AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies


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Handicap Laws/Abilities Discrimination


     Monthly Law Journal Article: Analysis of the ADA as it Pertains to Medical Examinations of Police Officers Applying for Special Assignments, by Dave Corey, Ph.D., ABPP, 2007 (7) AELE Mo. L.J. 501.

     Monthly Law Journal Article: Public Safety Employees and Disability Discrimination in Employment under the ADA: An Introduction and Overview - Part 1 of 3, 2019 (8) AELE Mo. L. J. 201.

     Monthly Law Journal Article: Public Safety Employees and Disability Discrimination in Employment under the ADA: An Introduction and Overview - Part 2 of 3, 2019 (9) AELE Mo. L. J. 201.

     Monthly Law Journal Article: Public Safety Employees and Disability Discrimination in Employment under the ADA: An Introduction and Overview - Part 3 of 3, 2019 (10) AELE Mo. L. J. 201.

 

     - In General
     - Applicant/Employee Medical Exams
     - Accommodation – in General
     - Accommodation - Teleworking
     - Constitutionality
     - Damages
     - Inmates/Prisoners
     - Light Duty
     - Psychiatric
     - Regarded as Disabled 
     - Retaliation
     - Specific Disabilities
     - TDD/Sign Language & Physical Barriers


HANDICAP LAWS / ABILITIES DISCRIMINATION - IN GENERAL

     The plaintiff, a former employee of the federal Office of the Director of National Intelligence, asserted claims against her former employer for disability discrimination under the Rehabilitation Act, 29 U.S.C. 701 et seq., and retaliation under and violation of the Family and Medical Leave Act (FLMA), 29 U.S.C. 2601, et seq. She argued that the defendant discriminated against her and violated the FMLA by not hiring her for a permanent position following her completion of a five-year term. A federal appeals court ruled that summary judgment was properly granted to the employer on the Rehabilitation Act and FMLA retaliation claims. The evidence showed that the employer provided a reasonable accommodation for her depression and when the employee failed to follow the plan, her supervisors attempted a new accommodation, but the employee's attendance problems persisted, and the agency collaborated with the employee in establishing the first accommodation and only acted unilaterally when the accommodation did not work. But the plaintiff could proceed with her FMLA interference claim because a genuine issue of material fact existed as to whether she provided sufficient notice of her disability of depression and interest in taking FMLA leave to trigger the defendant’s duty to inquire as to whether she was in fact seeking to take FMLA leave. Hannah P. v. Coats, #17-1943, 916 F.3d 327  (4th Cir. 2019).

     The plaintiff worked for a California county as a deputy district attorney assigned to a homicide prosecution unit and required to handle as many cases as his supervisor assigned to him. He sued the county on state law claims under statutes prohibiting disability discrimination, alleging failure to reasonably accommodate, failure to engage in an interactive process, and failure to prevent disability discrimination. He had learned that he was exhibiting neurological symptoms that required evaluation and testing to establish whether he had a serious neurological condition. He informed his supervisor that he might be seriously ill with a neurodegenerative disease and needed to undergo medical testing. He asked to be transferred to another assignment during the testing, but his supervisor declined the request. He was informed that the employer would “worry about” his assigned cases and transfer him when and if he determined that he was unable to continue in the position. The plaintiff also requested that he be assigned no new cases until after medical testing was concluded, and that request was rejected with no explanation. He met with his supervisor, the chief deputy district attorney, and the assistant district attorney to request a transfer from the homicide unit to the filing unit for three months because he was not able to go to trial or accept new cases. The assistant district attorney believed that his inability to accept new cases or go to trial made him insufficiently productive to be a member of the homicide unit. The county notified him that before engaging in a good faith interactive accommodation process it needed medical documentation from a healthcare professional or from the board-certified specialist selected to perform a fitness-for-duty examination. The employee viewed himself as constructively fired at that point, after which the county regarded him as having abandoned his job.An intermediate state appeals court found that there were triable issues of material fact on whether he engaged in protected activity under the state Labor Code and whether he had a protected physical disability under state law. It therefore reversed summary judgment on these claims and ordered further proceedings. Ross v. County of Riverside, #D075106A, 36 Cal. App. 5th 25, 2019 Cal. App. Lexis 531, 2019 WL 2417426.

      An employee of the Maryland Department of Public Safety and Correctional Services (DPSCS) learned that a pediatrician had molested her daughter, which caused her to develop PTSD and severe anxiety. She took medical leave and transferred to a different location. She claimed that one of her co-workers harassed her about her daughter and her mental health for a year and that the employer ignored the harassment. Her job performance deteriorated and she was allegedly forced to resign.  While still employed, she filed an EEOC discrimination charge, which proceeded slowly.  The agency subsequently found reasonable cause for her claims and referred them to the Department of Justice, which issued a right to sue notice, after which the ex-employee sued, asserting claims under the Americans with Disabilities Act and Rehabilitation Act. A federal appeals court upheld the dismissal of her Rehabilitation Act claims as untimely. The Rehabilitation Act does not contain a limitations period, so courts borrow the time limit from the most similar state law claim and have previously applied Maryland’s three-year general civil case statute of limitations. After the appeals last addressed the issue, Maryland amended its Fair Employment Practices Act (MFEPA) to align more closely with the Rehabilitation Act so that the MFEPA qualifies as the most similar Maryland law. The MFEPA’s two-year statute of limitations therefore applies and barred the plaintiff’s claims. The appeals court further found that the plaintiff did not meet the exacting standard for invoking the doctrine of equitable tolling to extend the statute of limitations. Ott v. Maryland Department of Public Safety, #17-2047, 2018 U.S. App. Lexis 33366 (4th Cir.).

     After an on-duty knee injury, a veteran city police officer sued for disability discrimination under both federal and state law. The trial court granted the city summary judgment on all claims, concluding that the officer had failed to establish that he was disabled within the meaning of the Americans with Disabilities Act and also failed to show a disability as to his state-law claims. A federal appeals court upheld this result. Mancini v. City of Providence, #18-1011, 2018 U.S. App. Lexis 32962 (1st Cir.).

     A city housing authority employee suffered from seizures, anxiety disorder, post-traumatic stress disorder, bipolar disorder, and depression, which required her to take leaves of absence. After eight years of employment, she was fired. She claimed that the employer improperly denied her requests for medical leave and retaliated against her for these requests by disciplining and terminating her, in violation of the Family and Medical Leave Act, 29 U.S.C. 2601 (FMLA). She also contended that the employer failed to make reasonable accommodations and discriminated and retaliated against her in violation of the Americans with Disabilities Act, 42 U.S.C. 12101, and that she was subjected to retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act, 42 U.S.C. 2000e and the Fair Housing Act, 42 U.S.C. 3617 (FHA). A federal appeals court upheld summary judgment in favor of the employer. It noted that five months elapsed between the end of the employee’s FMLA leave and a written warning. Although she had requested leave for medical appointments and was told that her leave had been exhausted, she was nonetheless allowed time off for her appointments. She also claimed that she had been terminated because of her disability, but, in her EEOC complaint, she omitted any allegation that the employer had denied her a reasonable accommodation. Finally, rejecting the employee’s retaliation and FHA claims, the court noted that there is no evidence that she called HUD to report a discriminatory housing practice. Riley v. City of Kokomo, Indiana Housing Authority, #17-1701, 2018 U.S. App. Lexis 32844 (7th Cir.).

     A woman worked as a dispatcher for a county sheriff for more than eight years. During that time, she had Hodgkin’s Lymphoma, a form of cancer, which she treated with chemotherapy. The chemotherapy caused neuropathy and scar tissue in her lungs, requiring additional treatment. Because of her diagnosis and treatment, she claimed that her employer treated her differently than the other employees. She sued, claiming violations of constitutional rights under the Fourteenth Amendment to be free from discrimination and retaliation, that the county violated her constitutional rights by not providing adequate supervision and training, violations of the Tennessee Human Rights Act, and violations of the Americans with Disabilities Act (ADA). A federal appeals court ruled that the ADA disability discrimination claim was properly dismissed, since the plaintiff failed to file a claim with the EEOC and therefore did not meet the requirement of exhausting administrative remedies. But the trial court improperly dismissed her claims under 42 U.S.C. 1983. In enacting the ADA, the appeals court held, Congress did not intend to abandon the rights and remedies set forth in Fourteenth Amendment equal protection law, even if disability discrimination was involved. Bullington v. Bedford County, #17-5647,  2018 U.S. App. Lexis 27359, 2018 WL 4579692 (6th Cir.).

     A correctional officer at a California state prison suffered from a stutter. Other prison employees allegedly mocked or mimicked his stutter at least a dozen times during a two-year period. A sergeant who served as his supervisor allegedly participated in the mocking and mimicking, and a senior prison official stated that this conduct reflected the prisons “culture.” The officer sued the employer and his supervisor for disability harassment, failure to prevent the harassment, and related claims. A jury found the harassment to be both severe and pervasive and awarded the plaintiff $500,000 in noneconomic damages. The trial judge found the damage award to be excessive and granted the defendants’ motion for a new trial solely as to that issue. Both the defendants and plaintiff appealed. An intermediate California appeals court ruled that substantial evidence supported the jury’s factual findings. The plaintiff claimed the trial judge failed to file a timely statement of reasons after granting the defendants’ motion for a new trial. The appeals court agreed, and overturned new trial order as to the damage award, affirming the judgment in all other respects. Caldera v. Dept. of Corrections & Rehabilitation, #G053168, 25 Cal. App. 5th 31, 235 Cal. Rptr. 3d 262, 2018 Cal. App. Lexis 611.

     A federal appeals court upheld summary judgment for the Arkansas State Treasurer in his official capacity on Rehabilitation Act disability discrimination claims arising out of the plaintiff’s termination as an employee in the office. As the Treasurer neither accepted nor distributed federal financial assistance for its own operation, there was no jurisdiction under the Rehabilitation Act, regardless of the reason for the termination or other actions. The fact that the Treasurer received, and distributed federal funds to other state agencies for their operation was insufficient to create Rehabilitation Act jurisdiction. Singer v. Harris, #17-1972, 2018 U.S. App. Lexis 21054 (8th Cir.).

     After the plaintiff, an employee of the Customs and Border Protection Agency, suffered multiple injuries on the job, he returned to work and was erroneously placed in a lesser-paying position. Although the agency swiftly corrected the error, he filed a lawsuit for retaliation and disability discrimination in violation of the Rehabilitation Act of 1973. The district court dismissed the complaint for lack of jurisdiction based on the Federal Employees' Compensation Act, which it found provided the plaintiff a remedy. The appeals court held that the plaintiff waived his claim of retaliation on appeal when he failed to make arguments and cite authorities in support of his position. The appeals court also held that the trial court erroneously ruled that it lacked jurisdiction where the statutory schemes of the Compensation Act and the Rehabilitation Act concerned different kinds of injuries and thus did not conflict. Therefore, the court could not avoid giving effect to both statutory schemes. Although the trial court had jurisdiction to consider the plaintiff’s claim of disability discrimination, he failed to present evidence that the nondiscriminatory reasons offered by the agency for placing him in a lower paying job (an error as to what positions were available when he returned to work and was unable to perform the duties of his prior position) were a pretext for intentional disability discrimination. Therefore, summary judgment was properly entered on the disability discrimination claim. Center v. Secretary, Department of Homeland Security, #17-14961, 2018 U.S. App. Lexis 19952 (11th Cir.).

     A county juvenile court in Indiana established a juvenile facility, where the plaintiff began working in 1995. His offer of employment included the seal of the “Allen Superior Court,” and he signed the court’s Employee Handbook, acknowledging an employment relationship with the court. His job description bore the seal of the Board of Commissioners, his medical records authorization identified the Commissioners as his employer and the juvenile center as his department. His discipline was handled by the court, and his evaluations were titled “Allen County Employee Performance Appraisal.” After he injured his back at work, a county attorney sent him a form listing “Allen County Government” as his employer so that he could collect workers’ compensation benefits. A doctor determined that he had reached maximum medical improvement and imposed work restrictions. The county attorney stated that these restrictions prevented the employee from “perform[ing] the essential functions” of his position “with or without a reasonable accommodation.” The employee then applied to several county jobs but did not obtain employment. He sued under the Americans with Disabilities Act (ADA) for disability discrimination. The trial court granted the county summary judgment, concluding that the Board was not the plaintiff’s employer. The plaintiff voluntarily dismissed the court as a defendant. A federal appeals court ruled that the plaintiff had not established that the Board sufficiently controlled his employment, so a reasonable trier of fact could only conclude that the Board was not his employer. Harris v. Allen County Board of Commissioners, #17-2577, 2018 U.S. App. Lexis 12951 (7th Cir.).

     An employee of the city and county of San Francisco sued his employer, claiming  workplace retaliation, disability discrimination (disparate treatment, failure to accommodate, failure to engage in the interactive process), defamation, violation of the Confidentiality of Medical Information Act (Civ. Code 56), hostile work environment harassment, and failure to prevent harassment, discrimination, or retaliation, and against his supervisor, alleging defamation and hostile work environment harassment. After the defendants moved for summary judgment, negotiations led to a settlement ($250,000). A week later, after the plaintiff fired his attorney, the defendant ex parte sought to set aside the settlement despite the plaintiff twice assuring the defendants’ counsel that he was not backing out of the settlement. The trial court denied the plaintiff’s request for time to oppose the motion and granted the defendants’ motion as unopposed. An intermediate California appeals court reversed, finding that the trial court abused its discretion. To the extent the trial court implied that the plaintiff was not diligent, the implication was not supported by the record. Denton v. City and County of San Francisco, #A147384, 16 Cal. App. 5th 779, 224 Cal. Rptr. 3d 610, 2017 Cal. App. Lexis 942.

     The plaintiff was a county 911 dispatcher for 11 years, during the last three of which the county had a third-party vendor manage disability, Family Medical Leave Act (FMLA), and unpaid leave requests. Employees did not need approval from a supervisor. The plaintiff was diagnosed with sleep apnea and subsequently had gastric bypass surgery. She received five warnings concerning her use of vacation time or casual time, three warnings for failure to timely complete mandatory proficiency tests, and a warning for failure to report to work on a date that she mistakenly believed that she was not scheduled to work. She was disciplined for being late to work four times. On February 9, 2013, she failed to report and was given a three-day suspension and warned that if she was late again she could be fired. She attributed her tardiness to sleeping through her alarms and did not mention sleep apnea. There was no evidence that her supervisors were aware of that diagnosis. On March 8, she was again tardy. Her psychiatrist wrote a note stating that she “most probably” had sleep apnea, and needed to be retested. She was fired. A federal appeals court affirmed summary judgment rejecting her suit under the FMLA, 29 U.S.C. 2601, the Americans with Disabilities Act, 42 U.S.C. 12112, and the Rehabilitation Act, 29 U.S.C. 794. There was no evidence that she requested FMLA leave before her termination. Guzman v. Brown County, #16-3599, 2018 U.S. App. Lexis 5722 (7th Cir.).

     A city employee in Illinois asserted a disability discrimination claim under a state statute, the Illinois Human Rights Act. The trial court sought clarification of whether the Local Government and Governmental Employees Tort Immunity Act, 745 ILCS 10/1, applies to a civil action under the Human Rights Act where the plaintiff seeks damages, reasonable attorneys’ fees, and costs. If yes, a certified question asked, should the court modify, reject or overrule its prior holdings that the Tort Immunity Act applies only to tort actions and does not bar actions for constitutional violations? The Illinois Supreme Court vacated and remanded the intermediate appellate court’s response. The question is “improperly overbroad, should not have been answered, and does not warrant” review. The question ignores the breadth of the Human Rights Act, the Illinois Supreme Court said, which provides for numerous types of civil actions for unlawful conduct in a variety of contexts. Rozsavolgyi v. City of Aurora, Ill., 2017 IL 121048, 2017 IL Lexis 1077.  

     An employee of a Pennsylvania state agency asserted various forms of workplace harassment, constructive discharge, hostile work environment, and violation of her rights under both Title VII and the Americans with Disabilities Act. She sought to hold her former supervisors liable under 42 U.S.C. Sec. 1983, a general federal civil rights statute. The trial court granted summary judgment in favor of all defendants. A federal appeals court affirmed this result, holding that violations of Title VII and the ADA may not be brought through section 1983, given the comprehensive administrative scheme established by Title VII and the ADA. Those statutes require plaintiffs to comply with particular procedures and/or to exhaust particular administrative remedies prior to filing suit, and these may not be circumvented by asserting all claims under Sec. 1983. Williams v. Penn. Human Relations Commission, #16-4383, 870 F.3d 294 (3rd Cir. 2017).

     An employee of a state department of transportation had nighttime duties cleaning up human remains after traffic accidents, and he saw a co-worker die after a work related accident. He had served in combat in the Gulf war and his sister, who lived with him, died of cancer. He informed his supervisor that he was “burned out,” experiencing stress, unable to sleep, and wanted to be transferred to the day shift. He was told that no such position was available. Later, after his subordinates complained about him to his supervisor, he informed the supervisor that he had been diagnosed with Post Traumatic Stress Disorder. Despite “exceeds expectations” work reviews, he was fired for creating a hostile and intimidating work environment. He sued, arguing that his termination was because of his mental disability in violation of the Rehabilitation Act and Americans with Disabilities Act. Upholding summary judgment for the defendants, a federal appeals court found no real evidence that the reasons given for his discharge were a pretext. He also failed to show that other non-disabled employees who were similarly situated were treated differently. Monroe v. Indiana Dept. of Transportation, #16-1959, 2017 U.S. App. Lexis 17977 (7th Cir.).

     When he read a daily report out loud to his colleagues, an employee skipped over sections, gave briefing points out of order, and mixed up the order of numbers and words. He had a reading disorder but was unaware of it. Part of his job duties involved him giving transportation information to nuclear convoys so this disorder posed a possible threat to national safety. After being diagnosed, he lost his safety and security clearance. He requested “accommodations” for his disability, but was instead fired. He sued his ex-employer for all due process violations as well as disability discrimination claim under the Rehabilitation Act. A federal appeals court held that the trial court erred in dismissing the failure to accommodate claim. The plaintiff had indicated that he was willing to take “any” available job his employer had and there were 29 positions that did not require a security clearance. Sanchez v. Moniz, #16-2056, 2017 U.S. App. Lexis 17475 (10th Cir.).

     A Nuclear Security Officer at a nuclear power plant carried a firearm and was authorized to use deadly force. He suffered personal and mental health problems, was paranoid and had problems with alcohol and bath salts—a synthetic drug that affects the central nervous system. He had a three-day stay in an inpatient treatment unit. Under federal regulations, his unrestricted access to the plant was “placed on hold” pending medical clearance. A psychologist interviewed him and performed required testing and reported that he was not fit for duty. He was fired and claimed that this violated the Americans with Disabilities Act (ADA). A federal appeals court upheld the termination because the plaintiff lacked a legally mandated job requirement: the unrestricted security access authorization that the Nuclear Regulatory Commission requires for armed guards. When Congress enacted the ADA, the court commented, “it recognized that federal safety rules would limit application of the ADA as a matter of law.” McNelis v. Pennsylvania Power & Light Co., #16-3883, 2017 U.S. App. Lexis 15207 (3rd Cir.).

     A man was fired from his job in a town’s Department of Public Works for alleged unjustifiable absences from work as well as failure to submit adequate documentation concerning his use of sick leave. He asserted that he suffers from sleep apnea and that the town violated the Americans with Disabilities Act (ADA) by discriminating against him on the basis of that disability, failing to reasonably accommodate his condition, and refusing to engage in an interactive dialogue as required under the law. Upholding a jury verdict for the employer, a federal appeals court found no fault with the jury instructions and ruled that the employer did not need to offer a leave of absence as a possible reasonable accommodation. McDonald v. Town of Brookline, Massachusetts, #17-1016, 2017 U.S. App. Lexis  12461 (1st Cir.).

      An employee of a city’s water services department suffered a traumatic brain injury at home. He was placed on temporary leave of absence to recover and rehabilitate. He returned to work when medically cleared to do so, but suffered some minor mishaps, including driving through an intersection while looking down and going to the wrong address. After a few weeks, he was placed on administrative leave and then terminated. He sued for violation of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101. A jury found the city liable and awarded $225,000 in damages. The trial judge also concluded that he was entitled to back pay plus interest from the date he was fired until the time of judgment. A federal appeals court upheld the awards, rejecting arguments that the plaintiff was not a qualified person under the ADA because he was unable to perform the essential functions of his job; that even if he was qualified, he posed a direct threat to himself and to others, which is a statutory defense to liability; and that the judge incorrectly calculated the back pay award. Stragapede v. City of Evanston, #16-1344, (7th Cir.).

    The highest court in Massachusetts has ruled that an employee who qualifies for the use of medical marijuana under state law but who is fired from her job because of testing positive for marijuana as a result of such lawful use may sue her employer for damages under the state’s handicap discrimination law. The court rejected, however, the argument that there was also an implied private cause of action under the medical marijuana act and for wrongful termination in violation of public policy, holding that there is no implied statutory private cause of action under the medical marijuana statute and that the plaintiff failed to state a claim for wrongful termination in violation of public policy. Barbuto v. Advantage Sales & Marketing, LLC, #SJC-12226, 477 Mass. 456, 78 N.E.3d 37 (2017).

     A litigation attorney in a state Attorney General’s office experienced difficulty in maintaining her employment duties while coping with a serious illness, complications from a kidney transplant. She sued her employer for alleged failure to accommodate her disability, harassment, and illegal retaliation for her asserting her rights under federal and state disability discrimination laws. Upholding summary judgment for the defendant employer, a federal appeals court found that there was no general issue of material fact as to whether the plaintiff had made a prima facie case on any of her claims. Indeed, she failed to show that she was a qualified individual who could perform the essential functions of her job unaided or with the assistance of a reasonable accommodation. As to the failure to accommodate claim, the interactive aspects of the employee's job were litigation-specific and she could not identify any other litigation attorneys that the employer permitted to work from home on a long-term basis. Credeur v. Louisiana, #16-30658, 2017 U.S. App. Lexis 11269 (5th Cir.).

     For around ten years, an employee of the Boston Police Department performed the full duties of a patrol officer. Then he was placed on administrative duty because of his loss of memory, cognitive function, and neuropsychological speech problems. A police union filed a grievance on his behalf asking that he be allowed to resume the role of a patrol officer. An arbitrator ruled that the city did not act unreasonably when it placed him on administrative duties. When he sued for disability discrimination, the highest court in Massachusetts ruled that summary judgment was not appropriate because there were disputed facts as to whether or not he was an otherwise qualified handicapped individual capable of accomplishing the full duties of a patrol officer or whether his attempting to do so would create an unreasonable risk of serious injury either to others or to himself. Gannon v. City of Boston, #QJC-12136, 476 Mass. 786, 2017 Mass. Lexis 266.

     A state employee of a motor vehicles customer service facility administered road tests, performed clerical duties, and collected fees. Although suffering from mental health disabilities, including PTSD, major depressive disorder, anxiety, obsessive-compulsive disorder, and phobia, she took prescribed medication and attended counseling to address these problems. She was described as "punctual, reliable, friendly with customers, and patient with new drivers.” She excelled in administering road tests, but did not meet expectations in financial accountability. A 2011 rule change precluded an overall rating of satisfactory if the employee did not meet employer expectations in specified areas, including financial accountability. She was therefore placed on probation and given a final performance improvement plan under threat of termination. She began to experience panic attacks, including one involving hysterical screaming and self-harm, causing a co-worker to call 911. An independe nt medical examination resulted in a finding that she was at increased risk "for potentially violent behavior toward self and others within the workplace," resulting in her firing. A federal appeals court rejected a Rehabilitator Act disability discrimination claim, finding that she had been fired not solely on account of her disabilities, but rather because of workplace behavior showing that she was a safety risk both to herself and to other people. Felix v. Wis. Dep't of Transp., #15-2047, 2016 U.S. App. Lexis 12462, 32 Am. Disabilities Cas. (BNA) 1576 (7th Cir.).
     A man worked for a city park district for years, followed by years as a truck driver for the city's streets and sanitation department. He developed cervical radiculopathy, which was determined to be a work-related injury. He entered into an accommodation agreement with the city and was reassigned to the job of chief timekeeper. He never performed the functions of that job, but instead did various other tasks assigned by his supervisor. After a number of years, a new supervisor gave him job duties that required the use of his injured arm. He had difficulty doing those duies and his position was ultimately eliminated as part of a city-wide reduction in forces. He sued, claiming that he had been targeted for elimination for having exercised his rights under workers' compensation and the Americans with Disabilities Act, (ADA), 42 U.S.C. 12101 A jury found in his favor on the workers' comp retaliation claim and awarded damages, but the trial judge rejected his ADA claim. A federal appeals court ruled in favor of the city on both claims, finding that neither should have been tried. The plaintiff failed to show causation. There was simply no evidence that the reduction in forces decision-makers even knew about his workers' comp or ADA claims or terminated him in retaliation for them. Hillmann v. City of Chicago, #14-3438, 2016 U.S. App. Lexis 15439 (7th Cir.).
      An employee of a federal agency claimed that she was illegally denied a promotion by her employer because of her disability of legal blindness and her African-American race. A federal appeals court ruled that when a manager regularly requests and receives upgraded vacancies earmarked for his subordinates, his decision not to engage in the process because of an employee's disability or race can be an adverse employment action. Despite that, in this case, the plaintiff failed to present evidence from which a reasonable jury could find that her supervisor contributed to the agency's inaction in creating a GS-11 vacancy for her. Rather, there was evidence, unrefuted, that the supervisor made the request for the desired position for the plaintiff. The Deputy Assistant Secretary's denial could not have been based on discrimination, as the plaintiff recognized that he was not aware that the requested position was intended to facilitate her promotion.
Chambers v. Burwell, #14-5047, 2016 U.S. App. Lexis 9769, 32 Am. Disabilities Cas. (BNA) 1401 (D.C. Cir.).
     A woman who worked as an educator for a correctional agency claimed that her contract was not renewed because of her eye disease and resulting vision disability. Upholding summary judgment for the employer, a federal appeals court noted that the denial of a request for alleged reasonable accommodations did not necessarily constitute an actual discharge. In this case, the employee did not seek to return to work, did not resign, and was, like all contractors, notified of the contract renewal procedures via an intranet email. Her contract was not renewed for a legitimate, non-discriminatory reason, that she never submitted the required paperwork. Velez-Ramirez v. Commonwealth of P.R., #15-1607, 2016 U.S. App. Lexis 11729 (1st Cir.).
      A courthouse employee who assisted pro se litigators claimed that before she left to take a better job she was discriminated against because of her black race and her disability of chronic fatigue syndrome. Upholding summary judgment for the defendants, the court noted that the county was her employer and that all alleged discriminatory acts had been committed by state employees, and could not impose liability on her employer. Further, the two specific requests she had made on account of disability--seeking time off--had both been granted. Wells v. Winnebago County, #15-1805, 2016 U.S. App. Lexis 7647, 129 Fair Empl. Prac. Cas. (BNA) (7th Cir.).
   A former NASA employee claimed that he was the subject of adverse actions because of his disability or perceived disability, based on his depression, anxiety, and back pain. A federal appeals court rejected a disability discrimination claim under the Rehabilitation Act because the plaintiff did not show that he was "substantially limited" in working or that the employer regarded him as unable to perform a broad range of jobs. Nurriddin v. Bolden, #14-5156, 2016 U.S. App. Lexis 6174 (D.C. Cir.).
     An employee of the New York Attorney General's office claimed that she had a disability of Chronic Fatigue Syndrome and that she was ultimately terminated because of disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. The employer did attempt to reasonably accommodate her condition, allowing her to work at home up to three days a month. When she sued for disability discrimination, the employer sought to dismiss the claim under the Government Employee Rights Act of 1991 (GERA), 42 U.S.C. 2000e-16a, 2000e-16b, which it contended barred the claim because the plaintiff had been employed at a policymaking level. The trial court denied the motion, finding that she had not been a policymaking level employee. A federal appeals court dismissed the employer's appeal, finding that such a denial was not immediately appealable. Fischer v. New York State Dept. of Law, #14-2556, 2016 U.S. App. Lexis 1979 (2nd Cir.).
     An employee of the Kansas Department of Labor who suffered from asthma complained that perfumes and other strong fragrances in the workplace impaired her ability to work. She was moved to a basement work space in an attempt to alleviate her problem but she would continue to suffer asthma attacks when certain perfume wearing co-workers came to talk to her. She made further complaints to her supervisor, and she was subsequently fired. The defendant employer was not entitled to Eleventh Amendment immunity as a state agency against being sued in federal court for disability discrimination. The agency waived its immunity by accepting  federal financial assistance, even if the plaintiff herself worked in a division that did not receive such funds. The agency's waver of its immunity covered all its divisions. Arbogast v. Kansas Department of Labor, #14-3091, 2015 U.S. App. Lexis 10387 (10th Cir.).
     A defendant city was not entitled to judgment as a matter of law on a Family Medical Leave Act retaliation claim. A reasonable juror could find that the plaintiff, a former employee, was able to perform the essential functions of a position that he interviewed for, since his doctor had released him to perform work, and that there was sufficient evidence to support an inference that the city had a retaliatory motive in not granting him that job. He was the most qualified applicant and a supervisor said that it would be a mistake to hire him because of his past Family Medical Leave Act leave following surgery. A state law disability discrimination claim was rejected as there was no proof that the city knew about his allegedly disabling condition when he sought to be rehired. The appeals court upheld the vacating of a jury award for emotional distress damages as unsupported by the evidence and overturned the trial court's denial of liquidated damages since the city provided no evidence to support the trial court's finding that it refused to rehire the plaintiff in good faith. Jackson v. City of Hot Springs, #13-1772, 2014 U.S. App. Lexis 8810 (8th Cir.).
     A former postal employee was not required to resolve her claims arising under the Family and Medical Leave Act (FMLA) through arbitration because her union's collective bargaining agreement with the employer did nor clearly and unmistakably require her to do so. The collective bargaining agreement's incorporation of the federal Rehabilitation Act's prohibitions on disability discrimination, however, was sufficiently clear and unmistakable enough to waive her right to sue for claims under that statute in federal court. Because the plaintiff had subsequently retired, she lost her standing to seek injunctive relief, as she could not realistically face a continuing threat of violation of her rights under the FMLA. Gilbert v. Donahoe, #13-40328, 2014 U.S. App. Lexis 8182 (5th Cir.).
    A federal employee sought a work schedule accommodation under the Rehabilitation Act so that he could undergo rehabilitation treatment without using his work leave. The defendant agency was properly granted summary judgment in his lawsuit over its denial because he failed to exhaust his available administrative remedies before suing. He ceased participating in the investigation of his claim, citing privacy concerns, and failed to furnish sufficient information to the employer. This refusal was unjustified and he failed to show how his concern over the disclosure of medical records required him to fail to provide testimony to the investigator, or what was supposedly inadequate about the "extensive" privacy protections for medical records included in the contract the agency had with the investigator. Koch v. White, #12-5139, 2014 U.S. App. Lexis 4246 (D.C. Cir.).
     An Arkansas state agency employee was not entitled to leave under the Family Medical Leave Act as she had not been employed for 12 months and could not assert a claim for disability discrimination when she could not perform the essential functions of her job, with or without accommodation. Hill v. Walker, #13-1381, 2013 U.S. App. Lexis 24835 (8th Cir.).
     A female police officer started to experience unspecified psychological difficulties after seven years on the job. She was found fit to continue to work during four psychological exams she was ordered to undergo. She sued, asserting that making her take the exams amounted to race, sex, sexual orientation, and disability discrimination. She was suspended without pay pending discharge proceedings twice and then a discharge proceeding was begun. After that, she filed a second lawsuit for disability discrimination, dismissing the first suit. The second lawsuit was dismissed, finding no evidence of disability discrimination. She then filed a third lawsuit, repeating the disability discrimination claim, which was dismissed as barred by the earlier lawsuit. Upholding this result, a federal appeals court noted that while she claimed that she was vulnerable to workplace stress, she didn't claim that this prevented her from performing an essential job function, rendering her an otherwise qualified disabled person. She did not show that she was suspended or terminated because of her disability. Brumfield v. City of Chicago, #11-2265, 2013 U.S. App. Lexis 22571 (7th Cir.).
     A county employee sued his employer for disability discrimination, harassment, and unlawful retaliation under state law. The county sought to compel arbitration of the claim under the provisions of a collective bargaining agreement. An intermediate California appeals court held that the employee, who had a statutory disability discrimination claim could not be compelled to arbitrate that claim when the bargaining contract did not contain a promise amounting to an unmistakable and clear waiver of the right to pursue the statutory discrimination lawsuit. Volpei v. County of Ventura, #B243954, 2013 Cal. App. Lexis 903.
     An unpaid volunteer Police Reserve Officer for a city was terminated. He had previously experienced leg, back, and shoulder injuries on the job that had lingering effects. The stated reason for his termination was his alleged off-duty sale of a product containing the active ingredient of the drug Viagra. He claimed that his termination constituted disability discrimination under California state law. An intermediate California appeals court ruled that the plaintiff, as an unpaid volunteer, was not an employee entitled to assert a disability discrimination in employment claim under state law. While the city had extended workers' compensation coverage to volunteer officers and the plaintiff had previously received workers compensation benefits for several injuries, that did not transform him into an employee for disability discrimination purposes. Estrada v. City of Los Angeles, #B242202, 2013 Cal. App. Lexis 581.
     A city employee had severe attendance difficulties due to health problems. When she was denied a closer parking space at work that she had requested as a reasonable accommodation because of her difficulty walking, she sued the city for disability discrimination under the Americans with Disabilities Act (ADA). A federal appeals court ruled that she was not an otherwise qualified employee for purposes of the ADA, because her attendance was unpredictable, and regular attendance was an essential function of her job. The record also showed that her absenteeism problem was present long before she was diagnosed with fibromyalgia, her claimed disabling condition. The court also rejected the plaintiff employee's retaliation claim, since she could not show that she suffered any adverse employment action in retaliation for requesting the accommodation of the closer parking space. Colon-Fontanez v. Municipality of San Juan, #10-1026, 660 F.3d 17 (1st Cir. 2011).
    An employee of a county sheriff's department was working as a civil deputy process server, but was entitled to carry a weapon and had arrest powers. He was asked to undergo Taser training, and, as part of that training, to receive a single one-to-five-second exposure to a Taser shock. He sought to avoid this part of the training because of a medical condition involving his back, for which he had previously undergone surgery. He was offered the alternative of either termination or transfer to another position monitoring prisoners on a computer screen at the county jail. He declined the transfer, and was fired. He claimed that his termination was disability discrimination in failing to reasonably accommodate his medical condition by allowing him to avoid the Taser shock exposure training exercise. The court ruled that undergoing the Taser training involved an essential job function of the plaintiff's position. Even if he were held to have a disability, the offer to transfer him to another job constituted a reasonable accommodation. The court also rejected the plaintiff's due process claims concerning his termination.  Robert v. Carter, #1:09-cv-0425, 2011 U.S. Dist. Lexis 47975 (S.D. Ind.).
     A state employee was fired because of her persistent mistakes, not her disability. The plaintiff, who is blind in one eye and has cerebral palsy, made serious errors while performing tasks that were not impacted by her disabilities. Whitfield v. State of Tennessee, #09-6488, 2011 U.S. App. Lexis 6204, 2011 FED App. 0075P (6th Cir.).
     The EEOC has published the final regulations to the ADA Amendments Act of 2008, along with an accompanying Q&A document and fact sheet. FR Doc. 2011-6056 (25 Mar. 2011).
     Justice Dept. issues revised ADA regulations implementing Title II and Title III. They include revised ADA design standards. See also, revisions to Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.
     Tenth Circuit rejects a bias claim lodged by a woman with MS who failed to win a promotion. The male candidate was more qualified and the plaintiff lacked the academic credentials for the job. Also, she failed to establish that her multiple sclerosis substantially limited her ability to work. Johnson v. Weld County, #08-1365, 2010 U.S. App. Lexis 2595 (10th Cir.).
     Federal court allows a former parole officer with a degenerative joint condition to proceed with a constructive discharge claim arising under the Rehabilitation Act, where there was evidence that a failure to accommodate her disability exacerbated her impairment. Sturz v. Wisconsin Dept. of Corrections, # 3:2008cv00625, 2009 U.S. Dist. Lexis 62455 (W.D. Wis.).
     Federal court dismisses an ADA suit brought by a police applicant who was rejected because of a color vision impairment. He was not regarded as disabled and the lack of normal color vision is not a substantial limitation on the ability to see. Finally, he was not entitled to reasonable accommodation. Lekich v. Munic. Police Officers Educ. Training Cmsn., #08-1048, 2009 U.S. Dist. Lexis 16645, 21 AD Cases (BNA) 1409 (E.D. Pa.).
     Although retaining the basic definitions of “disability,” proposed new EEOC rules will significantly lower the threshold to establish that an individual is “substantially limited.” An impairment need not “significantly” or “severely” restrict a major life activity. They also expand the definition of “major life activities,” with two lists of included activities and functions. Regulations to Implement the Equal Employment Provisions of the ADA, 74 (183) Federal Register 48431-48450, 29 CFR Part 1630 (9/23/2009).
     When an employee raises a claim of disability discrimination based on an injury incurred while on military leave, "the fact that the injury was incurred during military service is incidental to the claim of disability discrimination and does not make the appellant’s claim a USERRA claim." Henson v. U.S. Postal Service, Docket # DA-0752-08-0230-I-1, 2009 MSPB 38.
     President signs S. 3406 to modify the holdings in three Supreme Court cases: (1) School Bd. of Nassau Co. v. Arline, 480 U.S. 273 (1987); (2) Sutton v. United Air Lines, 527 U.S. 471 (1999); and (3) Toyota Motor Mfg v. Williams, 534 U.S. 184 (2002).The amendments became Public Law No.110-325, and become effective Jan. 1, 2009, and donot affect federal workers.
    Ninth Circuit holds that a police disability pension plan can deduct the amount of worker's compensation a disabled or injured officer may receive. The offset does not violate the Americans with Disabilities Act. Brown v. City of Los Angeles, #06-0952, 2008 U.S. App. Lexis 7650 (9th Cir.)
     Eighth Circuit holds that a county did not violate the ADA by terminating an untenured worker, following open heart surgery, where he lacked a property interest in his continued employment and expressly agreed in a contract that his "immediate termination" would result from taking leave without pay. Zwygart v. Bd. of Co. Cmsnrs., #06-3084, 2007 U.S. App. Lexis 9351 (8th Cir.).
     A fire captain, who was involuntarily reassigned to other duties after the loss of a leg during a duty-related accident, did not suffer an adverse employment action. Although he claimed that he earned less overtime in the new assignment, he failed to take advantage of overtime opportunities that were available to him. Malais v. Los Angeles City Fire Dept., #B189575, 150 Cal.App.4th 350, 2007 Cal. App. Lexis 666 (2d Dist.).
     Former fire chief was not required to appeal his termination because of alcoholism to the civil service commission before filing a suit under a state discrimination law. There is nothing to suggest that the legislature meant to treat civil service employees differently than other employees. Dworning v. City of Euclid, 2006-Ohio-6772, 18 AD Cases (BNA) 1668, 2006 Ohio App. Lexis 6685 (8th App. Dist.).
     Ohio appellate court upholds a two-year statute of limitations for discrimination lawsuits brought by public employees or applicants, even though there is a longer period for suits against private employers. Anglen v. Ohio State Univ., #06AP-901, 2007-Ohio-935, 2007 Ohio App. Lexis 889 (10th App. Dist.).
     U.S. Office of Personnel Management issues final regulations regarding the appointment of persons with mental retardation, severe physical disabilities, and psychiatric disabilities. Appointment of Persons With Disabilities and Career and Career-Conditional Employment, 71 (143) Fed. Reg. 42241-46 (7/26/06). {N/R}
     Former employee with mobility and speech impairments failed to prove that her discharge for covering up a security camera violated the state's Handicap Act; the employer had an absolute right to install security cameras in the hallways and it had an announced policy warning that tampering with electronic equipment was grounds for termination. Oates v. Chattanooga Pub. Co., #E2005-00778, 2006 Tenn. App. Lexis 190, 17 AD Cases (BNA) 1702 (2006). {N/R}
     Federal court allows four former Philadelphia police officers who were terminated for being "permanently and partially disabled" to proceed with their state and federal discrimination claims. Keys v. City of Philadelphia, #04-0766, 2005 U.S. Dist. Lexis 30137, 17 AD Cases (BNA) 714 (E.D. Pa. 2005). {N/R}
     MSPB affirms an arbitrator's holding that an employee, who was terminated for poor performance, was not "disabled" and entitled to an accommodation. Moreover, an employee must first show that a reasonable accommodation is possible and a causal connection between his disability and the charged misconduct. Bohannon v. Dept. of Homeland Security, #CB-7121-05-0019-V-1, 99 M.S.P.R. 307, 2005 MSPB Lexis 3806 (MSPB 2005).{N/R}
     Tenth Circuit joins with the Fourth, Fifth, and Eighth Circuits, in holding that a hostile environment claim is actionable under the ADA. Lanman v. Johnson County, #03-3316, 393 F.3d 1151, 2004 U.S. App. Lexis 27200, 16 AD Cases (BNA) 449 (10th Cir., 2004). {N/R}
     City was not required to accommodate a bipolar employee, by giving him a transfer, after he had made threats in the workplace. Bradford v. City of Chicago, #04-1939, 2005 U.S. App. Lexis 573 (Unpub., 7th Cir. 2004). [2005 FP Mar]
     Upholding a termination for intoxicated driving, the Eighth Circuit holds that a no substance abuse last-chance agreement does not violate the ADA. Longen v. Waterous Co., #02-3297, 347 F.3d 685, 2003 U.S. App. Lexis 21190,14 AD Cases (BNA) 1665 (8th Cir. 2003). {N/R}
     A national survey of 442 employment discrimination cases litigated in 2002 under Title I of the ADA found that employers prevail 94.5 percent of the time in court and 78.1 percent of the time in EEOC hearings. The American Bar Association's Commission on Mental and Physical Disability Law published the survey. {N/R}
     A prison rule requiring employees who have been away for four or more days to submit a medical certification that includes a brief diagnosis violates the ADA, which prohibits any inquiry into a disability, unless job-related and consistent with business necessity. To establish the business necessity defense, an employer must show that the request is vital to the business and the information is no more intrusive than is necessary. Conroy v. N.Y. St. Dept. of Corr. Serv., #02-7415, 2003 U.S. App. Lexis 12014 (2nd Cir. 2003). {N/R}
     Plaintiffs are not limited by the $300,000 federal cap on damages available under the ADA if a parallel state law lacks a damage cap. Gagliardo v. Connaught Laboratories, #01-4045, 311 F.3d 565, 2002 U.S. App. Lexis 23953 (3d Cir. 2002). {N/R}
     Under Colorado law a sheriff, and not the Board of County Commissioners, is the employer of deputies for ADA discrimination purposes. Bristol v. Bd. of County Cmsnrs., #00-1053, 2002 U.S. App. Lexis 25511 (10th Cir. 2002). {N/R}
     The correct causation standard in a Rehabilitation Act claim is whether discrimination is "solely by reason of" claimant's disability, notwhether discrimination is simply a motivating factor. Soledad v. U.S. Dept. of Treasury, #00-51300, 304 F.3d 500, 13 AD Cases (BNA) 865, 2002 U.S. App. Lexis 18710 (5th Cir. 2002). {N/R}
     Federal appeals court dismisses a suit by a firefighter who was physically unable to perform his duties for 11 months. "Only a permanent or long-term condition will suffice to qualify a person for the ADA's protection." Rinkenberger v. City of Clearwater, MN, #01-3835, 2002 U.S. App. Lexis 15560 (Unpub., 8th Cir. 2002). {N/R}
     Employers with less than 15 workers are subject to discrimination provisions of §504(d) of the Rehabilitation Act they are recipients of federal assistance. Schrader v. Ray, 00-5224, 2002 U.S. App. Lexis 14344 (10th Cir. 2002). {N/R}
     Federal appeals court finds that an arthritic employee was terminated because of computer misuse and writing an inflammatory memo, rather than reasons related to his disability. Dvorak v. Mostardi Platt Assoc., #00-4309, 2002 U.S. App. Lexis 9030 (7th Cir. 2002). [N/R]
     Termination of a service technician for excessive work absences was a legitimate, nondiscriminatory and nonpretextual reason, in spite of his medical conditions (immune deficiency and clinical depression). Van Campen v. IBM, #1-00-2155, 2001 Ill. App. Lexis 924 (Ill. App. 2001). {N/R}
     Federal court refuses to dismiss a suit by an injured NYPD officer who was passed over for sergeant. Morris v. City of N.Y., #99 Civ. 9813, 153 F.Supp.2d 494, 2001 U.S. Dist. Lexis 11208 (S.D.N.Y.). [2002 FP Jan]
     Kansas City suburb pays $60,000 settlement after denying an insulin-dependent applicant a job as a fire dept. paramedic. U.S. v. City of North Kansas City, Mo. (Unrptd. W.D. Mo. 2001). [2001 FP 71]
     Justice Department announces agreements with six communities to improve access for disabled persons at courthouses, police stations, and other locations; www.doj.gov/ [2001 FP 71-2]
     A former police officer who was transferred to desk job because he has medication induced blood thinning condition was "regarded as disabled" under ADA; management believed the condition exposed him to danger. Gasser v. Ramsey, 125 F.Supp.2d 1, 2000 U.S. Dist. Lexis 15252, 11 AD Cases (BNA) 280 (D.D.C.). {N/R}
     A former employee, in a disability discrimination lawsuit may not make contradictory statements about his ability to work, in an application for a disability pension. Lee v. City of Salem, #00-1134, 2001 U.S. App. 17119 (7th Cir.). {N/R}
     The fact that a police officer was unsuccessful in litigating a wrongful termination claim does not prevent him, under collateral estoppel, from pursuing a federal disability discrimination claim. Grant v. Anchorage Police Dept., #S-8844, 20 P.3d 553, 2001 Alas. Lexis 28. {N/R}
     A disabled worker who sues her employer under Title I of the ADA (employment section) for denying a handicapped parking spot cannot also raise a claim under Title III (public accommodation section). DeWyer v. Temple Univ., #00-CV-1665, 2001 U.S. Dist. Lexis 1141, 11 AD Cases (BNA) 800 (Unpub. E.D.Pa.). {N/R}
     Federal court dismisses an ADA claim for repetitive motion injuries, because a former city typist simultaneously claimed to be (a) disabled, for the purpose of collecting social security disability benefits, and (b) qualified for continued employment with the city. Lorde v. City of Philadelphia, #98-5267, 2000 U.S. Dist. Lexis 17196 (Unpub. E.D. Pa.). {N/R}
     Management may have violated the ADA when it required a fitness-for-duty examination of a police lab worker with liver illness. She was removed from administrative leave while awaiting her examination and put back to work before the examination was conducted and the results were known. Campbell v. Prince George's Co., Md., 2001 U.S. Dist. Lexis 211, 11 AD Cases (BNA) 907 (Unpub. D.Md.). {N/R}
     Supreme Court denies review to an appellate court holding that rejected the ADA claim of a state trooper who was not promoted, after he applied for disability benefits. Motley v. N.J. State Police, 196 F.3d 160, 1999 U.S. App. Lexis 28122, 9 AD Cases (BNA) 1505 (3rd Cir.); cert.den. 99-1395, 2000 U.S. Lexis 2881 (4/24/2000). [2000 FP 89]
     A disabled former firefighter was not regarded as handicapped because he was unable to perform as a firefighter. Shipley v. City of University City, 195 F.3d 1020, 1999 U.S. App. Lexis 30091, 9 AD Cases (BNA) 1775 (8th Cir.). {N/R}
     The ADEA did not apply to a Chinese citizen who applied for job at American employer's China offices, as the law applies only to non-American citizens who work in the U.S. Hu v. Skadden Arps, 76 F.Supp.2d 476, 1999 U.S. Dist. Lexis 18737, 81 FEP Cases (BNA) 777 (S.D.N.Y.). {N/R}
     An employee suffering from depression is not disabled under the ADA, because her anti-depressant medications control the mental condition. Robb v. Horizon, 66 F.Supp.2d 913, 1999 U.S. Dist. Lexis 14266, 9 AD Cases (BNA) 1365 (C.D.Ill. 1999). {N/R}
     Former state trooper who is totally disabled loses an ADA claim that he was denied a promotion based on his disability; being a qualified individual is inconsistent with being totally disabled, even with different standards. Motley v. N.J. State Police, 196 F.3d 160, 1999 U.S. App. Lexis 28122, 9 AD Cases (BNA) 1505 (3rd Cir. 1999). {N/R}
     Former police officer's perceived impairment that he is mentally ill did not substantially limit the major life activity of working, and only affected a limited range of jobs in which he must carry gun and engage in confrontational situations with citizens. Garner v. Gwinnett C., 1999 U.S. Dist. Lexis 6370, 9 AD Cases (BNA) 1596 (N.D.Ga. 1999). {N/R}
     Denver settles a suit with the Justice Dept. that, for the first time, allows disabled police officers to be reassigned to vacant civilian positions. The city also will pay $1,500,000 in back pay claims filed by 11 former police officers. Davoll v. Denver, #96-K-370, stlmt. rptd. at 38 (1870) G.E.R.R. (BNA) 825. Previously, the U.S. Court of Appeals upheld a $800,000 verdict to 3 ex-police officers who sued the city under the ADA, and also cleared the way for the Dept. of Justice to pursue damages on behalf of 13 other police officers. Davoll v. Webb, 194 F.3d 1116, 1999 U.S. App. Lexis 26827 (10th Cir.); prior decis. at 49 F. Supp. 2d 1233; 1999 U.S. Dist. Lexis 8689 and 968 F.Supp. 549, 1997 U.S. Dist. Lexis 10020 (D. Colo.). {N/R}
     Supervisor was not personally liable under ADA for the employer's failure to accommodate an employee's disability, even though an "employer" under the ADA. Alberte v. Anew Health Care Services, 2000 WI 7, 232 Wis.2d 587, 605 N.W.2d 515, 2000 Wisc. Lexis 10, 10 AD Cases (BNA) 332 (Wis.). {N/R}
     Sheriff's employee who was not returned to work after she suffered a stroke because the sheriff believed her to be mentally impaired, was regarded as disabled for purposes of the ADA. Chadwick v. Layrisson, 1999 U.S. Dist. Lexis 14228, 10 AD Cases (BNA) 669 (E.D. La.). {N/R}
     Federal appeals court rejects a failure to promote claim brought by a “recovering” alcoholic who was chronically tardy and absent from work. Conley v. Vil. of Bedford Park, #99-2659, 215 F.3d 703, 10 AD Cases (BNA) 1076, 2000 U.S. App. Lexis 11959 (7th Cir.). {N/R}
     Supreme Court rejects EEO Guidance on medication and prosthetic devices; if a person use measures “to correct for, or mitigate, a physical or mental impairment, the effects of those measures -- both positive and negative -- must be taken into account when judging whether that person is substantially limited in a major life activity and thus disabled under the Act.” Sutton v. United Air Lines, Inc. 119 S.Ct. 2139, 9 AD Cases 673, 1999 U.S. Lexis 4371. [1999 FP 126-7]
     City not required, as a W.C. benefit, to provide a new van for a police officer who was shot and permanently crippled. Guntersville (City of) v. Bishop, 728 So.2d 611 (Ala. 1998). Note: states which have required the purchase of a vehicle are AZ, FL, ME, MS and IA; those which have rejected this claim are CO, MD, NY, NC, PA and SC. ND and WV require reimbursement for the price difference between a regular auto and a wheelchair accessible van. [1999 FP 142]
     Persons who file discrimination complaints are protected against employer retaliation even if they are subsequently determined to be not disabled. Second Circuit also holds that the proper test for disability is whether the condition affects one's ability to perform a class or range of jobs; the fact a claimant is currently employed in some occupation is not proof he/she is not disabled. Mondzelewski v. Pathmark, #97-7475, 162 F.3d 778, 1998 U.S. App. Lexis 31775 (3rd Cir.). [1999 FP 57-8]
     Divided 10th Circuit panel holds that a rejected applicant can sue because the employer asked pre-offer medical questions, even though he was not hired because of a lack of qualifications. Griffin v. Steeltek, 160 F.3d 591, 1998 U.S. App. Lexis 27682, 8 AD Cases (BNA) 1249 (10th Cir.). [1999 FP 24]
     Federal appeals court dismisses a suit by a police officer who refused to state his HIV status during a department wide tuberculosis testing procedure; he claimed that the disclosure and TB test violated the ADA. Watson v. Miami Beach, 1999 U.S. App. Lexis 10976, 177 F.3d 932, 9 AD Cases 760 (11th Cir.). {N/R}
     A plaintiff who complains a prospective employer improperly asked medical questions must, in the 5th Circuit, demonstrate also that he/she has suffered an injury because of the impermissible questions. Armstrong v. Turner, 141 F.2d 554 (5th Cir 1998). {N/R}
     Federal appeals court rejects using the ADA to litigate use of force or arrest claims involving disabled individuals. Gohier v. Enright, 1999 U.S. App. Lexis 18170, 186 F.3d 1216, 9 AD Cases (BNA) 1131 (10th Cir.). [1999 FP 167-8]
     Fact that a police officer was a recovering alcoholic does not excuse the fact he lost his weapon while sleeping on a subway train. Brennan v. NYC Police Dept., #97-7779, 1998 U.S. App. Lexis 1923 (Unpub. 2nd Cir.). {N/R}
     US Supreme Court holds that the receipt of social security disability benefits does not bar ADA claims. Cleveland v. Policy Mgmt. Sys. Corp., 119 S. Also see Fredenburg v. Contra Costa Co., 172 F.3d 1176 (9th Cir. 1999), Johnson v. Oregon, 141 F.3d 1361 (9th Cir. 1998), LaBonte v. Hutchins, 678 N.E.2d 853 (Mass. 1997), and Swanks v. Wash. MTA, 116 F.3d 582 (D.C. Cir. 1997). {N/R}Ct. 1597 (1999). {N/R}
     Law review article: “The determination of disability under the ADA: Should mitigating factors such as medications be considered?” 35 Idaho Law Review 265 (1999). {N/R}
     Law review article: The practical impossibility of considering the effect of mitigating measures under the ADA. 26 Fordham Urban Journal 1267 (1999). {N/R}
     Sixth Circuit recognizes a hostile environment claim under the ADA. Keever v. City of Middletown, 145 F.3d 809, 1998 U.S. App. Lexis 10705, 1998 WL 271190 (6th Cir.). {N/R}
     First Circuit holds that the question of whether a person is disabled must be decided without reference as to whether the condition is controlled by medication. Arnold v. U.P.S., 136 F.3d 854, 1998 U.S. App. Lexis 2952, 7 AD Cases (BNA) 1489, 1998 WL 63505 (1st Cir.). [1998 FP 89]
     Sixth Circuit holds that a person who uses medication to control a physical or medical condition is not "disabled" under the ADA. Gilday v. Mecosta Co, 124 F.3d 760, 1997 U.S. App. Lexis 33306, 7 AD Cases (BNA) 348 (6th Cir.). [1998 FP 23]
     Federal court rejects ADA suit by lieutenant who engaged in misconduct while under the influence of liquor. Adamczyk v. Chief, Balt. Co. P.D., 1997 U.S.Dist. Lexis 853, 952 F.Supp 258 (D.Md). [1997 FP 89]
     Federal appeals court rejects claim that sheriff perceived the plaintiff deputy to have a disability; it was a personality dispute, even though sheriff had ordered a number of psychological evaluations. Stewart v. Co. of Brown, 5 AD Cases (BNA) 1018 (7th Cir. 1996). {N/R}
     Federal court in Chicago rejects the attempt of the EEOC to extend the "direct threat" exception to the ADA to the disabled person him/herself. The "direct threat" must be to others. Kohnke v. Delta Airlines, 932 F.Supp. 1110 (N.D.Ill. 1996). {N/R}
     Previously rejected officers, who were hired after ADA was enacted, are not entitled to back pay under an Equal Protection claim. Cook v. N.O.P.D., 659 So.2d 530 (La.App. 1995). [1996 FP 57-8]
     Federal appeals court affirms back pay and reinstatement awards of woman firefighter who was terminated for concealing her prior foot surgery on her employment application. Jury found the omission was not a serious medical problem and that fire dept. discriminated against her because of her fall from a firetruck and a back injury. Thomlinson v. Omaha, 63 F.3d 786 (8th Cir. 1995). {N/R}
     EEOC issues replacement guidance for the processing of disability discrimination complaints, filed by rejected job applicants. EEOC: Enforcement Guidance on Pre-Employment Inquiries Under the A.D.A., FEP Manual (BNA) 405:7191-7202 (Oct. 10, 1995); BNA FEPM Doc. #783. [1996 FP 6-7]
     Federal Court holds that there is no individual liability under the ADA. Hardwick v. Curtis, 896 F.Supp. 1037 (D.Ore. 1995). {N/R}
     A clause in an employment contract, which required that that all disability discrimination claims against the employment be brought within six months, was unenforceable. Scott v. Guardsmark Security, 874 F.Supp. 117, 1995 U.S. Dist. Lexis 926, 4 AD Cases (BNA) 398 (D.S.C.). {N/R}
     Disabled workers cannot be required to comply with a work rule which requires employees to give advance notice when they use paid vacation days for sick leave. Earlier, the court refused to dismiss the ADA claim of an employee who was terminated for absences related to his migraine headaches. Dutton v. Johnson County, 868 F.Supp. 1260 and at 859 F.Supp. 498, 3 AD Cases (BNA) 808 (D.Kan. 1994). {N/R}
     Federal appeals court in Chicago concludes that ADA liability affects employers, not individuals; $250,000 punitive damage award against the manager is reversed. EEOC v. AIC Security Inv. Ltd., 55 F.3d 1276, 1995 U.S.App. Lexis 12139 (7th Cir.). [1995 FP 135-6]
     ADA does not permit supervisory employees to be held personally liable for discrimination. Haltek v. Vil. of Park Forest, 864 F.Supp. 802 (N.D.Ill. 1994). {N/R}
     Workers compensation laws do not prevent a suit for damages by disabled workers against an employer for ADA violations. Wood v. Alameda Co., 875 F.Supp. 659, 4 AD Cases 43 (N.D.Cal. 1995). {N/R}
     Security officer who failed to obey a direct order could be terminated for insubordination; she was not terminated because of her dyslexia. Schartle v. Motorola, 4 AD Cases (BNA) 21; 1994 U.S.Dist. Lexis 6241 & 8587 (N. D. Ill). {N/R}
     Federal court dismisses a disabilities discrimination suit because the employee failed to file a grievance under the bargaining agreement, which would have led to binding arbitration. Austin v. Owens-Brockway, 844 F.Supp. 1103 (W.D.Va. 1994). [1995 FP 73]
     Federal court holds a public employee pension fund is liable under the ADA if it denies coverage to firefighters or police officers who are likely to become disabled. U.S. v. State of Illinois, 1994 U.S.Dist. Lexis 12890 (N.D.Ill.). [1995 FP 40]
     Civil Rights Act of 1991 is not retroactive in affording remedies under the Rehabilitation Act of 1973. Chenault v. U.S. Postal Service, 37 F.3d 535 (9th Cir. 1994). {N/R}
     Federal court concludes ADA claim is barred because plaintiff failed to submit to the arbitration procedures required under the coll. brg. agmt. Austin v. Owens-Brockway Glass Cont. Inc., 844 F.Supp. 1103 (W.D.Va. 1994). Result questioned in Block v. Art Iron Inc., 3 AD Cases (BNA) 1361 (N.D.Ind. 1994), Schmidt v. Safeway, 3 AD Cases (BNA) 1141 (D.Ore. 1994) and Bruton v. SEPTA, 3 AD Cases (BNA) 1170 (W.D. Pa. 1994). {N/R}
     Federal court dismisses a disabilities discrimination suit of a police officer who was denied admission into pension fund and who brought a suit under the ADA. Rodriguez v. City of Aurora, 887 F.Supp. 162 (N.D.Ill. 1995). {N/R}
     Arbitrator upholds termination of correctional officer for his failure to obtain state certification due to an inability to perform sit-ups. His inability was not linked to an identifiable disability. Merrimack Co. and State Emplees. Assn., 102 LA (BNA) 1096 (McCausland, 1994). [1995 FP 5]
     EEOC publishes "Enforcement Guidance on Pre-Employment Inquiries Under the A.D.A." Employers may create post-offer hiring pools. EEOC: Enforcement Guidance on Pre-Employment Inquiries Under the A.D.A., FEP Manual (BNA) 405:7193-7218 (#748, 1994). [1994 FP 134-7]
     ADA does not provide a remedy for actions taken before Jan. 26, 1992. A former police detective's claim that in 1990 he was decommissioned because of a back injury is not actionable. O'Bryant v. City of Midland, 3 AD Cases (BNA) 126 (W.D.Tex. 1993); affirmed, 9 F.3d 421 (5th Cir. 1993). {N/R}
     Federal appeals court concludes that victims of Rehabilitation Act discrimination are entitled to a trial by jury on all damage claims. Pandazides v. Virginia Bd. of Ed., 13 F.3d 823 (4th Cir. 1994). [1994 FP 92]
     Federal court in Wisconsin holds that public employees may immediately sue for A.D.A. discrimination. It is unnecessary to file a complaint with the EEOC before commencing litigation. Peterson v. Univ. of Wis. Bd. of Regents, 818 F.Supp. 1276 (W.D.Wis. 1993). [1994 FP 8]
     Arizona rules disability laws also protect formerly ill persons who have been cured. Burris v. Arizona, 31 (1533) G.E.R.R. (BNA) 1274, 2 AD Cases (BNA) 1251 (Ariz.App. 1993). [1994 FP 26]
     Jury could reasonably have found that woman trainee-firefighter's stature, stamina and potential for future injury did not constitute physical impairments that would have prevented her from performing her job, but her supervisor discharged her because he regarded them as such. Winnett v. City of Portland, 4 AD Cases (BNA) 825 (Ore.App. 1993). {N/R}
     Under A.D.A., federal appeals court strikes down a FAA blanket prohibition against relicensing private pilots who take lithium, a medication for a bipolar mood disorder. Bullwinkel v. F.A.A., 23 F.3d 167 (7th Cir. 1994). {N/R}
     Model Policy: "Americans with Disabilities Act," 18 pp. Police Executive Research Forum, 2300 M St. N.W. Ste. 910, Wash. DC 20037 (202) 466-7820. Prepared under a Dept. of Justice grant. [1993 FP 78]
     Federal court in NY rules that disabled persons may sue under a civil rights conspiracy statute [1993 FP 42 U.S. Code 1985] and need not litigate under the A.D.A. Trautz v. Weisman, 61 LW 2614 (S.D.N.Y. 1993). [1993 FP 88]
     Hertfordshire, England, Police Constabulary issues its officers identity cards in Braille. Police Review (U.K.) 21 Feb. 1992 p. 336. [1992 FP 105-6]
     Treating bus drivers ineligible to drive because of handicaps differently from those ineligible to drive because of traffic violations is not unconstitutional. Dallas Transit System v. Mann, 750 S.W.2d 287 (Tex.App. 1988).
     Officer of U.S. Public Health Service can sue for handicap discrimination; military exception does not apply. Milbert v. Koop, 830 F.2d 354 (D.C. Cir. 1987).
     Federal appeals court upholds termination of disabled firefighter; federal handicap discrimination act not applicable because federal funds were not directly used by the fire dept. Foss v. City of Chicago, 640 F.Supp. 1088 affirmed, 817 F.2d 34 (7th Cir. 1987).
     Termination of employee who had surgery was physical disability discrimination when done without physical examination. State Div. of Human Rights v. S.A. Cook Factory, 518 N.Y.S.2d 483 (A.D. 1987).
     Failure of employer to have employees trained to help handicapped workers or to seek outside professional help can be discriminatory. AFGE L-51 v. Baker, 55 U.S.L.W. 2667 (N.D. Cal. 1987).
     Police officer could bring federal handicap discrimination complaint despite prior determination that department's refusal to promote him after failure of physical examination did not violate D.C. law. Daniels v. Barry, 659 F.Supp. 999 (D.D.C. 1987).
     Fired firefighter was not protected by federal statute prohibiting handicap discrimination when no federal funds were allocated to fire department. United States Department of Transportation v. Paralyzed Veterans of America, 106 S.Ct. 2705 (1986).
     Discharged AIDS victim public employee could bring suit under federal handicap laws; not necessary to exhaust state remedies. Shuttleworth v. Broward County, 41 FEP Cases (BNA) 406, 639 F.Supp. 654 (S.D. Fla. 1986).
     Federal funds need not go to police of fire dept. every year to raise protections of federal rehabilitation act. Henning v. Vil. of Mayfield Village, 610 F.Supp. 17 (N.D. Ohio, 1985).
     St. Louis County case finally ends; dept. could refuse to train disabled police officer. Simon v. St. Louis County, Mo. 735 F.2d 1082 (8th Cir. 1984).
     California appeals court resolves physical employment standards in favor of personnel board, overruling Fair Employment Commission. State Pers. Bd. v. Fair Employment and Housing Cmsn., 196 Cal.Rptr. 815 (App. 1983).
     Statute of limitations on handicap actions controls timing of complaint, not statute on civil service appeals. Knapp v. Monroe Co. Civ. Serv. Cmsn., 437 N.Y.S.2d 136 (A.D. 1980).
     Florida arbitrator reinstates Christian Scientist who refused to participate in a blood test. City of Clearwater and Florida State Lodge 10, F.O.P., 79-80 PBC ¶ 45,321 (Greene, 1980).
     City's order to named firefighters to take physicals ruled an improper change of working conditions. City of Allen Park and Allen Park Fire Fighters Assn., Local 1410, AAA Case. #54-39-0844-75 (Nov. 1975). [1976 (14) FP 8].
     Federal court in Philadelphia orders city to employ former drug addicts. Davis v. Bucher, 451 F.Supp. 791, 17 FEP Cases (BNA) 918 (E.D. Pa. 1978).
     See also: AIDS/HIV Discrimination; Alcohol Abuse; Contagious Diseases; Drug Abuse; Heart Problems; Obesity; Physical Fitness Tests & Standards (many cases); Smoking Rights/Restrictions; Visual Acuity Standards; and EEOC regulations at www.eeoc.gov/regs/


HANDICAP/ ABILITIES DISCRIMINATION
- APPLICANT/EMPLOYEE MEDICAL EXAMINATIONS

     Monthly Law Journal Article: Analysis of the ADA as it Pertains to Medical Examinations of Police Officers Applying for Special Assignments, by Dave Corey, Ph.D., ABPP, 2007 (7) AELE Mo. L.J. 501.

     Two firefighter applicants who passed a background investigation, physical abilities test, and drug screen were notified that they needed to pass a medical screening, and received offers of employment conditioned on that screening. Neither of them were hired--one allegedly because of  bronchitis and the second because of his asthma and past problems with a hernia and kidney stones. A federal appeals court held that the plaintiffs failed to state a claim for disability discrimination under the Americans with Disabilities Act when they alleged that they were not hired due to the extensive medical requests that were a consequence of their disabilities which delayed their processing in the first come first served hiring process rather than because of the disabilities themselves. The plaintiffs failed to allege that the city discriminated against disabled applicants generally. The court also found that the plaintiffs failed to show that the city's testing process caused a relevant and statistically significant disparity between disabled and non-disabled applicants. Roberts v. City of Chicago, #15-1963, 2016 U.S. App. Lexis 5867 (7th Cir.).
     The U.S. Marshals Service was sued by former officers who had been medically disqualified from becoming federal court security officers. An appeals court rejected due process claims, finding that the plaintiffs had no right to an oral hearing where they were afforded an opportunity ro submit more medical information in response to the concerns of the doctor making the final decision. Claims of disability discrimination under the Rehabilitation Act were barred for plaintiffs who failed to exhaust their available administrative remedies. The trial court, however, abused its discretion in denying leave to include the claims of twelve additional new plaintiffs in an amended complaint. Barkley v. United States Marshals, #12-5306, 2014 U.S. App. Lexis 17191 (D.C. Cir.).
     County employees covered by group health insurance were offered a wellness program, featuring testing for various maladies, such as asthma, hypertension, diabetes, congestive heart failure, and kidney disease, using both biometric screening and an online health risk assessment questionnaire. When the risks of such diseases were indicated, employees were offered a disease management coaching program. Any employee who declined to participate in the wellness program was penalized by having $20 deducted from each paycheck. A class action lawsuit by former county employees argued that these requirements violated prohibitions in the Americans with Disabilities Act (ADA) on disability-related inquiries and non-voluntary medical examinations. Upholding summary judgment for the defendant county, a federal appeals court held that, as the wellness program was a "term" of the group health insurance program, it was exempted from these prohibitions by the ADA's "safe harbor" provisions for insurance plans. Seff v. Broward County, #11-12217, 2012 U.S. App. Lexis 17501 (11th Cir.).
     An emergency medical technician (EMT) working for an ambulance authority was fired after she declined to comply with her employer's request that she seek psychological counseling, made after co-workers expressed concerns about her well-being. These concerns were apparently expressed after she began a romantic relationship with a co-worker. She sued under the Americans with Disabilities Act (ADA), contending that the demand that she seek counseling had amounted to a prohibited non-voluntary medical exam. A federal appeals court vacated summary judgment for the defendant employer. The psychological counseling she was told to attend did constitute a medical examination because, regardless of the employer's intention, as it was likely to explore whether she suffered from a mental-health disability. Such exams are prohibited unless justified by "business necessity" or "job relatedness," since they may provide information about a disability and serve as a basis for discriminatory treatment. Kroll v. White Lake Ambulance Authority, #10-2348, 2012 U.S. App. Lexis 17727, 2012 Fed App. 276P (6th Cir.).
     Federal court grants a summary judgment for an employer in an ADA lawsuit where the worker, who claimed to have carpal tunnel syndrome, refused to be retested. Allen v. BMW Mfg. Co., #7:05-2450, 2007 U.S. Dist. Lexis 24535 (D.S.C.).
     Federal court strikes down a N.Y. prison rule requiring employees to submit a doctor's diagnosis after each sick leave absence. Fountain v. N.Y. Corr. Serv., #99-CV-389, 2002 U.S. Dist. Lexis 4100 (N.D.N.Y. 2002). [2002 FP Jun]
     EEOC issues new Enforcement Guidance on periodic medical examinations for public safety personnel. Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA, EEOC Notice 915.002 (7/27/00). [2000 FP 154-5]
     Federal appeals court dismisses the claim of a rejected applicant, who had been administered a pre-employment psychological test prior to a conditional offer of employment. Bone v. City of Louisville, #99-5813, 2000 U.S. App. Lexis 14081(6th Cir.). [2000 FP 155]
     An employer did not violate the ADA by rejecting job applicants whose pre-employment tests revealed a proclivity of developing carpal tunnel syndrome. EEOC v. Woodbridge, 2000 U.S. Dist. Lexis 15140, 69 Law Week 1232 (W.D. Mo. 2000). [2000 FP 171]
     Florida sheriff is "permanently enjoined from conducting any further pre-employment psychological or physical medical examinations, as described and defined in the Americans with Disabilities Act, the EEOC's Regulations, and the guidance materials published by the EEOC." Federal court rejects the defense that psychological screening is a pre-offer nonmedical exam. Barnes v. Cochran, 944 F.Supp. 897, 1996 U.S. Dist. Lexis 12597, 5 AD Cases (BNA) 1685. {N/R}
     Applicant with a severe visual disability was entitled to take a two-day qualifying exam over a four day period. Extra time was a reasonable accommodation under the A.D.A. and an injunctive relief was granted. D'Amico v. N.Y. St. Bd. of Law Examiners, 813 F.Supp. 217 (W.D.N.Y. 1993). {N/R}
     Mandatory Exams: City of New London and IAFF L-1522, Conn. PERB Case #MPP-2794, Decis. #1307 (1975).
     Also see: Handicap/ Abilities Discr. - Psychiatric

HANDICAP/ ABILITIES DISCRIMINATION
     - ACCOMMODATION – IN GENERAL

     The plaintiff, a former employee of the federal Office of the Director of National Intelligence, asserted claims against her former employer for disability discrimination under the Rehabilitation Act, 29 U.S.C. 701 et seq., and retaliation under and violation of the Family and Medical Leave Act (FLMA), 29 U.S.C. 2601, et seq. She argued that the defendant discriminated against her and violated the FMLA by not hiring her for a permanent position following her completion of a five-year term. A federal appeals court ruled that summary judgment was properly granted to the employer on the Rehabilitation Act and FMLA retaliation claims. The evidence showed that the employer provided a reasonable accommodation for her depression and when the employee failed to follow the plan, her supervisors attempted a new accommodation, but the employee's attendance problems persisted, and the agency collaborated with the employee in establishing the first accommodation and only acted unilaterally when the accommodation did not work. But the plaintiff could proceed with her FMLA interference claim because a genuine issue of material fact existed as to whether she provided sufficient notice of her disability of depression and interest in taking FMLA leave to trigger the defendant’s duty to inquire as to whether she was in fact seeking to take FMLA leave. Hannah P. v. Coats, #17-1943, 916 F.3d 327  (4th Cir. 2019).

      A county deputy district attorney sought an accommodation with his work schedule based on a concussion syndrome he was experiencing from previous work in the military, which he claimed constituted a disability under California state law. His supervisors did not oblige his request and he sued. It was determined that he could not establish his claim for disability discrimination because he could not prove he could perform the essential functions of his job. He further could not establish his claim for failure to provide a reasonable accommodation for the same reasons as well as because he could not prove he had any functional limitations requiring accommodation and his requested accommodation was not reasonable. He could not establish his claim for failure to engage in the interactive process because he himself did not interact in good faith. And, he could not establish his claim for failure to prevent disability discrimination because he could establish his claims for disability discrimination. Because there were triable issues of material fact of the questions of whether he engaged in protected activity under Labor Code section 1102.5 and whether he had a physical disability under the Fair Employment and Housing Act (Gov. Code, 12900 et seq. (FEHA), an intermediate state appeals court reversed the judgment as to these claims and ordered further proceedings. Ross v. County of Riverside, D075106, 2019 Cal. App. Lexis 565, 2019 WL 2537342.

     The plaintiff alleged that he suffered a number of adverse employment actions because of his hearing disability. He claimed disability discrimination in violation of Sec. 504 of the Rehabilitation Act as well as state and city law. The trial court ruled that no reasonable jury could conclude that the plaintiff had experienced any adverse employment action “solely by reason of” his disability. A federal appeals court affirmed on different grounds, holding that a plaintiff alleging an employment discrimination claim under Section 504 of the Rehabilitation Act must show that the his or her disability was a “but‐for” cause of the employer’s action, not the sole cause. The court agreed with the trial court that the plaintiff failed to provide sufficient support for his claim that he was retaliated against for making complaints, that he was demoted in retaliation for appealing a negative performance review, and that the city Department of Investigations (DOI) subjected him to a slew of retaliatory actions.  Natofsky v. City of New York, #17-2757, 2019 U.S. App. Lexis 11310 (2nd Cir.).

     A long-time postal employee was diagnosed with multiple sclerosis, and eight years later needed to use a wheelchair. He parked in a reserved space near the loading docks, where there was room to deploy his wheelchair ramp. Subsequently, the postal station manager asked him to stop parking there, citing safety concerns and offering him a handicapped spot in front of the building or a reserved space in the back. Neither of these provided sufficient space to deploy his wheelchair ramp, and spots in the back would require him to travel along a busy truck route in the dark. With permission from his supervisor, he continued to park in his usual place, while seeking help from the chair of the Reasonable Accommodation Committee. The manager then threatened to have his van towed. The employee panicked, experienced chest pain, and left work. His doctor recommended that he stay home until the situation was rectified and prescribed medication. The Reasonable Accommodation Committee chair asked him to provide medical information about his “condition and the specific limitations.” That letter increased the employee’s frustration, as all parties involved knew that he was confined to a wheelchair. He did not provide the information, but claimed that the stress had rendered him unable to return to work. He was granted disability retirement, and then sued under the Rehabilitation Act, 29 U.S.C. 791 for constructive discharge and failure to accommodate. Summary judgment was granted to the employer on the constructive discharge claim, but he was awarded $300,000 in compensatory damages for failure to accommodate as well as $828,774 in front and back pay. A federal appeals court vacated in part, upholding a jury instruction about an employee’s obligation to cooperate with his employer in identifying a reasonable accommodation, but finding that an instruction about how the jury should evaluate the employer’s expert witness (on the issue of compensatory damages) “wrong and prejudicial.” As a result, a new trial was ordered limited to the issue of compensatory damages. Sansone v. Brennan, #17-3534, 2019 U.S. App. Lexis 6753 (7th Cir.).

       The plaintiff suffered from a flesh-eating bacteria. The disease almost killed him. He had three life-saving surgeries and five months of hospitalization, but still could not return to work. When he was finally well enough to return, he was informed that his city job had been eliminated, so he sued for disability discrimination under federal and Minnesota state law. A federal appeals court upheld summary judgment in favor of the city. Ruling that the plaintiff was not entitled to return to his senior accountant position because he did not return to work prior to the expiration of his Family Medical Leave Act (FMLA) leave. There was also no medical reason why he needed to be reinstated to his former position; and therefore he failed to show that returning to his original position was a reasonable accommodation. The court also held that the plaintiff’s request that he be allowed to work from home was not a reasonable accommodation in light of his testimony that he could work at city hall but that it “would have been easier” to work from home. He failed to make a facial showing that he could perform the essential functions of the job remotely and failed to show that the city eliminated his position because of his disability or that the city terminated him because of his disability. Brunckhorst v. City of Oak Park Heights, #17-3238, 2019 U.S. App. Lexis 3426 (8th Cir. 2019).

     A city was entitled to summary judgment on claims of employment discrimination under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) when it refused to allow a senior accountant to return to his now eliminated city job because he had not returned to work after the expiration of his Family Medical Leave Act (FMLA) leave. He had previously contracted Fournier's gangrenous necrotizing fasciitis, a rare, life-threatening disease commonly known as “flesh-eating” bacteria and underwent three life-saving surgeries, spent nearly five months in a hospital/nursing care facility, and returned to his home. He took leave under the Family and Medical Leave Act and when that was exhausted was granted further unpaid leave. The disease left him with long-term injuries. The evidence showed that there was no medical reason why he needed to be reinstated to his former position, and therefore he failed to show that returning to his original position was a reasonable accommodation. A federal appeals court further ruled that the plaintiff’s request that he be allowed to work from home was not a reasonable accommodation, pointing to his testimony that he could work at city hall but that it “would have been easier” to work from home. He failed to show that he could perform the essential functions of the job from home.  He also did not show that the city eliminated his job because of his disability or that it fired him because of his disability. There was no genuine issue of material fact that the employer engaged in anything but a good-faith interactive dialogue, and his claim of unlawful retaliation claim also failed. Brunckhorst v. City of Oak Park Heights, #17-3238, 2019 U.S. App. Lexis 3426, 2019 WL 419178 (8th Cir.).

     An employee of a state insurance regulatory agency claimed that she needed reasonable accommodations for mental health disabilities. Her difficulties began in a prior state job in a prison when she learned that an inmate wrote in his diary that he wanted to torture her sexually. She reacted emotionally and left her employment and sought medical treatment for the trauma. Later, she began working at the state insurance agency as a clerical assistant. She received good reviews, promotions, and no discipline until the termination at issue in the lawsuit. When that agency hired a recently released offender, this apparently scared her, and as a result she was diagnosed with depression, bipolar disorder, and post-traumatic stress disorder. Among other things, she requested that her coworkers not “startle” her. She received these accommodations for several years. In May 2013, however a frustrated supervisor reached toward her and stated, “I could just strangle you.” An investigation of this incident revealed that several months before, the employee commented in an elevator about a coworker’s apparent promotion prospects: “It’s who you know and who you blow.” The employer then terminated her, and she sued for disability discrimination and retaliation.  Summary judgment was granted for the employer on some claims and the plaintiff lost on the rest of them at trial. A federal appeals court upheld this result, finding that the closest the plaintiff came to proving a failure-to-accommodate claim was under the theory that she asked her coworkers not to startle her, but the supervisor threatened to strangle her, but that episode was an isolated, “one-off” event. She also argued that her elevator comment was statutorily protected activity but the court ruled that she failed to prove both the required subjective and objective factors because she did not have a sincere, good-faith belief that she was opposing an unlawful practice and her remark did not involve discrimination prohibited by Title VII. She did not show that she had complained to anyone about disability discrimination and had suffered retaliation as a result. Scheidler v. Indiana, #17-2543, 2019 U.S. App. Lexis 2616, 2019 WL 324687 (7th Cir.).

     A city housing authority employee suffered from seizures, anxiety disorder, post-traumatic stress disorder, bipolar disorder, and depression, which required her to take leaves of absence. After eight years of employment, she was fired. She claimed that the employer improperly denied her requests for medical leave and retaliated against her for these requests by disciplining and terminating her, in violation of the Family and Medical Leave Act, 29 U.S.C. 2601 (FMLA). She also contended that the employer failed to make reasonable accommodations and discriminated and retaliated against her in violation of the Americans with Disabilities Act, 42 U.S.C. 12101, and that she was subjected to retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act, 42 U.S.C. 2000e and the Fair Housing Act, 42 U.S.C. 3617 (FHA). A federal appeals court upheld summary judgment in favor of the employer. It noted that five months elapsed between the end of the employee’s FMLA leave and a written warning. Although she had requested leave for medical appointments and was told that her leave had been exhausted, she was nonetheless allowed time off for her appointments. She also claimed that she had been terminated because of her disability, but, in her EEOC complaint, she omitted any allegation that the employer had denied her a reasonable accommodation. Finally, rejecting the employee’s retaliation and FHA claims, the court noted that there is no evidence that she called HUD to report a discriminatory housing practice. Riley v. City of Kokomo, Indiana Housing Authority, #17-1701, 2018 U.S. App. Lexis 32844 (7th Cir.).

     A 56-year-old woman worked as a correctional officer until she became injured during fights with inmates. After she worked the maximum number of days of light duty provided for under the terms of a collective bargaining agreement, she was fired because no other suitable position was found for her.  A federal appeals court found that the plaintiff's prima facie evidence of bad faith supporting her claim of failure to accommodate/disability discrimination was rebutted by the “incontrovertible” evidence that she could not have been reasonably accommodated, as she could not perform the essential duties of her prior job and no other suitable job was available. She similarly failed to show evidence of sex discrimination, and her age discrimination claim also failed because she did not produce evidence of a similarly situated younger person who was treated differently. Faulkner v. Douglas County, #17-1387, 2018 U.S. App. Lexis 28743 (8th Cir.).

     When he read a daily report out loud to his colleagues, an employee skipped over sections, gave briefing points out of order, and mixed up the order of numbers and words. He had a reading disorder but was unaware of it. Part of his job duties involved him giving transportation information to nuclear convoys so this disorder posed a possible threat to national safety. After being diagnosed, he lost his safety and security clearance. He requested “accommodations” for his disability, but was instead fired. He sued his ex-employer for all due process violations as well as disability discrimination claim under the Rehabilitation Act. A federal appeals court held that the trial court erred in dismissing the failure to accommodate claim. The plaintiff had indicated that he was willing to take “any” available job his employer had and there were 29 positions that did not require a security clearance. Sanchez v. Moniz, #16-2056, 2017 U.S. App. Lexis 17475 (10th Cir.).

     A litigation attorney in a state Attorney General’s office experienced difficulty in maintaining her employment duties while coping with a serious illness, complications from a kidney transplant. She sued her employer for alleged failure to accommodate her disability, harassment, and illegal retaliation for her asserting her rights under federal and state disability discrimination laws. Upholding summary judgment for the defendant employer, a federal appeals court found that there was no general issue of material fact as to whether the plaintiff had made a prima facie case on any of her claims. Indeed, she failed to show that she was a qualified individual who could perform the essential functions of her job unaided or with the assistance of a reasonable accommodation. As to the failure to accommodate claim, the interactive aspects of the employee's job were litigation-specific and she could not identify any other litigation attorneys that the employer permitted to work from home on a long-term basis. Credeur v. Louisiana, #16-30658, 2017 U.S. App. Lexis 11269 (5th Cir.).

       A former deputy constable was fired while he was on leave recovering from back surgery. His disability discrimination and failure-to-accommodate claims under Title I of the Americans with Disabilities Act (ADA) were properly dismissed because he did not provide evidence showing that he was qualified for his job at the time of his termination. He was then medically incapable of performing his duties, planned to retire when his leave ended, and there was no evidence that he was capable of performing a light duty position or that one was available. An ADA retaliation claim also failed because there was not a material issue of fact as to whether he was qualified for his job; A First Amendment retaliation claim also failed because, to the extent that the deputy was not speaking as an employee, he did not show that he was terminated because of his protected political discussions in opposition to the constable’s election. Moss v. Harris County Constable Precinct One, #16-20113, 2017 U.S. App. Lexis 4601 (5th Cir.).

   An employee of a state Department of Health Services had a job answering phones and processing benefit applications. When she filed a form notifying her employer of her chronic back pain, she obtained permission to stand and stretch for five minutes every half hour at work. She later took several leaves of absence, sometimes stating that it was because of her disability, but sometimes giving no reason. She was fired after she failed to return to work when her unpaid contractual and statutory medical leave was exhausted. Her lawsuit claimed that the employer failed to accommodate her disability and terminated her employment in violation of the Rehabilitation Act, 29 U.S.C. 794. A federal appeals court upheld the termination, ruling that she had not shown that she was an “otherwise qualified” employee, as required by the Rehabilitation Act.  She had only supplied two terse doctor notes, stating “medical leave of absence until 11/17/10” and “medical leave of absence until 12/17/10,” which did not explain whether she was receiving treatment or the likely effectiveness of any treatment. The plaintiff was not capable of performing the essential functions of her job, because she failed to attend work, and failed to show that she would be able to return to work on a regular basis. Whitaker v. Wisconsin Department of Health Services, #16-1807, 2017 U.S. App. Lexis 3446 (7th Cir.).

     Five Los Angeles injured police recruit officers sued the city after they were either fired or constructively discharged when they were unable to get the necessary medical clearances to return to the police academy. A jury decided that the city had unlawfully discriminated against them because of physical disabilities, and failed to provide them reasonable accommodations. An intermediate California appeals court ruled that the plaintiffs could not prevail on a disability discrimination claim under a state statute because they could not meet the fitness standards for peace officers and therefore were not qualified to perform the essential functions of police recruits. But substantial evidence supported the jury's verdict that the city's refusal of temporary reassignment to light duty assignments was a failure to make reasonable accommodations under state law because of the city’s past practice of doing so before the city changed its policy. The city policy of assigning injured recruits to light-duty administrative positions indefinitely until their injuries healed or they became permanently disabled ended while the plaintiffs were still recuperating from their injuries. Rather than allowing them to remain in their light-duty assignments, the Department asked them to resign or the Department would terminate them, unless they could get immediate medical clearance to return to the Academy. Past damages were awardable for this failure to reasonably accommodate, but the appeals court agreed with the city that an award of future economic losses based on projected lifetime earnings as police officers was unreasonably speculative, considering the fact that they had completed only hours or weeks of their training. Therefore, the court vacated that portion of the damages award and the trial court's award of attorneys' fees and costs. Atkins v. City of Los Angeles, #B257890. 8 Cal. App. 5th 696, 2017 Cal. App. Lexis 115.
     A D.C. fireman had a beard, and was required to shave it by Department policy. He claimed to have a medical condition rendering him unable to shave without discomfort and infection. His employer refused to accommodate that condition. He sued, claiming disability discrimination under the Americans With Disabilities Act (ADA), among other claims. The trial court dismissed the ADA claims, finding that his condition did not meet the ADA definition of a disability. The plaintiff appealed that order on an interlocutory basis under 28 U.S.C. 1292(b) which allows such an appeal “if application is made to it within ten days after the entry of the order.” He filed a notice of the appeal in the trial court two days after the court denied reconsideration, but waited several weeks before filing his application in the appeals court. The appeals court dismissed, rejecting his contention that the notice of appeal and the order denying reconsideration, both of which were transmitted to it within the statutory period, served the same purpose as an application. Kennedy v. Bowser, #15-7143, 843 F.3d 529 (D.C. Cir. 2016).
     An employee of the
Tennessee Valley Authority (TVA) working as a plant officer had maintained the medical clearance such employees were required to have. In 2013, the TVA started requiring a pulmonary function test for clearance, and he failed it and was fired because he had chronic obstructive pulmonary disorder. He sued for disability discrimination and Failure to reasonably accommodate under the Americans with Disabilities Act and the Rehabilitation Act. The TVA argued that Title VII’s national-security exemption applies to the Rehabilitation Act and precluded the court from reviewing the physical-fitness requirements imposed by the Nuclear Regulatory Commission in the interests of national security or reviewing the TVA’s determination that the employee lacked the physical capacity to fulfill his job duties because this decision was one of national security. A federal appeals court rejected these arguments, and rejected the TVA’s appeal of the denial of its motion to dismiss. Hale v. Johnson, #16-5475, 2016 U.S. App. Lexis 23369, 2016 Fed. App. 302P (6th Cir.).
     A city employee claimed that his firing was disability discrimination. Upholding summary judgment for the employer, a federal appeals court found no evidence that the city's reliance on the employee's history of poor performance, failing to perform his duties, and misconduct was a pretext or even blended with discriminatory intent. Further, after he became disabled by injuring his back, the city accommodated him by finding him a more suitable job. The city could not be said to have acted in bad faith by failing to find him a second such position when he had shown no honest effort to try to succeed in the first one. Dillard v. City of Austin, #15-50779, 2016 U.S. App. Lexis 17024, 17 Accom. Disabilities Dec. (CCH) P17-086, 32 Am. Disabilities Cas. (BNA) 1765 (5th Cir.).
     A firefighter injured his back during a training exercise. A functional capacity evaluation limited his lifting capabilities. After two years on paid leave, he received a workers' comp award saying the limit was permanent. He retired, but argued that his retirement was a constructive discharge in violation of the Americans with Disabilities Act of 1990 (ADA), with him forced to choose between retirement and termination. Rejecting the claim, the court said that "Even if the City regarded Adair as having an impairment, Adair cannot show that he was qualified to meet the physical demands required of firefighters or that the City could reasonably accommodate his lifting restrictions." Adair v. City of Muskogee, #15-7067, 2016 U.S. App. Lexis 9636 (10th Cir.).
     A juvenile detention officer sued a county for disability discrimination as well as for retaliation in violation of federal and state disability discrimination statutes and the Family Medical Leave Act (FMLA). The county fired her because she could not meet the job requirement of lifting 40 pounds. The requirement was related, the employer maintained, to protecting juveniles from harming themselves or others. A federal appeals court upheld summary judgment for the employer. The plaintiff was not an otherwise qualified individual because she could not perform the essential functions of her job with or without reasonable accommodation. Because this was still the case at the end of her FMLA leave period, the county did not violate the FMLA by firing her after her leave expired. Scruggs v. Pulaski County, #15-1248, 2016 U.S. App. Lexis 5970 (8th Cir.).
     An employee of the New York Attorney General's office claimed that she had a disability of Chronic Fatigue Syndrome and that she was ultimately terminated because of disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. The employer did attempt to reasonably accommodate her condition, allowing her to work at home up to three days a month. When she sued for disability discrimination, the employer sought to dismiss the claim under the Government Employee Rights Act of 1991 (GERA), 42 U.S.C. 2000e-16a, 2000e-16b, which it contended barred the claim because the plaintiff had been employed at a policymaking level. The trial court denied the motion, finding that she had not been a policymaking level employee. A federal appeals court dismissed the employer's appeal, finding that such a denial was not immediately appealable. Fischer v. New York State Dept. of Law, #14-2556, 2016 U.S. App. Lexis 1979 (2nd Cir.).
     An employee of the District of Columbia suffered from sarcoidosis. While her employer was looking into the possibility of an accommodation for her disability through flexible hours, she suffered a serious injury as a result of which she was unable to perform her job duties. ultimately, she claimed, she was terminated and this constituted disability discrimination. A federal appeals court rejected this claim. The employer had been engaged in an interactive process of trying to accommodate her but after her injury she was no longer a "qualified individual" as she was unable to perform her job duties even with an accommodation. Minter v. District of Columbia, #14-7118, 809 F.3d 66 (D.C. Cir. 2015).
     A patrol officer underwent two brain surgeries to remove non-cancerous brain tumors, and returned to work. There were allegations at one point that he was accompanying a cocaine dealer to drug deals. After he underwent the second surgery, after his surgeon cleared him to return, the department asked for a psychological evaluation. A neuropsychologist said that he might be "a threat to himself and others." Placed on unpaid leave, a second neuropsychologist found him fit for duty, but a third disagreed. Two others, who reviewed his file but did not examine him, concluded that he could return to work. The officer himself went to see a professor of neuropsychology at a university, who found that if he were to return to work, his safety with the use of weapons and high-speed driving "would be in question." The officer kept that report to himself and sued for disability discrimination. A federal appeals court upheld summary judgment for the city, ruling that the evidence showed that the plaintiff was not qualified for the job of patrol officer. Michael v. City of Troy Police Dep't., #14-2478, 2015 U.S. App. Lexis 21546, 2015 Fed. App. 291P (6th Cir.).
     An African-American woman was hired by a county detention center as an administrative assistant hearing officer, with duties that included handling juvenile detainee grievance hearings. During a riot, she had a physical altercation with a detainee, injuring her hands, and going on leave, resulting in a workers' comp settlement. She was released to return to work with a restriction precluding her from interacting with detainees, which her job duties required. Told to apply for disability benefits, she attempted to return to work and had to be taken from work in an ambulance after Physical Restraint Techniques training and De-escalation training. Ultimately, a hearing officer recommended that she be fired due to more than 10 unauthorized absences, and failure to follow instructions. When she was fired, she sued, claiming to have developed an anxiety disorder and asserting that her firing constituted disability, race, and sex discrimination. A federal appeals court upheld summary judgment for the defendant county. The plaintiff failed to show that she was disabled within the meaning of the Americans with Disabilities Act, as her alleged anxiety disorder only prevented her from interaction with juvenile detainees, which was a requirement of the hearing officer position, but would not interfere with her performing other jobs. She also failed to establish race or sex discrimination. Carothers v. County of Cook, #15-1915, 2015 U.S. App. Lexis 22237 (7th Cir.).
     A police detective resigned from the department after suffering two strokes six weeks apart. The second stroke rendered him unable to perform his duties as a detective. He sued for discrimination under the Americans with Disabilities Act, arguing that the municipality failed to reasonably accommodate him after his return to work following the first stroke by not allowing him to work exclusively at a desk. A federal appeals court upheld summary judgment for the employer. A Title VII claim for race and national origin discrimination occurring years before was time barred as it was not filed with the EEOC within 300 days of the alleged discrimination, and the ADA claim was deficient because of the fact that the plaintiff's doctor recommended that he work "part-time" following his first stroke. The court noted that the employer allowed him to work part-time after the first stroke and granted a request to extend his leave following his second stroke in order to permit him to stay on the employer provided health insurance plan. Swanson v. Village of Flossmoor, #14-3309, 2015 U.S. App. Lexis 12804, 31 Am. Disabilities Cas. (BNA) 1560, 127 Fair Empl. Prac. Cas. (BNA) 1272 (7th Cir.).
     A county opened a new call center using software that was inaccessible to blind employees, and therefore did not transfer a blind employee there along with her sighted co-workers. Summary judgment should not have been granted to the employer on a disability discrimination claim under the Rehabilitation Act, as there were genuine disputed issues of material fact as to whether she could perform the essential functions of the job, whether the county failed to reasonably accommodate her, and whether the alleged failure to accommodate her was excused due to undue hardship. Summary judgment was, however, properly granted on a claim under Title II of the ADA regarding disability discrimination in the providing of governmental services and programs, as Title II did not allow public employees to bring employment discrimination claims. Reyazuddin v. Montgomery County, #14-1299, 789 F.3d 407 (4th Cir. 2015).
     An employee of the Kansas Department of Labor who suffered from asthma complained that perfumes and other strong fragrances in the workplace impaired her ability to work. She was moved to a basement work space in an attempt to alleviate her problem but she would continue to suffer asthma attacks when certain perfume wearing co-workers came to talk to her. She made further complaints to her supervisor, and she was subsequently fired. The defendant employer was not entitled to Eleventh Amendment immunity as a state agency against being sued in federal court for disability discrimination. The agency waived its immunity by accepting  federal financial assistance, even if the plaintiff herself worked in a division that did not receive such funds. The agency's waver of its immunity covered all its divisions. Arbogast v. Kansas Department of Labor, #14-3091, 2015 U.S. App. Lexis 10387 (10th Cir.).
     A city employee who suffered a knee injury on the job sued the city for disability discrimination under California state law, claiming that the city failed to provide a reasonable accommodation for his disability, failed to engage in an interactive process to try to find accommodations for him, and unlawfully retaliated against him for seeking a reasonable accommodation. An intermediate state appeals court found that summary judgment for the defendant city was proper because the evidence showed that he was no longer able to perform the essential functions of his solid waste equipment manager job after his injury. There was no reasonable accommodation that would allow him to do the job and there were no other vacant jobs for which he was qualified. The plaintiff's exercise of his right to a reasonable accommodation for his disability was not protected activity for purposes of a state law retaliation claim. Nearly v. City of Santa Monica, #B246634, 2015 Cal. App. Lexis 139.
     A former deputy sheriff claimed that she suffered disability discrimination when her request for temporary light duty as an accommodation because of an on-the-job knee injury was denied, and she was instead eventually fired. She claimed that this was a request routinely granted to other deputies injured on the job. A federal appeals court held that the defendant sheriff had Eleventh Amendment immunity in his official capacity against the plaintiff's claims under Sec. 1983 and the Americans with Disabilities Act (ADA). Those claims were therefore ordered dismissed. Georgia sheriffs are an arm of the state and any judgment against him would be paid out of his budget, composed of both state and county funds and therefore be a drain on the state treasury. Pellitteri v. Prine, #13-14297, 2015 U.S. App. Lexis 474 (11th Cir.).
     A former emergency dispatcher for a city claimed that her ex-employer had refused to accommodate her disability of avascular necrosis (involving the death of bone tissue due to a lack of blood supply"), and that she was terminated for sing too much leave after her femur fractured while she was at work. A federal appeals court upheld summary judgment for the defendant city, as the plaintiff failed to present any medical evidence that avascular necrosis substantially limited any of her major life activities, such as walking, standing or lifting. The employee's own statements about how her condition limited her concerned matters beyond the realm of common experience and required the special skill and knowledge of an expert witness. Felkins v. City of Lakewood, #13-1415, 2014 U.S. App. Lexis 23981 (10th Cir.).
     A man had been a city employee for approximately 13 years. He claimed that his termination was disability discrimination based on his hearing impairment, as well as retaliatory for his having filed an EEOC complaint and requested accommodation of his hearing disability. Rejecting these arguments, a federal appeals court found that the evidence showed that he was actually fired for nonperformance of duty, including conducting and soliciting personal business at work, excessive personal phone calls, disparaging remarks and intimidation of coworkers through threats of violence. Curley v. City of North Las Vegas, #12-16228, 772 F.3d 629 (9th Cir. 2014).
    A federal employee's request that her employer grant her a flexible work schedule ("maxiflex" schedule) to accommodate her disability of severe depression was not unreasonable as a matter of law. Accordingly, a federal appeals court reversed summary judgment for the employer on a reasonable accommodation disability discrimination claim under the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701, as well as on her claim that revoking her permission to work late was unlawful retaliation for requesting accommodation for her disability. Solomon v. Vilsack, #12-5123, 763 F.3d 1 (D.C. Cir. 2014).
     A city hospital employer was improperly granted summary judgment on a terminated disabled employee's state law and city law disability discrimination claims. The employer failed to show that it responded to his request for a particular accommodation for his pneumoconiosis, an occupational lung disease, by engaging in a good faith interactive process regarding the feasibility of that accommodation before firing him. Jacobsen v. New York City Health & Hosps. Corp., #34, 2014 N.Y. Lexis 570, 2014 NY Slip Op 2098.
     In a lawsuit concerning a disability discrimination claim by a firefighter who lost all vision in one eye in an accident unrelated to work, there was a genuine issue of fact as to whether driving a fire apparatus under emergency lights was an essential function of a firefighter's job. The department claimed that his vision loss prevented him from driving at high speeds. The trial court prematurely ruled, as a matter of law, that the employee could not meet the burden of demonstrating that his requested accommodation was reasonable. The parties disputed whether there was a vacant job opening in the Fire Prevention Bureau when the plaintiff made a request for a transfer. A First Amendment retaliation claim was rejected, as the firefighter's testimony that was supposedly the basis for the retaliation was about a purely private matter. Rorrer v. City of Stow, #13-3272, 2014 U.S. App. Lexis 3592, 2014 Fed App. 38P (6th Cir.).
     A former state assistant attorney general claimed that she was subject to disability discrimination because her employer failed to provide her with a free on-site parking space as an accommodation for her disability. She also claimed that she was fired in retaliation for filing discrimination claims with the EEOC. The trial court ruled erroneously on the parking space issue because it required that the plaintiff show a connection between the requested accommodation and her job's essential functions. The retaliation claim, however, was properly rejected because the employer came forward with a non-retaliatory reason for the firing and the plaintiff failed to present any evidence that this was just a pretext. Feist v. State of Louisiana, #12-31065 2013 U.S. App. Lexis 19133, 119 Fair Empl. Prac. Cas. (BNA) 1724 (6th Cir.).
     A city employee's severe disability of schizophrenia required treatment that resulted in him being unable to get to work at a consistent daily time. A federal appeals court vacated a trial court order granting summary judgment to the city, since it was not clear that arriving in a timely manner at work was an essential job function, provided that the employee could make up for the time missed and work additional hours to get the actual essential job functions done. For a number of years, the court noted, the employee's late arrivals were either implicitly or explicitly approved, and the city's flex-time policy indicated that punctuality and being on the job at precise times might not be essential. The trial court had failed to conduct a sufficiently detailed analysis of these issues. McMillan v. City of New York, #11-3932, 2013 U.S. App. Lexis 4454 (2nd Cir.).
      A nurse working for a correctional medical provider suffered an off-duty injury shattering the right side of her pelvis while horseback riding. She was later fired, and claimed that this happened in rertaliation for her requesting an accommodation for her disability under federal and state law. She had needed surgery and had a number of restrictions, including using crutches and not using her hands for lifting. Her ability to bend and squat was also limited. The trial court granted summary judgment to the defendant employer. The federal appeals court reversed, finding that the plaintiff presented sufficient circumstantial evidence from which a jury could conclude that her supervisor was hostile to any accommodation of her disability, based on both comments and actions. The jury could have concluded that the plaintiff's refusal to obey one instruction from that supervisor was only a "convenient pretext" for firing an employee who had repeatedly asked for accommodations of her disability. Kelley v. Corr. Med. Servs., Inc., #11-2246, 2013 U.S. App. Lexis 2588 (1st Cir.).
     After a police officer suffered a major heart attack, he retired, having been told that there were no administrative positions available that did not require strenuous physical duties. The officer sued the city, claiming disability discrimination and failure to reasonably accommodate his condition. An intermediate California appeals court upheld a trial court determination that such strenuous physical activities were essential job functions even in administrative positions. The city needed to be able to deploy administrative officers in the field when emergencies occur. Both the discrimination and failure to accommodate claims were rejected. Lui v. City & County of San Francisco, #A131882, 211 Cal. App. 4th 962, 2012 Cal. App. Lexis 1248.
     After a correctional lieutenant working at a state prison had an auto accident, injuries to his left arm and hand caused him to lack the range of motion and sufficient grip strength to use a baton in his left hand. He was medically demoted to a non-peace officer position, and denied a requested reassignment to an administrative correctional lieutenant peace officer job. An intermediate appeals court rejected his challenge to this as disability discrimination, finding that he was unable to perform the essential job functions of a correctional lieutenant position, even if given reasonable accommodation. Even while performing administrative duties, a correctional lieutenant had to be able to subdue an aggressive prisoner and use a baton. Furtado v. State Personnel Board, 2013 Cal. App. Lexis 8.
     The EEOC took the position that an employer airline's reasonable accommodation job transfer policy violated the Americans with Disabilities Act (ADA) because it did not require that disabled employees be appointed to vacant jobs for which they are qualified, provided that the accommodation would not pose an unreasonable hardship on the employer and would be ordinarily reasonable. The U.S. Court of the Appeals for the Seventh Circuit adopted this position, overturning EEOC v. Humiston-Keeling, #99-3281. 227 F.3d 1024 (7th Cir. 2000), its past precedent holding that the ADA did not require that disabled employees be offered other vacant jobs for which they are qualified. EEOC v. United Airlines, Inc., #11-1774, 2012 U.S. App. Lexis 18804 (7th Cir.).
     A county employee had worked as supervisor of released adult offenders for a decade before developing sacroiliac joint dysfunction. This condition rendered her unable to work outside of her home, or to visit the offenders in the jail or at their homes. She was granted a lengthy leave of absence, but was still unable to perform all of her job functions. She was then fired. Her claims under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) were both properly rejected as she could not show that she could return to her job, with or without reasonable accommodations when her FMLA leave ended. She was not an "otherwise qualified" disabled person under the ADA, as supervising offenders in person was a necessary component of her job which she could not perform. At the time she was fired, the employer had no reasonable estimate of when, if ever, she would be able to resume all of her essential job functions. Robert v. Board of County Commissioners of Brown County, #11–3092, 2012 U.S. App. Lexis 18365 (10th Cir.).
     After a city public works employee twice suffered back injuries on the job, he experienced numbness in his left leg. He underwent surgery, and was subsequently cleared to perform up to four hours of sedentary work per day, but otherwise was found by a doctor to be totally and permanently disabled from his prior job, which required heavy lifting. The city had no position available that he could perform, so he was fired. Rejecting his disability discrimination claim under the Americans with Disabilities Act (ADA), a federal appeals court noted that the duty to reasonably accommodate a disability does not require an employer to create a new position or to eliminate or reallocate an essential job function. Otto v. City of Victoria, #11-2753, 2012 U.S. App. Lexis 14773, 115 Fair Empl. Prac. Cas. (BNA) 814 (8th Cir.).
     The U.S. Department of Justice pursued a complaint that the Illinois State Police was engaged in a pattern or practice of discrimination in maintaining a policy automatically excluding applicants for cadet job vacancies if they have either a hearing loss and were not permitted the use of hearing aids or other assistive devices at a medical screening, or diabetes mellitus which is controlled by the use of an insulin pump. The government took the position that these job qualifications were not shown to be job related and consistent with business necessity for the job of state trooper. In a settlement, the State Police, without agreeing that its policy constituted disability discrimination, agreed to drop the automatic exclusion of candidates with diabetes or hearing loss. It agreed to individually assess such applicants for eligibility for hiring. Settlement agreement between the United States Government and Illinois State Police (Nov. 30, 2011).
    An employee of a county sheriff's department was working as a civil deputy process server, but was entitled to carry a weapon and had arrest powers. He was asked to undergo Taser training, and, as part of that training, to receive a single one-to-five-second exposure to a Taser shock. He sought to avoid this part of the training because of a medical condition involving his back, for which he had previously undergone surgery. He was offered the alternative of either termination or transfer to another position monitoring prisoners on a computer screen at the county jail. He declined the transfer, and was fired. He claimed that his termination was disability discrimination in failing to reasonably accommodate his medical condition by allowing him to avoid the Taser shock exposure training exercise. The court ruled that undergoing the Taser training involved an essential job function of the plaintiff's position. Even if he were held to have a disability, the offer to transfer him to another job constituted a reasonable accommodation. The court also rejected the plaintiff's due process claims concerning his termination.  Robert v. Carter, #1:09-cv-0425, 2011 U.S. Dist. Lexis 47975 (S.D. Ind.).
     A California employer could reasonably distinguish between disability-caused misconduct and the disability itself when the misconduct included threats or violence against coworkers. Firing an employee for misconduct is not unlawful discrimination. Wills v. Super. Court, #G043054, 2011 Cal. App. Lexis 2011 Cal. App. Lexis 583.
     EEOC affirms a $150,000 award plus attorney's fees for the family of a deceased TSA Instructor who was involuntarily given a disability retirement, because of a physical inability to work as a airport screener. His duties as an instructor did not require long hours of standing. Est. of Roop v. Napolitano, #0720090056, 2010 EEOPUB Lexis 3342.
     In an ADA action, the Third Circuit found that a need for long, frequent toilet breaks, which are a side-effect of an OTC weight loss medication, is not a disability in the absence of a showing that the treatment is required in the prudent judgment of the medical profession. Sulima v. Tobyhanna Army Depot, #08-4684, 602 F.3d 177, 23 AD Cases (BNA) 27 (3rd Cir. 2010).
     Detroit pays $100,000 to settle an accommodation claim raised by a "chemically sensitive" city worker, who alleged that a coworker's perfume and room deodorizer caused her to experience migraines, nausea and coughing. McBride v. City of Detroit, #2:07-cv-12794 (E.D. Mich. 2010); prior order (2007).
    A 6'10" former sergeant was not "disabled" under the ADA, and the Highway Patrol did not have to honor his request for an accommodation. He claimed that the installation of a protective cage and an overhead shotgun rack reduced the vehicle's headroom and prevented him from sitting in an upright position while on patrol. Quinn v. Ohio State Hwy. Patrol, #2007-05474, 2009 Ohio 6075, 2009 Ohio Misc. Lexis 289 (Ohio Ct. Cl. 2009).
     Former city employee, who sued for a lack of accommodation for a knee injury, was not required to exhaust administrative remedies.  Section 504 of the Rehabilitation Act of 1973 does not require the exhaustion of remedies. Hopkins v. City of Wilmington, #08-302, 2009 U.S. Dist. Lexis 54242 (D. Del.).
     County was entitled to a summary judgment in an ADA action, claiming that her superiors wrongfully denied her request for an accommodation. While an inability to drive a car could create disability if it impaired her of ability to work, she failed to present any evidence that her inability to drive disqualified her from a broad range of jobs. Winsley v. Cook County, #08-2339, 2009 U.S. App. Lexis 8261 (7th Cir.).
    Even if a police chief’s alcoholism problem was a partial cause of a drunk driving incident, a city can hold the chief to the same job performance standards as other employees under 42 U.S. Code §12114(c). Budde v. Kane County, #06-C-1165, 2009 U.S. Dist. Lexis 22118 (N.D. Ill.).
     County reasonably accommodated a sheriff's dispatcher who suffers from a blood disease called antiphospholidipid antibody syndrome. Wilson v. County of Orange, #G039733, 2009 Cal. App. Lexis 12 (4th Dist.).
     A corrections deputy sheriff suffering from depression and anxiety pleaded factual issues as to whether she was suspended and later terminated because of her disability, where the sheriff stated that he did not want any “half-employees” working for him. Lucke v. Multnomah County, # CV-06-1149, 2008 U.S. Dist. Lexis 71861, 14 WH Cases2d (BNA) 23 (D. Ore. 2008).
     Officer with a spinal injury, who was unable to requalify on the firing range to maintain her certification, loses her ADA accommodation claim. She lacked evidence that any civilian positions were vacant at the time she sought reassignment. Iverson v. City of Shawnee, #07-2304, 2008 U.S. Dist. Lexis 75703 (D. Kan.).
     Appellate court orders a new trial in a disability and race discrimination case. A trooper claimed that wearing a protective vest while on road patrol worsened his back injury and he sought reassignment to station duties. His alleged psychological injury resulting from a failure to accommodate his disability was not an adverse personnel action, and damages awarded on the accommodation claim were not segregated from total damages award. Victor v. State of New Jersey, 952 A.2d 493, 2008 N.J. Super. Lexis 166, 20 AD Cases (BNA) 1591 (Unpub. N.J. App.).
     Federal appeals court sustains a judgment for a former state investigator, who suffered from asthma and sarcoidosis. Management had failed to accommodate her reasonable request to change offices to a more suitable environment that would lessen her symptoms. There was evidence that her cold office exacerbated the her illness. Benaugh v. Ohio Civil Rts. Cmsn., #07-3825, 2008 U.S. App. Lexis 10985 (6th Cir.).
     In a selective treatment action brought by a disabled former NYPD officer, the trial court failed to allow sufficient discovery as to whether patrol duty constitutes an essential job function. The case was remanded. Price v. City of New York, #06-3481-cv, 2008 U.S. App. Lexis 3133 (2nd Cir.).
     Where a police analyst claimed that management failed to accommodate his sleep apnea condition and constructively discharged him, the city was not required to offer an employee an accommodation that would have interfered with the seniority rights of other workers. Herr v. City of Chicago, #05C7145, 2007 U.S. Dist. Lexis 21644 (N.D. Ill.).
     Federal court refuses to dismiss a constructive discharge claim where a newly diagnosed diabetic needed frequent breaks and the employer's restrictions created intolerable working conditions. Countryman v. Nordstrom, #05-2588, 18 AD Cases (BNA) 1661, 2007 U.S. Dist. Lexis 1503 (D. Minn. 2007).
     Federal court finds that a police dept. policy abolishing permanent light-duty positions for disabled officers did not violate the ADA, even if officers were not individually assessed for suitable positions. Management's employment decisions were based on a reasonable physical criteria and applied on an individualized basis. Allen v. Hamm, 2006 U.S. Dist. Lexis 6707, 17 AD Cases (BNA) 1206 (D. Md. 2006). {N/R}
     A dyslexic teacher who was unable to obtain an accommodation to take necessary qualification exam was not a qualified individual, because state law required the test as a prerequisite to obtaining a teaching certificate. Falchenberg v. New York City Dept. of Educ., 04-CV-7598, 375 F.Supp.2d 344, 2005 U.S. Dist. Lexis 13106, 16 AD Cases (BNA) 1736 (S.D.N.Y. 2005). {N/R}
     Under the ADA an employer is not required to reassign existing workers to help a disabled employee perform his essential duties. Both parties have an obligation to assist in the search for an appropriate accommodation and a belief that management does not treat workers fairly will not relieve a disabled employee of an obligation to cooperate in an "interactive process." Collins v. U.S. Postal Service, #AT-0752-04-0309-I-1, 2005 MSPB Lexis --- (MSPB 2005) relying on 29 C.F.R.1630. {N/R}
     California appeals court affirms an award of $180,000 and $240,000 in legal fees for a municipal maintenance worker who was fired a year and a half after injuring his back. The plaintiff never made a request for accommodation. Kerry v. City of West Covina, #B171307, 2005 Cal. App. Unpub. Lexis 3392 (2d Dist. 2005). {N/R}
     Merit Systems Protection Board upholds a management decision to terminate an OSHA Information Specialist with heightened electromagnetic field sensitivity, because she needed to use a computer to perform the essential functions of her position. Hughes v. Dept. of Labor, #CB-7121-04-0020-V-1 (MSPB 2005). {N/R}
     Federal court refuses to order a test provider to lengthen the test period by 50% to accommodate an applicant with Attention Deficit Disorder. An inability to perform well on a standardized test does not substantially interfere with the major life activity of learning. Baer v. Natl. Bd. of Medical Examiners, #05-10724, 2005 U.S. Dist. Lexis 7796, 2005 WL 1027289 (D. Mass. 2005). [2005 FP Jul]
     EEOC sustains the termination of a DEA employee for excessive tardiness. An agency is not required to accommodate employees with sleep disorders by allowing them to report to work whenever they are able. Kendall v. Ashcroft, #03A50006, 2005 EEOPUB Lexis 350 (2005). [2005 FP May]
     Third Circuit holds that a police sergeant, who for psychological reasons cannot be entrusted with a firearm, is entitled to a reasonable accommodation with a position that does not require him to be armed. The District Court failed to consider whether the plaintiff's inability to carry a firearm would prevent him from performing work in a "class of jobs." Williams v. Philadelphia Housing Auth. Police Dept., #03-1158, 380 F.3d 751, 15 AD Cases (BNA) 1607,2004 U.S. App. Lexis 18151 (3rd Cir. 2004). [2004 FP Nov]
     MSPB holds that under the Rehabilitation Act, a public employer is entitled to request additional medical information from a disabled employee and his or her physician, to determine what accommodation is necessary. If that information is not forthcoming, separation for medical reasons is proper. Madison v. Rumsfeld, EEOC Petition No. 03A40105, MSPB No. DA-0752-02-0095-I-2, 2004 EEOPUB Lexis 4377. {N/R}
     President Bush has signed an Executive Order directing federal agencies to address the safety and security needs of people with disabilities during emergencies, including earthquakes, tornadoes, fires, floods, hurricanes and acts of terrorism. The Dept. of Homeland Security has created an Interagency Council to oversee the implementation of new policies resulting from the Executive Order. {N/R}
     Federal appeals panel rejects a disabilities discrimination claim brought by a detention supervisor who was not promoted. She was off work due to an injury at the time, and the city had a rational policy of not promoting injured or ill candidates who had not returned to work with a medical fitness certificate. Kincaid v. City of Omaha, #03-3031, 2004 U.S. App. Lexis 16355 (8th Cir. 2004). {N/R}
     The EEOC has ruled, in an advisory letter dated Apr. 29, 2004, that the ADA does not impose on employers a duty to dispose of used syringes of employees that must use them to treat medical conditions, such as diabetes. An employer also is not required to provide syringes used in the treatment of medical conditions because these are needed on and off the job, the EEOC said in another advisory letter dated Mar. 23, 2004. 42 (2059) G.E.R.R. (BNA) 474. {N/R}
     Appeals court declines to dismiss a suit brought by a Justice Dept. employee with depression who sought a transfer. There was no evidence that the transfer would cause an undue hardship and the employer failed to engage in an interactive process to explore whether some variant of the proposal was workable. Calero-Cerezo v. Dept. of Justice, #02-2643, 355 F.3d 6, 2004 U.S. App. Lexis 452, 15 AD Cases (BNA) 129 (1st Cir. 2004). {N/R}
     A probationary candidate for correctional officer, who was disqualified because of knee injuries, was not entitled to reassignment to another position, because disability discrimination laws requires accommodation only to a position within the same civil service classification for which a person is a candidate. Hastings v. Dept. of Corr., #C041708, 2003 Cal. App. Lexis 1111 (3d App. Dist. 2003). {N/R}
     A court employee with "cluster headaches" who frequently had been given leave time over a period of years, was not entitled to an "indefinite leave," which is not a reasonable accommodation. Wood v. Green, #02-12971, 14 AD Cases (BNA) 103, 2003 U.S. App. Lexis 4470 (11th Cir. 2003). {N/R}
     Federal appeals court holds that a city had no duty to accommodate, and could lawfully terminate a deputy marshal who, after an injury, was unable to hold a firearm in his right hand. Kaplan v. City of North Las Vegas, #02-16048, 2003 U.S. App. Lexis 6221 (9th Cir. 2003). {N/R}
     Oregon appellate court holds that a corrections officer who takes a prescriptive anticoagulant drug, and who was advised to avoid contact with inmates because of a risk of serious internal bleeding, could be a "disabled person" under state law. Evans v. Multnomah County Sheriff's Office, #A112917, 184 Ore. App. 733, 57 P.3d 211, 2002 Ore. App. Lexis 1729, 13 AD Cases (BNA) 1256 (Or.App. 2002). {N/R}
     Third Circuit holds that a disabled EMT, asks for a transfer to a dispatching position, cannot be required him to watch for job openings and file formal applications for the posts. Shapiro v. Twp. of Lakewood, 292 F.3d 356, 2002 U.S. App. Lexis 10302 (3rd Cir. 2002). {N/R}
     A state agency's removal of an ADA case, from state to federal court, constituted a waiver of its sovereign immunity for that case. Estes v. Wyoming, #00-8069, 2002 U.S. App. Lexis 18324 (10th Cir. 2002). {N/R}
     Supreme Court upholds a EEOC Reg. allowing employers to reject disabled applicants where the job environment would be unusually hazardous for them. Chevron v. Echazabal, #00-1406, 2002 U.S. Lexis 4202 (2002). [2002 FP Aug]
     Supreme Court upholds the priority of seniority systems, whether imposed by management or required by a bargaining agreement. US Airways v. Barnett, #00-1250, 2002 U.S. Lexis 3034 (2002). [2002 FP Jun]
     Federal court awards compensatory damages, back and front pay, and attorney's fees to a sheriff's officer who was unable to work as a jailer after a heart attack, and was not told of a senior dispatcher's vacancy. Appeals court remands for further clarification.Bristol v. Bd. of Co. Cmsnrs., #00-1053, 2002 U.S. App. Lexis 2937 (10th Cir.). [2002 FP May]
     Federal court rejects a reassignment demand from an asthmatic corrections officer. His condition did not impair the major life activities of breathing or working. Saunders v. Baltimore Co., #JFM-01-CV-1291, 163 F.Supp.2d 564, 2001 U.S. Dist. Lexis 14576 (D. Md.). [2002 FP Jan]
     Federal appeals court reinstates an ADA claim where a disabled employee sought leave to work at home. The employer allowed other employees in her job category to work at home, and should not have fired her for poor attendance without trying at-home employment. Humphrey v. Memorial Hosp. Assn., #98-15404, 239 F.3d 1128, 2001 U.S. App. Lexis 2099, 11 AD Cases (BNA) 765 (9th Cir. 3-23-01). [2001 FP 55-6]
     The 9th U.S. Circuit Court of Appeals rules that employers can't refuse permission to work even if the job duties pose a “direct threat” to an employee's health and safety. Echazabel v. Chevron, #98-55551, 213 F.3d 1098, 10 AD Cases (BNA) 961, 2000 U.S. App. Lexis 11399. [2000 FP 138-9]
     Federal panel upholds an arbitrator's decision not to accommodate a diabetic worker by assigning him permanently to the day shift. Seniority systems prevail over disability legislation. Veterans Aff. Med. Ctr. and AFGE L-2610, #0-AR-3090, 1999 FLRA Lexis 224, 55 FLRA No. 192. [2000 FP 89]
     Officer recovers just under $1 million. She was forced to continue working near another officer who allegedly raped her. Wimmer v. Stiers, #96-N-1547, 38 (1849) G.E.R.R. (BNA) 216 (D. Colo.). [2000 FP 55]
     EEOC adopts the position that a disabled person has job assignment priority over a more-qualified minority. U.S. Chamber of Commerce (In Re), 68 Law Week 2472, 38 (1849) G.E.R.R. (BNA) 220 (Ltr. Opin. 1-31-2000). [2000 FP 55]
     A dyslexic Justice Dept. computer operator who alleged that she did not receive the training necessary to do her job or secure promotions failed to prove a violation of the Rehabilitation Act. Her positive performance evaluations undercut the claim that she needed accommodation. Bissell v. Reno, #AMD 97-1274, 74 F.Supp.2d 521, 1999 U.S. Dist. Lexis 18864 (D. Md. 1999). {N/R}
     The reasonable accommodation requirement under the NJ disabilities law does not require an employer to tolerate excessive absenteeism. Svarnas v. AT&T, 326 N.J. Super. 59, 740 A.2d 662, 1999 N.J. Super. Lexis 368, 9 AD Cases (BNA) 1777 (NJ App. 1999). {N/R}
     A police officer with sleep apnea who was given a permanent day shift was lawfully ordered to give up a second job he worked one evening a week. Silk v. Chicago, # 98-1155, 194 F.3d 788, 1999 U.S. App. Lexis 25208, 9 AD Cases (BNA) 1409 (7th Cir. 1999). {N/R}
     Unfettered ability to leave work at any time is not a reasonable accommodation if reliable and predictable attendance is required; the employer did not have to tolerate a worker with sinusitis who left work whenever he experienced wheezing. Buckles v. First Data, 176 F.3d 1098 (8th Cir. 1999). {N/R}
     The ADA does not require an employer to bump an employee from a position to create a vacancy regardless of seniority. Pond v. Michelin North America, 183 F.3d 592 (7th Cir. 1999). {N/R}
     Tenth Circuit, in an en banc decision, mandates specific actions to be taken by employers to accommodate a disabled employee. Smith v. Midland, #96-3018, 180 F.3d 1154, 1999 U.S. App. Lexis 13185, 9 AD Cases (BNA) 738 (10th Cir., en banc). [1999 FP 154-5]
     EEOC's 1999 Enforcement Guidance on accommodation minimizes unexcused absences of disabled workers. EEOC also requires employers and union to negotiate with each other if a requested accommodation violates a bargaining agreement. [1999 FP 155]
     Federal appeals court concludes that a public employer had no duty to cut a key employee's work week from 50-70 to 40 hours per week, to accommodate her heart problems. Tardie v. Rehab. Hosp. of R.I, #98-1748, 168 F.3d 538, 1999 U.S. App. Lexis 2877, 9 AD Cases (BNA) 155 (1st Cir.). [1999 FP 104-5]
     Sixth Circuit rejects a liability claim against a supervisor for engaging in retaliatory action. There can be no individual liability under Title VII, the ADA, the ADEA or the Rehabilitation Act. Hiler v. Brown, #98-5014, 177 F.3d 542, 9 AD Cases 628, 1999 U.S. App. Lexis 9625 (6th Cir.). [1999 FP 105]
     Seventh Circuit holds that the ADA does not require an employer to allow a more senior employee to "bump" a coworker from an occupied position. Pond v. Michelin, # 98-4247, 183 F.3d 592, 9 AD Cases 795, 1999 U.S. App. Lexis 14223 (7th Cir.). [1999 FP 133-4]
     EEOC issues 70 pages of guidance on the obligations of employers to “reasonably accommodate” disabled individuals in the workplace. Reasonable Accommodation and Undue Hardship under the ADA, EEOC Enforcement Guidance (1999). Full text: www.eeoc.gov/docs/accommodation/html [1999 FP 74]
     The ADA requires reassignment to a vacant position when a disabled employee is qualified for that position, Gile v. United Airlines, 95 F.3d 492 (7th Cir. 1996). {N/R}
     Employer allowed a less-senior worker who suffered from depression to take a place on the day shift. An arbitrator reversed, noting that nothing in the ADA requires an employer to sacrifice other workers’ rights as part of its effort to accommodate persons with disabilities. Cont., Med. and Wel. Inc., 110 LA (BNA) 674 (Klein, 1998). {N/R}
     Federal appeals court confirms that federal agencies have an affirmative duty to transfer a disabled employee to another “funded vacant position,” per 1992 amendments to the Rehabilitation Act. Woodman v. Runyon, 132 F.3d 1330, 1997 U.S. App. Lexis 36165 (10th Cir.). [1998 FP 71-2]
     Federal appeals court requires an employer to offer parttime work for an employee who suffered a mental breakdown. ADA and other laws supersede the bargaining agreement. Ralph v. Lucent Technologies 135 F.3d 166, 1998 U.S. App. Lexis 1475, 7 AD Cases (BNA) 1345 (1st Cir.). [1998 FP 72]
     Third Circuit follows a 7th Circuit case and adopts a per se rule that seniority rights, contained in a bargaining agreements, supersede the ADA. Kralik v. Durbin, #97-3089,-3106, 1997 U.S. App. Lexis 34829 (3d Cir.). See also Eckles v. Con. Rail, 94 F.3d 1041, 1996 U.S.App. Lexis 20403 (7th Cir.); cert.den. 117 S.Ct. 1318 (1997). [1998 FP 22]
     Federal appeals court rejects accommodation of a disabled worker in violation of seniority. “Even minor infringements on other employees” seniority rights impose unreasonable burdens on employers who, by reason of those infringements, must face the consequences of violating the collective bargaining agreement." Kralik v. Durbin, 7 AD Cases 1040 (3rd Cir. 1997). {N/R}
     Federal court rejects ADA claim of a disabled corrections officer who was unable to use a firearm. Accommodating his disability posed a threat to other officers and the public. Johnson v. Maryland, 940 F.Supp. 873 (D.Md. 1996). [1997 FP 120]
     Corrections officer with back pain wins $130,000 punitive and $128,803 compensatory damages. Warden refused to allow him to work as an officer, and reassigned him as a lower-paid mail room clerk. McIntyre v. Michigan, 1996 U.S.Dist. Lexis 19694 [partial summary judgment]; 35 (1701) G.E.R.R. (BNA) 175 [verdict summary] (W.D.Mich. 1996). [1997 FP 88-9]
     Federal appeals court reaffirms a holding that a police officer's disability could not be accommodated; due to an injury, he was unable to securely aim and fire a gun, wield batons or use "sufficient force" with his left hand. Lee v. City of Aurora, #95-1109, 1996 U.S. App. Lexis 1601 (Unpub. 10th Cir.); cert. den. 1997 U.S. Lexis 3511. {N/R}
     Police dept. had duty to accommodate officer's dyslexia, including his use of a laptop computer. DeLeo v. Stamford,919 F.Supp. 70, 1995 U.S.Dist. Lexis 11564, 4 AD Cases (BNA) 427, 9 A.D.D. 632 (D.Conn.). [1996 FP 87]
     "Generally, an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision at home." Van Zande v. Wis. Dept. Admin., 44 F.3d 538 (7th Cir. 1995). See, however, Langon v. H.H.S., 959 F.2d 1053 (D.C.Cir. 1992) and Carr v. Reno, 23 F.3d 525 (D.C.Cir. 1994). {N/R}
     Whether an employer can reasonably accommodate an often absent worker and whether the requested accommodation creates an “undue hardship” are questions for the jury, not the court. Stradley v. LaFourche, 869 F.Supp. 442 (E.D.La. 1994). {N/R}
     There is no “per se” rule under the ADA that reassignment of an employee in violation of the CBA or seniority system is an unreasonable accommodation. The conflict is simply another factor to weigh. Emrick v. Libbey-Owens-Ford, 875 F.Supp. 93 (E.D. Tex.). {N/R}
     Police dept. had no duty to accommodate an officer whose on-duty ankle injuries impaired his ability to perform his duties. Molloy v. City of Bellevue, 859 P.2d 613 (Wash.App. 1993). {N/R}
     Michigan arbitrator upholds a unilateral transfer of a police lieutenant to the day shift to accommodate his illness, despite the union's objection that shift assignments are strictly controlled by a seniority clause in the collectively bargained agreement. Dearborn Heights and D.H P.S.A., AAA Case #54-39-0203-93, 101 LA (BNA) 809 (Kanner, 1993). [1994 FP 24-25]
     See article, Stahlhut, "Playing the trump card: may an employer refuse to reasonably accommodate under the ADA by claiming a collective bargaining obligation?," 9 (1) Labor Lawyer (ABA) 71 (1993).
     County reasonably accommodated handicapped employee by keeping him on payroll for six months and then placed him on leave with pay. Cerro Gordo Cty. Care Fac. v. Civ. R. Com'n, 401 N.W.2d 192 (Iowa, 1987).
     Right of handicapped veteran postal worker to accommodation does not prevail over a bona fide seniority system. Hurst v. United States Postal Service, 653 F.Supp. 259 (N.D. Ga. 1986).
     Blind employee provided with readers, special equipment and office space was reasonably accommodated; no right to "full time reader of his choice." Carter v. Bennett, 651 F.Supp. 1299 (D.D.C. 1987).


HANDICAP/ ABILITIES DISCRIMINATION
     - CONSTITUTIONALITY / WAIVER

     A federal appeals court overturned the dismissal of a lawsuit claiming that a 911 emergency communications unit was unlawfully demoted in violation of Title I of the Americans with Disabilities Act (ADA) because he had multiple sclerosis (MS). The court weighed balancing factors to decide whether the defendant entity acted as an arm of the state of Alabama entitled to sovereign immunity under the Eleventh Amendment. It ruled that when the defendant employer demoted the plaintiff, it did not act as an arm of the state and was thus not entitled to sovereign immunity. The Alabama Supreme Court had previously ruled that a communications district was not an arm of the state. Additionally, there was no evidence that the state exerted any control over the function at issue here, where the entity derived its funds did not support granting sovereign immunity, and the state would not be financially responsible for an award for the plaintiff.  McAdams v. Jefferson County 911 Emergency Communications District, Inc., #18-13781, 2019 U.S. App. Lexis 22057, 2019 WL 3311223 (11th Cir.).

     A disability discrimination suit against a state agency is barred under the 11th Amendment. Patterson v. Penna. Inspector General, #06-4233, 2007 U.S. App. Lexis 14101 (Unpub. 3rd Cir.).
     Third Circuit holds that Pennsylvania county courts are "state entities" even though they are locally funded and thus are immune under the 11th Amendment from disability discrimination lawsuits filed by probation officers. Benn v. First Jud. Dist., #01-3769, 426 F.3d 233, 2005 U.S. App. Lexis 21959, 17 AD Cases (BNA) 228 (3rd Cir 2005). {N/R}
     Eighth Circuit, relying on Tennessee v. Lane, 124 S.Ct. 1978 (2004)(access to courthouses) and Miller v. King, 384 F.3d 1248 (11th Cir. 2004)(claims by disabled prison inmates) concludes that Title II of the ADA cannot constitutionally be applied to state governments, except where the barriers impede a right of access to the courts. Bill M. v. Nebraska Dept. of Health, #04-3263, 408 F.3d 1096, 2005 U.S. App. Lexis 9727 (8th Cir. 2005). {N/R}
     State officials are not immune under the Eleventh Amendment from ADA litigation seeking only prospective (injunctive) relief. McCarthy v. Hawkins, #03-50608, 2004 U.S. App. Lexis 16538 (5th Cir. 2004). {N/R}
     The Supreme Court rule 5-4 that states are not immune under Title II (access and barriers provisions) from suits by disabled citizens who seek entry into courthouses and other public facilities. State of Tennessee v. Lane, #02-1667, 124 S.Ct. 1978, 2004 U.S. Lexis 3386 (2004). {N/R}
     Title II of the ADA (access and barriers provisions) cannot be constitutionally applied to state agencies, even under the Commerce Clause. Klinger v. Dir. Dept. of Rev., # 03-2345, 366 F.3d 614, 2004 U.S. App. Lexis 8615 (8th Cir. 2004) Decided shortly before Tenn. v. Lane, above. {N/R}
     The Eleventh Amendment does not prevent the United States from suing a state under the ADA. U.S. v. Miss. Dept. of Public Safety, #02-60048, 2003 U.S. App. Lexis 1965, 13 AD Cases (BNA) 1706 (5th Cir. 2003). {N/R}
     A state-controlled local police board is not a state office for 11th Amendment immunity purposes. Darby v. Bratch, #01-2006, 287 F.3d 673, 7 WH Cases2d 1252, 2002 U.S. App. Lexis 6679 (8th Cir. 2002). [N/R]
     State agencies waive Eleventh Amendment immunity with regard to Rehabilitation Act claims when they accept federal funds. Nihiser v. Ohio E.P.A., #97-3933, 2001 U.S. App. Lexis 21694, 2001 FED App. 0362P (6th Cir.). {N/R}
     Supreme Court rules, 5-to-4, that state workers cannot sue their employers under the Americans with Disabilities Act. Board of Tr. of Univ. of Ala. v. Garrett, #99-1240, 531 U.S. 356, 121 S.Ct. 955, 2001 U.S. Lexis 1700. [2001 FP 39-40] Also in agreement, Hermes v. Nebraska (8th Cir. 2000), cert. den. 69 L.W. 3645 (2001). {N/R}
     Eleventh Amendment immunity from suit for money damages covers ADA claims against Puerto Rico's territorial police dept. Acevedo-Lopez v. Police Dept. of P.R., #00-1093, 247 F.3d 26, 2001 U.S. App. Lexis 7592, 11 AD Cases (BNA) 1367 (1st Cir.). {N/R}
     Native American tribe that terminated a tribal police officer with epileptic seizures was immune from suit under the Rehabilitation Act of 1973. Acceptance of federal funds for community projects was not an express waiver of immunity. Sanderlin v. Seminole Tribe of Florida, #00-10312, 243 F.3d 1282, 2001 U.S. App. Lexis 3469, 11 AD Cases (BNA) 976 (11th Cir.). {N/R}
     A county fire department is subject to suit in federal court under Title I of ADA, where the department is not arm of state government and, sovereign immunity under the 11th Amendment does not apply. Parker v. Anne Arundel Co., Md., #00-850, 2001 U.S. Dist. Lexis 3462, 11 AD Cases (BNA) 1053 (D.Md. 2001). {N/R}
     State agencies are not immune from employees' claims under ADA. Garrett v. Univ. of Alabama, 193 F.3d 1214, 1999 U.S. App. Lexis 26846, 9 AD Cases (BNA) 1635 (11th Cir. 1999). {N/R}
     Former state employees could not recover on their claim that they were discharged in violation of ADA, since the Congress lacked the power to abrogate state immunity under the 11th Amendment. DeBose v. Nebraska, 9 AD Cases (BNA) 1295, 207 F.3d 1020, 1999 U.S. App. Lexis 18395; reh. en banc den. 1999 U.S. App. Lexis 22312 (8th Cir. 1999). {N/R}
     The ADA was properly extended by the Congress to the states, and waived state immunity under the 11th Amendment. Dare v. California, 191 F.3d 1167, 1999 U.S. App. Lexis 22351, 9 AD Cases 1239 (9th Cir. 1999). {N/R}
     The Seventh Circuit recognizes but declines to address a split over whether Title II of the ADA applies to public employers. Staats v. Co. of Sawyer, 220 F.3d 511 (7th Cir. 2000). The 11th Circuit holds that it applies; the 6th, 9th and 10th Circuits disagree. {N/R}
     In enacting the ADA, Congress has abrogated Eleventh Amendment state immunity; U.S. Supreme Court ruling that the ADEA did not validly abrogate states' Eleventh Amendment immunity. Cisneros v. Wilson, 226 F.3d 1113, 2000 U.S. App. Lexis 22884, 10 AD Cases (BNA) 1668 (10th Cir. 2000). {N/R}
     Congress did not validly abrogate states' immunity under Eleventh Amendment to U.S. Constitution when it enacted Title II of ADA, and exceeded its authority under Section 5 of 14th Amendment when it applied it to states. Popovich v. Cuyahoga Co., 227 F.3d 627, 2000 U.S. App. Lexis 23388, 2000 FED App. 0330P, 10 AD Cases (BNA) 1784 (6th Cir. 2000). {N/R}
     11th Circuit upholds the constitutionality of ADA claims against a state. Kimel v. Fla. Regents; Dickson v. Fla. Corrections; MacPherson v. Univ. Montevallo, 139 F.3d 1426, 1998 U.S. App. Lexis 8338, 76 FEP Cases (BNA) 1201 (11th Cir. 1998). [1998 FP 83]
     Congress validly abrogated state immunity under the 11th Amendment under Sec. 5 of the 14 Amendment when it enacted the ADA. Martin v. Kansas, 1999 U.S. App. Lexis 19707, 9 AD Cases (BNA) 1075 (10th Cir.). {N/R}
     The Congress properly abrogated the sovereign immunity of the several states in enacting the ADA. Martin v. Kansas, #972025-JWL, 7 AD Cases (BNA) 973 (D.Kan. 1997). {N/R}


HANDICAP/ ABILITIES DISCRIMINATION - DAMAGES
     A California appeals court upheld a $1,571,500 award for a former LAPD officer who was medically terminated in violation of the state's Fair Employment Act. Further, the plaintiff was not judicially estopped from pursuing a damage claim because of a 100% total and permanent disability rating he received in a workers' compensation proceeding. The test is whether the plaintiff could perform the essential functions of his current assignment or an available position, and not on the essential functions of a police officer position, the job title the plaintiff held. Cuiellette v. City of Los Angeles, #B224303, 194 Cal. App. 4th 757, 2011 Cal. App. Lexis 477.
     Federal court in Florida upholds a damages claim for corrections officer who alleged that she was fired in retaliation for making disabilities discrimination complaints. Rumler v. Fla. Dept. of Corrections, #2:06-cv-522, Pacer Doc. #59 (M.D. Fla.).
     Federal jury awards $3 million to a blind woman who was fired from her job as director of Pennsylvania's agency for the blind and visually impaired. Boone v. Penn. Office of Vocational Rehab., 1:04-cv-00588 (M.D. Pa. verdict, 2005). {N/R}
     Jury awards former police officer over $1 million for disability discrimination. Britton v. Mill Creek, #96-2-02085-9, 37 (1837) G.E.R.R. (BNA) 1484, Super. Ct. Snohomish Co. Wash. (10/26/99). [2000 FP 25]
     Missouri city pays $500,000 to settle a former fire captain's ADA claim, based on a back injury. A jury had awarded him $670,000. Norwood v. City of Independence, #96-1166-CV-W-4, 37 (1840) G.E.R.R. (BNA) 1563 (W.D. Mo. 1999). {N/R}
     Missouri city pays $500,000 to settle a former fire captain's ADA claim, based on a back injury. A jury had awarded him $670,000. Norwood v. City of Independence, #96-1166-CV-W-4, 37 (1840) G.E.R.R. (BNA) 1563 (W.D. Mo. 1999). {N/R}
     US Supreme Court confirms that punitive damages may be awarded for Title VII violations. Kolstad v. Amer. Dental Ass'n, #98-208, 1999 WL 407481 (June 22, 1999). {N/R}
     N.Y. affirms a monetary judgment for emotional distress, awarded to a firefighter applicant who was improperly rejected because of a physical disability. Amount reduced because he did not seek medical treatment for his distress. Fulton (City of) v. N.Y. St. Div. Hum. Rts., 633 N.Y.S.2d 914 (A.D. 1995). [1996 FP 73-4]


HANDICAP/ ABILITIES DISCRIMINATION - INMATES/PRISONERS
     Federal appeals court reinstates a suit brought by a wheelchair-bound plaintiff with muscular dystrophy that sued officers for excessive force for "attempting to place him in the back seat of a police cruiser after he explained that his legs could not bend." St. John v. Hickey, #04-3388, 2005 FED App. 0268P, 2005 U.S. App. Lexis 11736 (6th Cir. 2005). {N/R}
     Supreme Court holds that punitive damages are not a valid remedy in private suits against public entities under Title II of the ADA and §504 of the Rehabilitation Act. Case involved a disabled prisoner who was injured in a transport van. Barnes v. Gorman, #01-682, 122 S.Ct. 2097, 2002 U.S. Lexis 4421, 70 U.S.L.W. 4548 (2002). [2002 FP Sep]
     Federal appeals court finds that punitive damages are available for injuries sustained by a paraplegic prisoner who was transported in a van without wheelchair restraints. Jury awarded $1,034,817 in actual and $1,200,000 in punitive damages. Gorman v. Easley, #00-1029 and 1030, 257 F.3d 738, 2001 U.S. App. Lexis 12827 (8th Cir.). [2001 FP 137-8]
     Private individuals may sue state officials for injunctive relief under Title I of the ADA. Gibson v. Arkansas Dept. of Corr., #01-1038, 2001 U.S. App. Lexis 20315, 11 AD Cases (BNA) 1599 (8th Cir. 2001). {N/R}
     Federal circuits split on whether the ADA applies to state prisons and other state-owned facilities. Supreme Court side-stepped the issue in 1998. Muller v. Costello, 98-7491, 1999 U.S. App. Lexis 18651 (2nd Cir.); Amos v. Maryland Dept. Pub. Safety & Corr., #96-7091, 178 F.3d 212 (4th Cir. 1999); Alsbrook v. Maumelle, Ark., #97-1825, 1999 U.S. App. Lexis 16945, 184 F.3d 999, 9 AD Cases (BNA) 897 (8th Cir. en banc 1999). [1999 FP 156]
     Supreme Court declines to decide the constitutionality of the ADA as applied to state prisons and other facilities. State failed to raise that claim below. Penn. Dept. of Corr. v. Yeskey, 524 U.S. 206, 188 S.Ct. 1952 (1998). {N/R}
     Federal appeals court holds that the accommodations requirements of the ADA apply to jail inmates and disabled persons under arrest. Police dept. did not have a wheelchair accessible prisoner van. Gorman v. Bartch, #97-4323, 152 F.3d 907, 1998 U.S. App. Lexis 20291, 8 AD Cases (BNA) 751, overturning 925 F.Supp. 653. (8th Cir.). [1998 FP 166]
     Connecticut court refuses to dismiss a suit brought by a paraplegic inmate, under the ADA, against a sheriff and others for transporting him in a van that was not wheelchair accessible. Davis v. Mak, 1997 WL 133410 (Conn. Super. 1997). [1998 FP 39]
     Federal court in N.Y. has refuses to dismiss a suit brought by a paraplegic inmate, under the ADA, against officers for transporting him in a van that was not wheelchair accessible. Candelaria v. Greifinger, 1997 U.S.Dist. Lexis 4616, 4617 & 16146 [3 opinions and orders] (N.D.N.Y.). {N/R}
     Ninth Circuit upholds inmate class action to impose the ADA on California state prisons. Eleventh Amendment no bar to the ADA. Clark v. Cal. Dept. of Corrections, 1997 U.S.App. Lexis 22623 (9th Cir.); Armstrong v. Wilson, 1997 U.S.App. Lexis 22622, 124 F.3d 1019 (9th Cir.). [1997 FP 152-3]
     ADA provisions that bar public agencies from denying services, programs or activities to qualified individuals applies to state prisoners. 7th Circuit applies the ADA to Indiana state prison inmates; suit by blind prisoner seeks damages and access to programs. Crawford v. Indiana DOC, 115 F.3d 481, 1997 U.S.App. Lexis 12673 (7th Cir.). [1997 FP 104]
     Federal judge applies the protections of the ADA to all California prison inmates. Compliance will cost an estimated $50 million. Armstrong v. Wilson, 942 F.Supp. 1252 (N.D.Cal. 1996); aff'd (see 124 F.3d 1019 above). [1997 FP 10]
     Attempt to apply the ADA to the Virginia prison system fails. Staples v. Va. Dept. of Corrections, 904 F.Supp. 487, 5 AD Cases (BNA) 1349, 1995 U.S.Dist. Lexis 19970 (E.D.Va.). See also Little v. Lycoming County, 912 F.Supp. 809, 5 AD Cases (BNA) 1359, 1996 U.S.Dist. Lexis 1757 (M.D.Pa.). [1997 FP 10-11]
     Tenth circuit holds the ADA does not apply to prison situations. White v. Colorado, 82 F.3d 364, 5 AD Cases (BNA) 1631, 1996 U.S.App. Lexis 9281 (10th Cir.). Note: see 9th and 7th Circuit cases above, holding the opposite. [1997 FP 11]
     Federal judge applies the protections of the ADA to California prison inmates compliance will cost $50 million. Armstrong v. Wilson, 1996 U.S.Dist. Lexis ***, 109 (184) L.A. Daily J. 1 (N.D.Cal.). Research Note: Other federal courts have recently come to the opposite viewpoint. An attempt to apply the ADA to the Virginia prison system failed in Staples v. Va. Dept. of Corrections, 904 F.Supp. 487, 5 AD Cases (BNA) 1349, 1995 U.S.Dist. Lexis 19970 (E.D.Va.). Similarly, an action against a county prison also failed in Little v. Lycoming County, 912 F.Supp. 809, 5 AD Cases (BNA) 1359, 1996 U.S.Dist. Lexis 1757 (M.D.Pa.).


HANDICAP/ ABILITIES DISCRIMINATION - LIGHT DUTY

     An employee of a county sheriff's office was placed in a temporary light duty assignment as a result of disabilities suffered from a work related injury. The employer did not offer permanent light duty assignments, and she was ultimately terminated. A federal appeals court rejected a disability discrimination claim. The employer was not required to create a permanent light-duty job especially for the plaintiff. The plaintiff did not support her request for a reassignment with evidence that there was a specific full duty vacant position that she was qualified for. The court also rejected the plaintiff's retaliation claim, since the evidence was that she was fired solely because she was unable to return to full duty when her eligibility for light duty expired. Frazier-White v. Gee, #15-12119, 2016 U.S. App. Lexis 6318 (11th Cir.).
     Arbitrator finds that management did not violate the bargaining agreement or disability laws by refusing to assign a firefighter with muscular dystrophy in an altered paramedic position as a trainer when he no longer could fulfill the active firefighting requirements. Orange County and IAFF L-2057, 124 LA (BNA) 150, AAA #32-390-00219-06 (Smith, 2007).
      Appeals court rejects an ADA claim that a police officer, who had frequent absences arising from prior injuries, was "disabled" under federal or state law. "The inability to perform a single, particular job does not constitute a substantial limitation on the major life activity of working." There were no permanent light duty positions, and the city lawfully terminated the officer for medical reasons. Epps v. City of Pine Lawn, #02-3064,2003 U.S. App. Lexis 25741(8th Cir. 2003). {N/R}
     Federal court rejects claim that a disabled detective was entitled to a permanent light duty position. The fact that he satisfactorily performed his duties in a wheelchair while his condition was under evaluation did not require management to make the assignment a permanent one. Doner v. City of Rockford, 2003 U.S. Dist. Lexis 1792, 2003 WL 262514 (N.D. Ill. 2003). [2003 FP Jun]
     Federal court affirms jury verdicts for three officers who were denied promotions because they were on light duty status. Each awarded over $94,000 in back pay and compensatory damages, plus weekly payments until promoted. Colwell v. Suffolk Co. Police Dept., 967 F.Supp. 1419 (E.D.N.Y. 1997). [1998 FP 102-3]
     Procedurally, police officers could not maintain a class action suit seeking permanent light duty status for injured employees, because the ADA requires an individualized determination, on a case-by-case basis, whether a person is disabled within meaning of the act. Davoll v. Webb, 4 AD Cases (BNA) 161, 160 F.R.D. 142 (D.Colo. 1995). [1995 FP 170]
     See also: Light Duty Assignments.


HANDICAP/ ABILITIES DISCRIMINATION - PSYCHIATRIC

     A female police officer started to experience unspecified psychological difficulties after seven years on the job. She was found fit to continue to work during four psychological exams she was ordered to undergo. She sued, asserting that making her take the exams amounted to race, sex, sexual orientation, and disability discrimination. She was suspended without pay pending discharge proceedings twice and then a discharge proceeding was begun. After that, she filed a second lawsuit for disability discrimination, dismissing the first suit. The second lawsuit was dismissed, finding no evidence of disability discrimination. She then filed a third lawsuit, repeating the disability discrimination claim, which was dismissed as barred by the earlier lawsuit. Upholding this result, a federal appeals court noted that while she claimed that she was vulnerable to workplace stress, she didn't claim that this prevented her from performing an essential job function, rendering her an otherwise qualified disabled person. She did not show that she was suspended or terminated because of her disability. Brumfield v. City of Chicago, #11-2265, 2013 U.S. App. Lexis 22571 (7th Cir.).
     The Pennsylvania Supreme Court ruled that a lower court acted erroneously in overturning an award of workers' compensation disabilities benefits based on a finding that the officer had established the existence of a mental disability caused by abnormal working conditions, specifically, the death of a mentally ill person who ran in front of his patrol car, apparently in a suicidal act. The disability prevented him from working. Payes v. WCAB (PA State Police), #50 MAP 2011, 2013 Pa. Lexis 2588.
     A former University of California at Davis police officer who used pepper spray on "Occupy" demonstrators at a campus sit-in in 2011 in a highly publicized incident has received a $38,05 workers compensation settlement from the university employer for depression and anxiety he said he suffered from after receiving death threats and other negative reactions based on the publicity. A psychiatric report released by the California Department of Industrial Relations characterized his disability of a damaged psyche as moderate, with no improvement in his condition a year after the incident. John Pike and University of California, California Workers Compensation claim, decision of administrative law judge Harter, Oct. 16, 2013, reported in The Davis Enterprise, Oct. 24, 2013.
     A state transportation employee suffered from severe psychological disorders, including bipolar disorder, psychosis, and schizoaffective disorder. These conditions led to volatile strife with her employer, which wanted to terminate her. She claimed that she had been harassed and passed over for promotion. She was given disability retirement as part of a negotiated settlement. She later tried to be reinstated, and claimed that the refusal to rehire her constituted disability discrimination under Title I of the Americans with Disabilities Act (ADA). She sought damages for that discrimination under 42 U.S.C. Sec. 1983. A federal appeals court held that she could not seek such damages since Congress had not abrogated the state's Eleventh Amendment immunity from damages based on such claims. Further, since Title I of the ADA has a comprehensive remedial scheme, a damage claim under Sec. 1983 is barred. She also failed to establish an equal protection claim, as she could not show that she was treated differently than other similarly situated persons. Okwu v. McKim, #11-15369, 2012 U.S. App. Lexis 11874 (9th Cir.).
     A jury has awarded $206,665.58 in back pay to a firefighter fired after she made a failed suicide attempt by setting a bathtub fire, as well as ordering her reinstated in her job with restored seniority. She had burned clothes in the bathtub, and tried to kill herself by inhaling the smoke. The plaintiff's claim was that her termination violated the Americans with Disabilities Act (ADA), based on her suffering from a disability of severe depression. She was prescribed different anti-depression medication after the suicide attempt, and medically cleared to return to work, but was then fired on the basis that setting the fire made her a danger to the safety of herself, fellow firefighters, and the public. In the lawsuit, there was expert testimony from two psychiatrists and a psychotherapist that there were no impediments to her returning to work. Wolski v. City of Erie, #1:08-cv-00289, (W.D. Pa.) Click here to read the complaint in the case. Click here to read the judgment. Prior decision denying defendant's motion for summary judgment Wolski v. City of Erie, #1:08-cv-00289, 773 F. Supp. 2d 577 (W.D. Pa. 2011).
     Rejecting First Amendment and disabilities discrimination claims, the Seventh Circuit upholds the termination of a county physician. Management presented undisputed evidence that it fired the plaintiff because he had threatened to kill his superior and coworkers. Bodenstab v. County of Cook, #08-1450, 2009 U.S. App. Lexis 13313 (7th Cir.).
   Employer vindicated in a wrongful termination and disability discrimination action; the plaintiff was taking prescription drugs that affected his cognitive abilities and held a safety-sensitive position. Kosmicki v. BN&SF Ry., #08-1511, 2008 U.S. App. Lexis 22310 (8th Cir.).
    Appellate court orders a new trial in a disability and race discrimination case. A trooper claimed that wearing a protective vest while on road patrol worsened his back injury and he sought reassignment to station duties. His alleged psychological injury resulting from a failure to accommodate his disability was not an adverse personnel action, and damages awarded on the accommodation claim were not segregated from total damages award. Victor v. State of New Jersey, 952 A.2d 493, 2008 N.J. Super. Lexis 166, 20 AD Cases (BNA) 1591 (Unpub. N.J. App.).
     Rejecting an ADA claim, the Ninth Circuit holds that a former deputy sheriff's inability to interact with others was of limited severity, and was mitigated by anti-depressant medication for his PTSD. Magdaleno v. Washington Co., Ore., #06-35319, 2008 U.S. App. Lexis 10153 (Unpub. 9th Cir.).
     Former state police officer who was removed from duty due to allegedly irrational behavior may proceed with a claim that she was regarded as disabled, where the psychologist that conducted fitness-for-duty evaluation diagnosed her as depressed, having a paranoid personality and unfit for duty. Broberg v. Illinois State Police, #06cv3901, 2008 U.S. Dist. Lexis 7916, 20 AD Cases (BNA) 321 (N.D.Ill.).
     EEOC affirms a finding that an employee was discriminated against because of her bipolar disorder. She was removed for making inappropriate comments, disrespectful conduct, and for leaving the job without permission. Soriano v. Wynne, EEOC #03A60080, MSPB #AT-0752-04-0745-I-2, 2006 EEOPUB Lexis 2414 (EEOC 2006). {N/R}
     Can an employer legally fire a worker for lying in his job application and then violate the ADA by not giving him his job back? A divided federal appeals court affirms a jury award for a rejected reinstatement applicant that had been acquitted of attempted murder because of insanity. Josephs v. Pacific Bell, #03-56412, 432 F.3d 1006, 2005 U.S. App. Lexis 28737, 17 AD Cases (BNA) 678 (9th Cir. 2005). [2006 FP Mar]
     Seventh Circuit affirms a summary judgment for the employer in Rehabilitation Act of 1973 action alleging that the plaintiff's supervisor created a hostile environment due to the plaintiff's paranoia and retaliated against her by failing to give her overtime because she had filed two prior EEOC charges. Derogatory remarks by the supervisor to others about the plaintiff's mental condition was insufficient to establish a hostile environment. Mannie v. Potter, #03-4340, 394 F.3d 977, 16 AD Cases (BNA) 641, 2005 U.S. App. Lexis 1021 (7th Cir. 2005). {N/R}
     Tenth Circuit declines to rehire a sheriff's sergeant that had shot up her father's grave. She posed a potential risk to coworkers and the public. McKenzie v. Benton, #02-8024, 2004 U.S. App. Lexis 23410 (10th Cir. 2004).[2005 FP Jan]
     Federal Court finds that Title II of the ADA does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life. However, the ADA requires police agencies to adopt policies and procedures for dealing with mentally ill persons, and that a failure to train police officers to peacefully deal with mentally ill persons is a violation of §12132 of the ADA. Schorr v. Bor. Lemoyne, #1:CV-01-930, 243 F.Supp.2d 232, 14 AD Cases (BNA) 32, 2003 U.S. Dist. Lexis 1979 (M.D. Pa. 2003). {N/R}
     Second Circuit overturns the summary dismissal of a claim that a public employee was fired because her superiors thought she might be suicidal. Suicide is a mental illness and a protected disability under the Rehabilitation Act. Peters v. Baldwin School Dist., #02-7018, 320 F.3d 164, 2003 U.S. App. Lexis 2510, 13 AD Cases (BNA) 1793 (2nd Cir. 2003). [2003 FP Sep]
     Appeals court rejects the ADA claims of a worker who was fired for insubordination and threats of violence, and not because of her failure to submit to a medical examination. When an employer's inquiries about the mental health of an employee reflect a concern for the safety of coworkers, management may require the employee to undergo an examination. Williams v. Motorola, 00-13820, 2002 U.S. App. Lexis 18276 (11th Cir. 2002). {N/R}
     Divided appeals panel opens the door for mentally disabled former employers to sue, under the ADA, if their benefits are less than those disabled for physical reasons. Johnson v. K Mart Corp., #99-14563, 2001 U.S. App. Lexis 24923 (11th Cir.). [2002 FP Feb]
     Federal appeals court sustains the assignment of a police officer with severe depression to special monitoring unit. Krocka v. City of Chicago, #98-2250, 203 F.3d 507, 2000 U.S. App. Lexis 1649, 10 AD Cases (BNA) 289 (7th Cir.). [2000 FP 72]
     Title II of the ADA does not apply to an officer's on-the-street responses, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life. Sheriff's deputy not liable for a "suicide-by-cop" shooting. Hainze v. Richards, 207 F.3d 795, 2000 U.S. App. Lexis 6293, 10 AD Cases (BNA) 687 (5th Cir.). {N/R}
     The ADA was not violated when a deputy sheriff fatally shot a mentally disabled individual. If the deceased was denied access to medical services, it was because of his violent behavior and not because he was mentally disabled. Thompson v. Williamson County, 219 F.3d 555, 2000 U.S. App. Lexis 16679, 2000 FED App. 0233P, 10 AD Cases (BNA) 1367 (6th Cir. 2000). {N/R}
     Employee with depression, controlled by medication, was not disabled under the ADA. Julia v. Janssen, 92 F.Supp.2d 25 (D.P.Rico). {N/R}
     Employee with bipolar disorder who "feels fine" with daily lithium medication is not "substantially limited in a major life activity." McConnell v. Pioneer, 2000 U.S. Dist. Lexis 3335, 82 FEP Cases (BNA) 52, 10 AD Cases (BNA) 518 (D.S.D. 2000). {N/R}
     Officer with serious psychological problems could be disarmed and demoted or fired, without running afoul of the ADA. He was not "disabled" and the dept. had a duty to remove mentally unstable officers. Garner v. Gwinnet Co., 1999 U.S. Dist. Lexis 6370 (N.D. Ga.). [1999 FP 103-4]
     Explosive personality not protected under the ADA. Resistance to therapy made accommodation not possible. Duncan v. Wis. Dept. of Health #97-2198, 166 F.3d 930, 1999 U.S. App. Lexis 1444, 8 AD Cases (BNA) 1800 (7th Cir.). [1999 FP 104]
     EEOC's Office of Legal Counsel issues "Enforcement guidance on the ADA and psychiatric disabilities." EEO document states that "attempting suicide does not mean that an individual poses an imminent risk of harm to him/herself when s/he returns to work." EEOC Notice 915.002 (3/25/97), 8 FEP Manual (BNA) 405:7461-7481; Internet www.eeoc.gov/ [1997 FP 102-4]
     EEOC issues rules on the application of the ADA to persons with psychiatric disabilities. EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities, Vol. II EEOC Compliance Manual, Notice #915.002, 8 FEP Manual (BNA) 405:7461 (3-25-97). www.eeoc.gov/ [1997 FP 70-1]
     City employee who threatened to kill his superior and coworkers could be fired for mental instability; he was not a "qualified individual" under the ADA. Jones v. N.Y.C. Housing Auth., 1996 U.S.Dist. Lexis 14370, 6 AD Cases (BNA) 1 (S.D.N.Y.); 1996 U.S.App. Lexis 24943 (2nd Cir.). [1997 FP 23]
     Colorado Supreme Court allows evidence of a mental disorder to reduce punishment for repeated acts of misconduct. People v. Lujan, 890 P.2d 109 (Colo. 1995). [1995 FP 166-7]
     Appellate court affirms discharge of a juvenile detention officer who lost her temper. A bipolar disorder did not excuse her misconduct. Indiana Civ. Rts. Cmsn. v. Del. Co. Cir. Ct., 642 N.E.2d 541, 1994 Ind.App. Lexis 1603. [1995 FP 88]
     Police arrested and used force on a person who had or was regarded as having a mental disability. The court refused to dismiss his ADA claim, although the court did not specify how the police may have violated Title II in making the arrest. Barber v. Guay, 910 F.Supp. 790/at 802 (D.Me. 1995). {N/R}
     Public employer could terminate an employee who caused a disturbance and possessed a stun gun and chemical mace in the workplace, notwithstanding his mental disability. Gordon v. Runyon, 3 A.D. Cases 284, 1994 U.S. Dist. Lexis 4959 (E.D. Penn.); affd. 3 AD Cases 1600 (3d Cir. 1994). {N/R}
     Federal court upholds termination of an employee for misbehavior, even if the conduct was caused by her bipolar disorder. The A.D.A. does not protect an employee when the employer cannot accommodate misconduct (insubordination and abusive outbursts). Corrozza v. Howard County, 847 F.Supp. 365 (D.Md. 1994). {N/R}
     EEOC affirms a decision holding there was no unlawful discrimination against an FBI agent who was denied a pay increase for substandard performance, despite his claim it was caused by clinical depression. English v. Reno, EEOC #03-93-0030; 17 (5) MPDLR (ABA) 507 (EEOC 1993). [1994 FP 26]
     State licensing authority violated the A.D.A. (42 US Code 12132) when it asked applicants if they ever sought treatment for a nervous, mental or emotional condition or if they ever ingested a psychotropic drug. Ellen S. v. Fla. Bd. of Bar Exmrs., 63 L.W. 2101 (S.D.Fla. 1994). {N/R}
     Boston Police Dept. violated a state mental treatment law by asking about an officer's prior hospitalization for mental illness. Court would not create an exception for persons expected to carry firearms. Kraft v. Police Cmsnr. of Boston, 410 Mass. 155, 571 N.E.2d 380, 2 AD Cases 955 (Mass. 1991). Note: this pre-A.D.A. case would be decided the same under the Act. [1992 FP 41-2]
     Psychologically unfit police applicant was not a protected person under the Federal Rehabilitation Act. Daley v. Koch, 892 F.2d 212 (2nd Cir. 1989).
     Also see: Mental Illness and Instability; Suicide Related; Stress Related Claims and Defenses.


HANDICAP/ ABILITIES DISCRIMINATION
     REGARDED AS DISABLED

     An employee claimed that her manager told her that “you either don’t know what you’re doing, or you have a disability, or [you’re] dyslexic.” Based on this statement, she was tested for dyslexia. She submitted an evaluation that concluded that she had symptoms consistent with dyslexia and requested reasonable accommodations for that condition. She was told that any diagnosis would not excuse her from performing her work in a satisfactory matter. She was further advised to focus on improving her performance. Weeks later, she was fired, and sued for disability discrimination under the Americans with Disabilities Act (ADA). The plaintiff acknowledged that she could not prove she was dyslexic. She proceeded on a theory that she was perceived or regarded as dyslexic by her employer and therefore was entitled to a reasonable accommodation under the ADA. A federal appeals court upheld judgment of $22,501 in favor of the plaintiff on her reasonable accommodation claim. It ruled that the employer had waived its argument under the 2008 ADA amendments. The Act now provides that employers “need not provide a reasonable accommodation . . . to an individual who meets the definition of disability in” 42 U.S.C. 12102(1)(C), which includes individuals who are “regarded as having” a physical or mental impairment. Despite the amendment, both parties proceeded under the “regarded as” case theory throughout the lawsuit. An error in advising the jury of a $50,000 cap on damages was harmless, as the jury awarded damages well below the cap. The case involved a private employer, but the reasoning of the case would also apply to public employers. Robinson v. First State Community Action Agency, #17-3141, 920 F.3d 182 (3d Cir. 2019).

        Under the ADA Amendments Act (ADAAA) of 2008, the scope of the ADA's "regarded as" definition of disability was expanded. Now a plaintiff must show, under the ADAAA, that he or she has been subjected to prohibited discrimination because of an actual or perceived physical or mental impairment regardless of whether or not the impairment limits or is perceived to limit a major life activity. In this case, the plaintiff filed a lawsuit against his former employer claiming disability discrimination under the ADA and state law. He asserted that he was fired because of his shoulder injury.  A federal appeals court ruled that the plaintiff established a genuine issue of material fact as to whether his employer regarded him as having a disability. The appeals court also found that the trial court erroneously concluded, as a matter of law, that the plaintiff was not regarded as disabled, and that the plaintiff did not meet the “physical” definition of disability under the ADA. Nunies v. HIE, #16-16494, 2018 U.S. App. Lexis 26221, 2018 WL 4390791 (9th Cir.). While this case involved a private employer, the reasoning would also apply to a public employer under similar circumstances in which the employee was “regarded as” being disabled.

    A female African-American police detective who had a heart condition was placed on administrative leave after she and her doctor raised concerns about her being required to be subjected to a Taser shock during training exercises. Ultimately, she was terminated.  A federal appeals court reversed summary judgment for the defendants in a lawsuit claiming that the plaintiff was unlawfully discharged from the police department based on disability and/or racial or gender discrimination.  A jury could find that the stated reason for terminating her—that she was absent without leave—was a pretext for one or more other motives. The trial court correctly concluded that the detective did not produce sufficient evidence to permit a conclusion that she was actually disabled, within the meaning of the American with Disabilities Act.  But she did produce evidence sufficient to raise a genuine issue of fact on whether she was “regarded as” disabled and that her employer regarded her heart condition as a physical impairment and took adverse action—placing her on leave—because of the impairment; A jury would be justified in concluding that receiving a Taser shock was not an essential function of the detective's job, in which case it would follow that she was a "qualified individual." Lewis v. Union City, Georgia, #15-11362, 877 F.3d 1000 (11th Cir. 2017).

     New York City police officers were referred to an internal counseling services unit for assistance with their purported alcohol abuse. It determined that each plaintiff suffered from alcoholism. The officers sued alleging that they were discriminated against by subjecting them to adverse employment actions based on the mistakenly perceived disability of alcoholism. The parties now agree that they were not actually alcoholics. The highest court in New York, in answer to a question certified to it by the United States Court of Appeals for the Second Circuit, ruled that Sections 8-102(16) (c) and 8-107(1)(a) of the New York City Administrative Code precluded the plaintiffs from bringing a disability discrimination claim under state law based solely on a perception of untreated alcoholism. Makinen v. City of New York, 2017 N.Y. Lexis 3075, 2017 NY Slip Op 07208.

     In order for a transit authority former employee to establish a regarded as disabled disability discrimination claim, he was not required to show that his alcoholism substantially limited a major life activity. Further, given the legal standard in the 2008 amendments to the Rehabilitation Act, the plaintiff presented enough evidence on his actual disability or record-of-impairment claims to permit a reasonable jury to find that his alcoholism substantially limited major life activities compared to most people in the general population. Summary judgment for the employer was reversed. Alexander v. WMATA, #15-7039, 2016 U.S. App. Lexis 11558 (D.C. Cir.).
     A fire captain's injured right knee did not constitute a perceived disability for purposes of a failure to promote discrimination claim under the Americans with Disabilities Act (ADA), 42 U.S.C. Secs. 12101-12213. He claimed that he was not promoted to fire district chief because of the injured knee. The court noted that, despite the injury, he was not disabled from working a broad class of jobs, and was currently employed as a fire inspector. A "perceived disability to perform the fire district chief position is not the same as a perceived disability which materially limits a major life activity." There was no direct or indirect evidence presented that the city regarded him as disabled. He failed to demonstrate that the reasons given for not giving him the job were a pretext. A defendant testified that he chose lower ranking candidates for the available jobs because they were educationally superior and understood the department's vision. The plaintiff, on the other hand, even if he had higher test scores, "did not read the information setting forth the department's vision, and came to the interview unprepared." St. Martin v. City of St. Paul, #11-1716, 2012 U.S. App. Lexis 11281 (8th Cir.).
     Federal court declines to dismiss an ADA action brought by a former police detective who claims that management regarded him as mentally disabled. Management had ordered him to disarm and refused to assign him to a light duty position. Carraway v. Bor. of Wilkinsburg, #2:09-cv-00372, PACER Doc. 17, 2009 U.S. Dist. Lexis 83356 (W.D.Pa. 2009).
     City emergency dispatcher that was terminated after her diagnosis of depression and anxiety was not regarded as disabled, even though she had been required to undergo a fitness-for-duty examination. Alertness and concentration are job-related skills and are consistent with business necessity. Wisbey v. City of Lincoln, #4:08-CV-3093, 2009 U.S. Dist. Lexis 30819, 21 AD Cases (BNA) 1377 (D. Neb.)
     Pedophilia is not a mental or physical impairment and a registered sex offender was not "regarded as" disabled, in spite of the employer's policy of not hiring former sex offenders. Vlasek v. Wal-Mart Stores, #H-07-0386, 20 AD Cases (BNA) 1557, 2008 U.S. Dist. Lexis 55761 (S.D. Tex.).
     Rejected police applicant with missing fingers is awarded $500,000 damages. He had 10 years of experience as a police officer in other nearby communities. Kreger v. Baldwin, #05-0789 (W.D. Pa. 2006). {N/R}
     A narcoleptic fire captain who was relieved of duty after his condition was discovered was not "regarded as" disabled. Ridgely v. Montgomery County, #580/04, 883 A.2d 182, 2005 Md. App. Lexis 198, 17 AD Cases (BNA) 382 (Md. Spec. App. 2005). {N/R}
     For the purposes of the ADA, management did not regard the plaintiff as mentally "disabled," in spite of the fact that her superior had requested a psychological fitness exam and that other deputy sheriffs had called her "nuts' and "crazy" -- treating her as if she were mentally ill. Lanman v. Johnson County, #03-3316, 393 F.3d 1151, 2004 U.S. App. Lexis 27200, 16 AD Cases (BNA) 449 (10th Cir., 2004). {N/R}
     Personality conflicts among coworkers -- even those expressed through the use or misuse of mental health terminology -- generally do not establish a perceived impairment on the part of the employer, nor does a management order to take a fitness for duty exam. Lanman v. Johnson County Sheriff's Dept., #03-3316, 2004 U.S. App. Lexis 27200, 16 AD Cases (BNA) 449 (8th Cir. 2004). {N/R}
     Eleventh Circuit overturns a $160,000 jury verdict for five partially-disabled police officers who were assigned to light duty and prevented from accepting moonlighting jobs. Their impairments did not substantially affect a major life activity, and although the city regarded them as disabled, the job of police officer is too narrow to qualify for relief under the ADA.. Rossbach v. City of Miami, #03-13348, 371 F.3d 1354, 2004 U.S. App. Lexis 11111, 15 AD Cases (BNA) 1064 (11th Cir. 2004). [2004 FP Sep]
     Massachusetts Supreme Court overturns $90,000 judgment won by a police officer who was removed from the special response team after he shot a suspect. Even if his superiors regarded him as disabled, an inability to perform a particular assignment is not a disability under federal or state discrimination laws. City of New Bedford v. Mass. Cmsn. Against Discrim., #SJC-08885, 440 Mass. 450, 799 N.E.2d 578, 2003 Mass. Lexis 826 (2003). [2004 FP Apr]
     Federal court rejects a discrimination suit, filed by an ex campus police officer with dyslexia, who was fired for poor performance. Smith v. State Univ. of N.Y., #1:00-CV-1454, 2003 U.S. Dist. Lexis 6835, 14 AD Cases (BNA) 540 (N.D.N.Y. 2003). [2003 FP Aug]
     A duty physician with hepatitis C, who repeatedly missed work, was not "regarded as ... impaired" within the meaning of the ADA. Gowesky v. Singing River Hosp., #60283, 2003 U.S. App. Lexis 2054 (5th Cir. 2003). Second Circuit upholds an ADA claim by a police officer that was passed over for sergeant because he had suffered an epileptic seizure. Treglia v. Town of Manlius, #01-9350, 313 F.3d 713, 2002 U.S. App. Lexis 26120, 13 AD Cases (BNA) 1537 (2d Cir. 2002). {N/R}
     Under the ADA, a NYPD officer with a need to take the anticoagulant Coumadin, was regarded as unable to work as a full-duty patrol officer. He is not per se impaired from working as a law enforcement officer in either the public or private sectors. Giordano v. City of N.Y., #01-7370, 274 F.3d 740, 2001 U.S. App. Lexis 27137 (2d Cir.). [N/R]
     Employee who had heart attack was not regarded as "disabled" under the ADA, even though her superior had sent her a "get-well" card and placed her on medical leave. Taylor v. Nimock's Oil Co., #99-2018, 214 F.3d 957, 2000 U.S. App. Lexis 12042, 10 AD Cases (BNA) 1069 (8th Cir.). {N/R}

HANDICAP/ ABILITIES DISCRIMINATION - RETALIATION

     An employee claimed that he was constructively discharged from his job with the Kansas Department of Social and Rehabilitation Services (SRS) in unlawful retaliation for advocating better accommodation for a disabled co-worker. A federal appeals court upheld summary judgment to the defendant state agency on claims under both the Americans with Disabilities Act (ADA) and the Rehabilitation Act, as the agency was entitled to sovereign immunity on the ADA claim and the Rehabilitation Act claim was time-barred under an applicable statute of limitations. There was no clear evidence that Congress intended states to waive ADA immunity by accepting federal funds, as opposed to liability under the Rehabilitation Act. Levy v. Kansas Dept of SRS, #14-3061, 789 F.3d 1164 (10th Cir. 2015).
     Ninth Circuit rejects the suit of a former detective who claims constructive discharge because management purportedly terminated her because of her disability (depression and attempted suicide). However, she sufficiently alleged a claim of intimidation to warrant the trial of her lawsuit. Brown v. City of Tucson, #01-16938, 2003 U.S. App. Lexis 15061 (9th Cir. 2003). [2003 FP Oct]


HANDICAP/ ABILITIES DISCRIMINATION
     SPECIFIC DISABILITIES
     A. DIABETES
     B. OBESITY

     C. OTHER CONDITIONS
     A. Diabetes

     A D.C. correctional officer was fired for neglect of duty after falling asleep on the job. He sued his employer for disability discrimination, claiming that his disability of diabetes had not been reasonably accommodated. A jury returned a verdict for the defendant, finding that the plaintiff was not disabled within the meaning of the Americans with Disabilities Act. Upholding this result, a federal appeals court noted that there had been evidence presented at trial that the plaintiff could control his diabetes by simply eating three meals a day plus snacks, along with taking his medication. There was also sufficient evidence to support a finding that the plaintiff was allowed to eat his regular meals and snacks, and therefore a conclusion that he did not have a disability for ADA purposes. Coleman-Lee v. Government of D.C., #13-7123, 2015 U.S. App. Lexis 8183 (D.C. Cir.).
     The U.S. Department of Justice pursued a complaint that the Illinois State Police was engaged in a pattern or practice of discrimination in maintaining a policy automatically excluding applicants for cadet job vacancies if they have either a hearing loss and were not permitted the use of hearing aids or other assistive devices at a medical screening, or diabetes mellitus which is controlled by the use of an insulin pump. The government took the position that these job qualifications were not shown to be job related and consistent with business necessity for the job of state trooper. In a settlement, the State Police, without agreeing that its policy constituted disability discrimination, agreed to drop the automatic exclusion of candidates with diabetes or hearing loss. It agreed to individually assess such applicants for eligibility for hiring. Settlement agreement between the United States Government and Illinois State Police (Nov. 30, 2011).
     A diabetic police officer, suffering from dizziness and blackouts, was not substantially limited in a major life activity, because the symptoms were alleviated with prescription medications. Walker v. City of Vicksburg, #5:06cv60, 2008 U.S. Dist. Lexis 2173; 20 AD Cases (BNA) 257, 2007 U.S. Dist. Lexis 83974 (S.D. Miss.).
     Federal court finds that a non-insulin dependent mellitus type II diabetic police officer who experienced blackouts while driving was substantially limited in the major life activities of caring for himself and thinking. Walker v. City of Vicksburg, #5:06cv60, 2007 U.S. Dist. Lexis 83974 (S.D. Miss.).
     Seventh Circuit reinstates a suit brought by a Type I insulin-dependent diabetic who was denied employment as a criminal investigator. The applicant raised a genuine issue as to whether he can perform the essential functions of the position without becoming a threat to the safety of himself or others. Branham v. Snow, #03-3599, 392 F.3d 896, 2004 U.S. App. Lexis 26262, 16 AD Cases(BNA) 454 (7th Cir. 2004). {N/R}
     After the Mississippi Highway Patrol loses a motion to dismiss a DoJ suit, filed on behalf of a cadet with diabetes who was fired, the agency agrees to pay damages and change its policies of accommodation. U.S.A. v. Miss. Dept. of Pub. Safety, #3:00-CV-377, 2004 U.S. Dist. Lexis 4633, 15 AD Cases (BNA) 672 (S.D. Miss. 2004); settlement announced, DoJ Press Release CR-04-196. [2004 FP Jun]
     Individual with Type I diabetes, who takes insulin and has experienced serious diabetic-related physical conditions, was "disabled" under the ADA. Lawson v. CSX, # 00-1179, 245 F.3d 916, 2001 U.S. App. Lexis 4881, 11 AD Cases (BNA) 1025 (7th Cir.). {N/R}
     Federal appeals court holds that a city is not required to employ a diabetic police officer who experiences hypoglycemic impairment. Burroughs v. Springfield, #98-1148, 163 F.3d 505, 1998 U.S. App. Lexis 32237, 8 A.D Cases (BNA) 1677 (8th Cir.). [1999 FP 74-5]
     Fifth Circuit rejects its 1995 and 1993 decisions holding that a driver with insulin-dependent diabetes poses a direct threat to the health and safety of others as a matter of law; see Daugherty v. El Paso, 56 F.3d 695 (5th Cir. 1995) and Chandler v. Dallas, 2 F.3d 1385 (5th Cir. 1993). Now, an employer must make an individualized assessment. See Kapche v. San Antonio, 176 F.3d 840 (5th Cir. 1999), involving the automatic exclusion of a police applicant. {N/R}
     Employee with diabetes mellitus was not "disabled" under the ADA because his condition was controlled by medication. Arnold v. U.P.S., #97-1781, 1998 U.S. App. Lexis 2952, 7 AD Cases (BNA) 1489 (1st Cir.). {N/R}
     Federal court in Kansas rejects the EEOC classification of diabetes as a per se disability. Officer's termination for performance problems cannot be challenged under the ADA. Deckert v. City of Ulysses, 4 AD Cases (BNA) 1569, 1995 U.S.Dist. Lexis 14526 (D.Kan.). [1996 FP 24]
     Diabetic EMT was not "disabled" within meaning of the ADA. Gilday v. Mecosta, 920 F.Supp. 792, 5 AD Cases (BNA) 758 (W.D.Mich. 1995). [1996 FP 121-2]
     Minnesota supreme court holds that a job applicant with diabetes did not have a disability under the state's human rights law. Sigurdson v. Carl Bolander & Sons., 532 N.W.2d 225 (Minn. 1995). [1996 FP 24]
     Federal court affirms termination of diabetic police officer who suffered a hypoglycemic reaction while on duty. Siefken v. Vill. of Arlington Hts., 1994 U.S.Dist. Lexis 13015 (N.D.Ill.), aff'd 1995 U.S. App. Lexis 26010, 65 F.3d 664, 4 AD Cases (BNA) 1441. [1995 FP 39-40]
     Police officer with diabetes was allowed to proceed with a claim the refusal of a police pension fund to enroll him violated the ADA. Holmes v. City of Aurora, 1995 WL 21606 (N.D.Ill. 1/18/95). See also U.S. v. St. of Illinois, 3 AD Cases 1157 (N.D.Ill. 1994). To settle all claims, the city council agreed to pay the officers $2,000 to drop his federal court lawsuit, make a $31,413 payment to the pension plan for the 10 years no money was paid in his behalf, and pay his attorneys $70,000; 8/17/95 Chi. Trib. 2-4. {N/R}
     Arbitrator holds that a sheriff's dept. violated the employment agreement by allowing a diabetic deputy to change to the day shift without regard to seniority rights. Clark Co. Sheriff's Dept. and F.O.P., 102 LA (BNA) 193 (Kindig, 1994). [1994 FP 119]
     Diabetes - see also: City of Dearborn Heights and D.H.P.S.A., 101 LA (BNA) 809, A.A.A. #54-39-0203-93 (Kanner, 1993) for a contrary ruling. [1994 FP 24-5]
     Michigan arbitrator upholds a unilateral transfer of a police lieutenant to the day shift to accommodate his diabetes, despite the union's objection that shift assignments are strictly controlled by a seniority clause in the collectively bargained agreement. Dearborn Heights and D.H P.S.A., AAA Case #54-39-0203-93, 101 LA (BNA) 809 (Kanner, 1993). [1994 FP 24-25]
     Diabetes - see also: T.W.A. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264 (1977); Mackie v. Runyon, 804 F.Supp. 1508 (M.D.Fla. 1992); and Clark Co. Sheriff's Dept. and F.O.P., 102 LA (BNA) 193 (Kindig, 1994)discussed at [1994 FP 119]
     School dist. did not have to accommodate bus drivers with type II insulin dependent diabetes. Such person are at risk from hypoglycemia and complications from hyperglycemia, the onset of which may occur without warning. Wood v. Omaha School Dist., 25 F.3d 667, 3 AD Cases (BNA) 481 (8th Cir. 1994). {N/R}
     Federal Court enjoins Ohio police dept. from blanket exclusion of insulin-dependent applicants. A.D.A. requires a case-by-case analysis of candidates. Bombrys v. City of Toledo, 849 F.Supp. 1210 (N.D. Ohio 1993). [1994 FP 169-70]
     In a pre-ADA ruling, the FBI was justified in rejecting a special agent applicant who was an insulin-dependent diabetic. Davis v. Meese, 692 F.Supp. 505 (E.D. Pa. 1988).
     Maine Supreme Court upholds regulation forbidding employment of diabetic drivers in jobs effecting public safety. Jackson v. State of Maine, 47 FEP Cases (BNA) 395 (Me. 1988).
     Diabetic employee, discharged for insulin use, awarded $793,000 for wrongful termination. Employer could not introduce national health standards into evidence without proof of use by employers. Hines v. Grand Trunk Western R.R. Co., 391 N.W.2d 750 (Mich. App. 1985).

      B. OBESITY

     A city bus driver weighed 350 pounds when he began his job, and a little over four years later weighed 566 pounds. Beside obesity, he suffered from hypertension and sleep apnea. He was absent from work on account of the flu, but the employer’s medical provider stated that he could not return to work until his blood pressure was more under control. The employer transferred him to temporary medical disability. When he was deemed physically fit to work, he had to be cleared for safety because the bus seats were not designed for drivers weighing over 400 pounds. Instructors conducting an assessment observed that he had his foot on the gas and brake at the same time, was unable to make hand-over-hand turns, that his leg rested close to the door handle, that he could not see the floor from his seat, that part of his body hung off his seat, and that the seat deflated when he sat. He was also sweating heavily, needed to lean onto the bus for balance, and had a “hygiene problem.” The employer proposed returning him to disability to work with doctors to lose weight if he would release his ability to bring various claims.  After he refused, he was fired, and sued for disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213. A federal appeals court upheld a judgment for the employer. Extreme obesity only qualifies as a disability under the ADA if it is caused by an underlying physiological disorder or condition, but the plaintiff offered no such evidence of the cause of his obesity. Richardson v. Chicago Transit Authority, #18-2199,  2019 U.S. App. Lexis 17597,   2019 WL 2442786 (7th Cir.).

     EEOC failed to prove that an employee's morbid obesity (body weight more than 100% over the norm) was the result of a physiological condition; a physical characteristic must relate to a physiological disorder in order to qualify as an ADA impairment. EEOC v. Watkins, #05-3218, 463 F.3d 436, 2006 U.S. App. Lexis 23177, 2006 FED App. 0351P, 18 AD Cases (BNA) 641 (6th Cir. 2006). {N/R}

     Tenth Circuit rejects a discrimination claim brought by a 338 lb. 6'3" federal worker. "Plaintiff was not discriminated against because of his weight. He simply failed to meet the minimum physical requirements of the position. ... The job requires an operator who might be able at all times to respond to an emergency with some degree of physical agility." Wilkerson v. Shinseki, #09-8027, 2010 U.S. App. Lexis 11135, 109 FEP Cases (BNA) 660, 23 A.D. Cases (BNA) 321 (10th Cir.).
     Federal court dismisses a suit filed by an overweight officer who "was humiliated and embarrassed" by having to take a fitness exam, under the threat of disciplinary action. Bunyon v. Henderson, #01-242, 2002 U.S. Dist. Lexis 11435 (D.D.C. 2002). [2002 FP Sep]
     Writing in the case of a 400 lb., 5'9" woman employee, the New Jersey Supreme Court finds that morbid obesity is a protected handicap under state law. Viscik v. Fowler Equip. Co., #A-38 Sept. Term 2001, --- A.2d ---, 2002 N.J. Lexis 360 (N.J. 2002). [N/R]
         Ninth Circuit holds that the use of height-weight tables for men and women, taken from the different sources, is gender discrimination. Frank v. United Airlines, #98-15638, 216 F.3d 845, 83 FEP Cases (BNA) 1, 2000 U.S. App. Lexis 14336 (9th Cir.). [2000 FP 139]
     Federal appeals court rejects ADA suit by overweight firefighter. He failed to prove management "perceived" him to have a covered disability. Francis v. City of Meriden, #96- 9610, 129 F.3d 281, 1997 U.S. App. Lexis 32159 7 AD Cases (BNA) 955 (2nd Cir.). [1998 FP 170]
     Firefighter loses ADA suit challenging department's mandatory weight reduction policy; management did not "regard" him as impaired. Francis v. City of Meriden, 129 F.3d 281, 7 AD Cases (BNA) 957, 1997 U.S.App. Lexis 32159 (2nd Cir.). [1998 FP 24-5]
     Federal appeals court rejects suit by Ohio state troopers who challenged weight and fitness regulations as discriminatory. They were neither disabled nor "regarded" as impaired. Andrews v. Ohio, 104 F.3d 803, 1997 U.S.App. Lexis 457 (6th Cir.). [1997 FP 58-9]
     Minnesota appellate court upholds termination of a 350+ pound firefighter who was unable to lose weight. Senior v. City of Edina, 547 N.W.2d 411 (Minn.App. 1996). [1997 FP 58]
     Federal judge refuses to dismiss a claim of ADA discrimination based on a police officer's obesity; it is "a question of fact for the jury." Morrow v. City of Jacksonville, 941 F.Supp. 821 (E.D.Ark. 1996). {N/R}
     300 lb. firefighter applicant loses discrimination suit. Although Michigan law protects overweight persons, the city lawfully rejected the plaintiff for his inability to deal with stress. Howard v. City of Southfield, #95-1014, 1996 U.S. App. Lexis 25290. [Michigan is the only state to prohibit weight discrimination; Mich. Comp. Laws §37.2202(1)(a)]. {N/R}
     Woman officer ordered to lose weight, awarded $650,000 for gender bias. Hart v. City of Peabody, Essex Co. Mass. #93-2252-A, 34 (1558) G.E.R.R. (BNA) 427 (Super.Ct. 1996). [1996 FP 104-5]
     Federal court rejects suit by an overweight former trooper who was demoted to dispatcher for her failure to lose weight. She was not "disabled" under federal law. Smaw v. Va. State Police, 862 F.Supp. 1469 (D.Va 1994). [1995 FP 42-3]
     EEOC concludes that a supervisor's order that a morbidly obese employee lose weight constituted “blatant and unjustified disparate treatment” in violation of Sec. 501 of the Rehabilitation Act of 1973. Kellus v. Runyon, #01933281, 18 (5) M&PDLR (ABA) 529 (EEOC 1994). {N/R}
     Federal appeals court affirms $100,000 verdict awarded applicant who was rejected for being overweight. Cook v. R.I. Dept. of Mental Health, 10 F.3d 17 (1st Cir. 1993). [1994 FP 42]
     Federal court upholds DC human rights suit by an ex-employee who claimed she was terminated in violation of the D.C. Human Rights Act, which prohibits employment discrimination because of "personal appearance." Underwood v. Archer M.S.I., 65 FEP Cases (BNA) 791 (D.D.C. 1994).
     Law article published: "Grooming and weight standards for law enforcement: the legal issues," 63 (7) FBI Law Enf. Bull. 27-32 (Jul. 1994); online at www.fbi.gov/
     California Supreme Court recognizes obesity as a handicap only when the condition is caused by a "physiological disorder affecting one or more bodily systems." Cassista v. Community Foods, Inc., 2 AD Cases (BNA) 1188 (Cal. 1993). [1993 FP 169-70]
     Federal appeals court enforces fire department's weight standard; no evidence that disciplinary action was motivated by the plaintiff's race. Armstrong v. City of Dallas, 62 FEP Cases (BNA) 852, 997 F.2d 62 (5th Cir. 1993). [1993 FP 153-4]
     Morbid obesity is a federally protected "disability', defined as twice one's normal weight. Plaintiff was 5'2" and weighed 320 lbs. Cook v. R.I. Dept. Mental Health, #93-1093, 10 F.3d 1476, 2 AD Cases (BNA) 1476 (1st Cir. 1993). [1993 FP 154]
     Obesity is not a handicap in Pennsylvania. City could reject an overweight applicant without proof of job-relevance to height/weight standards. Civil Serv. Cmsn. v. Penn. Human Rltns. Cmsn., 591 A.2d 281 (Pa. 1991). [1992 FP 24-5]
     Federal court rejects challenge to termination brought by "excessively obese" police captain. Johnson v. City of Tarpon Springs, 758 F.Supp. 1473 (M.D. Fla. 1991). [1992 FP 75]
     Obesity is not a handicap in Pennsylvania. City could reject an overweight applicant without proof of job-relevance to height/weight standards. Civil Serv. Cmsn. v. Penn. Human Rltns. Cmsn., 591 A.2d 281 (Pa. 1991). [1992 FP 24-5]
     New Jersey appellate court finds that employee was unlawfully discharged for obesity.; he was 5'8" and weighed 272 lbs. N.J. Statute [10:5-5q] includes any "psychological or developmental disability." Gimello v. Agency R-A-C, 2 AD Cases 1215 (N.J.A.D. 1991).
     Appellate court upholds discipline against overweight LAFD ambulance driver; city need not prove his excess weight actually impaired his efficiency. McMillen v. Civil Serv. Cmsn., 8 Cal.Rptr.2d 548 (1992). See also: United Paramedics of L.A. v. City of Los Angeles, #89-1182-R (C.D. Cal. 1989). [1989 FP 88]
     Disciplinary action against overweight police officer upheld by Missouri appellate court. Gray v. City of Florissant, 588 S.W.2d 722 (Mo.App. 1979).
     Applicant, rejected for obesity, was entitled to relief under the Federal Rehab. Act as a "handicapped individual." Cook v. St. of R.I., 783 F.Supp. 1569, 58 FEP Cases (BNA) 1633 (D.R.I. 1992). [1992 FP 120-1]
     Appellate court sustains progressive discipline against female LAFD paramedic who gained 100 pounds in seven years. Hegwer v. L.A. Bd. of Civil Serv. Cmsnrs., 7 Cal.Rptr.2d 389 (App. 1992). [1992 FP 170]
     Alabama appellate court upholds termination of 225 lb. firefighter for being consistently overweight. Smith v. Folmar, 534 So.2d 309 (Ala. Civ. App. 1988). [1992 FP 119-120]
     North Dakota supreme court finds that obesity alone is not a protected handicap; recognizes retaliatory discharge action in workers" comp cases. Krein v. Marian Manor Nursing Home, 415 N.W.2d 793 (N.D. 1987).
     City power lineman demonstrated disability; opinion of supervisors that inability was due to obesity rather than injury did not defeat claim. Knapp v. Missouri Local Gov. Employees Retir. Sys., 738 S.W.2d 903 (Mo.App. 1987).
     City could refuse to hire police applicant, a weight lifter, who was "overweight" on health charts. Brletic v. Munic. of Monroeville, 440 A.2d 686 (Pa. Cmwlth. 1980).
     Overweight a valid cause for suspension. Town of Orange and Int'l Brotherhood of Police Officers, L-349 Case #7374-A-92, Conn. Bd. of Med. & Arb. (1974); City of Sharon v. Rose of Sharon Lodge #3, 11 Pa.Commw. 277, 315 A.2d 355, 1973 Pa. Commw. Lexis 478 (Pa. Cmwlth. 1973). {N/R}
     Oregon court rejects overweight police officers’ claims for protection under handicap laws. Unsightly fat need not be related health concerns, but are justified by dept's appearance standards. Beck v. State Dept. of State Police, Case #A8603-01816, Multnomah Co. Cir. Ct., Ore. (11/16/86).


     C. Other Conditions

    A police officer was fired because he had severe interpersonal problems with other officers. He claimed that these problems stemmed from his attention deficit hyperactivity disorder (ADHD) and that his firing constituted disability discrimination in violation of the Americans with Disabilities Act (ADA). Rejecting this claim, and overturning a jury verdict for the plaintiff, the appeals curt found that the record did not contain substantial evidence that the officer's ADHD substantially limited his ability to work, rendering him disabled, as he was in many ways a skilled police officer and there was testimony that he had developed compensatory mechanisms enabling him to succeed in his job. While his condition may have impaired hisw ability to get along with others that was not the same as a "substantial limitation" on that ability. No reasonable jury could find him disabled as defined in the ADA. Weaving v. City of Hillsboro, #12-35726, 763 F.3d 1106 (9th Cir. 2014).
     An officer was properly terminated as a result of the lingering effects of a stroke that he suffered. He was initially assigned to desk duties but also allowed to make traffic stops during his daily commute. After he was flustered after being unable to remember a word during a traffic stop, there was concern over his fitness for duty. He was ultimately placed on medical leave, put in a low stress position after evaluation coordinating emergency management services, but there were no funds for that position for the long term, and he was told that there were no available jobs for which he was medically cleared. He was not otherwise qualified under the Americans with Disabilities Act as repeated medical evaluations found him unfit for duty as an officer and no substitute jobs were available. He presented no evidence that he could handle stressful emergency situations. Koessel v. Sublette County Sheriff's Dept., #11-8099, 2013 U.S. App. Lexis 9677 (10th Cir.).
     A correctional clerical employee's job involved looking for coded gang messages in inmate mail. She filed a lawsuit under Americans with Disabilities Act (ADA), 42 U.S.C. 12112(a), and the Family Medical Leave Act (FMLA), 29 U.S.C. 2612(a)(1)(D), claiming that her allergic reaction to the use of scented candles and wall plug-ins around her work area constituted a disability. A federal appeals court held that this did not qualify as a disability under the ADA and that her employer had not received her FMLA certification before an applicable deadline, so that her rights under that statute were not violated. Milton v. Texas Dept. of Criminal Justice, #12-20034, 2013 U.S. App. Lexis 4177 (5th Cir.).
     An employee who is bipolar convinced a federal judge that his former employer's assorted half-dozen different rationales for firing him were all simply pretexts for disability discrimination. He was awarded $6,500 in back pay along with $50,000 in damages for emotional pain and suffering. Other remedies approved include an injunctive order requiring three years of training by the company of human resources personnel and management employees on anti-discrimination employment laws and the legal prohibitions on retaliating against employees who exercise their legal rights. EEOC v. Cottonwood Financial, Ltd., #CV-09-5073 (E.D. Wash. March 28, 2012). EEOC press release.
     A police officer who was terminated twice, and reinstated once, sued the city in federal court, claiming that her terminations were because of her disability of suffering from multiple sclerosis and that she had been subjected to harassment and retaliation on the basis of her disability. These issues, however, had previously been litigated in state court, so she was precluded from relitigating them in a federal lawsuit. The record showed, moreover, that her first termination, occurring years after she was diagnosed with multiple sclerosis, was for associating with a known drug dealer who was the father of her son, and lying to the department about this relationship. She was only reinstated because the department had relied, during the termination, on evidence from illegal wiretaps and because the disciplinary action was untimely. The second termination was based on her being shot in the face at home, with the department concluding she had attempted suicide. Again, there was no evidence of disability discrimination or retaliation. White v. City of Pasadena, #08-57012, 2012 U.S. App. Lexis 927 (9th Cir.)
     Rejecting ADA claims, the Eighth Circuit finds that an emergency dispatcher who suffers from unipolar depression was not qualified to retain her position. Her condition interfered with her ability to function at full capacity and to concentrate. Wisbey v. City of Lincoln, #09-2100, 612 F.3d 667, 2010 U.S. App. Lexis 13684 (8th Cir.).
     Emergency dispatcher was unfit for her position because of unipolar depression, poor concentration and insomnia, rather than "myths or stereotypes about being disabled." Wisbey v. City of Lincoln, 09-2100, 2010 U.S. App. Lexis 13684, 16 WH Cases2d (BNA) 493 (8th Cir.).
     Fifth Circuit declines to retroactively apply the ADA Amendments Act of 2008, 42 U.S. Code §12112(a). Because hearing aids corrected a court security officer's hearing impairment, he was not disabled under the ADA at the time he filed his disabilities discrimination lawsuit, and the amendments did not supersede that finding. Kemp v. Holder, #09-30255, 2010 U.S. App. Lexis --- (5th Cir.).
     Tenth Circuit rejects a discrimination claim brought by a 338 lb. 6'3" federal worker. "Plaintiff was not discriminated against because of his weight. He simply failed to meet the minimum physical requirements of the position. ... The job requires an operator who might be able at all times to respond to an emergency with some degree of physical agility." Wilkerson v. Shinseki, #09-8027, 2010 U.S. App. Lexis 11135, 109 FEP Cases (BNA) 660, 23 A.D. Cases (BNA) 321 (10th Cir.).
     Appellate panel rebuffs the ADA claims of a military veteran who was rejected for a bailiff position by a Florida sheriff's office. Although the plaintiff suffered from post traumatic stress disorder, he failed to show that his impairment substantially limited a major life activity. Loperena v. Scott, #09-12839, 2009 U.S. App. Lexis 26425 (11th Cir.).
    Federal court concludes that color blindness is not a protected disability. Lekich v. Municipal Police Officers Educational Training Commission, #08-1048, 2009 U.S. Dist. Lexis 16645, 21 AD Cases (BNA) 1409 (E.D. Pa.).
    Tenth Circuit finds that the NPS did not discriminate against a law enforcement ranger, by requiring him to get an annual waiver for his hearing impairment, and to wear a hearing aid. He successfully performs his duties and there is no evidence that management regards him as disabled. Detterline v. Salazar, # 07-1443, 2009 U.S. App. Lexis 7489 (10th Cir.).
     Reversing a summary judgment for the employer in an ADA action, the Eighth circuit holds that reasonable jurors could reject the employer’s claim the plaintiff was terminated for economic considerations and finds that the true reason was that he suffers from a voice condition that limits his ability to speak in a normal or controlled tone, and periodically causes his voice to cut out completely. Willnerd v. First Natl. Nebraska, #07-3316, 558 F.3d 770, 2009 U.S. App. Lexis 5218, 21 AD Cases (BNA) 1164 (8th Cir.).
     County was entitled to a summary judgment in an ADA action, claiming that her superiors wrongfully denied her request for an accommodation. While an inability to drive a car could create a disability if it impaired her of ability to work, she failed to present any evidence that her inability to drive disqualified her from a broad range of jobs. Winsley v. Cook County, #08-2339, 2009 U.S. App. Lexis 8261 (7th Cir.).
     A county reasonably accommodated a sheriff's dispatcher who suffers from a blood disease called antiphospholidipid antibody syndrome. Wilson v. County of Orange, #G039733, 2009 Cal. App. Lexis 12 (4th Dist.).
     A city employee with a chemical sensitivity to scented substances raised factual issue as to whether she was substantially limited in her ability to breathe. She had missed work due to coughing and vasomotor rhinitis. McBride v. City of Detroit, # 07-12794, 2008 WL 5062890, 2007 U.S. Dist. Lexis 87391, 20 AD Cases (BNA) 65 (E.D. Mich.).
     Seventh Circuit rejects an employee’s claim that chemical sensitivity is a disability under the ADA. Robinson v. Morgan Stanley & Co., # 07-3359, 269 Fed. Appx. 603, 2008 U.S. App. Lexis 6229, 20 AD Cases (BNA) 644 (7th Cir. 2008).
     A detention officer suffering from lupus and thrombocytopenia conditions was not disabled. Although her daily activities were restricted, her treating physician stated that her impairments did not substantially limit any major life activity. McNeill v. Wayne County, #07-2325, 2008 U.S. App. Lexis 23156 (Unpub. 6th Cir. 2008).
     Tenth Circuit holds, in the case of an epileptic worker, that driving is not major life activity, even though there was no public transportation; the importance of an activity is not dependent on where one lives. Kellogg v. Energy Safety Services, #07-8072, 2008 U.S. App. Lexis 21567, 21 AD Cases (BNA) 193, 14 WH Cases 2d (BNA) 241 (10th Cir.).
     Following a stroke, a county corrections failed to demonstrate that he could perform the essential functions of his correctional officer position after his physician placed him on restrictions that required no inmate contact. Dargis v. Sheahan, #05-2575, 526 F.3d 981, 2008 U.S. App. Lexis 10526 (7th Cir.).
     Federal appeals panel upholds a trial court ruling that a worker with allergy type sensitivity to perfumes and other fragrances is not disabled under the ADA. Although the plaintiff claimed that her allergy hampered her ability to walk, see, speak, breath, learn and care for herself, the court found that headache, sore throat, fatigue and shortness of breath "are not substantial as a matter of law." Robinson v. Morgan Stanley, #07-3359, 269 Fed. Appx. 603, 2008 U.S. App. Lexis 6229; 20 AD Cases (BNA) 644 (Unpub. 7th Cir.).
     Federal court declines to dismiss a disabilities accommodation action brought by a transit employee with irritable bowel syndrome, concluding that waste elimination is a major life activity. Simmons v. N.Y. City Transit Auth., CV-02-1575, 2008 U.S. Dist. Lexis 54872 (E.D.N.Y.).
     Ninth Circuit rejects the disabilities discrimination claim of a criminal investigator with Guillain-Barre Syndrome, a disease that causes temporary paralysis of his body. The plaintiff is not a "qualified individual with a disability" under the ADA, because he cannot perform the essential functions of the employment position, which requires "running, climbing, negotiating obstacles, and physically subduing and lifting uncooperative individuals." Puletasi v. Wills, #07-15015, 2008 U.S. App. Lexis 15073 (9th Cir.).
     Appellate panel rejects a suit by an asthmatic corrections officer who sought a smoke-free work environment. "The evidence establishes, and the DOC does not dispute, that [her] asthma was a physical impairment" but she "has not presented significant probative evidence that her impairment substantially limited a major life activity, thereby becoming a disability." Lord v. Ariz. Dept. of Corr., #06-15875, 2008 U.S. App. Lexis 14432 (Unpub. 9th Cir.).
     Fifth Circuit rejects an ADA claim raised by a former corrections officer who developed traumatic mydriasis and photophobia (extreme sensitivity to sunlight) after an inmate assault. He is not disabled because he is able to see out of his injured eye, he continued to work as officer for nine months after assault, and passed vision tests for a driver's license. Watson v. Texas Youth Cmsn., #07-50295, 2008 U.S. App. Lexis 5468, 10 AD Cases (BNA) 1019 (5th Cir.).
     Federal court declines to dismiss a suit brought by a corrections officer applicant who was rejected because she was born with only one hand. Taylor v. Hampton Roads Regional Jail Auth., #2:07cv294, 2008 U.S. Dist. Lexis 37508 (E.D. Va.).
     Editor's Note: The plaintiff had hired an expert in tactical defense training who led her through a series of drills; each one related to an essential function. The tests assessed her ability to:
     (1) load and unload handgun magazines;
     (2) insert a loaded magazine into a handgun;
     (3) charge a semi-automatic handgun;
     (4) change magazines during sustained firing;
     (5) clear various types of weapon malfunctions;
     (6) fire while holding a flashlight;
     (7) positioning her firearm;
     (8) shoot off-handed;
     (9) fire a shotgun;
     (10) handcuff prisoners;
     (11) conduct pat down searches;
     (12) execute basic law enforcement grasps and takedowns; and
     (13) use a knife in self-defense.
     The applicant's expert concluded, with accommodation, that she could discharge all of the essential functions of a jail officer.
     The Jail Authority offered "nothing more than the generalized, conclusory statements of its employees." None of the defense witnesses attempted to explain why the evaluation by the plaintiff's expert was inaccurate, implausible, or otherwise not indicative of on-the-job conditions.
     Long before passage of the ADA, amputees had won discrimination lawsuits.
     * In California, an amputee won an order for reinstatement with the highway patrol; the absence of foot. Sedler and Cal. Highway Patrol, Calif. Public Emp. Retir. Sys. Case #562-20-4688, CHP File #76.A1273.A2868 (1982).
     * In Illinois, an applicant with amputated leg was entitled to seek employment as city firefighter. A state law banning the appointment of amputees was found to be unconstitutional. Melvin v. City of West Frankfort, 417 N.E.2d 260 (Ill. App. 1981).
    For shift accommodation purposes, a corrections officer with photophobia (sensitivity to light) was not disabled because his sight was not significantly restricted when compared to the general population. Watson v. Texas Youth Cmsn., #07-50295, 2008 U.S. App. Lexis 5468 (Unpub. 5th Cir.).
     Federal court in Washington holds that a city did not violate the ADA by requiring an epileptic job applicant to provide a driver's license or proof of mobility, because mobility was an essential requirement of the position of information coordinator. McKereghan v. Spokane, #06-cv-0215, 2007 U.S. Dist Lexis 83859, Pacer Doc. 41 (E.D. Wash.2007).
     EEOC rules that a police officer that experienced breathing problems after an exposure to cologne is not disabled because he was not substantially limited in the major life activity of breathing. EEOC Office of Legal Counsel, Opin. Letter Oct. 1, 2007, 45 (2233) G.E.R.R. (BNA) 1363.
     Officer, with Attention Deficit Hyperactivity Disorder, is not disabled within the meaning of the ADA or state law. His inability to correctly report his time worked is not a substantial impairment, and he was lawfully fired after repeatedly turning in false time sheets. The fact he was president of the union did not prove his termination was retaliatory. Van Compernolle v. City of Zeeland, #06-1904, 2007 U.S. App. Lexis 16735 (6h Cir.) affirming, 2006 U.S. Dist. Lexis 32963 (W.D. Mich. 2006).
     Customs Service officer with a attention deficit hyperactivity disorder failed to prove that there was a discriminatory motive for placing her on restricted duty or requesting a fitness-for-duty evaluation. Montgomery v. Chertoff, #03CV5387, 2007 U.S. Dist. Lexis 30519, 19 AD Cases (BNA) 542 (E.D.N.Y. 2007).
      Appellate court affirms a management refusal to assign a captain to command a fire station, after the loss of his leg during a work-related accident. Because the LAFD offered him other positions with comparable pay and promotional opportunities, he did not suffer an adverse employment action. Malais v. Los Angeles City Fire Dept., #B189575, 2007 Cal. App. Unpub. Lexis 2618 (2d Dist.).
     An employee's "violent outbursts" can be symptomatic of a bipolar disorder and a jury might find that it was employee's personality and not her work product that motivated the employer to terminate her. Gambini v. Total Renal Care, #05-35209, 2007 U.S. App. Lexis 9290 (9th Cir.).
     A person with monaural hearing, impairing the ability to localize sounds, is not disabled within the meaning of the ADA. Moreover, "an allegation that the employer regards the impairment as precluding the employee from a single, particular position," such as a courthouse security officer, "is insufficient to support a claim that the employer regards the employee as having a substantially limiting impairment." Walton v. U.S. Marshals Service, #05-17308, 2007 U.S. App. Lexis 2937 (9th Cir.).
     Sixth Circuit concludes that a person with sleep apnea, chronic depression, irritable bowel syndrome, judgment disorder, and panic attacks was not disabled. Greathouse v. Westfall, #06-5269, 2006 WL 3218557, 2006 U.S. App. Lexis 27882, 18 AD Cases (BNA) 1310 (unpub. 6th Cir. 2006). [N/R]
     Deaf employee was not qualified for a transfer to the security detail that apprehends shoplifters. Barnhart v. Wal-Mart Stores, #06-12024, 2006 U.S. App. Lexis 27245, 2006 WL 3147301, 18 AD Cases (BNA) 1201 (11th Cir. 2006). {N/R}
     EEOC failed to prove that an employee's morbid obesity (body weight more than 100% over the norm) was the result of a physiological condition; a physical characteristic must relate to a physiological disorder in order to qualify as an ADA impairment. EEOC v. Watkins, #05-3218, 463 F.3d 436, 2006 U.S. App. Lexis 23177, 2006 FED App. 0351P, 18 AD Cases (BNA) 641 (6th Cir. 2006). {N/R}
     Federal appeals panel concludes that three Columbus, OH, firefighters with attention deficit hyperactivity disorder (ADHD) are not "disabled" because their condition is controlled by the drug Ritalin. They wrote that "the ADA's coverage is restricted to only those whose impairments are not mitigated by corrective measures." Knapp v. City of Columbus, #05-3455, 2006 U.S. App. Lexis 17081, 18 AD Cases (BNA) 338 (6th Cir. 2006). {N/R}
     Officer, with Attention Deficit Hyperactivity Disorder, is not disabled within the meaning of the ADA or state law. His inability to correctly report his time worked is not a substantial impairment, and he was lawfully fired after repeatedly turning in false time sheets. The fact he was president of the union did not prove his termination was retaliatory. Van Compernolle v. City of Zeeland, #1:05-CV-133, 2006 U.S. Dist. Lexis 32963 (W.D. Mich. 2006). [2006 FP Oct]
     Ninth Circuit reverses a summary judgment for the employer on an ADA lawsuit brought by an epileptic heavy-equipment operator. The employee was entitled to a jury trial on the reason for his termination, his qualifications and whether he was a "direct threat" to his fellow employees. Dark v. Curry County, #04-36087, 2006 U.S. App. Lexis 16838 (9th Cir. 2006). {N/R}
     Eighth Circuit holds that a person with a mental impairment that substantially limits his or her ability to think and concentrate is disabled under the ADA. Battle v. United Parcel Service, #04-4123, 438 F.3d 856, 2006 U.S. App. Lexis 4031 (8th Cir. 2006).{N/R}
     D.C. Circuit reverses a verdict of $64,180 plus $157,397 in attorney's fees for a police officer with a blood disease. The evidence did not match the claimed impairment. Gasser v. Dist. of Columbia, #04-7018, 2006 U.S. App. Lexis 7893 (D.C. Cir. 2006). {N/R}
     Firefighter with multiple sclerosis was a disabled person under Texas disability discrimination laws. Davis v. City of Grapevine, #2-05-145-CV, 2006 Tex. App. Lexis 1877 (2d App. Dist. 2006). {N/R}
     Federal court rejects a suit filed by a corrections officer that became ill from cigarette smoke. Her condition did not limit her general ability to breathe or work. Vinson v. NYC Dept. of Corrections, # CV-01-6900, 2006 U.S. Dist. Lexis 3943 (E.D.N.Y. 2006). [2006 FP Apr]
     Reversing a District Court, the Second Circuit concludes that "night blindness" could be a disability within the meaning of the ADA. Capobianco v. City of New York, #04-3230, 422 F.3d 47, 17 AD Cases (BNA) 1, 2005 U.S. App. Lexis 18981 (2nd Cir. 2005). {N/R}
     California appellate court upholds a $2,597,088 jury verdict against the Dept. of Corrections for a failure to accommodate an employee with Hepatitis C. Green v. State of Cal., #E034568, 132 Cal.App.4th 97, 33 Cal.Rptr.3d 254, 2005 Cal. App. Lexis 1337 (4th Dist. 2005). [2005 FP Nov]
     Arbitrator rejects a disabilities defense for a corrections officer with sleep apnea. There was no showing that the condition caused her to oversleep and repeatedly report late to work. Fed. Bur. of Prisons and AFGE L-709, 120 LA (BNA) 1755, FMCS #04/53975 (Sellman 2005). [2005 FP Sep]
     Appeals court sustains the termination of a public employee who was unable to perform maintenance duties because of a back injury. An inability to lift more than 60 pounds is not a substantial limitation on a major life activity. Kupstas v. Greenwood, #04-2081, 398 F.3d 609, 2005 U.S. App. Lexis 2528, 16 AD Cases (BNA) 808 (7th Cir. 2005). {N/R}
     Although Tourette's Syndrome impairs an FBI photographer's social interactions, he "has the basic ability to communicate and interact with others" and is not disabled. Bell v. Gonzales, #03-163, 2005 U.S. Dist. Lexis 4913 (D.D.C. 2005). {N/R}
     Fire chief did not have to accommodate a firefighter with claustrophobia, as the condition did not affect a major life activity. Walker v. Town of Greeneville, #2:03-CV-385, 347 F.Supp.2d 566, 2004 U.S. Dist. Lexis 26919 (E.D. Tenn. 2004). {N/R}
     A woman employee with ovarian cysts, which resulted in the occasional need to sit down because of pain, and the occasional inability to come to work because of dizziness, was not disabled under the ADA. Her condition, at most, caused difficulties in performing a particular job and did not affect the major life activity of working. Guzman-Rosario v. U.P.S., #04-1046, 397 F.3d 6, 2005 U.S. App. Lexis 1730 (1st Cir. 2005). {N/R}
     Although a public employee may suffer from idiopathic pruritus, if the symptoms are brought on by his presence in a single workplace, the impairment is not "substantially limiting" within the meaning of the ADA. The plaintiff claimed the condition caused him to feel as if insects were crawling on his skin, but the symptoms only occurred while at work. Haynes v. Williams, #03-7134, 2004 U.S. App. Lexis 26276 (D.C. Cir. 2004). {N/R}
     A kidney impairment that limits an individual's ability to eliminate body waste impairs a major life activity under the ADA. Fiscus v. Wal-Mart, #03-2513, 385 F.3d 378, 16 AD Cases (BNA) 10, 2004 U.S. App. Lexis 20776 (3rd Cir. 2004). {N/R}
     EEOC issues an "informal guidance letter" that employers may not disclose to employees that a coworker has hepatitis C, citing 29 C.F.R. §1630.14(b) and (c). The Commission noted that the information "is considered confidential, and an employer has an obligation under the ADA to safeguard it." EEOC Advisory Letter, 73 (9) G.E.R.R. (BNA) 2137 (6/17/04). {N/R}
     "The risks associated with bipolar disorder, whether treated or untreated, however slight the risks might be, support the Transit Authority's conclusion that the absence of bipolar disorder is an essential function of being a bus driver." Siederbaum v. New York, 01-Civ-9289, 309 F.Supp.2d 618, 15 AD Cases (BNA) 728, 2004 U.S. Dist. Lexis 4607 (S.D.N.Y. 2004). {N/R}
     Federal court finds that a factual issue existed as to whether a former police officer's fibromyalgia substantially limited her ability to walk, because she uses cane when walking and she has significant back pain. Jackson v. City of Chicago, #02 C 3057, 293 F.Supp.2d 836, 2003 U.S. Dist. Lexis 21428, 15 AD Cases (BNA) 474 (N.D.Ill. 2003). {N/R}
     A worker impaired by attention deficit hyperactivity disorder (ADHD) was not "disabled" within the meaning of the ADA, because he was not unable to work in a broad class of jobs, even though he was unable to work steadily in his current position. Whitlock v. Mac-Gray, #02-2568, 345 F.3d 44, 2003 U.S. App. Lexis 20275; 14 AD Cases (BNA) 1569 (1st Cir. 2003). {N/R}
     An employee with multiple sclerosis (MS), who missed work because of headaches, dizziness, vertigo and extreme fatigue, was not disabled within the meaning of the ADA. "She has merely shown that she has had to take many unscheduled absences." Croy v. COBE Labs, #02-1366, 345 F.3d 1199, 2003 U.S. App. Lexis 20260, 92 FEP Cases (BNA) 1218, 14 AD Cases (BNA) 1570 (10th Cir. 2003). {N/R}
     An epileptic employee who was fired after several incidents of confrontational and threatening behavior was not disabled or regarded as disabled. Epilepsy did not limit his major life activities outside the workplace. The fact that he was advised to seek professional anger-control assistance did not establish that management regarded him as disabled. Brunke v. Goodyear Tire and Rubber, #03-1373, 344 F.3d 819, 2003 U.S. App. Lexis 19934, 14 AD Cases (BNA) 1473 (8th Cir. 2003). {N/R}
     A District of Columbia Government worker fails to convince the court that his severe skin condition, which caused sleep problems, was a disability under the ADA. Haynes v. Williams, #01-454, 2003 U.S. Dist. Lexis 14842, 14 AD Cases (BNA) 1463 (D.D.C. 2003). {N/R}
     Federal court rejects a discrimination suit, filed by an ex campus police officer with dyslexia, who was fired for poor performance. Smith v. State Univ. of N.Y., #1:00-CV-1454, 2003 U.S. Dist. Lexis 6835, 14 AD Cases (BNA) 540 (N.D.N.Y. 2003). [2003 FP Aug]
     Fifth Circuit finds that chronic pancreatitis was an impairment for ADA purposes but the worker was unable to show that the condition substantially limited his ability to eat food, even if recurring temporary conditions caused him to miss work. Waldrip v. General Electric, #02-30155, 325 F.3d 652, 2003 U.S. App. Lexis 6303, 14 AD Cases (BNA) 301 (5th Cir. 2003). {N/R}
     A person with voice impaired by laryngeal dysphonia is not substantially limited in the ability to talk. Hooper v. Saint Rose Parish, #99 C 6267, 2002 U.S. Dist. Lexis 10936 and 205 F.Supp.2d 926, 2002 U.S. Dist. Lexis 12850, 13 AD Cases (BNA) 1742 (N.D. Ill. 2002). {N/R}
     A manager with attention deficit hyperactivity disorder was not entitled to reinstatement following his termination for repeated tantrums. Calef v. The Gillette Co., #02-1444, 322 F.3d 75, 2003 U.S. App. Lexis 4253, 14 AD Cases (BNA) 110 (1st Cir. 2003). {N/R}
     Employee with panic disorder and agoraphobia, causing her to fear leaving home and to avoid traveling, is a qualified individual with a disability under the ADA, even though she would not suffer symptoms if she were medicated. Kuechle v. Life's Companion, #C9-02-233, 653 N.W.2d 214, 2002 Minn. App. Lexis 1273. {N/R}
     Supreme Court holds that carpal tunnel syndrome, if characterized by muscle atrophy and extreme sensory deficits, is a disability if the employee is unable to perform the variety of tasks central to most people's daily lives, and not whether the worker is unable to perform the tasks associated with a specific job. Toyota Motors v. Williams, 534 U.S. 184 (2002). {N/R}
     Impaired sleep, preventing an employee from working overtime is not a disability. Boerst v. General Mills, #00-3281, 25 Fed. Appx. 403, 2002 U.S. App. Lexis 813 (Unpub. 6th Cir. 2002). {N/R}
Symptoms from multiple sclerosis substantially limited the plaintiff's major life activities of concentrating and remembering. Gagliardo v. Connaught Labs, # 01-4045, 2002 U.S. App. Lexis 23953 (3d Cir. 2002). {N/R}
     Officer with an injured finger was not "disabled" under the ADA. Fultz v. City of Salem, #01-35355, 2002 U.S. App. Lexis 19678 (Unpub. 9th Cir. 2002). [2002 FP Dec]
     Federal court dismisses an ADA suit by an asthmatic corrections officer who was fired for missing work more than a third of her scheduled workdays during the nine months preceding her termination. Thorner-Green v. NYC Dept. of Corrections, #00-CV-489, 207 F.Supp.2d 11, 2002 U.S. Dist. Lexis 12177 (E.D.N.Y. 2002). {N/R}
     Hawaii Supreme Court rejects a discrimination complaint of a "mildly dyslexic" police dispatcher who was forced to resign for repeatedly garbling critical information. Bitney v. Honolulu Police Dept., #22981, 96 Haw. 243, 30 P.3d 257, 2001 Haw. Lexis 318. [2002 Oct. FP]
     Appeals court holds that a rejected LAPD applicant with an artificial leg was not protected under California's disability discrimination law. "The police department is the sole judge of whether it wishes to assume the risk of hiring an officer whose prosthetic leg may rotate or, even worse, fall off while he is running on uneven ground, climbing six-foot fences, jumping over obstacles, or climbing an embankment," Christensen v. City of Los Angeles, #B149031, 2002 Cal. App. Unpub. Lexis 1680 (Cal.App. 2002). {N/R}
     An employee with a medical condition resulting in his being unable to read more than half of the workday, is not a qualifying disability under the ADA. Szmaj v. AT&T, #01-3379, 2002 U.S. App. Lexis 9977 (7th Cir. 2002). [N/R]
     A county employee with ocular albinism and corrected vision of 20/60 was not disabled under the ADA. Manz v. Gaffney, #CV 99-8442, 2002 U.S. Dist. Lexis 8363 (E.D.N.Y. 2002), relying on Colwell v. Suffolk County Police Dept., 158 F. 3d 635, 8 AD Cases (BNA) 1232 (2d Cir. 1998). [N/R]
     A district adjudication officer with the Immigration and Naturalization Service who suffers from chronic muscle pain is not disabled; her impairment did not substantially limit a major life activity, including working. Stein v. Ashcroft, #00-4326, 284 F.3d 721, 2002 U.S. App. Lexis 4560 (7th Cir.2002). [N/R]
     Ex-officer's claim that his narcolepsy was not accommodated by the sheriff is involuntarily settled for $26,000 by his creditors, acting through bankruptcy procedures. Larson (substituted for Buniger) v. Waterman, #01-CV-441 (D.Colo. 2002), removed from Montrose County, Colo., Dist. Ct. (#01cv8). Settlement reported in the Denver Post, 4/25/2002. [2002 FP Jul]
     Federal court holds that a corrections officer with a back injury that prevents him from restraining prisoners was neither "disabled" nor a "qualified individual" under the ADA. Marsolais v. Mass. Dept. of Corr., #98-11709, 2002 U.S. Dist. Lexis 3991 (D. Mass. 2002). [N/R]
     Federal court in N.Y. holds that the ability to get along with others is "a major life activity" within the meaning of the ADA; the plaintiff suffers from bipolar disorder. Jacques v. DiMarzio Inc., 97-CV-2884, 2002 U.S. Dist. Lexis 3399 (E.D.N.Y. 2002). [N/R]
     A restriction on lifting heavy objects is not a "disability" within the meaning of the ADA. Mason v. UAL, #01-10218, 2001 U.S. App. Lexis 26418 (5th Cir. 2001). {N/R}
     Supreme Court rejects appeal of a worker who claimed he was handicapped because he was only able to have sex twice a month. Appellate court had said it was not a major disability under the ADA. Contreras v. Suncast Corp., #00-1977, 237 F.3d 756, 2001 U.S. App. Lexis 41, 84 FEP Cases (BNA) 1273, 11 AD Cases (BNA) 600; cert. den. #00-1877, 2001 U.S. Lexis 5637, 70 L.W. 3234 (2001). [2001 FP 153-4]
     Appeals court finds that the inability to drive is not a disabling impairment. Chenoweth v. Hillsborough Co., #00-10691, 250 F.3d 1328, 2001 U.S. App. Lexis 8802 (11th Cir.). [2001 FP 85]
     A former county corrections officer whose mental and emotional conditions were affected by a head injury could not successfully raise an ADA claim for a decision not to promote him to sergeant and ultimately to terminate him. Land v. Washington Co., 99-3203, 00-1211, 243 F.3d 1093, 2001 U.S. App. Lexis 4063, 11 AD Cases (BNA) 1061 (8th Cir.). {N/R}
     A nurse who cannot lift more than 40 pounds is not disabled under the ADA. Brunko v. Mercy Hosp., #00-2989, 260 F.3d 939,
     2001 U.S. App. Lexis 18358 (8th Cir. 2001). {N/R}
     An inability to drive to work for six months was not a disabling impairment under the ADA. Chenoweth v. Hillsboro Co., #00-10691, 250 F.3d 1328, 11 AD Cases (BNA) 1421, 2001 U.S. App. Lexis 8802 (11th Cir.). {N/R}
     Federal appeals panel rejects an ADA suit by an employee who has a fear of driving to new places. Sinkler v. Midwest Prop. Mgmt., #99-1582, 209 F.3d 678, 2000 U.S. App. Lexis 6247 (7th Cir.).
     Justice Dept. sues Mississippi for not accommodating a diabetic state trooper. U.S. v. Miss. Dept. of Public Safety (D. Miss.); DoJ Civil Rights Release #00-274. [2000 FP 105-6]
     Former investigator who suffers from bipolar disorder and obsessive compulsive disorder failed to demonstrate that he was substantially limited in a major life activity, where he takes medications that control his symptoms. Scherer v. GE, 59 F.Supp.2d 1132, 1999 U.S. Dist. Lexis 12471, 9 AD Cases (BNA) 1820 (D. Kan. 1999). {N/R}
     Sleeping, engaging in sexual relations, and interacting with others are major life activities within the meaning of the ADA. McAlindin v. Co. of San Diego, 192 F.3d 1226, 1999 U.S. App. Lexis 22352, 9 AD Cases (BNA) 1217 (9th Cir. 1999). {N/R}
     Appeals court affirms ruling for an employee with colitis. Ryan v. Grae & Rybicki, #96-9681, 135 F.3d 867, 1998 U.S. App. Lexis 1863, 7 ADA Cases (BNA) 1387 (2nd Cir.). {N/R}
     A worker with carpal tunnel syndrome is not substantially limited in the major life activity of performing manual tasks. Schultz v. Lear Corp., 1999 U.S. Dist. Lexis 9340, 10 AD Cases (BNA) 60 (W.D. Va. 1999). {N/R}
     Federal court upholds termination of a corrections officer taking Coumadin, an anticoagulant. Pickering v. City of Atlanta, 75 F.Supp.2d 1374, 1999 U.S. Dist. Lexis 18136 (N.D. Ga.). [2000 FP 171-2]
     Refusal to waive a peace officer certification requirement so that a one-handed civilian communications employee could be promoted violated the ADA. Mathes v. Harris Co., 96 F.Supp.2d 650, 2000 U.S. Dist. Lexis 7335 (S.D.Tex.). [2000 FP 120-1]
     A firefighter applicant who was rejected because of a total hearing loss in his left ear is not a "qualified individual"' within the meaning of the ADA, where the ability to localize sound and discriminate among sounds. Leverett v. City of Indianapolis, 51 F.Supp.2d 949, 1999 U.S. Dist. Lexis 7660, 9 AD Cases (BNA) 1812 (S.D. Ind.). {N/R}
     Transit authority employee with monocular vision is not disabled, since he is able to perform in different capacities for transit authority, although he is prevented by state law from employment as bus driver. Hooks v. NYC Transit Auth., 1999 U.S. Dist. Lexis 18958, 10 AD Cases (BNA) 1758 (S.D.N.Y. 2000). {N/R}
     Dyslexic bar exam applicant with not substantially limited in major life activity of working; it is her education, experience, or innate ability, rather than reading skills, that prevents her from passing examination. Bartlett v. N.Y.S. Bd. of Law Examiners, 226 F.3d 69, 2000 U.S. App. Lexis 22212, 10 AD Cases (BNA) 1687 (2nd Cir. 2000). {N/R}
     Employer could lawfully discharge a worker with Tourette Syndrome who would blurt out obscene words and ethnic insults. The use of offensive language on a daily basis in the presence of visitors, children, and other employees disqualified him as a suitable employee, as a matter of law. Petzold v. Borman's Inc., #211567, 241 Mich.App. 707, 617 N.W.2d 394, 2000 Mich. App. Lexis 165. {N/R}
     Police officer who was passed over for promotion, was not regarded as having disability under the ADA; there was no evidence that his herniated disc "substantially limited" a major life activity. Ellinger v. Frazier, 2000 U.S. Dist. Lexis 2638, 10 AD Cases (BNA) 266 (D.Md. 1999). {N/R}
     Police officer who sustained back and leg injuries with a 30-percent limitation on his ability to walk, does not rise to requisite level of substantiality. Piascyk v. City of New Haven, 64 F.Supp.2d 19, 1999 U.S. Dist. Lexis 15346, 10 AD Cases (BNA) 365 (D.Conn.). {N/R}
     Inmate supervision is an essential function of a corrections officer. Her use of anticoagulant drugs precluded her from engaging in dangerous activities such as escorting and restraining inmates. Pickering v. City of Atlanta, 75 F.Supp.2d 1374, 1999 U.S. Dist. Lexis 18136, 10 AD Cases (BNA) 761 (N.D. Ga.). {N/R}
     A railroad police officer's back injury was not a disability under the ADA, even if is accompanied by pain. His impairment did not substantially limit a major life activity. Lennon v. Finegan, 78 F.Supp.2d 258, 2000 U.S. Dist. Lexis 78, 164 LRRM (BNA) 2254, 10 AD Cases (BNA) 729 (S.D.N.Y. 2000). {N/R}
     Federal court in Texas rejects an ADA claim by a epileptic worker who is on medication. Todd v. Academy, 1999 U.S. Dist. Lexis 12133, 9 AD Cases 1306 (S.D. Tex.). [1999 FP 168]
     Federal appeals court rejects ex-officer's ADA and FMLA suit to set aside his termination after he attempted suicide. Spades v. City of Walnut Ridge, # 98-4119, 186 F.3d 897, 9 AD Cases 1015, 1999 U.S. App. Lexis 17894 (8th Cir.). [1999 FP 139-140]
     Fifth Circuit rejects appeal of an insulin-dependent terminated Texas police officer. Management did not have to reclassify or create a job to accommodate his disability. Gonzales v. City of New Braunfels, # 98-50290, 176 F.3d 834, 1999 U.S. App. Lexis 9699, 9 AD Cases (BNA) 632. [1999 FP 133]
     Federal appeals court holds that a worker who had a heart attack and suffers from coronary disease is not disabled under the ADA, because he was not limited in the major life activities of running, performing manual tasks, lifting, or working. Hilburn v. Murata Electronics, Cir., #98-9313, 181 F.3d 1220, 1999 U.S. App. Lexis 16692, 9 AD Cases (BNA) 908 (11th Cir.). {N/R}
     $1.4 million verdict overturned: a police officer with torn medial meniscus was not perceived as disabled; there were no other positions within the city that the officer could perform. While unable to fulfill his duties as a patrolman, he was not limited in the major life activity of work. Real v. City of Compton, 1999 Cal. App. Lexis 732, 73 Cal.App.4th 1407, 87 Cal.Rptr.2d 531, 9 AD Cases (BNA) 1107 (Cal.App.). {N/R}
     Federal appeals court holds that the ADA did not protect a firefighter with severe coronary artery disease who cannot respond to emergencies. Lusby v. Metro. Wash. Airports Auth., #98-2162, 37 (1826) G.E.R.R. (BNA) 1041 (Unpub., 4th Cir. 1999). {N/R}
     Employee's ulcerative colitis was not a disability because the employee admitted that the condition did not require accommodation in the work environment and did not prevent the performance of all his assigned tasks. Hobson v. Raychem Corp., 73 Cal.App.4th 614, 86 Cal.Rptr.2d 497, 1999 Cal. App. Lexis 659. {N/R}
     Second Circuit concludes that ulcerative colitis and "panic disorder" are not disabilities under the ADA. Colitis attacks were intermittent; panic disorder is not an impairment recognized by the EEOC. Ryan v. Grae & Rybicki, 135 F.3d 867 (2nd Cir.) and Reeves v. Johnson, 7 AD Cases 1675 (2d Cir. 1998). [1998 FP 89-90]
     Agoraphobia and panic disorder is not disabled under the ADA. Reeves v. Johnson, 7 AD Cases (BNA) 1675 (2d Cir.). {N/R}
     City did not have to retain an epileptic officer who could not drive; no duty to radically restructure his duties in violation of the bargaining agreement. Scheer v. Cedar Rapids, 6 AD Cases (BNA) 830, 956 F.Supp. 1496 (N.D.Iowa 1997). [1997 FP 167]
     Federal appeals court allows ADA suit by rejected trainee who is missing 18 teeth. Suits alleging discrimination because an applicant is "regarded" as being disabled do not require a plaintiff to claim he or she is disabled. Johnson v. Amer. Chamber of Commerce Publ., 108 F.3d 818, 1997 U.S.App. Lexis 5213 (7th Cir.). [1997 FP 71-2]
     Fed. appeals ct. rejects EEOC suit of an epileptic who was terminated because his seizures disrupted the employer's business. Martinson v. Kinney, 104 F.3d 683 (4th Cir. 1997). {N/R}
     Corrections officer who was reclassified as a vehicle operator because of a lack of "communicative and cognitive skills," was not "disabled" within the meaning of the ADA. Burke v. Comm. of Virginia, 938 F.Supp. 320 (E.D.Va. 1996). [1997 FP 57]
     Major life activity of working is not "substantially limited" if the employee cannot work under a particular supervisor because of anxiety and stress arising from his review of her job performance. Wailer v. H.F.C., 6 AD Cases (BNA) 106, 101 F.3d 519 (7th Cir. 1996). {N/R}
     Federal appeals court upholds rejection of firefighter applicant who has a "mild form" of hemophilia. Bridges v. City of Bossier, 92 F.3d 329, 1996 U.S.App. Lexis 21764 (5th Cir.). [1996 FP 170]
     Police applicant with 20/200 R&L and an elevated blood pressure was not handicapped under the ADA. Daley v. Koch, 892 F.2d 212 (2d Cir. 1989). Joyce v. Suffolk Co., 911 F.Supp. 92, 1996 U.S.Dist. Lexis 596 (E.D.N.Y.). [1996 FP 141]
     Federal appeals court reaffirms a holding that a police officer's disability could not be accommodated; due to an injury, he was unable to securely aim and fire a gun, wield batons or use "sufficient force" with his left hand. Lee v. City of Aurora, #95-1109, 1996 U.S. App. Lexis 1601 (Unpub. 10th Cir.); cert. den. 1997 U.S. Lexis 3511. {N/R}
     Firefighter with chronic obstructive pulmonary disease was not "disabled" and Army fire station was justified in forcing his retirement because of an intolerance to smoke and toxic fumes. In re Thomas R. Jones, 1995 EEOC Lexis 3. {N/R}
     Temporary back pain is not a "disability" within the meaning of the ADA. Presutti v. Felton, 927 F.Supp. 545 (D.N.H. 1995). {N/R}
     Involuntarily retired firefighter-driver with chronic obstructive pulmonary disease, who was adversely affected by smoke, was not disabled within the meaning of the Rehabilitation Act. EEOC Decis. 03950092, MSPB #AT-0752-94-0924-I-1, 1995 EEOC Lexis 3.
     Abnormal blood pressure and a medical restriction against working more than 40 hours a week was not a ADA disability. Duff v. Lobdell-Emery, 926 F.Supp. 799 (N.D.Ill. 1996). {N/R}
     "disability" under the ADA. Deghand v. Wal-Mart, 926 F.Supp. 1002 (D.Kan. 1996). {N/R}
     A meter reader who could not walk more than four hours a day was not disabled under the ADA. Burnett v. Western Resources, #Civ. A.95-2145 (D.Kan. 1996). {N/R}
     Employee with asthma who could only work in one location was not disabled under the ADA. Mobley v. Bd. of Regents, 924 F.Supp. 1179 (S.D.Ga. 1996). {N/R}
     An employee with breast cancer, accompanied by radiation treatments, was not disabled under the ADA because the plaintiff was still able to work with a modified schedule. Ellison v. Software Spectrum, 85 F.3d 187 (5th Cir. 1996). {N/R}
     Back injuries which prevent heavy-duty tasks are not a disability under the ADA (three cases). Volk v. Pribonic, #A94-2165 (W.D.Pa. 1996); Vaughan v. Harvard, 926 F.Supp. 1340 (W.D.Tenn. 1996); Matthews v. TCI, #95C-4096 (N.D.Ill. 1006). {N/R}
     Depression and hypertension were not a recognized Federal appeals court concludes that requiring an employer to furnish a disabled employee with a nearby parking space, where no other workers have free parking, may be a required accommodation under the ADA. Lyons v. Legal Aid Society, 68 F.3d 1512, 1996 U.S.App. Lexis 31019 (2nd Cir.). [1996 FP 120]
     ADA does not protect a police officer with shaky hands, who is unable to pass a firearms requalification test. Fussell v. Ga. Ports Auth., 906 F.Supp. 1561 (S.D.Ga. 1995). [1996 FP 87]
     ADA did not protect a corrections officer who was disabled by an iatrogenic addiction to a prescriptive drug. Patzer v. Sullivan, #95-C-154-C, 34 (1659) G.E.R.R. (BNA) 501 (W.D.Wis.1996). {N/R}
     N.Y. appellate court affirms rejection of a police applicant who previously had a separated shoulder. Curcio v. Nassau Co., 631 N.Y.S.2d 881 (A.D. 1995). [1996 FP 73]
     Officer with an allergy to building materials loses her ADA suit to compel a transfer. Sessoms v. Abate, 887 F.Supp. 695/699 (S.D.N.Y. 1995). [1996 FP 57]
     Corrections officer with atopic dermatitis with a sensitivity to asbestos was not "disabled" under the ADA. Sharp v. Abate, #93 Civ. 4357, 33 (1626) G.E.R.R. 1015 (S.D.N.Y. 1995). {N/R}
     EEOC rules against a federal employee who was denied a security clearance because of an obsessive-compulsive disorder. Zimmerman v. Peterson, #01941377, 19 (5) MPDLR (ABA) 623 (EEOC 1995). [1996 FP 25]
     EEOC concludes that "social phobia" is not a protected disability. Coyne v. Dalton, 19 (5) MPDLR (ABA) 623 (EEOC 1995). [1996 FP 25]
     Crohn's disease, characterized by short-term annual flare ups is not an impairment that substantially limits life activities and thus is not a disability recognized by the ADA. Branch v. City of New Orleans, 1995 U.S. Dist. Lexis 6548 (E.D.La. 1995). {N/R}
     Federal appeals court holds that an employer did not violate the ADA by terminating a person with carpal tunnel syndrome and tendonitis, because the condition is not a protected disability. Wooten v. Farmland, 58 F.3d 382 (8th Cir. 1995). {N/R}
     A person with carpal tunnel syndrome who is unable to accept employment requiring repetitive manual work is not "disabled" within the meaning of the ADA, as such individual is able to perform hygiene and household tasks. McKay v. Toyota, 4 AD Cases (BNA) 144, 878 F.Supp. 1012 (E.D.Ky. 1995). {N/R}
     County properly terminated typist with "bizarre and insubordinate behavior," notwithstanding the fact she suffered from bipolar disorder with manic episodes. Carrozza v. Howard Co., 1995 U.S. App. Lexis 387 (4th Cir. 1995). {N/R}
     Federal appeals court affirms the rejection of an asthmatic fire fighter applicant. Huber v. Howard Co., #94-1651, 56 F.3d 61 (table), 1995 U.S.App. Lexis 12604 (Unpublished, 4th Cir.). [1995 FP 152-3]
     Employer did not have to eliminate keyboard work from an employee's job duties, as a reasonable accommodation for an employee with carpal tunnel syndrome. Keyboard work was necessary in that job. Feliberty v. Kemper Corp., 4 AD Cases 875, 1995 U.S. Dist. Lexis 1020 (N.D.Ill.). {N/R}
     Federal court allows a rejected applicant to bring a class action seeking injunctive relief against state police hiring standards, without proof he is disabled under the ADA. Wilson v. Pa. St. Police, 1995 U.S.Dist. Lexis 9981 (E.D.Pa.). [1995 FP 147-8]
     Corrections officer with atopic dermatitis who was allegedly exposed to asbestos is not disabled under the ADA. Sharp v. Abate, 4 AD Cases 902, 887 F.Supp. 695 (S.D.N.Y. 1995). {N/R}
     Federal court rejects ADA claim by carpal tunnel syndrome worker. Injury was not sufficiently severe to qualify as a protected disability. Fink v. Kitzman, 881 F.Supp. 1347, 4 AD Cases (BNA) 644 (N.D. Iowa 1995). [1995 FP 136]
     Mass. supreme court affirms medical separation of a police officer who was susceptible to blackouts when under stress; light duty assignments not practical. Beal v. Bd. Selectmen of Hingham, 4 AD Cases (BNA) 482, 646 N.E.2d 131 (Mass. 1995). [1995 FP 122]
     Conservation officer with congestive prostatitis could seek injunctive relief against assignment requiring him to sit long periods in a boat. Bodiford v. Alabama, 854 F.Supp. 886 (M.D.Ala. 1994). {N/R}
     Employee with sleep disorder was not entitled to a shift change which would have run afoul of seniority provisions in the C.B.A. Fitzpatrick v. Ill. Hun. Rts. Cmsn., 642 N.E.2d 486 (Ill.App. 1994). {N/R}
     Appellate court sustains rejection of a corrections officer applicant with four missing fingers. Prior service as an officer does not excuse the successful completion of a defensive tactics course. Stratton v. Mo. Dept. of Corrections, 4 AD Cases (BNA) 49, 897 S.W.2d 1 (Mo.App. 1995). [1995 FP 88-9]
     Federal court upholds termination of employee who was unable to fly because of sinus pain. Schultz v. Spraylat Corp., 866 F.Supp. 1535 (C.D.Cal. 1994). [1995 FP 74]
     Police Dept. policy of refusing to license one-handed security guard applicants violated the ADA Stillwell v. K.C.P.D., 3 AD Cases (BNA) 1828; 872 F.Supp. 682 (W.D.Mo. 1995). {N/R}
     Federal court refuses to dismiss an ADA suit brought by a civilian employee who suffers from a "chemical imbalance", who had been terminated for the unauthorized possession of a firearm while at work. Hindman v. GTE Data Services, 4 A.D. Cases 182, 1994 U.S.Dist. Lexis 9522 (M.D. Fla). [1995 FP 56-7]
     Justice Dept. sues Michigan fire dept. for rejecting a one-eyed applicant. U.S. (Henderson) v. City of Pontiac, #94-74997 (E.D. Mich. 12/13/94). [1995 FP 57]
     Appellate court sustains discrimination suit of a firefighter applicant who was rejected because an eyelid would not fully close. Cleveland (City of) v. Ohio Civil Rts. Cmsn., 648 N.E.2d 516, 1994 Ohio App. Lexis 3908. [1995 FP 57]
     Arbitrator reinstates technician with preventable vehicle collisions, where medical evidence showed two were related to a sleep disorder (obstructive apnea) for which he received treatment. Bellsouth Telecommunications and C.W.A., 103 LA (BNA) 626 (Byars, 1994). [1995 FP 57]
     Officer's alcoholism does not prevent his termination for 11 convictions of operating a vehicle under influence of alcohol. Sizemore v. Dept. Corr., 629 N.E.2d 1096 (Ohio Ct.Cl. 1992). {N/R}
     Asthma is not a disability within the meaning of the Rehab. Act. Heilweil v. Mt. Sinai Hosp., 32 F.2d 718 (2nd Cir. 1994). {N/R}
     Organic brain syndrome is not a disability within the meaning of the Rehab. Act. Ferrandino v. West., EEOC #01934201, 18 (6) MPDLR (ABA) 659 (1994). {N/R}
     A foot injury is not a disability under the ADA. Bolton v. Scrivner, 36 F.3d 939 (10th Cir. 1994). {N/R}
     Sexual reassignment surgery is not a "disability" under the Rehabilitation Act. Campbell v. Espy, EEOC #05931174, 18 (6) MPDLR (ABA) 660 (1994). {N/R}
     Federal court dismisses suit by a terminated police cadet who was denied the opportunity to learn night firing. The cadet would have posed a risk to himself and others because of a physical impairment. Discusses use of the Weaver stance. Etheridge v. State of Alabama 847 F.Supp. 903 (M.D.Ala. 1993), and 860 F.Supp. 808; 3 AD Cases (BNA) 1013 (M.D.Ala. 1994). [1995 FP 7-8]
     Employer could enforce attendance requirements on a Justice Dept. employee with Meniere's Disease (vertigo) who sought an erratic work schedule which placed a hardship on other employees. Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994). {N/R}
     Former security lieutenant failed to prove he was terminated solely because he suffered from Lyme's Disease, which caused headaches, stiffness, joint weakness and pain. Jones v. Assoc. Univ., 870 F.Supp. 1180 (E.D.N.Y. 1994). {N/R}
     A person with an asymptomatic HIV infection is disabled under the ADA. Doe v. Kohn et al, 862 F.Supp. 1310/at 1321 (E.D.Pa. 1994). {N/R}
     A person with heart disease is disabled under the ADA. Finley v. Cowles, 3 AD Cases 1108 (S.D.N.Y. 1994). {N/R}
     A person who is infertile is disabled under the ADA. Pocourek v. Inland Steel, 858 F.Supp. 1393 (N.D.Ill. 1994). {N/R}
     A person with anxiety and depression was disabled under the ADA. Weiler v. Household Fin., 3 AD Cases 1337 (N.D.Ill. 1994). {N/R}
     Police sgt. with "hammer toes" and a spinal irregularity sued because mgmt. reassigned her to desk duty and insisted she wear a standard gun belt. Federal court found she was not disabled under the Rehab. Act. The department's demands "no matter how unreasonable or injurious, are not actionable." Lawrence v. Metro Dade Police, 872 F.Supp. 950 (S.D.Fla. 1993). {N/R}
     Police department's exclusion of persons with only one arm for security guard licenses violated the ADA. Stillwell v. Kan. City Bd. Police Cmsnrs., 872 F.Supp. 682 (W.D.Mo. 1995. {N/R}
     Sheriff dept. did not violate the Oregon civil rights act in refusing to reinstate deputy who, after an auto accident, suffers headaches and numbness in her arm. She could not perform all the duties of a patrol officer. Blumenhagen v. Clackamas County, 756 P.2d 650 (Ore. App. 1988. {N/R}
     Federal court in Maryland upholds rejection of an applicant with asthma for a fulltime paid position, even though he presently serves as a volunteer firefighter. Huber v. Howard County, 3 AD Cases (BNA) 262, 849 F.Supp. 407 (D.Md. 1994). [1994 FP 119]
     Pennsylvania appellate court dismisses reverses $88,057 judgment awarded a police applicant who was rejected for a minor, non-disabling back condition. Pittsburgh v. Penn. Human Rel. Cmsn., 630 A.2d 919 (Pa.Cmwlth. 1993). [1994 FP 101-2]
     County police in NY could not disqualify candidate with bilateral spondylolysis. Daubman v. Nassau Co. Civ. Serv. Cmsn., 601 N.Y.S.2d 14 (A.D. 1993). [1994 FP 102]
     U.S. Dept. of Labor has determined that an employer violated the Rehabilitation Act by rejecting applicants with surgically correctable back or other physical conditions, by requiring the applicants to undergo surgery as a prerequisite to their employment. OFCCP v. Commonwealth, #82-OFC-6 (DOL 1994). [1994 FP 102]
     Terminated employee with a learning disability waived any right to reinstatement when he refused a reduction to a position requiring less skills. Moore v. Brown, #0393001, 17 (6) MPDLR (ABA) 612 (EEOC 1993). [1994 FP 74]
     Pennsylvania appellate court reverses $88,057 award to a police applicant who was rejected for spinal abnormalities. Pittsburgh (City of) v. Pa. Human Rel. Cmsn., 630 A.2d 919 (Pa.Cmwlth. 1993). [1994 FP 74]
     Ambulance driver with sarcoidosis and cataracts is not handicapped under the Rehabilitation Act of 1973. Walker v. Aberdeen-Monroe County Hospital, 838 F.Supp. 285 (N.D.Miss. 1993). [1994 FP 74-5]
     Appellate court orders city to hire a firefighter applicant with speech impediment so severe he avoided fast food restaurants. Columbus (City of) v. Liebhart, 86 Ohio App.3d 469, 621 N.E.2d 554 (1993). [1994 FP 55]
     Appellate court affirms termination of firefighter who would bleed when exposed to smoke. Dept. lacked alternative positions which did not require firefighter skills. Ramie v. Dept. of Fire, 617 So.2d 92 (La.App. 1993). [1994 FP 40]
     Summary rejection of firefighter applicant with Crohn's disease was improper. Medical Standards alone do not establish a valid BFOQ. Blanchette v. Spokane Co. F.D., 836 P.2d 858 (Wash. App. 1992). [1993 FP 9-10]
     F.B.I. could terminate agent who was drunk on duty; agent's status as an alcoholic did not require the F.B.I. to accommodate his handicap by reassigning him to a civilian position. Little v. F.B.I., 793 F.Supp. 652 (D.Md. 1992). [1993 FP 25-6]
     Federal appeals court upholds termination of F.B.I. agent in above case. Little v. F.B.I., 2 AD Cases (BNA) 1109 (4th Cir. 1993). [1993 FP 152]
     Navy computer specialist could be terminated for alcohol and drug use. Navy should have reassigned him to a non-security sensitive position. Guillot v. Garrett, 970 F.2d 1320 (4th Cir. 1992). [1993 FP 25-6]
     Fire and police applicants successfully challenge their rejections for Crohn’s Disease (enteritis). Blanchette v. Spokane Co. F.D., 836 P.2d 858 (Wash. App.1992), and Antonsen v. Ward, 77 N.Y.2d, 571 N.E.2d 636 (1991); related opin., 943 F.2d 198 (2d Cir. 1991). [1993 FP 43-4]
     Federal appeals court upholds rejection of firefighter applicant with decreased sensation in two fingers. Impairment was not a "handicap" under the federal act. Welsh v. City of Tulsa, 977 F.2d 1415 (10th Cir. 1992). [1993 FP 56]
     Police officer on limited duty for temporary back injury could be rejected for sergeant. He was not "handicapped" within meaning of federal statutes and was not physically qualified for the full range of physical duties performed by sergeants. Paegle v. Dept. of Interior, 813 F.Supp. 61, 2 AD Cases 484 (D.D.C. 1993). [1993 FP 72-3]636 (1991); related opin., 943 F.2d 198 (2d Cir. 1991). [1993 FP 43-4]
     Applicant for corrections officer could not complete the preservice training due to a knee injury; he was not "handicapped" within meaning of federal statutes. Sanford v. Stearn, 2 AD Cases (BNA) 491 (N.D.Ohio 1992). [1993 FP 73]
     NY high court rules against the use of statistical data to deny employment, and requires the use of individualized and particularized medical prognoses. Crohn's disease recurrence statistics were an insufficient basis to terminate a probationary officer. Antonsen v. Ward, 77 N.Y.2d 506, 571 N.E.2d 636 (1991). [1992 FP 42-3].
     Ohio Supreme Court upholds the rejection of police applicant who claimed his behavioral problems were due to alcoholism. Cleveland Civ. Serv. Cmsn. v. Ohio Civil Rts. Cmsn., 57 Ohio St. 3d 62, 565 N.E.2d 579 (1991).
     Colorado appellate court upholds involuntary pension of quadriplegic police officer. Dept. did not have to keep her in a permanent light duty position. Coski v. City & Co. of Denver, 795 P.2d 1364 (Colo. App. 1990).
     Participation in an alcohol rehabilitation program was no defense to FBI Agent who was fired after his fourth deportment complaint. Butler v. Thornburgh, 900 F.2d 871 (5th Cir. 1990).
     Loss of driver's license, not the alcoholism which led to the revocation, is the true reason for employee's termination. Handicap protection laws not applicable. Malbouf v. Dept. of the Army, Merit Sys. Prot. Bd. #NY-07528610058, 28 (1357) G.E.R.R. (BNA) 378 (1990).
     Menisectomy an insufficient basis to reject police applicant. $10,000 award for his mental anguish was excessive. City of New York v. Div. of Human Rights, 551 N.Y.S.2d 514 (A.D. 1990).
     EEOC orders U.S. Park Police to rehire probationary officer who was terminated because of heart condition (WPW Syndrome). Employers must treat applicants on an individualized basis; a blanket disqualification is discriminatory. Smith v. Hodel, EEOC Final Decision #5880098 (1989) [reversing Appeal #1840698 (1984)].
     Hypertension and high blood pressure is a “handicap” under federal law, and applicant could not be rejected on a non-individualized basis. Jurgella v. Danielson, 764 P.2d 27 (Ariz. App. 1988).
     State supreme court accepts police trainee's handicap discrimination claim; he was improperly rejected because of a hearing impairment; employer has duty of reasonable accommodation. Packard v. Gordon, 537 A.2d 140 (Vt. 1987).
     Illinois appellate court strikes down 20/30 eyesight standard for police applicant who was 20/100 vision corrected to 20/20. City of Belleville Bd. of Police and Fire Cmsnrs. v. Human Rights Cmsn., 522 N.E.2d 268 (Ill.App. 1988).
     Texas courts reject the claim of a telephone employee who was unable to climb poles due to a knee injury. His impairment did not "substantially limit a major life activity." Elstner v. SW Bell Tel., 659 F.Supp. 1328 (S.D.Tex. 1987), aff'd w/o opin., 863 F.2d 881 (5th Cir. 1988). [1993 FP 73]
     Treasury Dept. did not violate the Rehab. Act when it discharged a BATF agent who pleaded guilty to DUI vehicular homicide. Wilber v. Brady, 780 F.Supp. 837, 57 FEP Cases (BNA) 1515 (D.D.C. 1992). [1992 FP 72]
     Federal court upholds rejection of firefighter applicant with dyslexia; a 12th grade reading level requirement is sustained. DiPompo v. West Point Military Acad., 708 F.Supp. 540 and 770 F.Supp. 887 (S.D.N.Y. 1991). [1992 FP 73]
     Divided Louisiana Supreme Court upholds the dismissal of two police officers for using alcohol on duty; they were discharged because of their conduct, not because of their addiction to alcohol. Shields v. City of Shreveport, 579 So.2d 961 (La. 1991). [1992 FP 87-8]
     A post-op, formerly male employee wins wrongful termination suit; Washington appeals court rules that gender dysphoria is a "handicap" under state disabilities law. Doe v. Boeing Co., 823 P.2d 1159 (Wash.App. 1992). [1992 FP 137-8] Decision reversed, on finding that employee was terminated for violating "dress code" not because of gender dysphoria. See 846 P.2d 531 (Wash. 1993).
     In a state court Article 78 action, a NYPD officer successfully challenged his medical termination because he suffers from Crohn’s Disease. However, he is not entitled to attorney's fees in Federal Court under 42 U.S. Code 1983. Antonsen v. Ward, 943 F.2d 198 (2d Cir. 1991). {N/R}
     Obesity is not a handicap in Pennsylvania. City could reject an overweight applicant without proof of job-relevance to height/weight standards. Civil Service Cmsn. v. Penn. Human Rltns. Cmsn., 591 A.2d 281 (Pa. 1991). [1992 FP 24-5]
     N.Y. appellate court holds that civil service laws supersede handicap accommodation laws for public safety positions; police officer properly discharged for audio deficiency. Rice v. Schuyler Co. Civil Service Cmsn., 528 N.Y.S.2d 944, 137 A.D.2d 359 (1988).
     Employee may be discharged for physical inability to do work. Pierce v. Franklin Elec. Co., 737 P.2d 921 (Okla. 1987).
     City not required to appoint officer who suffers from heat sensitivity. Lowes v. Sayad, 614 F.Supp. 1206 (E.D. Mo. 1985).
     City could not medically terminate officer who was since cured of ulcer problems. Alongi v. Dept. of Police, 452 So.2d 798 (La. app. 1984).
     Applicants for fire fighter jobs were not “handicapped” merely because they wore glasses or had undergone surgery. In re Gargano, 754 P.2d 393 (Colo. App. 1987).
     VT supreme court holds that lower court should have heard the appellant's claim of handicap discrimination. Police officer was terminated from a pre-service training program because of a hearing impairment noticed during firearms range practice. Packard v. Gordon, 1 AD Cases (BNA) 1163; 537 A.2d 140 (Vt. 1987).
     Postal employee with hemophilia and arthritis unable to perform any entry level job, not entitled to other position barred by union contract; reduced pay during probation period was discrimination. Davis v. U.S. Postal Serv., 675 F.Supp. 225 (M.D. Pa. 1987).
     Army warehouse employee with osteoarthritis entitled to reinstatement, alternative position if unable to perform warehouse work, or disability retirement. Coley v. Sec. of the Army, 45 FEP Cases (BNA) 735 (D.Md. 1987).
     Employee fired because of excessive absence due to illness did not suffer unlawful discrimination despite hospitalization. Giaquinto v. New York Tel. Co., 522 N.Y.S.2d 329 (A.D. 1987).
     Wheelchair-dependent employee allowed to sue employer for handicap discrimination on basis of injuries in restroom. Conlon v. City of Long Beach, 676 F.Supp. 1289 (E.D.N.Y. 1987).
     Driver who injured back on job was not a “disabled person” under Iowa civil rights law. Brown v. Hy-Vee Food Stores, 407 N.W.2d 598 (Iowa, 1987).
     Applicant for postal job properly rejected for dwarfism when condition prevented performing essential job functions. Dexler v. Tisch, 660 F.Supp. 1418 (D.Conn. 1987).
     City could not deny applicant with back condition employment as police officer when there was no showing that the condition would prevent him from performing his duties. City of New York v. State Div. of Human Rights on Complaint of Granelle, 517 N.Y.S.2d 715 (Ct. App. 1987).
     Applicant for police officer position could be automatically disqualified for suffering four or five dislocations of same shoulder, regardless of surgical correction. Mahoony v. Ortiz, 645 F.Supp. (S.D.N.Y. 1986).
     Epileptic criminal investigator could be terminated when he refused to consider nonhazardous position, and misrepresented his condition. Salmon Pineiro v. Lehman, 653 F.Supp. 483 (D. Puerto Rico, 1987).
     Bus system inaccessible to handicapped violates their civil rights even when separate paratransit system provided for them. Maine Human Rights Cmsn. v. City of South Portland, 508 A.2d 948 (Me. 1986).
     Transit authority's requirement that bus drivers have blood pressure below 140/90 was a bona fide occupational qualification; no handicap discrimination found. Mass Transit v. Cmsn. on Human Rel., 515 A.2d 781 (Md.App. 1986).
     Federal appeals court holds that epileptic clerk-typist is handicapped under rehabilitation act; cannot be discharged if “otherwise qualified” for job duties. Reynolds v. Brock, 815 F.2d 571 (9th Cir. 1987).
     Weak back muscles did not constitute an impairment for which applicant was entitled to protection against handicap discrimination. City of LaCrosse Police & Fire Cmsn. v. Labor & Industry Review Cmsn., 385 N.W.2d 516 (Wis. App. 1986).
     State Police ordered to hire trooper applicant with one kidney; back pay awarded. Penna. St. Police v. Comm. Human Rel. Cmsn., 483 A.2d 1039 (Pa. Cmwlth. 1984).
     Prior malignant tumor an improper basis for rejecting female applicant. Class action certified for injunctive relief. Dyer-Neely v. City of Chicago, 101 F.R.D. 83 (N.D. Ill. 1984).
     Angina pectoris disqualified applicant for jailer position. Cook v. U.S. Dept. of Labor, 688 F.2d 669 (9th Cir. 1983); cert. den. 464 U.S. 832.
     Federal court, on second review, refuses to reinstate paraplegic St. Louis County police officer. Simon v. St. Louis Co., former decision at 656 F.2d 316; remand at 563 F.Supp. 76 (E.D. Mo. 1983).
     California overturns employer's rejection of job applicant due to high blood pressure. American National Insurance Co. v. Fair Employment & Housing Cmsn., 186 Cal.Rptr. 345, 651 P.2d 1151 (1982).
     Fire department could reject auxiliary firefighter for permanent appointment due to spinal curvature. Palossolo v. Nadel, 441 N.Y.S.2d 673 (A.D. 1981).
     Disability retired amputee wins order for reinstatement with highway patrol; absence of foot not determinative. Sedler and Cal. Highway Patrol, Calif. Public Emp. Retir. Sys. Case #562-20-4688; Calif. Hwy. Patrol Ref. File #76.A1273.A2868 (1982). (Applicant failed to report to CHP Academy for training; no appeal taken.)
     Applicant with amputated leg entitled to seek employment as city firefighter; state law banning appointment of amputees found unconstitutional. Melvin v. City of West Frankfort, 417 N.E.2d 260 (Ill.App. 1981).
     Heart disease as a basis for rejection discussed. Gadue v. Village of Essex Junction, 336 A.2d 182 (Vt. 1975).
     Outgrown epilepsy no bar to employment; federal court grants relief in discrimination suit. Duran v. City of Tampa, 430 F.Supp. 75 (M.D. Fla. 1977).
     Also see: AIDS/HIV Discrimination; Alcohol Abuse & Rehab.; Contagious & Infectious Diseases ; Hearing (Audio) Impairment; Heart Problems; Mental Illness & Instability; Obesity; Physical Fitness Reqmts., Agility Tests & Stds.; Physical Impairments - Termination; Stress Related; Visual Acuity Standards.


HANDICAP/ ABILITIES DISCRIMINATION
     - ACCOMMODATION – TELEWORKING
      D.C. jury awards $3 million to a former government attorney who claimed that she was discriminated against because of multiple sclerosis, when her superior revoked her teleworking privileges. Bremer v. Gutierrez, #1:03CV01338, 43 (2120) G.E.R.R. (BNA) 800 (D.D.C. 2005). {N/R}
    Seventh Circuit rejects an employee's ADA "reasonable accommodation" for "a home office in its entirety." Rauen v. U.S. Tobacco, #01-3973, 319 F.3d 891, 13 AD Cases (BNA) 1797, 2003 U.S. App. Lexis 2211 (7th Cir. 2003) . {N/R]
     The California Attorney General has determined that a public agency is not required under the ADA to provide, as an accommodation for a disabled member of a council or board, a teleconferencing connection at the disabled person's place of residence. A.G. Opinion #00-1210, 01 C.D.O.S. 9764 (11-14-2001). {N/R}
     Divided appellate court upholds a state agency's decision to fire a disabled worker rather than to accommodate his request to work from his home. Kvorjak v. Maine DoL, #00-2385, 259 F.3d 48, 2001 U.S. App. Lexis 17875, 12 AD Cases (BNA) 16. [2001 FP 141-2]
     Working at home might be a reasonable accommodation for some jobs but the court found it was not an option for the plaintiff's position. Waggoner v. Olin Corp., 169 F.3d 481 (7th Cir. 1999). {N/R}
     Federal court holds that a disabled employee's request to work at home may be a reasonable accommodation under the ADA. Anzalone v. Allstate Ins., 1995 WL 21672, 1995 U.S.Dist. Lexis 588 & 1272 (E.D.La.). [1995 FP 135]
     » Also see: Teleworking (Non Disability related)


HANDICAP/ ABILITIES DISCRIMINATION
     - TDD /SIGN LANGUAGE & PHYSICAL BARRIERS
     Four deaf boys lose an ADA suit. Although there were no sign language interpreters in an emergency decontamination tent, they received sufficient information by gesturing, lip reading, writing, and limited sign language. Loye v. County of Dakota, #09-3277, 2010 U.S. App. Lexis 23630 (8th Cir.).
     Attorney General issues final regulations revising the Justice Department's ADA regulations. Nondiscrimination on the Basis of Disability in State and Local Government Services, 75 (178) Federal Register 56164 (Sep. 15, 2010).
     Sixth Circuit holds that Savannah, Tenn., police did not violate Title II of ADA by failing to provide sign language interpreter for deaf arrestees, where they did not allege intentional discrimination or challenge validity of their arrests. The language of the statute does not specifically enumerate whether an arrest is a "service, program, or activity" contemplated by the ADA. To conclude that an arrest may be an "activity" subject to the ADA does not direct a finding that an interpreter was required here. Each of the plaintiffs must show that he or she was intentionally discriminated against, or that reasonable accommodations were not made to provide them with communications that were as effective as those provided to non-disabled persons. There was no evidence that a sign language interpreter would have changed the events in any way. Tucker v. State of Tennessee, #06-6208, 539 F.3d 526, 2008 U.S. App. Lexis 18618 (6th Cir.), citing Rosen v. Montgomery Co., #96-1833, 121 F.3d 154, at 157-158 (4th Cir. 1997) and Bircoll v. Miami-Dade Co., #06-11098, 480 F.3d 1072 (11th Cir. 2007).
     If adopted by the Justice Dept., the proposed new ADA rules would require architectural changes to accommodate persons in wheelchairs, including the number of parking spaces for vans, the number of doorway ramps, counter height, etc. Proposed Rules: Nondiscrimination on the Basis of Disability in State and Local Government Services, 69 (189) Federal Register 58768. {N/R}
     U.S. Dept. of Justice Department signs ADA agreements with 6 communities to install TTY equipment for 9-1-1 emergency services and to improve physical access at police, fire stations, courthouses and other public buildings. As of April 2001, DoJ secured 28 settlement agreements and continues to work on 27 open investigations. {N/R}
     Federal court upholds the suit of a deaf person who was subjected to stationhouse questioning without the help of a certified sign language interpreter. Calloway v. Glassboro, 89 F.Supp.2d 543, 2000 U.S. Dist. Lexis 1141, 10 AD Cases (BNA) 302 (D.N.J.). [2000 FP 72-3]
     The City of Toledo and its fire and police depts. have agreed to modify facilities to ensure that persons with disabilities have full access. The city agreed to improve accessibility, including change of locations, to accommodate persons with hearing, speech, and vision impairments. U.S. v. City of Toledo, (N.D. Ohio). Ref: DoJ Press Release 8-23-99. {N/R}
     Ninth Circuit holds, 2-to-1, that deaf callers cannot receive damages for mishandled TDD calls to the Phoenix Police, absent proof of intentional discrimination. Ferguson v. Phoenix, 157 F.3d 668, 8 AD Cases (BNA) 862, 1998 U.S. App. Lexis 21444 (9th Cir. 1998). [1998 FP 155-6]
     Oakland CA Police Dept. agrees with the Justice Dept. to implement ways that hearing-impaired citizens and prisoners will be accommodated. DoJ Civil Rights Div. PR #98-170. [1998 FP 88-9]
     Chicago police settle ADA complaints raised by the Justice Dept. Agreement requires installation of TDDs at 911 consoles to accommodate hearing and speech-impaired callers. U.S. v. City of Chicago, DoJ Media Ref. CR95-286 (N.D.Ill. 1995). Our ref #5610 [1995 FP 112-3]
     Justice Dept. files settlement decrees in litigation with county jails in Virginia and Michigan, over the failure to provide a telecommunications device for the deaf (TDD). U.S. Dept. of Justice v. Sheriff, Fairfax Co., Va.; U.S. Dept. of Justice v. Saginaw Co. Sheriff Dept., Mich. {N/R}
     TDD settlement agreement on access for the hearing-impaired at a county jail: U.S. (D.O.J.) and Fairfax Co., VA Sheriff, DoJ Complaint #204-9-18, full text at www.usdoj.gov/crt/ada/fairfax.htm {N/R}
     Deaf federal computer operator had good cause for voluntarily leaving job when employer failed to provide sign language interpreter; entitled to unemployment benefits. McAlister v. Missouri Div. of Employment, 747 S.W.2d 661 (Mo.App. 1988).
     Also see: Hearing (Audio) Impairment.


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