On August 24, 2018, the 7th Circuit reversed an order of summary judgment in favor of an employer-defendant in a lawsuit filed by an employee who claimed that the employer discriminated against her because she had a disability, failed to accommodate her disability, and retaliated against her for exercising her right to request reasonable accommodations, in violation of the Americans with Disabilities Act (“ADA”). Rowlands v. United Parcel Service, No. 17-3281 (7th Cir. 8/24/2018). The district court granted the employer’s motion for summary judgment on all of the employee’s ADA claims, finding that she did not have a disability within the meaning of the ADA, had waived her failure to accommodate claim, and failed to establish a prima facie case of ADA retaliation. The employee appealed her failure to accommodate and retaliation claims. The 7th Circuit reversed the district court, finding that there are genuine issues of fact that are material to the employee’s failure to accommodate and retaliation claims, which were not waived.
The ADA prohibits employers from discriminating against qualified individuals due to a disability. Unlawful disability discrimination under the ADA includes failing to make a reasonable accommodation to a qualified employee’s disability. The ADA also makes it unlawful for an employer to retaliate against an employee, whether qualified or not, for engaging in protected activity under the ADA, such as filing a Charge of Discrimination with the EEOC or requesting a reasonable accommodation. A court’s conclusion that an employee does not have a disability within the meaning of the ADA does not foreclose a retaliation claim.
To establish a failure to accommodate claim under the ADA, an employee must demonstrate that: (1) she is both qualified and has a disability; (2) the employer was aware of her disability; and (3) the employer failed to accommodate her disability. The 7th Circuit concluded that the district court erred in finding that the employee failed to state an ADA accommodation claim. She alleged in her EEOC Charge of Discrimination that she tried to engage in the required interactive process with the employer and tried to obtain reasonable accommodations. These allegations were sufficient to put the employer on notice of her failure to accommodate claim, since it logically followed from those allegations that she was denied an accommodation, even though she did not specifically plead that her request for accommodations was denied.
Additionally, the district court erroneously held that the employee was not disabled because she had been cleared to return to work without restrictions. Under the ADA, a disability is a physical or mental impairment that substantially limits one or more major life activities. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. A person with such an impairment has a disability even if the impairment is transitory and minor. The employee’s knee injuries substantially interfered with her ability to walk, stand, squat and kneel. These allegations were sufficient to support her claim that she has a disability. It does not follow that she had no disability just because her doctor had cleared her to return to work without restrictions.
To establish a retaliation claim under the ADA, an employee must demonstrate that she engaged in protected activity, that she suffered an adverse employment action, and that there is a causal connection between the two. A plaintiff may pursue a retaliation claim regardless of whether the initial claims of disability discrimination are meritless. The 7th Circuit found that the evidence was sufficient to permit a reasonable jury to conclude that the employee’s requests for reasonable accommodation caused her termination of employment. To establish that unlawful retaliation was the “but for” reason for an adverse job action, an employee may use either direct or circumstantial evidence. An admission that an employer fired an employee in retaliation for her accommodation requests would be direct evidence. Circumstantial evidence may include: (1) suspicious timing; (2) ambiguous statements or behavior toward other employees in the protected group; (3) evidence, statistical or otherwise, that similarly situated employees outside of the protected group systematically received better treatment; and (4) evidence that the employer offered a pretextual reason for an adverse employment action. The employee in this case argued that she was fired shortly after she returned to work from knee surgery, had constantly requested accommodations that were denied up until her discharge, and, for a whole host of reasons that raised a suspicion about the employer’s actual motivation for her discharge, the employer’s proffered reason for her discharge was pretextual. The 7th Circuit concluded that there was circumstantial evidence of causation sufficient to preclude summary judgment. Therefore, the district court also erred in granting summary judgment for the employer on the employee’s ADA retaliation claim.