Before moving on to today’s case, the nominations for the 2016 ABA legal blawgs 100 are now open. The nomination form can be found here. The deadline is August 7, which is this Sunday. It has been a distinct honor and privilege to be a member of this distinguished group for the last two years, and I would love to have the opportunity to make it three years in a row. I know it has been a successful year for the blog so far as the majority of my clients come from my blog, and I also know from my analytics that I am consistently getting over 250 views a day and 150+ visitors a day. As they say in Chicago, my native town, vote early and often!!:-)
Today’s case is Kirincich v. Illinois State Police, a decision from the United States District Court for the Northern District of Illinois, Eastern Division, by Judge Kennelly that came down on July 22, 2016. This case explores essential functions, direct threat, interactive process, and reassignment. As is the usual practice for my blog entries, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.
Plaintiff suffered from type I diabetes since she was a child. In August 2011, the Illinois State Police hired her, and it was aware of her diabetes before hiring her. At the time of hiring, her diabetes appeared to be well controlled. For 13 years she had been treated by an endocrinologist using a program that aims to maintain her blood sugar levels and reduce the risk of diabetic complications. In the time after being hired by the Illinois State Police, she experienced at least two hypoglycemic episodes in which her blood sugar got so low that she lost consciousness. In late 2012 or early 2013, she was assigned to the night shift per the seniority system. The night shift required her to be on patrol from 10 PM to 8 AM the following day and her duties included driving a squad car, investigating crime, and intervening in ongoing criminal activity. She was also required to appear in court following the end of her shift if necessary, thereby extending the shift on an unpredictable basis at times. She was also required to be on call for statewide emergencies or other call up requirements.
On February 28, 2013, she suffered a hypoglycemic episode while on patrol as a state trooper. This caused her to lose consciousness and drive erratically for several miles, including: running a red light; driving over the center line; and colliding with several other vehicles at a high rate of speed. Ultimately, her vehicle stopped as the result of the collisions, and firefighters had to cut the roof off of her squad car in order to remove her from the vehicle. After this episode, the Illinois State Police placed her on restricted status in order to evaluate her ability to continue working as a state trooper. Ultimately, its medical review board referred her to an endocrinologist for an independent medical valuation. That person noted her blood sugar level should be closely monitored and controlled and recommended that her treating physician would have more insight into her ability to work based on the chronic nature of diabetes and the physician’s long relationship with her.
After conducting additional meetings to review the independent physician’s notes and other information related to her disability in the accident, the Illinois State Police determined that she could no longer perform the essential functions of the job and began the process of finding an accommodation by sending her a letter stating that she was unable to perform the essential functions of a sworn officer and could no longer continue in her position as a trooper. That letter identified her options moving forward, including applying for reassignment to a civilian position.
Following a meeting on November 5, 2013, the plaintiff did submit an application for reassignment to a civilian position. However, in the application she did not request a civilian position but rather requested an accommodation of change to the day shift explaining that the night shift was very problematic with respect to her diabetes. She said that her physician had told her that working exclusively on the day shift would alleviate the possibility her blood sugar levels would become unbalanced and would allow her to fully perform her duties without complications. On December 2, 2013, her counsel submitted to the Illinois State Police the letter from her endocrinologist confirming what she said in the application. However, at trial her endocrinologist did not testify that she knew the duties of state troopers other than that the plaintiff carried a badge and drove the vehicle for long periods of time. She also said that she did not receive any information on the essential functions of state troopers. The Illinois State Police said that her request for a patrol change was in conflict with the request for reassignment to a non-sworn civilian position. This led to a year-long period of correspondence. On October 3, 2014, the plaintiff was invited to interview for a guard II position at the James R Thompson building in Chicago as well as for the position of truck weight stop inspector. She attended both interviews and was eventually offered both positions. She accepted the truck weight stop inspector position but took issue with the required transfer documentation, which framed the transfer as a resignation from a trooper position. When she manually redacted the word resignation and replaced it with notification that she was not resigning and was not being accommodated under the ADA, the Illinois State Police considered her return of the form as a resignation from the trooper position and an acceptance of the truck weight stop inspector position. It scheduled her to report to her position on February 1, 2015. In the meantime, the Illinois State Police notified her of an additional open position for which he could interview, a criminal intelligence analyst, which had a salary considerably higher than that of the truck weight stop position or even her state trooper position. After an interview, the Illinois State Police offered that position to her. When it offered that position to her, the Illinois State Police notified her that it was the third offer of an alternative accommodation and that if she declined the open offers, she would be terminating the reasonable accommodation process. Despite the warning, the plaintiff did not report for duty on any of the position she was offered. She then, presumably after exhausting administrative remedies, filed a lawsuit saying that the ADA had been violated.
In granting summary judgment for the Illinois State Police, Judge Kennelly reasoned as follows:
- In order to prove a failure to accommodate claim, a plaintiff has to show: 1) she is a qualified individual disability with a disability; 2) her employer was aware of her disability; and 3) her employer failed to reasonably accommodate her disability.
- While it is true that an individual is qualified under the ADA if she is able to perform the essential functions of her position with or without reasonable accommodations, a person is not qualified for the ADA where they present a direct threat to the safety of herself or others. A determination of direct threat has to be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence after an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.
- The Illinois State Police contended, and it was not disputed by the plaintiff, that one of the essential functions of a state trooper was being available 24 hours a day seven days a week for emergency call ups in the case of arrest, state emergency, or civil disturbances.
- No reasonable jury could find that the plaintiff could perform as a state trooper at night since both she and her doctor admitted that she could not do so.
- The ability to work at night was an essential function of the position.
- After an employee’s initial disclosure of his disability, the ADA requires an employer to engage in an interactive process in order to determine the appropriate accommodation under the circumstances. This process imposes a duty upon employers to engage in a flexible process with the employee with a disability so that they might identify the employee’s precise limitations and discuss accommodations enabling the employee to continue working.
- A refusal to grant a particular accommodation does not automatically subject an employer to liability. Rather, an employer flunks its obligation under the ADA when it refuses to grant a request for an accommodation and then does nothing to engage in finding alternative accommodations.
- An attempt to reassign an employee with a disability to an alternative position is required where that employee cannot perform the essential functions of her position and there are no other available accommodations.
- In considering reassignment to a different position, the employer must make a reasonable effort to explore the possibilities with the employee. Here, it was undisputed that the Illinois State Police not only explored the possibilities with the plaintiff, but ultimately also offered her three alternative positions, including one of which paid more than her state trooper position. While the plaintiff may not have been satisfied with those alternatives, that doesn’t mean the Illinois State Police is liable.
- The Illinois State Police did use a seniority system and therefore, it was not required to bump other employees or create new position when reassigning an employee with a disability. It was only required to reassign an employee with a disability to a vacant position for which she was otherwise qualified/qualified.
- Since the Illinois State Police offered several alternative positions as reasonable accommodations to the plaintiff, no reasonable jury could find that the Illinois State Police failed to engage in the interactive process.
- The plaintiff considered the non-sworn status of the offered positions a demotion, but even so, a position amounting to a demotion can be a reasonable accommodation in appropriate circumstances. That is, the employer is obligated to identify the full range of alternative positions for with the individual satisfied the employer’s legitimate, nondiscriminatory prerequisites and consider transferring the employee to any of those jobs, including those representing a demotion.
- Where an employer takes an active, good-faith role in the interactive process, it does not face liability when the employee refuses to participate in that process. Here, the Illinois State Police offered the plaintiff several different alternative position aligning with her need to work only during daytime hours. It was also undisputed that she accepted one of the positions but failed to report for duty. Accordingly, no reasonable jury could find that the Illinois State Police acted in bad faith or tried to thwart the interactive process and blocked reasonable accommodations.
- An employer cannot reasonably accommodate an employee who refuses to return to work.
- Even assuming, the Illinois State Police did prompt the end of the interactive process, that claim has to fail because the plaintiff simply could not show that the employer’s failure to engage in an interactive process resulted in a failure to identify an appropriate accommodation for the qualified individual.
- A shift change to the day shift for her to be a state trooper was not something the Illinois State Police had to do because doing so would have conflicted with it seniority system. Per U.S. Airways Inc. v. Barnett, 535 U.S. 391 (2002), the Illinois State Police was under no obligation to make that transfer absent a showing, which was not made by the plaintiff, that the Illinois State Police either regularly ignored the seniority system, operated outside of its bounds, or the seniority system contained exceptions.
- While the Circuits are split, in the Seventh Circuit anyway, reassignment to a vacant position is mandatory where the employee is no longer qualified/otherwise qualified for the position she is in.
- The court doesn’t really analyze the direct threat piece, but that piece is certainly present in this case. The trooper had a record of losing consciousness on the job and was involved in a public safety position. Accordingly, if the court had analyzed the direct threat piece in detail, it is probable it would have been decided in favor of the employer.
- In the Seventh Circuit, when considering reassignment to a different position, the employer must make a reasonable effort to explore the possibilities with the employee. While this may not be something required in all Circuits, it is certainly good preventive law since it prevents the employee from being able to show that the interactive process resulted in a failure to identify an appropriate accommodation.
- If you represent an employer with a collective bargaining agreement or a seniority system, bumping is not required in order to accommodate an employee with a disability who is no longer qualified/otherwise qualified for her current position.
- When reassigning a person, jobs constituting a demotion can be in play without fear of liability under the ADA. Whether a demotion is in play, depends upon the alternatives explored to figure out what job(s) the employee can do the essential functions of with or without reasonable accommodations.
- A failure to report for duty for a job offered as an accommodation is evidence of the plaintiff causing a breakdown in the interactive process.
- If a physician is going to help you determine whether they can do the essential functions of the job with or without reasonable accommodations, make sure they know what the essential functions of the job are as the job is actually practiced. Also, as a backup, it is a good idea to contact the Job Accommodation Network as well.
- At some point, an employer can terminate the interactive process without fear of liability where the employee is not accepting offers of reasonable accommodations.