice of discharge. The relevant question, then, is whether Beatty's decision to appeal his dismissal preserved his status as a City employee until the City Manager's decision on June 4, 1996.

Beatty contends that his termination did not become final until the City Manager made a “final decision” regarding Beatty's appeal and ADA-related grievance. (Pl.'s Mem. in Response to Court's Inquiry at 5.) Between February 5, and June 4, 1996, he claims, “the notice of dismissal constituted merely a ‘proposed’ disciplinary action subject to review.” (Id.) Therefore, he asserts that he still held an employment position when he requested accommodation on February 28, 1996. However, Beatty has provided no authority to support his contentions. He relies only on his own unsupported claim that the Manual “specifically provides that disciplinary actions become ‘final decisions’ only after review and consideration by the City Manager.” (Id. (emphasis in original).)

The Court, however, does not agree with Beatty's interpretation. The provisions of the Manual governing dismissals certify that a “Department Head, after consultation with the City Personnel Analyst, may dismiss any employee without cause at will, either with or without notice.” (Id. at 43, Sec. 4.a.) Consulting with or otherwise seeking the approval of the City Manager is not a condition of a Department Head's ability to terminate an employee. In fact, the only reference to the City Manager in the City's dismissal policy is a requirement that, “in the event of dismissal for unsatisfactory performance, a report stating the details of the unsatisfactory performance must be filed by the Department Head with the City Manager prior to the issuance of a dismissal notice.” Furthermore, the sections covering appeal and grievance procedures simply state that “the City Manager's decision in the [appeal or grievance] is final and the employee will be so notified in writing.” (Def. Mot. to Dismiss Ex. B at 44, Sec. D.1.b.1., and 45, Sec. E.1.d.) Significantly absent from these sections is language purporting to stay disciplinary action until the City Manager has considered an appeal or grievance. Therefore, the Court finds that the Manual does not condition termination of employment on the prior approval of the City Manager.

In addition, the Court can find no precedent in this or any other circuit for the proposition that, by appealing his termination and filing a ADA-related grievance, Beatty effectively stayed his discharge from employment with the City. Indeed, both common sense and the facts alleged seem to dictate otherwise. During the pendency of his appeal, Beatty does not appear to have had any of the trappings of employment status. For instance, he does not allege that he was receiving a paycheck or benefits, that he had an employee identification badge, keys, or any other indicators of employment status, or that he was in any way under the City's control (i.e., that the City could demote or discharge him). See, e.g., DeVito v. Chicago Park Dist., [2 ADD ¶2-254] 83 F.3d 878, 880 & n.4 (7th Cir. 1996) (finding commonsense factors, including whether an individual was still “under the control of his employer (e.g., he could still be fired or demoted),” significant in determining employment status). Therefore, the Court concludes that Beatty's appeal and grievance proceedings did not stay his termination and preserve his status as a City employee from February 5 until June 4, 1996.

Because Beatty was a former employee on February 28, 1996, when he requested accommodation, he was not a “qualified individual with a disability.” Therefore, he does not have a right to relief under §102 of the ADA, see CNA Ins. Cos., 96 F.3d at 1043, and the Court sua sponte dismisses Count I of his complaint with prejudice. In the absence of a cognizable ADA claim, the Court declines to assert pendent jurisdiction over the remaining count of the complaint, a state-law claim for breach of contract. See 28 U.S.C. §1367(c)(3); Wright v. Associated Insurance Cos., Inc., 29 F.3d 1244, 1250 (7th Cir. 1994). The Court therefore dismisses Count II without prejudice and strikes the City's related motion as moot. [2]

CONCLUSION

For the foregoing reasons, the Court sua sponte dismisses Count I of Plaintiff's Complaint as insufficient under the ADA. This dismissal is with prejudice. In the absence of a viable federal claim, declines to exert pendent jurisdiction over Count II and strikes Defendant's related motion to dismiss as moot.