On August 16, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant-employer in a lawsuit filed under the Americans with Disabilities Act (“ADA”), in which the plaintiff alleged that the defendant discriminated against him, failed to provide him with a reasonable accommodation, and retaliated against him, in violation of the ADA. Koty v. DuPage County, Illinois, No. 17-3159 (7th Cir. 8/16/2018). The plaintiff, a deputy in the DuPage County Sheriff’s Department, requested a different model of squad car with more legroom to accommodate a hip condition. After the Department denied his request, the plaintiff filed charges of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging that the Department had discriminated against him in violation of the ADA. Not long after that, the Department reassigned the plaintiff to courthouse duty, for which he would not need to drive a squad car. The plaintiff filed a lawsuit against his employer in federal court alleging that the Department violated the ADA when it denied his request for an SUV, and unlawfully retaliated against him for filing his EEOC charge of employment discrimination by re-assigning him and taking other various employment actions against him.
The district court dismissed the ADA failure-to-accommodate claim on the ground that the plaintiff did not qualify as disabled under the ADA; and granted summary judgment on his retaliation claim on the basis that no adverse employment action had been taken against him. To bring a claim under the ADA, a plaintiff must establish that she is disabled within the meaning of the ADA. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. The plaintiff’s complaint contained no allegation that the injury affected any major life activity–only that he is unable to drive one model of a vehicle–which is not a disability as defined under the ADA and, therefore, the 7th Circuit held that the district court was correct to dismiss his ADA accommodation claim.
It is unlawful for employers to retaliate against employees who raise ADA claims, regardless of whether the initial claims of disability discrimination are meritless. To prove a retaliation claim, a plaintiff must establish that: (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal connection between the two. If a plaintiff meets this initial evidentiary burden, then the burden shifts to the employer to come forward with a non-invidious reason for the adverse employment action. If the defendant meets this burden, the plaintiff must demonstrate that the defendant’s proffered reason was pretext for retaliation. Pretext is more than just bad business judgment or mistake on the part of an employer; it is a phony reason for the subject adverse job action, i.e., a lie.
Filing a charge of discrimination with the EEOC is protected activity. Whether a challenged employment action is materially adverse such that it is actionable is another story. An employment action is materially adverse in the context of a retaliation claim if a reasonable employee would be dissuaded from engaging in protected activity. What is considered adverse depends on the unique circumstances of each case. Clear examples of materially adverse employment actions include termination of employment, or a demotion with a pay cut, loss of benefits, or diminished job status or responsibilities. The plaintiff alleged that the Department unlawfully retaliated against him when it transferred him from law enforcement to courthouse duty. Generally, lateral transfers are not considered materially adverse employment actions unless they represent a significant alteration to an employee’s job duties, which could result, among other things, in diminished career prospects. Reassignment to less prestigious positions have also been considered materially adverse. However, the transfer in this case did not result in a pay decrease, other than a diminished opportunity for overtime compensation. The 7th Circuit concluded that the Department’s decision to accommodate the plaintiff with something different than what he requested was not an adverse employment action. Moreover, the plaintiff could not establish that the Department’s explanation–that the transfer was made to accommodate his pain–was pretext for retaliation. The 7th Circuit also found that the plaintiff provided no evidence that any of the other various job actions that the plaintiff alleged were retaliatory amounted to materially adverse employment actions. They would not dissuade a reasonable employee from exercising her rights.