{ "id": 906707, "name": "LEE J. DAUEN, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF STERLING et al., DefendantsAppellees", "name_abbreviation": "Dauen v. Board of Fire & Police Commissioners", "decision_date": "1995-09-22", "docket_number": "No. 3\u201494\u20140809", "first_page": "487", "last_page": "493", "citations": [ { "type": "official", "cite": "275 Ill. App. 3d 487" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "860 F. Supp. 808", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3903200 ], "opinion_index": 0, "case_paths": [ "/f-supp/860/0808-01" ] }, { "cite": "872 F. Supp. 668", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7846569 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "676", "parenthetical": "employee terminated for possession and distribution of marijuana rather than addiction" } ], "opinion_index": 0, "case_paths": [ "/f-supp/872/0668-01" ] }, { "cite": "47 F.3d 928", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7412064 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/f3d/47/0928-01" ] }, { "cite": "951 F.2d 511", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10521628 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/951/0511-01" ] }, { "cite": "42 U.S.C.A. \u00a7 12114", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1995, "pin_cites": [ { "page": "(a)" }, { "page": "(b)(1)" } ], "opinion_index": 0 }, { "cite": "42 U.S.C.A. \u00a7 12112", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1995, "opinion_index": 0 }, { "cite": "301 N.E.2d 501", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 1031", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5341151 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/1031-01" ] }, { "cite": "574 N.E.2d 241", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "214 Ill. App. 3d 1099", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5297816 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/1099-01" ] }, { "cite": "622 N.E.2d 1257", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "251 Ill. App. 3d 988", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2959905 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/251/0988-01" ] }, { "cite": "614 N.E.3d 499", "category": "reporters:state_regional", "reporter": "N.E.3d", "year": 1993, "opinion_index": 0 }, { "cite": "384 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "67 Ill. App. 3d 31", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3314115 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/67/0031-01" ] }, { "cite": "471 N.E.2d 554", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "128 Ill. App. 3d 763", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3526279 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0763-01" ] }, { "cite": "218 N.E.2d 510", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. App. 2d 225", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2585991 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/72/0225-01" ] }, { "cite": "444 N.E.2d 1090", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 1017", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5440520 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/1017-01" ] }, { "cite": "614 N.E.2d 499", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "245 Ill. App. 3d 822", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5384764 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0822-01" ] }, { "cite": "42 U.S.C.A. \u00a7 12101", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1995, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 702, "char_count": 13209, "ocr_confidence": 0.76, "pagerank": { "raw": 5.973126083369308e-08, "percentile": 0.3716542933584159 }, "sha256": "2db20126304bb44b1d714029e857e8f7280098f031db7bf5e99b409903b340a3", "simhash": "1:d3c72d5e3ba7a450", "word_count": 2113 }, "last_updated": "2023-07-14T15:19:22.263448+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LEE J. DAUEN, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF STERLING et al., DefendantsAppellees." ], "opinions": [ { "text": "JUSTICE BRESLIN\ndelivered the opinion of the court:\nThe plaintiff, Lee J. Dauen, appeals from a judgment of the circuit court affirming his dismissal by the codefendants, Sterling Board of Fire and Police Commissioners (Board) and Sterling Fire Chief Arlyn Getting. After the police found cocaine in his residence, Dauen was dismissed for breaking the law of Illinois and bringing the Sterling fire department into disrepute. Dauen contends that: (1) the Board\u2019s finding that he possessed drugs was against the manifest weight of the evidence and was insufficient cause for termination; and (2) he is a rehabilitated drug addict protected from dismissal by the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C.A. \u00a7 12101 et seq. (West 1995)). We affirm.\nDauen worked for the Sterling fire department for 16 years. There is no dispute that he received consistently good evaluations throughout his employment and was promoted twice, ending his employment as a fire captain.\nIn January 1992, the Illinois State Police executed a search warrant for illegal drugs at Dauen\u2019s residence. During the search, the police found visually detectable cocaine residue on a piece of paper in the pocket of one of Dauen\u2019s bathrobes. They also found a mirror, razor blade, and silver spoon in a wooden box located in his bedroom, all of which field-tested positive for cocaine. Thereafter Dauen cooperated with the police and, in return for information regarding the local drug trade, was not charged with a criminal offense.\nThe fire department, upon learning the search results, placed Dauen on paid suspension. Soon thereafter, Chief Getting filed two charges against Dauen with the Board. The first charged Dauen with violating fire department rules by failing to conduct his private and professional life in a manner as to avoid bringing the department into disrepute. The second charged Dauen with violating department rules by failing to obey State law. Both charges stemmed from Dauen\u2019s possession of cocaine as disclosed by the search of his residence.\nThe Board convened hearings to consider the charges. Dauen\u2019s attorney admitted in his opening statements that Dauen had possessed cocaine. He later clarified his position, telling the Board that Dauen admitted the conduct alleged in the charges and that the question for the Board was \"whether that conduct constitutes a violation and what, if any, punishment or sanctions should be imposed.\u201d\nFollowing this admission, the City of Sterling introduced into evidence transcripts of statements Dauen made to police following the search of his residence. The transcripts included statements by Dauen indicating that he bought cocaine from a drug dealer approximately six times and once bought two ounces to sell. The transcripts also reveal that Dauen gave the police information regarding the Sterling drug organization, including the location of drug supplies and the identification of drug couriers.\nThe Board then heard testimony from Dauen himself. He admitted that he had used and possessed drugs in the past, although he had never done so while on duty. He testified, however, that about a month before the search he recognized a need to end his drug use and to seek counseling. Dauen testified that he stopped using drugs altogether as of December 13, 1991, and initially sought counseling and began Alcoholics Anonymous meetings sometime during the latter half of that month. Later, after the police searched his residence, Dauen checked into a rehabilitation program. As of the date of the Board\u2019s hearing, Dauen had completed the program and was involved in an after-care program.\nThe Board also heard testimony from David Owens, a drug counselor who oversaw Dauen\u2019s rehabilitation. Owens stated that Dauen was an alcoholic with a secondary drug problem. He testified, however, that Dauen\u2019s progress in counseling and Alcoholics Anonymous was excellent and that Dauen was likely to remain drug free if he continued his rehabilitation.\nDuring closing statements, Dauen\u2019s attorney asked the Board to reinstate Dauen based upon the fact that he admitted his drug problem and took affirmative steps to treat the problem. In the course of this argument, Dauen\u2019s attorney suggested that Dauen was a qualified individual with a disability as that term is defined within the ADA. Throughout the course of the proceedings, however, Dauen never argued that the charges brought against him were unlawfully discriminatory in violation of the ADA.\nAfter hearing the evidence, the Board sustained the charges against Dauen and voted to terminate his employment. In so ruling, the Board made no determination regarding the application of the ADA to the case. Dauen filed a motion to reconsider, arguing for the first time that his termination was in violation of the ADA. The Board denied this motion, and Dauen appealed to the circuit court. The court found that the Board\u2019s findings were not against the manifest weight of the evidence, but remanded for a determination of whether Dauen was protected under the ADA.\nOn remand, the Board convened another hearing to consider Dauen\u2019s status under the ADA. David Owens was again called to testify. He reported that Dauen had successfully completed his aftercare program and enjoyed an excellent prognosis for ongoing recovery. Dauen also elicited testimony from several of his acquaintances from Alcoholics Anonymous, who testified that Dauen was doing well in the program and appeared to be clean and sober. Finally, Dauen testified that he considered himself a drug addict, but that he had been able to deal with the problem through counseling and AA meetings.\nFollowing the hearing, the Board ruled that Dauen was a current user/possessor of illegal drugs and thus was not protected under the ADA. It also found that Dauen\u2019s termination was not based upon his addiction to drugs, but rather was based upon his illegal possession of drugs. The circuit court affirmed this ruling, and this appeal followed.\nReview of an administrative agency\u2019s decision to dismiss an employee is a two-step process. First, the reviewing court must determine whether the agency\u2019s findings of fact are against the manifest weight of the evidence. Second, the court must determine that the findings of fact provide sufficient cause for dismissal. Norman v. Board of Fire & Police Commissioners (1993), 245 Ill. App. 3d 822, 614 N.E.2d 499.\nDauen contends first that the Board\u2019s finding that he possessed drugs was against the manifest weight of the evidence. We find that this issue is foreclosed by Dauen\u2019s judicial admission of the charges\u2019 veracity during the first administrative hearing.\nA judicial admission is a formal act which waives or disposes of the production of evidence, by conceding for the purposes of litigation that a proposition of fact is true. (Giamanco v. Giamanco (1982), 111 Ill. App. 3d 1017, 444 N.E.2d 1090.) The effect of a judicial admission is to remove the proposition in question from the field of disputed issues. (Hudson v. Augustine\u2019s, Inc. (1966), 72 Ill. App. 2d 225, 218 N.E.2d 510.) A judicial admission may be made by a party\u2019s attorney. (See Fair Automotive Repair, Inc. v. Car-X Service Systems, Inc. (1984), 128 Ill. App. 3d 763, 471 N.E.2d 554; Dora Township v. Indiana Insurance Co. (1979), 67 Ill. App. 3d 31, 384 N.E.2d 595.) Administrative proceedings follow the same rules of evidence as applied in civil cases brought in the circuit court. 5 ILCS 100/10\u201440 (West 1992).\nIn this case, during the first administrative hearing, Dauen\u2019s attorney admitted that Dauen engaged in the conduct alleged in the charges. Therefore, Dauen cannot contest the Board\u2019s decision to sustain the charges at this stage in the proceedings. Accordingly, we decline to consider whether the Board\u2019s decision was against the manifest weight of the evidence.\nDauen next argues that, even if the charges were true, they did not constitute cause for dismissal. We disagree.\n\"Cause\u201d for termination is defined as a substantial shortcoming recognized by law and public opinion as a good reason for termination. (Norman v. Board of Fire & Police Commissioners (1993), 245 Ill. App. 3d 822, 614 N.E.3d 499.) On review, the question is not whether the court would select a more lenient sanction than discharge, but whether the Board acted arbitrarily or unreasonably, or imposed discipline unrelated to the requirements of service. McCleary v. Board of Fire & Police Commissioners (1993), 251 Ill. App. 3d 988, 622 N.E.2d 1257.\nThe rules of the Sterling fire department require that officers in that department obey the laws of Illinois. A single, valid finding of a violation of departmental rules will authorize dismissal. Klee v. Board of Fire & Police Commissioners (1991), 214 Ill. App. 3d 1099, 574 N.E.2d 241; Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App. 3d 1031, 301 N.E.2d 501.\nIn sustaining the charges against Dauen, the Board determined that Dauen violated State law by illegally possessing a controlled substance. Since this violation also transgressed the Sterling fire department\u2019s rules, we cannot say that a sufficient basis did not exist for Dauen\u2019s termination. Indeed, we think the Board\u2019s action was an appropriate measure to protect the Sterling fire department\u2019s integrity and its ability to perform its important social function.\nThe final issue is whether Dauen\u2019s termination was unlawfully discriminatory under the provisions of the ADA.\nTitle I of the ADA prohibits an employer from discriminating against a qualified individual with a disability because of the disability in regard to hiring, advancement or discharge decisions. (See 42 U.S.C.A. \u00a7 12112 (West 1995).) The term \"qualified individual with a disability\u201d does not include an employee who is \"currently engaging in the illegal use of drugs\u201d (42 U.S.C.A. \u00a7 12114(a) (West 1995)), but does include an individual who has successfully completed a supervised drug rehabilitation program and is no longer engaging in drug use (42 U.S.C.A. \u00a7 12114(b)(1) (1995)). The relevant time frame for determining whether an individual is currently engaging in drug use is the actual date of discharge. See Teahan v. Metro-North Com muter R.R. Co. (2d Cir. 1991), 951 F.2d 511 (construing similar provision of Rehabilitation Act of 1973).\nDauen argues that the Board erred in its finding that he was engaged in current drug use and therefore not subject to the ADA\u2019s protection. We need not address this issue, however, because we find adequate evidence in the record to sustain the Board\u2019s finding that Dauen\u2019s termination was not based upon his addiction.\nAn employee cannot establish an ADA violation absent evidence that the employer knew of the employee\u2019s disability. (See Hedberg v. Indiana Bell Telephone Co. (7th Cir. 1995), 47 F.3d 928.) Moreover, the ADA does not prohibit an employer from discharging an employee who commits a crime or otherwise engages in improper conduct when the improper conduct, rather than the alleged addiction, is the reason for discharge. See Grimes v. United States Postal Service (W.D. Mo. 1994), 872 F. Supp. 668 (construing Rehabilitation Act of 1973).\nIn the case at bar, the record contains no evidence indicating that Chief Getting knew, at the time the charges were brought, that Dauen was addicted to drugs or that he was seeking treatment. To the contrary, the evidence shows only that Chief Getting learned about the search of Dauen\u2019s residence and subsequently sought his dismissal for possession of cocaine in violation of State law and departmental rules. Under these facts, the Board was entitled to find that Dauen\u2019s possession of cocaine, and not his addiction, was the basis for his termination. (See Grimes, 872 F. Supp. at 676 (employee terminated for possession and distribution of marijuana rather than addiction).) Therefore, we find that the Board\u2019s rejection of Dauen\u2019s ADA defense is not against the manifest weight of the evidence.\nFor the foregoing reasons, the judgment of the circuit court of Whiteside County is affirmed.\nAffirmed.\nHOLDRIDGE and McCUSKEY, JJ., concur.\nThe fire chief subsequently added several additional charges relating to Dauen\u2019s alleged purchase of cocaine from several individuals on various occasions. The Board did not rule on these charges, however, and we deem them irrelevant to the questions before us.\nAlthough claims of employment discrimination against public entities are properly brought under title II of the ADA, such claims are to be evaluated under the standards set forth in title I of the ADA and in the Rehabilitation Act of 1973. See Ethridge v. Alabama (M.D. Ala. 1994), 860 F. Supp. 808.", "type": "majority", "author": "JUSTICE BRESLIN" } ], "attorneys": [ "Coryn, Walker & Meehan, of Rock Island (Gerald J. Meehan, of counsel), for appellant.", "Blodgett, Reese, Merritt & Albert, of Rock Falls (James L. Reese, of counsel), for appellee Board of Fire and Police Commissioners of City of Sterling.", "Coplan Law Office, of Morrison (Ronald F. Coplan, of counsel), for appellee Arlyn G. Oetting." ], "corrections": "", "head_matter": "LEE J. DAUEN, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF STERLING et al., DefendantsAppellees.\nThird District\nNo. 3\u201494\u20140809\nOpinion filed September 22, 1995.\nCoryn, Walker & Meehan, of Rock Island (Gerald J. Meehan, of counsel), for appellant.\nBlodgett, Reese, Merritt & Albert, of Rock Falls (James L. Reese, of counsel), for appellee Board of Fire and Police Commissioners of City of Sterling.\nCoplan Law Office, of Morrison (Ronald F. Coplan, of counsel), for appellee Arlyn G. Oetting." }, "file_name": "0487-01", "first_page_order": 505, "last_page_order": 511 }