Stephen A. Glickman, P.C.
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7th Circuit Affirms Summary Judgment in ADA Lawsuit

On June 13, 2016, the 7th Circuit affirmed an order of summary judgment in a disability discrimination and failure to accommodate lawsuit filed under the Americans with Disabilities Act (“ADA”). Wheatley v. Factory Card And Party Outlet, No. 15-2083 (7th Cir. 6/13/2016). The employer terminated the employee for failure to report to work while she was off work due to a non-work related foot injury. Her leave of absence under the Family and Medical Leave Act (“FMLA”) had already expired. So had an additional four-week leave with which the employer had provided her, with the ultimatum that if she could not return to work when that time-period expired, her employment would be terminated. The employee alleged that the employer violated the ADA by terminating her employment and failing to accommodate her (foot injury) disability.

The ADA prohibits discrimination by an employer against a qualified individual on the basis of disability. A qualified individual is one who can perform the essential functions of his or her job with or without reasonable accommodation. The employee argued that she could return to work and perform her job duties with the combined accommodations of a medical boot and restructured job duties. However, she did not present sufficient evidence that she could perform the essential duties of her position with reasonable accommodation. Her affidavit, in which she attempted to justify the proposed accommodations, was conclusory and unsupported by medical opinion. Unable to establish that she is a qualified individual, the employee could not advance her ADA claim to trial.

7th Circuit Affirms Summary Judgment in ADA Lawsuit

On October 26, 2015, the U.S. Court of Appeals for the 7th Circuit affirmed an order of summary judgment in a disability discrimination and failure to accommodate lawsuit brought under the Americans with Disabilities Act (“ADA”). Hooper v. Proctor Health Care Inc., No. 14-2344 (7th Cir., 10/26/2015). The employer terminated the employee, an M.D., after he was cleared to return to work but did not do so, despite warning. The employee filed suit against the employer under the ADA, alleging that the employer discriminated against him on the basis of disability by terminating his employment, and failed to provide him with a reasonable accommodation for his disability. However, his federal complaint did not allege any facts sufficient to put the employer on notice that he was pursuing a failure to accommodate claim, and, moreover, he did not need any accommodation. In addition, he did not present enough evidence to raise an inference of disability discrimination.

Failure to accommodate is a form of ADA discrimination. However, the plaintiff’s complaint did not allege any suggested accommodations or any need or request for accommodations. To establish a failure to accommodate claim, a plaintiff must establish that: (1) she is a qualified individual with a disability; (2) the employer was aware of her disability; and (3) the employer failed to reasonably accommodate her disability. A qualified individual with a disability is an individual who has a physical or mental limitation that substantially interferes with one or more major life activity, and who can perform the essential functions of her job, with or without reasonable accommodation. A plaintiff cannot succeed on a failure to accommodate claim if she is able to perform all of her essential job functions without an accommodation. Otherwise, the employer is under no duty to accommodate. Since the plaintiff in Hooper was cleared to return to work without accommodations, he could not state a claim for failure to accommodate. Even if accommodations had been required, the employer could not have made them since he never returned to work.

The ADA also prohibits an employer from discriminating against a qualified individual on the basis of a disability. A disability discrimination claim may be established through the direct or indirect method of proof. Under the direct method, a plaintiff must demonstrate that: (1) she is disabled within the meaning of the ADA; (2) she was qualified to perform the essential functions of her job with or without reasonable accommodation; and (3) she was terminated because of her disability. This can be established through direct or circumstantial evidence, such as suspicious timing or pretext for the adverse employment action. Under the indirect method, the plaintiff must establish that: (1) she is disabled within the meaning of the ADA; (2) she was meeting her employer’s legitimate expectations; (3) she suffered an adverse job action; and (4) the employer treated similarly situated, non-disabled employees more favorably. If the plaintiff satisfies these elements, the employer must present evidence of a legitimate, nondiscriminatory reason for the employment action. The plaintiff must then prove that the employer’s proffered reason is pretext for disability discrimination. The plaintiff in Hooper did not prove intentional discrimination. He presented no evidence of similarly situated non-disabled employees who were treated more favorably, which is fatal under the indirect method. There was also no evidence that the employer’s reason for the termination–failure to return to work–was pretextual. Finally, his claim failed under the direct method due to the lack of any connection between any discriminatory animus and the termination decision.

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