Labor & Employment Law Daily No disability bias; sheriff’s office honestly believed corrections officer lied about handicapped parking placard
Monday, November 9, 2020

No disability bias; sheriff’s office honestly believed corrections officer lied about handicapped parking placard

By Kathleen Kapusta, J.D.

The corrections officer failed to show the sheriff’s office dismissed him from its police academy because of a real or perceived disability.

A county corrections officer was dismissed from the sheriff’s police academy because he was unable to honestly and consistently answer legitimate questions regarding his handicapped parking placard, and not because of an actual or perceived impairment, the Seventh Circuit ruled, affirming summary judgment against his ADA claims. Nor did he offer any evidence that would allow a jury to find the investigation into his use of the placard violated the ADA, said the court, noting that “while most employers would be well-advised to look at 42 U.S.C. § 12112(d) before investigating an employee’s use of a handicapped parking placard,” he was seeking a law-enforcement job with demands for both physical fitness and integrity (Sandefur v. Dart, November 4, 2020, Hamilton, D.).

Employed by the sheriff’s office since 1990, and as a corrections officer since 1996, the employee purportedly suffered from disk desiccation in his back and osteoarthritis in his knees. Although these conditions caused intermittent pain for weeks at a time and limited his mobility when they flared up, he never requested an accommodation for work but instead used compensatory and leave time.

Placard. His 2011 application for a handicapped parking placard, which was completed by the employee and his doctor, stated that he could not walk “without the assistance of another person, prosthetic device, wheelchair, or other assistive device,” and that he was “severely limited in [his] ability to walk due to an arthritic, neurological, or orthopedic condition.” When he renewed the placard two years later, he again cited his osteoarthritis as the qualifying condition.

Academy. In 2015, the 55-year-old employee was accepted into the sheriff’s police academy. Because he had to pass a physical fitness test, his doctor certified that he could perform the test with “no restrictions.” On his first day at the academy, an instructor in charge of inspecting recruits’ equipment, personal vehicles, and attire, noticed the handicapped parking placard hanging from the employee’s rearview mirror. When asked about it, the employee said it was for his wife. And when the instructor yelled at him for illegally using the placard, the employee explained that he was also handicapped and sometimes used it, too. Although the employee assured the instructor that his condition would not affect his performance as an officer, the instructor remarked to the surrounding group, “can you believe this, now they’re sending handicapped m*****f*****s to the Academy.”

Medical records. When the academy’s supervisor, a sergeant, questioned the employee that same day about the placard, he again said it belonged to his wife. The sergeant then told his supervisor, a lieutenant, what was going on and, after learning from HR that the employee had been medically cleared for the academy, they both met with the employee, who told them he was not requesting any accommodations. In response, the lieutenant asked him to authorize his doctor to provide his medical records. Following the meeting, the employee gave the sergeant a handwritten memo stating that the placard had been approved by his doctor for his arthritic knee condition, which would not affect his ability to perform his duties.

Investigation. Later that day, the police department’s executive officer initiated an investigation into the employee’s conflicting statements. A review of his medical records revealed that he did not have a diagnosis for either a knee or back condition. A formal inquiry was then opened regarding the employee’s placard application. During an interview, the employee claimed he initially told the instructor the placard belonged to him but was being used by his wife and that he had told the sergeant and lieutenant he did not need the placard anymore because his condition had improved. He further admitted that he sometimes used it to park in a handicapped space at work for “convenience,” and that other employees also did the same.

Dismissed. Based on his numerous inconsistent statements, the employee was dismissed from the academy and returned to his job as a corrections officer. He subsequently sued under the ADA. The district court, granting summary judgment to the county, found the evidence showed he was dismissed because the county believed he lied about his disability.

Physically demanding job. On appeal, the court first addressed the employee’s claim the sheriff’s office violated the ADA by seeking information from him, his doctor, and the Illinois Secretary of State regarding his physical condition and application for the placard. Noting that employers are entitled to evaluate whether applicants for physically demanding jobs are physically capable of performing them, the court pointed out that any such tests and requirements must be job-related and “consistent with business necessity.”

Observing further that police officers hold jobs with relatively high physical demands, the court noted that while many “employers might have little or no business investigating an employee’s or applicant’s use of a handicapped parking placard,” a police force would “seem to have good reason to raise the questions” the sheriff’s office raised here about the employee’s ability to meet the demands of a police officer’s job.

Waived. Citing a line of cases holding that an employer had a duty to consider whether an employee needed an accommodation even though the employee had not asked for one, the court noted that the “apparent tension between applying for a physically demanding job such as a police officer and using a handicapped parking placard based on an inability to walk without assistance might induce a reasonable employer to look into the matter.” Nonetheless, the court declined to “wrestle these questions to the ground” as the employee did not raise them in the district court. Thus, his claims that the sheriff’s office violated the ADA by asking questions and investigating his medical records and placard application had been waived.

Regarded as. Turning to his core claim that he was dismissed from the academy because the sheriff’s office regarded him as disabled, the court found no evidence to support this contention. On just one day, the court observed, he made numerous conflicting statements about his use of the handicap placard, to whom it belonged, and his physical condition. Nor did his conflicting statements end that day, said the court, noting that during the investigation, he claimed his placard should have been authorized for his back condition, acknowledged that he had not yet tried to correct that error, admitted that he sometimes parked in handicap-designated spaces out of convenience, tried to minimize that admission by claiming that other corrections department employees did the same, and most significantly, said that he did not understand how his doctor could sign his medical release form for the academy while previously saying he was permanently disabled. “Surely, then,” observed the court, he “could not have been too surprised that the interviewing officers also saw a contradiction and ultimately sustained the charge that he had not been truthful in the inquiries.”

Stressing that its analysis depended on the fact that the employee was seeking a law enforcement job with demands for both physical fitness and integrity, the court found he failed to offer any evidence that would allow a jury to conclude the investigation violated the ADA. The undisputed facts showed the decision to dismiss him from the academy “was based on his inability to give honest and consistent answers to straightforward and legitimate questions, not because of any actual or perceived physical impairment.”

Animus. The employee argued, however, that the instructor who first questioned him about the placard harbored an animus against persons with disabilities, which tainted everything that followed. But even assuming the instructor’s intrusive questioning and reference to the employee as a “handicapped m*****f*****” during the vehicle inspection showed unlawful animus on his part, there was evidence that once the instructor notified the sergeant, the investigation was turned over to him and the instructor had no further involvement.

Legal error. Finally, as to his assertion the district court erred in discussing his argument that the proffered reason for his dismissal was pretextual, the court pointed out that the court below did not engage in the burden-shifting analysis or adapt the McDonnell Douglas analytic framework for circumstantial evidence of discrimination. Instead, said the appeals court, it correctly relied on Ortiz v. Werner Enterprises, Inc., for the general standard for proving unlawful discrimination with circumstantial evidence. “By considering whether Sandefur had offered evidence that the stated reason for removing him from the Academy was a pretext, the district court did not stray from controlling law.”

The case is No. 19-2787.

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