Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

POWERS v. USF HOLLAND, INC. (December 15, 2011)

USF Holland is a large regional trucking company. Drivers at its South Bend, Indiana, terminal are classified as either city or road drivers. City drivers have local routes and frequently assist in dock work, i.e., loading and unloading. Road drivers, on the other hand, drive much longer distances and engage in much less dock work. Keith Powers was a Holland road driver in 2004 when his wife became pregnant. He asked Holland to switch him to city driver status in order to be home more often. Holland granted the request. Within a month, Powers regretted the move. He started experiencing discomfort and lack of mobility as a result of the additional dock work he was required to do is a city driver. Holland rejected his request to return to his prior assignment, citing a restriction in the collective bargaining agreement. Powers' condition worsened and he went on unpaid medical leave in August 2004. In December 2005, he asked to return to work. His physician imposed medical restrictions, including "limited hours of dock work" and "road driver work only." Two Holland supervisors told Powers that he could not return to work until he could work without restrictions. A Human Resources manager told Powers said that she needed clarification regarding the restrictions and also asked him to have his physician fill out a "Request for Accommodation" form. Powers never completed the form. Instead, he brought suit against Holland under the Americans with Disabilities Act. He alleged that Holland violated the ADA by enforcing a "100% healed policy" and thatt Holland discriminated against him and retaliated against him. Judge Van Bokkelen (N.D. Ind.) granted summary judgment to Holland. Powers appeals.

In their opinion, Seventh Circuit Judges Cudahy, Posner, and Manion affirmed. The Court noted that, although Powers brought several distinct claims, each claim required proof that Powers was disabled under the ADA. To be ADA-disabled, a person must have an impairment that "substantially limits one or more of the major life activities," or must have a record of such an impairment, or must be regarded as having such an impairment. The only major life activity at issue in the appeal was working. Powers made claims under both the “having an impairment” and “regarded as having an impairment” prongs. The Court first addressed whether Powers had an impairment. In order to meet that condition, Powers had to show that he was significantly restricted in his ability to work compared to others. The Court concluded that the evidence did not support that conclusion. Powers line of work is truck driving. The only restrictions noted by his physician related to the dock work associated with the truck driving. In fact, Powers testified that he was physically capable of driving. The fact that he is unable to perform a job where the driving is accompanied by significant dock work does not make him significantly restricted in truck driving. The Court turned to the "regarded as" prong. Under that prong, a person can be ADA-disabled if his employer believes that he has a substantial impairment in a major life activity. The Court found no such evidence in the record. In so concluding, the Court rejected Powers' contention that the company's "100% healed policy" supported that position. That policy does not violate the ADA (at least the pre-2008 ADA that applies in this case) unless the person is actually disabled.

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DICKERSON v. BOARD OF TRUSTEES (September 16, 2011)

The Belleville Area Community College District 522 has employed Robert Dickerson, who suffers from a mild mental impairment, as a part-time janitor since 1999. He unsuccessfully applied for full-time positions in 2005, 2006, and 2007. In October of 2007, he complained, both at a Board meeting and to the District's attorney, that he was the victim of discrimination. Less than two months later, the District conducted its first formal evaluation of Dickerson's work performance and gave him an overall Unsatisfactory rating. Dickerson disagreed with the evaluation and filed a union grievance and an EEOC charge. The District conducted a second review six months later and found his performance still Unsatisfactory. Although the District fired Dickerson in September of 2008, it later reinstated him. A union arbitrator ruled that the termination violated the collective bargaining agreement. Dickerson brought suit alleging that the District's failure to promote him, its negative evaluations, and its termination all violated the Americans with Disabilities Act. Judge Murphy (S.D. Ill.) granted summary judgment to the District. Dickerson appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Bauer and Williams affirmed. The ADA makes it illegal to discriminate against a disabled employee because of his disability. The Court addressed Dickerson's discrimination and retaliation claims together. It first concluded that neither claim could survive summary judgment under the direct method of proof. The Court concluded that the record established that it was Dickerson's work performance that was connected to his termination, not any discriminatory or retaliatory intent on the District’s part. The Court also addressed the claims under the indirect method of proof. Under that method, Dickerson had the burden to show that he was meeting the District's legitimate employment expectations. The Court noted that the record was replete with evidence of Dickerson's unsatisfactory work performance. Dickerson failed to create an issue fact with respect to satisfactory performance. Summary judgment was proper.

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SEREDNYJ v. BEVERLY HEALTHCARE (August 26, 2011)

Beverly Healthcare hired Victoria Seredynj as activity director at its Golden Living nursing home in Valparaiso, Indiana in 2006. Included within Seredynj's duties were several that were physically strenuous. Other employees frequently helped Seredynj with those duties. Seredynj learned that she was pregnant in January of 2007. She informed her supervisor and continued with her normal tasks. After a few months, however, she developed complications. Her doctor told her not to engage in strenuous activities. Under Beverly's modified work policy, Seredynj was not entitled to any restricted or limited duty. She was therefore told that she would not be allowed to return to work until she was released to full duty. Beverly terminated Seredynj's employment in March. Her attorney soon thereafter requested an Americans with Disabilities Act or Pregnancy Discrimination Act accommodation. Beverly declined. Seredynj filed suit against Beverly alleging gender discrimination under Title VII, pregnancy discrimination under the PDA, disability discrimination under the ADA, and retaliation. Judge Miller (N.D. Ind.) granted summary judgment to Beverly. Seredynj appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judge Bauer and District Judge Young affirmed. The Court first addressed the PDA and Title VII claims. The legal analysis is the same for both. Seredynj proceeded under both the direct and indirect methods of proof. The Court rejected Seredynj's argument that Beverly's modified work policy, which only accommodates ADA-disabled employees, was evidence of discrimination. The PDA only requires that employers treat pregnant employees the same as non-pregnant employees. Beverly’s work policy does just that and is not direct evidence of discrimination. The Court also rejected her argument that Beverly's refusal to accommodate her, given that other employees frequently assisted her with strenuous tasks before her pregnancy, was direct evidence of discrimination,. The Court pointed out that voluntary assistance is materially different than a formal accommodation. The Court concluded that she failed under the direct method. Under the indirect method, Seredynj had the burden to show that a similarly situated non-pregnant employee was treated more favorably. None of the individuals suggested by Seredynj, however, were similarly situated. Her indirect claim must fail. Summary judgment was properly granted on the gender and pregnancy discrimination claims. The court turned to the ADA. It's first inquiry was whether she was disabled under the Act, an issue of first impression in federal appellate courts. Under the Act, a disability is either: a) a physical or mental impairment that substantially limits one or more major life activity, b) a record of such an impairment, or c) being regarded as having such an impairment. The Court addressed each possibility. First, although pregnancy is not an impairment, the Court concluded that a pregnancy with the complications experienced by Seredynj may be an impairment. The Court did not definitively resolve that issue, given its further treatment of the claim. The impairment at issue must substantially limit a major life activity. Generally short-term, temporary conditions do not meet the definition. Here, Seredynj’s condition did not even last as long as her pregnancy and did not affect her ability to conceive again. The Court therefore concluded that Seredynj was not disabled under the first possibility. For the same reasons, Seredynj was not disabled under the record of disability possibility. Finally, the Court stated that the record did not support any belief on Beverly’s part that Seredynj had such an impairment. Summary judgment in Beverly's favor on the ADA claim was therefore appropriate. The Court turned to the retaliation claim, which consisted of Seredynj's claim that Beverly looked for an opportunity to fire her after receiving her attorney’s letter seeking an accommodation. To prevail, Seredynj must prove that she suffered an adverse employment action. Since Beverly terminated her employment before it even received the attorneys letter, she cannot possibly do that -- summary judgment was proper.

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MILLER v. ILLINOIS DEPARTMENT OF TRANSPORTATION (May 10, 2011)

The Illinois Department of Transportation hired Darrell Miller in 2002 as part of a bridge crew. The crew, which consisted of five employees, was responsible for a wide variety of tasks. Many of those tasks were performed at ground level, while some were performed at various heights above the ground or water. Miller had some fear of heights and there were a few jobs that he could not perform. For years, the crew worked as a team. IDOT allowed his other crew members to fill in for him on those few occasions when he could not do his assigned task. Other team members also had tasks they could not perform for various reasons and IDOT accommodated those limitations as well. In 2006, Miller was asked to do a task that he considered unsafe. He performed the task but filed a grievance. Just a few weeks later, his crew leader assigned him to a task that resulted in a panic attack. IDOT put him on sick leave. Its examiner diagnosed him with acrophobia and declared him unfit to work on the bridge crew. IDOT began treating Miller as unable to work at any height in excess of 20 feet. Miller filed a grievance and also requested an accommodation identical to that which he had enjoyed in the past. His request was denied and he was ordered to return to work. When he encountered an IDOT personnel manager, he commented to a colleague that he "would like to knock her teeth out." Miller was told to go home and was later discharged for threatening violence against another employee. After an arbitration, he returned to work but without back pay or benefits. Miller filed suit under the Americans with Disabilities Act. He alleged discrimination arising from the refusal to provide accommodation and his termination. He also alleged retaliation. Judge Stiehl (S.D. Ill.) granted summary judgment to IDOT on both counts. Miller appeals.

In their opinion, Judges Posner, Rovner, and Hamilton reversed and remanded. The ADA protects only those individuals with a disability. But disability is defined in the statute as not only having a significant impairment but also being regarded as having such an impairment. A substantial limitation on being able to work qualifies as such an impairment. Since Miller did not claim to be actually impaired, his challenge was to present evidence that IDOT regarded him as substantially limited in his ability to perform a wide range of jobs. The Court noted that the regulations require consideration of several factors, including the nature and severity of the impairment, its duration, and its longer-term impact. The Court concluded that Miller presented sufficient evidence to allow a jury to find that IDOT regarded him as limited in his ability to do a substantial number of jobs. Summary judgment on the discrimination claim was improper. On the reasonable accommodation claim, the Court also found issues of fact that should have gone to the jury. Although working at heights in extreme positions is an essential element of the crew's work, the Court concluded that a reasonable jury could find that it was not an essential element of any individual crew member's work. The Court cited the history of team accommodations in the record. A reasonable juror could also find that Miller's request for an accommodation was reasonable. Finally, on the retaliation claim, the Court found that Miller presented sufficient evidence going to IDOT’s honesty to get to a jury. The Court cited an example of a similar violent outburst that was not disciplined, the agency's general hostility towards accommodations, and the ambiguity of the threat itself.

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KOTWICA v. ROSE PACKING CO. (March 22, 2011)

Teresa Kotwica was employed as a general laborer at the Rose Packing Company's facility on the south side of Chicago from 1996 to 2006. General laborers perform a number of functions and are purposely rotated through different positions on a regular basis. Rose adopted this work policy in order to be able to reassign workers easily as demand fluctuated and to minimize repetitive motion injuries. Rose also required its employees to have unconditional medical releases before returning to work after a non-work related injury. On the advice of her doctor, Kotwica had a total hip replacement in late 2005. She tried to return to her job after 12 weeks leave, but her doctor included several conditions on her work authorization letter. Rose's in-house physician also conducted an evaluation but could not give her an unconditional clearance. Rose terminated Kotwica's employment in March of 2006 in accordance with its policy. Kotwica brought suit alleging that Rose violated the Americans with Disabilities Act (ADA). Judge Lefkow (N.D. Ill.) granted summary judgment to Rose. Kotwica appeals.

In their opinion, Circuit Judges Cudahy and Rovner and District Judge Adelman affirmed. The Court noted that the district court considered only one of the three requirements of a prima facie case -- whether Kotwica was a qualified individual with a disability. The ADA, at the time, defined a "qualified individual" as an individual with a disability who can perform the "essential functions" of her position. In order to qualify as a person with a disability, Kotwica must show that she had an impairment that limited a major life activity, that she had a record of such an impairment, or that Rose considered her to have such an impairment. She cannot. First, she denies having an impairment. Second, she failed to show that she has a record of an impairment. Third, she failed to show that Rose believed that she suffered from an impairment that substantially limited her ability to work. On this third prong, the Court stated that Kotwica had to produce evidence that Rose thought she was disqualified from a broad category of jobs. That is not what the record shows. Rose only considered her precluded from a general laborer’s job because she was unable to perform the entire job rotation. The ADA does not require an employer to create a new job that consists only of a subset of an employee's prior position.

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AMES v. HOME DEPOT (January 6, 2011)

Diane Ames had a five-year, incident free employment record with Home Depot when she asked her store manager for the company's assistance with her alcohol problem. She enrolled in the company's employee assistance program and was put on paid leave. She was told that she could return when she had a treatment plan, passed a drug and alcohol test, and obtained return authorization. She did so and returned to work within a month. The following month, however, she was arrested for driving under the influence. When Home Depot found out, it required her to schedule an alcohol treatment evaluation. The company gave her several extensions within which to schedule the evaluation. In the meantime, she sought scheduling accommodations from her manager so she could attend her Alcoholics Anonymous meetings, she provided her manager a treatment note from her physician, and she shared many of her other personal difficulties with her manager. During a regularly scheduled shift on December 23, an assistant manager suspected that she was under the influence of alcohol. She was immediately tested. When the company learned that she tested positive for alcohol, it decided to terminate her for substance abuse. Her manager scheduled a meeting with her on January 2 to notify her. She missed the meeting because she began drinking more and checked herself into a hospital on January 1. Home Depot mailed Ames a letter on January 10 informing her of the termination of her employment. Ames filed suit pursuant to the Family and Medical Leave Act and the Americans with Disabilities Act. Judge Coar (N.D. Ill.) granted summary judgment to Home Depot on those claims. Ames appeals.

In their opinion, Judges Manion, Tinder, and Hamilton affirmed. On her claim under the FMLA that Home Depot interfered with her leave rights, Ames was required to establish (among other things) that she was entitled to leave under the Act. An employee is entitled to live under the FMLA only if she is suffering from a "serious health condition," which is defined as an illness that involves inpatient care or continuing treatment. Substance abuse can qualify as a serious health condition but only if it meets the inpatient care or continuing treatment standard. The record contains no evidence of either. She did check into a hospital, but that was after her employment was terminated. Therefore, no reasonable juror could conclude that she had a serious health condition -- her FMLA interference claim fails. Ames also asserted an FMLA retaliation claim, pursuant to which she had to establish that she engaged in a protected activity, that she suffered an adverse job action, and that there was a causal connection between them. The Court addressed only the causal connection prong. Here, the record contains no evidence that Home Depot's decision to fire Ames was related to any alleged request for FMLA leave – her FMLA retaliation claim fails. Lastly, the Court rejected Ames' ADA claim. In order to prevail on that claim, she had to establish that she had a disability. Alcoholism can be a disability under the ADA but only if it "substantially limits" a major life activity. Ames offered no evidence that her alcoholism even adversely affected her life's activities. In fact, the only evidence on that score was her testimony that it did not affect her performance on the job. Her ADA claim fails.

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EEOC v. AUTOZONE (December 30, 2010)

John Shepherd was a parts sales manager at AutoZone in Macomb, Illinois. His job duties included pitching in to help with routine cleaning assignments, like mopping the floor. A computerized system assigned the jobs randomly. Shepherd had an old back injury, however, that interfered with his ability to perform these physical tasks. His head would swell, he would get headaches, and he would sweat profusely. He was receiving medical treatment. Notwithstanding the treatment, Shepherd took medical leaves on several locations between 2001 and 2003. After one such leave, he asked to be excused from the mop detail based on his physician’s physical restrictions. AutoZone accommodated his request, but only on occasion. When he returned from his 2003 leave, his physician originally recommended no mopping. He modified that restriction when AutoZone advised Shepherd that he could not return to work with the complete restriction. Shepherd suffered another incident while mopping in September of 2003. Again, he took a medical leave. Although he was authorized to return as early as December of 2003 with no greater restrictions than he had in September, AutoZone did not allow his return. Instead, it kept him on involuntary leave until February of 2005 and then dismissed him. The EEOC filed a complaint on his behalf pursuant to the Americans with Disabilities Act. The complaint alleged that AutoZone failed to accommodate Shepherd's disability between March and September 2003, that AutoZone discriminated against him by refusing to allow him to work after 2003, and that AutoZone's dismissal of him was in retaliation for his filing charges. Magistrate Judge Gorman (C.D. Ill.) granted summary judgment to AutoZone on the failure to accommodate claim, concluding that Shepherd was not disabled within the meaning of the statute between March and September 2003. He did not reach the other claims. The EEOC appeals.

In their opinion, Seventh Circuit Judges Manion, Sykes, and Hamilton reversed and remanded. The ADA requires an employer to make "reasonable accommodations" for the mental or physical limitations of a "qualified individual with a disability." A disability under the ADA is a "physical or mental impairment that substantially limits one or more of the major life activities." The Court concluded that a rational jury could find that Shepherd suffered from a disability in 2003. First, self-care is a major life activity and the record is replete with references to Shepherd's inability to care for himself. He needed help dressing, brushing his hair, bathing, tying his shoes, and brushing his teeth. He certainly had an impairment -- but was it substantial. The implementing regulations require a court to consider the nature, severity, duration, and expected continuing impact of an impairment. Here, the record, particularly on summary judgment, shows that Shepherd required help on an almost daily basis and experienced episodes multiple times a week. The Court had no difficulty in concluding that a reasonable jury could conclude that his impairment was substantial. Finally, the Court rejected AutoZone's contention that medical evidence was required to establish a substantial impairment. Neither the statute nor the regulations require it. The nature of the limitations and the detailed testimony were sufficient to establish the impairment and its scope.

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GRATZL v. OFFICE OF THE CHIEF JUDGES (April 7, 2010)

Jeanne Gratzl has suffered from incontinence for several years. It has interfered with her ability to perform certain jobs and undertake normal commutes. All seemed well when she was hired by DuPage County for a “control room” court reporting position. Unlike most court reporting positions that require attendance at trials and in courtrooms, her position allowed her to manage her condition well. In fact, she managed it so well that her colleagues and superiors were not aware of it. In 2006, all that changed. The Chief Judge of DuPage County redefined the position of a court reporter – and required all court reporters to do the same job. That meant that all court reporters had to rotate through the control room and the courtrooms. Gratzl disclosed her condition to the Chief Judge. The parties engaged in a series of conversations attempting to reach an accommodation. The only accommodation Gratzl would accept was a full-time assignment to the control room. The Chief Judge offered several accommodations; including no trial assignments, assignments to courtrooms nearest the restrooms, and allowing her to use a hand signal to indicate to a presiding judge that she needed a break. When she rejected these accommodations, the County terminated her employment. Gratzl brought suit under the Americans with Disabilities Act and the Rehabilitation Act. The district court granted summary judgment to the County on the ground that Gratzl was not disabled. Gratzl appeals.

In their opinion, Judges Bauer, Manion, and Williams affirmed. The Court noted the similar requirements of both the ADA and the Rehabilitation Act. A plaintiff must show that she is a qualified individual, with a disability, of which the defendant is aware, and for which the defendant failed to reasonably accommodate. Although the Court briefly addressed whether Gratzl had a disability, which was the basis of the district court's ruling, it ultimately decided it did not have to resolve that issue. Instead, it addressed whether Gratzl was a "qualified individual," meaning whether she was able to perform the essential functions of the job with or without reasonable accommodations. The Court focused on the employer's legitimate description of the functions of the job. Here, that included rotating through the control room and the courtrooms. The fact that Gratzl was able to perform the functions of her prior job was not the issue. The County eliminated that job for legitimate reasons. It is not required to maintain a job, for which an employee is qualified, that it no longer believes is necessary or appropriate. Since Gratzl basically concedes that she cannot perform the job as it is now defined, she is not a “qualified individual.” As an alternative ground, the Court concluded that the accommodations offered by the County were reasonable under the ADA. Her only real objection to the accommodations was that the disruption to the courtrooms necessitated by her frequent breaks would be an embarrassment to her. She is not entitled to reject a reasonable accommodation for that reason.

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BUDDE v. KANE COUNTY FOREST PRESERVE (March 4, 2010)

Charles Budde enjoyed several glasses of wine at the Moose Lodge one night. He decided to drive home anyway and caused an accident that sent two people to the hospital. His blood-alcohol level at the time was nearly three times the legal limit. Budde was also the police chief for the Kane County Forest Preserve District. The district fired him, giving three reasons: errors in judgment, an inability to perform his duties, and engaging in below-standard conduct. Budde sued the District, alleging his termination violated the Americans with Disabilities Act. The district court granted summary judgment to the defendant, concluding both that he could not recover because he was terminated for misconduct, not a disability, and that he was not a "qualified individual with a disability" because he violated a District rule. Budde appeals.

In their opinion, Judges Bauer, Manion, and Tinder affirmed. One of the prerequisites for an ADA claim, noted the Court, is that the plaintiff can perform the "essential functions" of his job. The Court concluded that Budde could not meet that prerequisite for two reasons: he violated a workplace rule and he was unable to operate a motor vehicle. With respect to the former, the Court found sufficient evidence that Budde violated the rules that prohibited public intoxication and prohibited the violation of public laws. The Court noted that the District need not wait for the outcome of any criminal charges. With respect to the latter, the Court rejected Budde’s distinction between the ability to operate a motor vehicle and the ability to operate a motor vehicle legally (i.e., in possession of a valid drivers license). The essential function of the job is the ability to operate a motor vehicle legally -- which Budde is unable to do.

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TURNER v. THE SALOON (February 8, 2010)

Paul Turner was a waiter at The Saloon restaurant. After working there for several years, Turner and one of his supervisors carried on a sexual relationship that lasted for about nine months. According to Turner, the supervisor retaliated against him after she ended the relationship. He alleges that she changed his table assignments, disciplined him without cause, and sexually harassed him on a number of specific occasions. Turner also alleges that he was discriminated against because of his psoriasis. He wears no underwear as a result of that condition and therefore occasionally exposes himself while changing clothes. He claims that his supervisors failed to accommodate his condition. Instead, he was forced to change in a “vile” men’s room. One day, in the middle of a shift and with no other waiters on duty, Turner left the restaurant to run an errand. When he returned, he was fired. Turner sued the restaurant and several managers for gender and disability discrimination under Title VII and the Americans with Disabilities Act. He also made a claim for overtime. The court granted summary judgment to the defendants. Turner appeals.

In their opinion, Judges Manion, Rovner, and Sykes reversed and remanded in part in affirmed in part. The Court first addressed the Title VII sexual harassment claim. It concluded that the district court erred in not considering most of the alleged acts of harassment because they occurred outside the limitations period. Under the Supreme Court's decision in Morgan, whether an alleged act of harassment is considered by a court depends on whether the claim is for employment discrimination or for hostile work environment. In an employment discrimination claim, discrete acts outside the limitations period should not be considered. However, in a hostile work environment claim, all acts can be considered as long as one act contributing to the hostile environment took place during the limitations period. Taking all the alleged acts into account, the Court had little difficulty in finding that they were sufficient to survive summary judgment. The Court noted the presence of at least five discrete acts, three of which were aggressively physical. Since the district court did not reach the issue of employer liability, the Court left the issue for remand. The court next addressed Turner's claim that his termination was in retaliation for his complaints about the harassment. The Court concluded that Turner was unable to establish a prima facie case under either the direct or indirect method. It noted a series of at least ten serious reprimands in the eight or nine months preceding his termination as well as the fact that he left his job in the middle of the shift. The serious performance problems as well as the passage of time since his harassment complaint belie a causal connection between the complaint and his termination. The Court summarily rejected Turner's ADA discrimination claim -- his psoriasis is not a disability under the Act since it does not limit any major life activity. The fact that he is not disabled does not preclude his ADA retaliation claim. Since he did raise such a claim with his employer, his employer is not allowed to retaliate. He does not prevail on that claim, however, for the same reasons he could not prevail on his Title VII retaliation claim. Finally, the Court rejected Turner's wage claims as wholly unsupported by the evidence presented.

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SERWATKA v. ROCKWELL AUTOMATION, INC. (January 15, 2010)

Kathleen Serwatka was an employee of Rockwell Automation. Upon her discharge, she brought suit under the Americans with Disabilities Act (ADA). She alleged that she was discharged because her employer considered her to be disabled. At trial, the jury indicated its belief on a special verdict form that a) Rockwell terminated Serwatka because it believed her to be disabled and b) that Rockwell would have fired her anyway. Treating the verdict as a mixed-motive finding, the court awarded no damages but did grant declaratory and injunctive relief and awarded attorneys fees. Rockwell appeals.

In their opinion, Judges Rovner, Evans, and Van Bokkelen vacated and remanded. The Court began its analysis with the Supreme Court's decision in Price Waterhouse. In that case, the Supreme Court held the an employer could violate Title VII even if an improper motive was not the only motive for a termination decision. It also held, however, that an employer would escape liability if it could prove that it would have made the same decision in the absence of the improper motive. Courts applied that Title VII decision to other anti-discrimination statutes. A few years later, Congress codified the Price Waterhouse holding that an improper motive need not be the only motive for a plaintiff to recover. It provided limited remedies, not an absence of liability, in the situation where the employer proves that it would have made the same decision in the absence of the improper motive. Specifically, it allowed for declaratory relief, injunctive relief, and attorneys fees. The ADA incorporates by reference the mixed-motive remedy provisions of Title VII. It was on this basis that the district court fashioned its relief. While the case was on appeal, however, the Supreme Court issued its opinion in Gross. In Gross, the Supreme Court held, notwithstanding Price Waterhouse, that mixed-motive claims were not allowed under the Age Discrimination in Employment Act (ADEA). The Supreme Court concluded that Congress' decision to specifically incorporate the Price Waterhouse approach into Title VII and not to incorporate it into ADEA indicated its intent not to authorize mixed-motive claims under that statute. The "because of" language of the statute therefore required "but for" causation. Like ADEA, the ADA does not include an expressed mixed-motive provision and it uses the same "because of" language. The Court therefore concluded that an ADA plaintiff must establish that the employer would not have fired her absent the improper motive. The special verdict form below indicates that Serwatka failed to do so. The Court vacated and remanded with instructions to enter judgment in Rockwell's favor.

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BUTLER v. ROUND LAKE POLICE DEPARTMENT (October 27, 2009)

Patrick Butler was a sergeant on the police force of a small community north of Chicago. Beginning in 2003, Butler's health began to deteriorate rapidly. He experienced fatigue, night blindness and trouble breathing. In May of 2004, he was diagnosed with chronic obstructive pulmonary disease. After a short time off, his physician permitted him to return to the force on "light duty." Because of the size of the force and the number of sergeants, no light duty assignment was available. The village advised Butler that he could return to work only when he had clearance to work any possible assignment. Shortly thereafter, Butler applied for a disability pension. He testified at his pension hearing that his physical condition prevented him from performing the required duties of his job. Three physicians also completed certificates of disability for Butler. The pension board found him disabled and awarded him disability benefits. He then brought suit against the village under the Americans with Disabilities Act. The district court granted summary judgment to Round Lake.

In their opinion, Judges Posner, Manion and Evans affirmed. In order to succeed on an ADA claim, the Court stated that one must show that he can "perform the essential functions" of his job. Under the doctrine of judicial estoppel, a party cannot prevail in one proceeding and then deny the very ground on which he prevailed in a subsequent proceeding. Here, Butler's sworn testimony that his physical condition prevented him from performing his job would appear to negate an element of his ADA claim. Although the Court noted that a disability pension claim (based on one's inability to perform one's job) and an ADA claim (based on one's ability, at least with accommodation, to perform one's job) are not necessarily mutually exclusive, they do require a satisfactory explanation of their consistency. For example, the passage of time or a change in one's disability can render seemingly inconsistent positions consistent. Here, however, Butler offered no explanation -- his ADA claim must fail.

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BRUNKER v. SCHWAN'S HOME SERVICE (October 22, 2009)

Frank Brunker was employed as a Route Manager for Schwan's Home Service, a home-delivery food service company. Brunker sold and delivered the company's products to its customers. Beginning in early 2003, Brunker began experiencing shaking, dizziness, headaches, etc. -- later to be diagnosed as multiple sclerosis. On his doctor's advice, he took two months disability leave, returned to light duty for one month, and then returned to unrestricted work. Several months later, he decided to take some time off for additional tests and evaluation. Around that time, he was disciplined on several occasions for failure to run a route, failure to adhere to a dress code, and writing a check with insufficient funds. When Brunker returned with his diagnosis of multiple sclerosis, the company fired him for unsatisfactory performance, but backdated his termination to the day before he left. Brunker brought suit under the Americans with Disabilities Act. The court granted summary judgment to Schwan's. Brunker appeals.

In their opinion, Judges Cudahy, Flaum and Rovner affirmed in part, vacated and reversed in part and remanded. On the merits, the Court first addressed the issue of whether Brunker created a genuine issue of fact as to whether he was "disabled." Under the ADA, one is "disabled" if one has an impairment which substantially limits a major life activity -- or if one is regarded as having such an impairment. The Court agreed with the district court that Brunker failed to show a substantial limitation on a major life activity -- the evidence showed only an intermittent or occasional impairment. However, the Court concluded that the evidence, including the discipline and the backdating of his termination, was sufficient to show that Schwan's regarded Brunker as disabled. Thus, the Court remanded the discrimination claim for additional proceedings. The dismissal of the failure to accommodate claim, however, was affirmed by the Court. The Court found no issue of fact with respect to Schwan's offering of an accommodation. The Court also resolved numerous discovery and sanction disputes.

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EKSTRAND v. SCHOOL DISTRICT OF SOMERSET (October 6, 2009)

Renae Ekstrand had been teaching successfully at Somerset Elementary School for several years when the school reassigned her to an interior classroom without natural light. Ekstrand had a disorder which limited her ability to function in an artificial light environment. She told the principal of her condition. She repeatedly requested a transfer to a room with natural light, two of which were available. The school addressed some of her concerns but refused to change her room assignment. Her condition deteriorated to the point where she had to seek medical attention and took a medical leave of absence. She continued to request a room reassignment during her leave. Ultimately, she left the school and brought an action pursuant to the Americans with Disabilities Act. The district court granted summary judgment to Somerset. Ekstrand appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Evans (concurring) reversed in part and affirmed in part. On the failure to accommodate claim, the Court stated that Ekstrand had to provide evidence that she had a disability, that the school was aware of the disability and that the school failed to reasonably accommodate her. The Court found evidence in the record that she was disabled and that the school was aware of her disability. The principal issue on appeal was whether the school accommodated her disability. The Court noted that a request for accommodation requires significant communication between the parties, particularly when the disability is a mental one. The Court found that the school did reasonably accommodate Ekstrand's disability in the early stages of their communication. During that time, Ekstrand identified a number of conditions in her classroom that exacerbated her depression but never provided direct evidence of the necessity of natural light. However, the court did find a time in November when Ekstrand's psychologist identified natural light as a key to her improvement. Once it was so advised, the Court concluded that the school could have given Ekstrand a room with natural light at a reasonable cost. The Court therefore disagreed with the lower court's finding that no reasonable jury could find in Ekstrand's favor. On the constructive discharge claim, the Court agreed with the district court that Ekstrand failed to show that her working conditions were so intolerable that her resignation was an appropriate response.

Judge Evans concurred in the judgment but wrote separately. He expressed his doubt whether Ekstrand could demonstrate that she was a "qualified individual" under the ADA given her condition and the fact that she was a first grade teacher. He suggested that the district court address that issue on remand.

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COFFMAN v. INDIANAPOLIS FIRE DEPARTMENT (August 20, 2009)

Tonya Coffman worked as a firefighter in Indianapolis for a few years without incident. In 2003, however, several of her coworkers began to express concern about her ability to drive safely because of her height (she is less than 5 feet tall). The department conducted a series of safety evaluations, which she passed. The concerns continued -- another round of evaluations followed. Her coworkers’ concerns expanded beyond safe driving into issues concerning her mood and interactions with others. Eventually, the department recommended a fitness-for-duty evaluation and a transfer to limited-duty status. The evaluation resulted in an individual therapy referral and more fitness evaluations. After one of those evaluations, she was approved for light duty and eventually returned to full active duty. Coffman sued the department and several individuals under Title VII. She alleged that the driving tests and fitness evaluations were gender discrimination and harassment. She also brought a claim alleging that the medical examinations violated the ADA. The district court granted summary judgment against Coffman on all claims. Coffman appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Rovner affirmed. The Court first addressed her Title VII claim under the direct method of proof. Coffman asserted that the record established a "convincing mosaic" of evidence from which a jury could conclude that she was the victim of gender discrimination. To the contrary, the Court found an absence of any evidence in the record that the driving evaluations, the fitness evaluations or her reassignments occurred, even in part, because of her gender. Her failure to do so illustrates the correctness of the district court summary judgment ruling. On her hostile work environment claim, the court concluded that the conduct of the department did not amount to degrading or hostile behavior. In fact, the Court noted that much of the conduct she complains of was accompanied by offers of support and guidance. In addition, as with the discrimination claim, Coffman failed to create a causal link between the alleged hostile behavior and her gender. With respect to the ADA claim, the Court noted that the statute prohibits a covered employer from requiring a medical examination unless it is shown to be job related and a business necessity. Based on the special work environment of a fire department and its responsibility to the public at large, as well as the fact that the department experienced two suicides in the preceding months, the Court concluded that the examinations were consistent with the requirements of the statute.

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BODENSTAB v. COUNTY OF COOK (June 22, 2009)

Dr. Philip Bodenstab was an anesthesiologist at Cook County Hospital from 1993 until 2002. In February of 2002, Bodenstab, recently diagnosed with cancer, had a telephone conversation with a friend during which he threatened to kill his supervisor and co-workers. The friend contacted theFBI and Chicago police. The FBI and police contacted the director of the hospital and told him that the threats were credible. The hospital suspended Bodenstab with pay. Over the next several months, Bodenstab went through a series of assessments, evaluations and treatments. After his discharge from treatment and evaluation by the hospital's own psychiatrist, the hospital conducted a pre-disciplinary hearing on the major infraction of threatening to kill coworkers. The hearing officer concluded that the infraction warranted discharge. The hospital fired him. Bodenstab brought an action against Cook County and several individuals seeking to overturn the administrative decision and bringing affirmative allegations that his discharge violated the Americans with Disabilities Act, the First Amendment and due process. The district court granted summary judgment to the defendants. Bodenstab appeals.

In their opinion, Chief Judge Easterbrook and Judges Flaum and Manion affirmed. The Court rejected each of Bodenstab's arguments in turn. The ADA disparate treatment claim failed because Bodenstab presented no evidence challenging the sincerity of the hospital's belief that he threatened to harm his co-workers. Even if they were mistaken, the Court held that Bodenstab could not show pretext if they reasonably believed the threats. The ADA failure to accommodate claim failed because there is no obligation to accommodate conduct -- and conduct was the reason Bodenstab was fired. The First Amendment claim failed for the same reason the ADA disparate treatment claim failed. Bodenstab was fired because he threatened to kill coworkers -- not because of his speech -- and Bodenstab introduced no evidence otherwise. The Court next rejected Bodenstab's common-law certiorari claim to review the administrative decision on the merits. That claim presents the question of whether the record contains any evidence which fairly tends to support the findings -- it does. Finally, the Court concluded that Bodenstab was afforded adequate notice and a pre-termination hearing that complied with the mandates of due process.

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EEOC v. LEE’S LOG CABIN (February 2, 2009)

Korrin Stewart was diagnosed as HIV-positive when she was just fourteen years old. Shortly thereafter, she learned that it had actually developed into AIDS. At the age of eighteen, she applied for a wait-staff position at Lee’s Log Cabin (“Lee’s”). Lee’s found out that Stewart was HIV+. In fact, the manager wrote the notation “HIV+” on her application. The EEOC filed suit when Lee’s did not hire Stewart. Shortly before trial, the EEOC presented affidavits from Stewart and her doctors describing how AIDS affected her daily activities. The district court rejected the affidavits because the EEOC had never pleaded the presence of AIDS and, the court found, AIDS and HIV-positive were not synonymous. The court granted summary judgment for Lee’s. The panel of the Seventh Circuit affirmed. The Court thought that the EEOC “complicated the inquiry” by attempting to refashion its claim as AIDS claim late in the case. The Court called it a “major alteration” of the EEOC’s case. Relying on significant symptomatic differences at different stages of the disease, the Court thought it was highly relevant whether Stewart was HIV-positive or had AIDS. The EEOC sought rehearing and rehearing en banc.

In their opinion, the full Court denied the petition.

Judge Williams, joined by Judges Rovner, Wood and Evans dissented. Judge Williams echoed the content of her dissent to the panel opinion. She thought that the majority imposed a higher pleading threshold on individuals with complex, multi-level diseases. Such a requirement is inconsistent with the notice pleading requirement. The exact stage of a disease, including HIV, is an irrelevant detail, and should not be a pleading requirement. Judge Williams also disagreed with the majority’s alternate ground – that an employer has to have specific knowledge of how far an employee’s disability has advanced to be liable. It should be enough if the employer knows about the existence of the impairment, even if unaware of its specific stage.

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LLOYD v. SWIFTY TRANSPORTATION (January 9, 2009)

Gerald Lloyd is a truck driver. Unfortunately, Lloyd lost much of his left leg in a motorcycle accident. Fortunately, he adapted fairly well to a prosthetic leg. He does experience some difficulties with the lining and develops occasional infections. He was able to get a limb waiver from the State of Indiana to return to his career as a truck driver. Swifty Transportation (“Swifty”) hired Lloyd as a night-shift driver in June 2008. Swifty delivers gasoline in its fleet of twelve trucks. Each truck has one lead driver on the day shift and two night-shift drivers. The lead drivers are generally paid more and have some additional responsibilities. In 2001, Swifty filled a lead-driver position without interviewing Lloyd, even though Lloyd had expressed his interest in the job. Lloyd filed an EEOC charge, alleging that Swifty denied him the job because of his disability. Swifty and Lloyd resolved the charge. Lloyd agreed not to bring suit. Swifty agreed to notify and interview Lloyd for any open lead-driver position. On three later occasions, Swifty filled open lead-driver positions with other applicants. In June 2003, they interviewed Lloyd but hired a more experienced driver. Lloyd filed a second EEOC complaint. In January 2004, Swifty again filed a lead driver position with a more experienced driver, this time without interviewing Lloyd. Lloyd was disciplined for the first time in January 2005 – for loading gasoline from the wrong supplier. Lloyd filed his third EEOC complaint. Subsequent to his last EEOC complaint, Lloyd was disciplined twice more. In May 2005, Lloyd resigned. He filed a complaint, alleging that Swifty a) failed to promote him, disciplined him, and paid him less than others, all on account of his disability and in retaliation for his EEOC charges and taking FMLA leave, b) created a hostile work environment, and c) breached the settlement agreement by not interviewing him for every job opening. The court granted summary judgment to Swifty.

In their opinion, Judges Cudahy, Ripple and Rovner affirmed. The Court concurred with the district court’s holding that Lloyd’s claims regarding the 2001 and 2003 openings were time-barred and that his FMLA claims were barred because Lloyd did not establish that Swifty had more than fifty employees. With respect to the ADA promotion claims, the Court noted that Lloyd proceeded under the “indirect” method of proof. That requires proof that a) he is disabled, b) he was meeting Swifty’s legitimate expectations, c) he suffered adverse employment action, and d) similarly situated employees without a disability were treated more favorably. The Court concluded that Lloyd never even established that he was a “qualified individual” under the ADA – i.e., that he was actually qualified to be a lead driver. Swifty established that a lead driver needed mechanical knowledge and a positive attitude. The uncontradicted testimony was that Lloyd had a negative attitude. With respect to the claims arising from Swifty’s discipline of Lloyd, the Court stated that the written reprimand was not an adverse employment action, the suspension came after and was unrelated to his final EEOC charge, and Lloyd had no personal knowledge that similarly situated drivers were not disciplined. The Court also affirmed the grant of summary judgment on Lloyd’s lower pay, hostile work environment, and breach of contract claims.

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KING v. CITY OF MADISON (December 4, 2008)

Gail King was a city bus driver in Madison, Wisconsin (“City”). She developed some health issues and became unable to work. After she took a six-month unpaid disability leave, the City placed her on layoff status. If she became able to return to work during the layoff period, her collective bargaining agreement gave her the right to a) displace the most junior employee in her bargaining unit with an equal or lower job classification, b) fill a vacant position within her bargaining unit for which she was qualified, or c) compete for any vacant positions in other bargaining units. When she received doctor’s permission to return to work, it was qualified by a requirement that she not drive a bus. Based on her seniority and job classification, however, driving a bus was the only job which she could choose by right. King did apply for several vacant positions outside her unit but she was found not to be most qualified and was not selected. The City terminated King after two years of leave, a remedy they were entitled to under the collective bargaining agreement. King brought this action under the Americans with Disabilities Act (“ADA”). She alleged that the City failed to accommodate her disability. The district court granted summary judgment to the City. It held that King’s medical condition did not substantially limit her major life activity and she was therefore not a qualified individual with a disability. Additionally, it held that the City provided reasonable accommodation. King appeals.

In their opinion, Judges Ripple, Wood and Tinder affirmed. The Court stated the requirements of an ADA claim. To prevail, King had to establish that she is a qualified individual with a disability, that the City was aware of her disability, and that the City failed to accommodate her disability. The Court addressed only the accommodation prong. Although an employer can accommodate a disabled person by reassigning her to a different job, an employer need not do so if it would violate a “legitimate, nondiscriminatory” policy of the employer. The City’s collective bargaining agreement is such a policy. The City complied with the policy in a neutral manner and was not in violation of the ADA.

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EEOC v. LEE’S LOG CABIN  (October 6, 2008)

Korrin Stewart was diagnosed as HIV-positive when she was just fourteen years old. Shortly thereafter, she learned that it had actually developed into AIDS. At the age of eighteen, she applied for a server position at Lee’s Log Cabin (“Lee’s”). She was aware that the job had a 25-30 pound lifting requirement. Nevertheless, she stated on her application that she could lift no more than 10 pounds and that there were no accommodations that would allow her to perform that requirement of the job. After some time went by without a response from Lee’s, Stewart visited the restaurant and spoke with Zastrow, an assistant manager. In response to Zastrow’s question, Stewart admitted that she was the same person who had alleged that a prior employer had fired her when the employer learned that she was HIV-positive. Stewart also saw a copy of her application, on which appeared the notation “HIV+.” Lee’s did not offer the position to Stewart, ostensibly on the ground that she had no server experience and could not meet the lifting requirement. The EEOC filed suit, alleging that Lee’s violated the Americans With Disabilities Act (“ADA”). The EEOC alleged that Lee’s failed to hire Stewart because it learned that she was HIV-positive. About one month before trial, in response to Lee’s motion for summary judgment, the EEOC presented affidavits from Stewart and her doctors describing how AIDS affected her daily activities. The EEOC presented no separate evidence that HIV affected her daily activities. The district court refused to consider the affidavits because the EEOC had never pleaded the presence of AIDS. Without the affidavits, there was no evidence in the record of the effect of HIV on Stewart’s daily activities. The court granted summary judgment for Lee’s, also noting that a) there was no evidence that Lee’s knew Stewart had AIDS, and b) there was a question whether she met the “qualified individual” element of the statute because of the lifting requirement. EEOC appeals.

In their opinion, Judges Kanne and Sykes affirmed, Judge Williams dissenting. The majority started with the fundamentals. The ADA prohibits employment discrimination “against a qualified individual with a disability because of the disability.” Whether an individual is disabled is an individual inquiry into whether the impairment “substantially limits” the individual’s major life activities. The Court commented that the EEOC “complicated” the inquiry by attempting to refashion its claim as an AIDS claim late in the case. The Court called it a “major alteration” of the EEOC’s case. The Court focused on the Supreme Court’s Bragdon decision and its description of the development of the disease. Noting that there are significant symptomatic differences at different stages of the disease, the Court thought that whether Stewart was HIV-positive or had AIDS was highly relevant to the case. Once the Court concluded that the district court had not abused its discretion in disallowing the affidavits, it had little difficulty agreeing with the proposition that the record was devoid of evidence of the effect of HIV on Stewart’s major life activities.

The Court went on to address, as an alternative ground for affirming summary judgment, the issue of whether Stewart was a “qualified individual.” A “qualified individual” is a person who can perform the essential functions of the job, either with or without reasonable accommodations. The Court held that Stewart was not a “qualified individual,” given her statement in her application that she could not meet the lifting requirement of the job, even with an accommodation.

Judge Williams dissented. She pointed out that HIV and AIDS are not different conditions. Rather, AIDS is simply the final stage of a single disease – HIV. Different stages of the disease are also not necessarily accompanied by different symptoms. Stewart never ceased being HIV-positive. The evidence of the effect of AIDS on Stewart’s daily activities also described the effect of HIV on her activities. Judge Williams compared it to a cancer patient progressing through different stages of the disease. She believed that the EEOC had sufficiently presented evidence that Stewart’s disease substantially limited her major life activity. She also believed that there were questions of fact with respect to the “qualified individual” issue. There was a dispute as to whether the lifting requirement was truly an essential function of the job. Stewart’s testimony that her lifting restriction was temporary also raised a question of fact with respect to her application answers. 

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