Employment Law Daily Employee who did not call doctor as witness failed to show she was qualified under ADA
Wednesday, June 15, 2016

Employee who did not call doctor as witness failed to show she was qualified under ADA

By Kathleen Kapusta, J.D. Although a plaintiff does not necessarily need to produce expert testimony in order to demonstrate she is a qualified individual under the ADA, the Seventh Circuit found that an employee who was discharged for failing to report to work at the expiration of her medical leave, and who chose not to call her doctor as a witness, failed to present any evidence, medical or otherwise, that the use of a medical boot would allow her to perform the duties of her job. Accordingly, the court affirmed the grant of summary judgment against her disability discrimination claims (Wheatley v. Factory Card and Party Outlet, June 13, 2016, Rovner, I.). Medical boot. The store manager hurt her foot and was off work for several days. She returned, but at the end of her shift, she could not walk. She requested FMLA leave and was off work for several months. Her leave was set to expire on July 11. On June 22, her orthopedic doctor issued a note stating she could return to work on July 6 with no restrictions. The employee disagreed and sought a second opinion from her podiatrist who stated that she had no ability to work, she required "immobilization," and she could not return until August 15. The employee then submitted an affidavit recounting a conversation with the podiatrist that would have allowed her to return to work on July 11 with her foot immobilized in a medical boot. Her employer, however, determined that would be impossible because she had to climb a ladder to do her job. Concluding that her employer would not allow her to return to work with the boot, she applied for disability benefits. She then sued, asserting that her employer violated the ADA in failing to accommodate her disability. Summary judgment motions. Arguing that the employee had not been "released" to work on the date of her request for an alleged accommodation or on the date of termination, and therefore could not perform an essential function of work—regular attendance—the employer moved for summary judgment. Finding fact issues as to whether she was a qualified individual, the district court denied the motion, explaining that testimony from her podiatrist would clarify what he told her about her ability to return to work and what was meant by the requirement of immobilization. Her employer then moved to bar the podiatrist from testifying as an expert witness at trial and, in response, the employee stated that she would not be calling him as a witness at all. When the employer renewed its summary judgment motion, the district court, rejecting the employee’s argument that her testimony alone as to her ability to return to work with the boot, based on her experience using it at home, sufficed to raise a fact issue, granted the motion. Insufficient evidence. On appeal, the employee challenged the court’s determination that she failed to show she was a qualified individual. Observing that she acknowledged her evidence was limited to her own personal observations and that the district court was presented only with her affidavit statements that she had been wearing the medical boot for two months and was aware of the job duties and what her limitations would have been if she were allowed to return to work, the Seventh Circuit found her evidence was insufficient. While she stated she was able to return to work full time if she would have been allowed to use a medical boot, she presented no evidence that the boot was an appropriate treatment for her injury, or that it would have allowed her to walk and stand a sufficient amount of time to perform her job. She chose to forego any medical evidence that a boot was prescribed for her as well as evidence of the relief that it would provide. Her affidavit testimony provided scant support for that conclusion that she could fulfill her job requirements as long as she wore the boot, said the court. To the contrary, it indicated that the boot did not sufficiently ameliorate her condition to allow her to perform her job. In her affidavit, she stated she "was able to walk or stand around for a couple of hours at a time," but "was not able to walk and stand for eight continuous hours." She acknowledged that her "responsibilities as manager did require [her] to be on [her] feet for a good number of hours in a shift," but declared, "[t]hat having been said, there was also a decent amount of time when I was not on my feet." Noting that this was the kind of conclusory and untested opinion that it has repeatedly deemed insufficient to meet the summary judgment burden, the court found there was no evidence whatsoever as to how much recovery time she needed in order to be able to walk or stand for additional hours, nor was there any suggestion that her job could be performed by a person who could walk or stand for only two hours in a shift. Further, her podiatrist’s attending physician statement that she had no ability to work and would need to be absent until August 15 was admissible and properly considered by the district court, said the appeals court, concluding that the statement was evidence she was not capable of working at the time of her termination. Even absent that statement, the evidence was insufficient to allow a jury to conclude she could perform the essential duties of the position if permitted to wear the medical boot and forego the ladder duties.

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