ADA Developments in the Great Lakes Region Over the Last Year

Definition of Disability under the ADA Amendments Act (ADAAA)

Modjeska v. United Parcel Service, 2014 WL 5312575 (E.D. Wis. Oct. 16, 2014)
An employee with a left arm injury and a learning disability brought this ADA claim for failure to accommodate, retaliation and harassment. UPS sought summary judgment, arguing that the employee was not disabled under the ADA. The court disagreed. It held that even though the employee’s arm injury was expected to last fewer than six months, it could still be substantially limiting. The court also held that while the employee’s learning disability impaired the major life activities of reading and thinking, UPS did not fail to accommodate his learning disability because the employee failed to inform UPS of this impairment or request an accommodation on this basis. However, the employee’s retaliation, harassment, and failure to accommodate claim regarding his arm injury claims were permitted to continue.

Silk v. Board Trustees of Moraine Valley Community College, 46 F. Supp. 3d 821 (N.D. Ill. 2014)
The college argued that the plaintiff, a professor who took two months of leave to recuperate from heart surgery, was not “regarded as” disabled under the ADA. The college asserted that the professor’s impairment fell within the ADA Amendment Act’s “transitory and minor” defense because it lasted for less than six months, which also demonstrated that it was minor. The court concluded that while the professor’s impairment was “transitory,” it was not undisputedly “minor,” and thus, the professor established that he was “regarded as” disabled. Nonetheless, the court granted summary judgment, as the evidence demonstrated that the professor’s performance—not his perceived disability—was the reason for his termination.

“Regarded as” and Adverse Employment Action

Koch v. Village of Schiller Park, 2014 WL 2744985 (N.D. Ill. June 17, 2014)
A village police officer was transferred to a different position following a heart attack, and the court permitted the officer’s “regarded as” claim to proceed. The court held that the officer’s transfer constituted an adverse employment decision, even though it was not a technical loss in “rank” because the officer was transferred to a position with lower pay, diminished job responsibilities, and fewer benefits. It also concluded that a jury could find the employee was “regarded as” having a disability because his supervisor made comments that the job was too stressful for the officer’s heart.


E.E.O.C. v. Ford Motor Co., --- F.3d ---, 2015 WL 1600305 (6th Cir. Apr. 10, 2015)
Reversing an earlier decision of the Sixth Circuit, an en banc panel of the Sixth Circuit held that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.” As a result, the resale steel buyer was not qualified and her request to telework was not a reasonable accommodation.

Wheatley v. Factory Card and Party Outlet, 2014 WL 4947506 (C.D. Ill. Sept. 30, 2014)
The court found genuine issues of fact as to whether the plaintiff, a store manager, was qualified to perform the essential functions of her job following her return from FMLA leave. The plaintiff’s doctor released her to return from leave, so long as she wore a boot that immobilized her foot and excused her from climbing ladders, but the defendant refused to permit the plaintiff to return with a boot. The court held that whether the plaintiff was qualified to work with a boot was a question of fact, best left for a jury. It also held that the plaintiff was not judicially estopped from arguing that she was qualified, despite statements she made on an insurance form that she could not perform the “material duties” of her job, because she could have believed that she could have done such duties with her proposed accommodations.

Hillman v. Costco Wholesale Corp., 2014 WL 3500131 (N.D. Ill. July 14, 2014)
A service assistant was injured during a snow storm while pushing carts and sought to return from a medical leave of absence in a position with limited sitting and walking. The court permitted his case to proceed, finding that a reasonable jury could conclude that the employee was qualified for the vacant major sales assistant position. Although most employees in this position are “on their feet all day” stocking merchandise and helping members lift heavy items, Costco had previously accommodated the employee in this position for a short period of time, leading the court to conclude that a jury could find the employee capable of performing the essential job functions with the reasonable accommodation of being allowed to sit as needed and/or working part-time.

Brown v. Smith, 21 F. Supp. 3d 974 (S.D. Ind. 2014)
The court denied summary judgment to the defendant, finding that the plaintiff, a street supervisor, was qualified for his position, even though he did not have a commercial driver’s license (“CDL”). The court analyzed various factors to determine whether driving vehicles for which a CDL is required was an essential function, including: (1) a written job description which included bus driving but only “‘occasionally’ and ‘as necessary;’” (2) the amount of time the plaintiff spent driving buses in his four years as a street supervisor; (3) the defendant’s use of part-time drivers; (3) the availability of “other employees” to drive the buses; (4) the fact that driving buses was not a “highly specialized” function; (5) the plaintiff “was [not] hired for his expertise in driving” buses; and (6) the defendant considered the function to be essential. In its undue hardship analysis, the court did not find any adverse impact on the defendant’s operations or on part-time drivers in the previous four years and explained that—where the defendant had allowed the plaintiff to work as a street supervisor without a CDL for four years—the defendant would have at least had to work with the plaintiff to try “to adjust the existing accommodation” before “withdraw[ing] the accommodation” altogether.

Qualified: Reconciling Inconsistent Statements

EEOC v. St. Alexius Med. Ctr., 2014 WL 5023484 (N.D. Ill. Oct. 6, 2014)
Although a medical center greeter with a progressive cerebrovascular disorder stated on her application for Social Security Disability Insurance that she was unable to work at any job in the national economy, the court found that she still established a genuine issue of fact as to whether she was qualified under the ADA allowing her ADA claim to move forward. The court explained that a jury could find the greeter qualified if she was given the reasonable accommodation she requested--written instructions. The greeter’s assertion that she could do the job with accommodation was supported by a doctor, who explained that written instructions would help the employee’s memory and organization.

Interactive Process

Mobley v. Miami Valley Hosp., 2015 WL 795310 (6th Cir. Feb. 25, 2015)
The Hospital transferred the plaintiff, a housekeeper with various cognitive and physical disabilities, to a different position. The plaintiff had a difficult time in this new position, and submitted notes from his doctor seeking to return to his former position. Instead of discussing the plaintiff’s request, the Hospital placed him on a performance plan and then fired him. The Sixth Circuit held that a jury could find that the Hospital broke down the interactive process by not fully discussing the plaintiff’s request, and explained that the employee’s doctor’s note constituted a request for an accommodation.

Bunn v. Khoury Enterprises, Inc., 753 F.3d 676 (7th Cir. 2014)
The Seventh Circuit reiterated the long-standing principle that the ADA requires employers to provide employees with an effective accommodation, not necessarily their preferred accommodation. Here, an employee who is legally blind filed a failure to accommodate lawsuit, alleging that the restaurant failed to engage in the interactive process. The court held that the restaurant’s failure to engage in the interactive process was not an independent violation of the ADA because here, the restaurant satisfied its obligations by providing a reasonable accommodation to the employee. The employer determined which job functions the employee could not perform (reading small type on labels and monitors) and then modified his work to meet those needs (removing the requirement that he rotate tasks and assigning him exclusively to one rotation).

Waltherr-Willard v. Mariemont City Schools, 2015 WL 542944 (6th Cir. Feb. 11, 2015)
The Sixth Circuit affirmed that employers do not need to create new jobs or displace existing employees from an existing job to accommodate employees under the ADA. Here, a teacher with pedophobia taught high school for 20 years, and then was asked to switch to an elementary school. In response, the plaintiff provided a note stating that her “mental state” precludes her from teaching children under the age of 12. The plaintiff was permitted to continue teaching at the high school for 12 years, but then, due to curriculum changes, was moved to a middle school. After six months, the teacher requested a transfer back to the high school. This request was denied because there were no current openings, and shortly thereafter, the teacher retired. The court held that the employee’s failure to accommodate claim failed because the high school had no vacancies, and was not required to create a job or displace a current employee as a reasonable accommodation.

George v. Util. Trailers of Indianapolis, Inc., 2014 WL 5509240 (S.D. Ind. Oct. 31, 2014)
The court held that an employee’s request for approximately two months of medical leave was a reasonable accommodation. The defendant argued that the employee was not qualified because it did not need to accept “irregular, unreliable” attendance, but the court explained that here, the requested accommodation was reasonable because it was less time than the leave guaranteed by the FMLA (i.e. 12 weeks). This was especially so given that there was no evidence that the employee would require additional leave.

Constructive Discharge / Disability Harassment

EEOC v. Mont Brook, Inc. 2014 WL 2119862 (N.D. Ill. May 20, 2014)
An employee with a physical disability filed a hostile work environment claim alleging that the company president called her “a cripple” on two occasions, mocked her by imitating the way that she walked, and when the employee objected, called her a “hysterical basket case.” The court denied the employer’s motion to dismiss for lack of sufficiently pervasive or severe conduct, finding that the allegations met the necessary standard of plausibility.

Medical Examinations and Inquiries

Settlement Agreement: USA and the City of DeKalb, IL (February 2015) The City of DeKalb agreed not to conduct medical examinations or make disability-related inquiries before a conditional offer of employment is made to applicants. The City also agreed to make its online employment opportunities website conform with the Web Content Accessibility Guidelines (WCAG) 2.0.

Kroll v. White Lake Ambulance Authority, 763 F.3d 619 (6th Cir. Aug. 19, 2014)
The plaintiff, an EMT, was found crying in the parking lot following an affair with a co-worker. In addition, there were also allegations that the plaintiff was arguing and texting while she was driving on one occasion, and ignoring a request to administer oxygen on another occasion. Based on this, the defendant required the plaintiff to seek counseling as condition of employment. In an earlier decision, the Sixth Circuit held that an employer requirement to attend counseling as a condition of employee can be a medical examination under the ADA. See Kroll v. White Lake Ambulance Authority, 691 F.3d 809 (6th Cir. 2012). Here, the issue was whether this medical examination was job-related and consistent with business necessity, such that it was permissible under the ADA. The Sixth Circuit reversed the district court’s decision, finding a genuine issue of fact as to whether this medical examination was job-related and consistent with business necessity. The Sixth Circuit explained that “[a]berrant emotional behavior” is relevant only to the extent that it interfered with her ability to do her job, and that isolated moments of unprofessional conduct do not necessarily support the conclusion that the EMT was experiencing an “emotional or psychological problem that interfered with her ability” to do the job.


Bresser v. Total Quality Logistics, 2014 WL 1872113 (S.D. Ohio May 8, 2014)
An employee with social anxiety disorder was terminated for alleged policy violations. The court permitted the case to proceed, because the employee was able to show that five similarly situated employees without disabilities were treated differently. The employee also provided comments in an email from his supervisor that could suggest that the action was discriminatory.

Service Animals

Anderson v. City of Blue Ash, 2014 WL 3102326 (S.D. Ohio July 7, 2014)
The court analyzed whether the City was required to modify its zoning ordinance, which banned residents from owning farm animals, to accommodate a resident with a disability who owned a miniature horse. The court found that the city had no obligation to modify its policy because the animal did not qualify as a service animal. While the miniature horse provided comfort, it did not go to school with the resident or otherwise help her with her daily activities either inside or outside of the home. The court also cited legitimate health and public safety concerns in its decision.

Community Integration

Ill. League of Advocates for the Developmentally, Disabled v. Ill. Dep’t Human Servs., 2014 WL 3605633 (N.D. Ill. July 21, 2014)
The State of Illinois planned to close an institution and transition people with developmental and intellectual disabilities into the community. A group of plaintiffs filed suit on behalf their disabled family members and sought a preliminary injunction, alleging that the State’s initiative would deny them services or benefit. The court disagreed, finding the closure to be consistent with Title II, Section 504 of the Rehabilitation Act, and the directives of the Supreme Court’s decision in Olmstead. The court noted that the State’s plan permitted the option for individuals to move into another institutional setting if community living was unworkable or undesirable. The case is currently pending before the 7th Circuit Court of Appeals.

Sovereign Immunity and Effective Communication

Prakel v. State of Indiana, 2015 WL 1455988 (S.D. Ind. Mar. 30, 2015)
In Tennessee v. Lane, the Supreme Court held that Congress appropriately abrogated state sovereign immunity in ADA cases brought under Title II, where the cases involved the “fundamental right of access to the courts.” In this case, the plaintiff is a deaf man whose mother was a defendant in a criminal case. The plaintiff requested that the court provide him with a sign language interpreter for his mother’s hearings, but this request was denied because he was not a witness or a defendant. The State argued that the Lane decision did not apply because the instant case implicated the rights of “spectators” and not parties to the litigation. The court disagreed, and extended Lane to the facts here. It held that the Lane decision found the “fundamental rights of access to the courts” to apply to “criminal proceedings (including preliminary hearings) by members of the public.” The court also held that the defendants denied the plaintiff effective communication and the opportunity to enjoy the benefits of the state courts’ services, programs, and activities.

Requests for Disability-Related Information by Businesses

Wigginton v. Bank of Am. Corp., 770 F.3d 521 (7th Cir. 2014)
When evaluating their application for a mortgage loan, the Bank asked plaintiffs for information to verify that the disability benefits they received from the Social Security Administration would last for at least three years. The Seventh Circuit concluded that the Bank’s request for this disability-related information did not violate the ADA, because the Bank asked all applicants about the expected continuation of their income, regardless of the source. Further, plaintiffs did not allege that the Bank treated applicants with disabilities differently than those without disabilities.

Denial of Services

Settlement Agreement: USA and Genesis Healthcare System (January 2015)
The Department of Justice entered into a settlement agreement after concluding that a physician working for Ohio-based Genesis Healthcare System violated Title III by referring patients with HIV to an infectious disease specialist based on the patients’ HIV status alone. As part of the settlement, Genesis agreed not to discriminate against any individual on the basis of disability, including HIV or AIDS, and the DOJ will monitor any denials of service. Genesis also agreed to conduct training, to pay $25,000 to the Complainant, and to pay $9,000 in civil penalties.

United States v. Experimental Aircraft Association (E.D. Wis. 2013)
The Department of Justice investigated a complaint about Experimental Aircraft Association (“EAA”) which hosts a seven-day convention and air show in Wisconsin called “AirVenture.” The complainant, who has multiple sclerosis, alleged that EAA refused to allow him to use his Segway at the show, and instead was required to use a sit-down scooter. The Department of Justice determined EAA’s refusal to modify their procedures to allow the Segway was discrimination under the ADA. As part of the settlement, EAA agreed to permit the use of Segways and similar mobility devices by people with disabilities at their events, notify attendants of this policy through their website, undergo ADA training, and provide four tickets for the complainant to a future AirVenture event.


Last Updated on:
Wed May 6, 2015