ADA Accommodation Claim by Terminated Recreation Employee

October 31, 2019, Department, by James C. Kozlowski, J.D., Ph.D.

2019 November Law Review ADA Accommodation Claim by Terminated Recreation Employee 410

In the case of Schiller v. Northern Suburban Special Recreation District, 2019 U.S. Dist. LEXIS 55380 (N.D. Ill. 4/1/2019), plaintiff Gabrielle Schiller alleged the defendant Northern Suburban Special Recreation District (NSSRD) violated the Americans with Disabilities Act (ADA) when her employment was terminated.

Facts of the Case
NSSRD offers recreation opportunities to people with disabilities. In May 2014, NSSRD hired Schiller as a site coordinator. In January 2016, Schiller became a program leader II, and later, a recreation specialist – adult. NSSRD’s job description for the recreation specialist position states that its function is to be “responsible for the coordination and implementation of safe, high-quality recreation services for individuals with disabilities.”

The essential duties of the recreation specialist job included directing leadership of recreation programs and overnight trips for individuals of all ages with disabilities and leading assigned programs for individuals of all ages with disabilities. The job would also require “adapting to changes in all aspects of the job, including assigned tasks, scheduling and new or unforeseen circumstances, as well as “sitting, standing, bending, stooping, and walking for prolonged periods.”

From Monday, August 15 through Friday, August 19, 2016, NSSRD held an overnight camp for adolescents at Camp Duncan. Schiller and another recreation specialist – youth, Emily Vermeer, were scheduled to be the program leaders for Camp Duncan, but Vermeer was excused from attending the trip because she was pregnant.

On August 9, 2016, Schiller’s supervisor, Jerry Barton, told Schiller that Vermeer would not be attending the Camp Duncan trip, and thus, Schiller would be the trip leader. During this meeting, Schiller said she told Barton that she struggled with stress, anxiety, fibromyalgia and chronic fatigue and that standing on her feet for extended periods of time made her weak.

Schiller said she told Barton she was concerned about the trip being understaffed and was uncomfortable about there not being another full-time staff member present because she had never been to Camp Duncan. Schiller said Barton agreed to “send a full-time staff member with her to the camp during the day and overnight, that she could call Vermeer and Barton when needed.” In addition, Schiller was told she would have the “co-leadership” of the two other employees going on the trip: an intern, Hailey Haas, and a part-time staff member Braselina Sabini. Ultimately, Schiller told Barton she was not worried about leading Camp Duncan.

After this meeting, Barton sent an email to the human resources manager (Darleen Negrillo) asking whether NSSRD had “any information about medical conditions” that could interfere with Schiller’s job responsibilities. The email also said Schiller had mentioned (regarding Camp Duncan) that she “becomes weak when standing for extended periods of time” and that “fatigue and stress can weaken her.” Barton told Negrillo that Schiller “did not appear to be concerned about working the trip, but I need to know if these are things that need to be taken into consideration moving forward.” Negrillo responded that Schiller did not have “any restrictions on file” and “knows her limitations and would let them know if there was a concern.”

Barton did not send another full-time staff member to Camp Duncan. However, NSSRD’s manager of operations, Becca Zajler, Zajler’s supervisor, Candace Cunningham, and another staff member, Mary Kate Murphy, attended portions of the trip. Barton and Murphy were also available by phone.

At the time of the Camp Duncan trip, NSSRD had a policy that stated: “During the program, the Program Leader/Site Coordinator will give medication to participants.” However, on August 15, 2016, the first day of the camp, Schiller delegated medication distribution to Haas and Sabini.

Moreover, though Schiller said she gave instructions to the appropriate staff member, a camp participant with a gluten restriction ate gluten the first day of camp. At 11:30 p.m., Schiller called Vermeer, rather than the on-call staff member, regarding the gluten issue.

On August 16, 2016, the second day of the camp, Schiller hyperventilated, cried, lost feeling in her hands and feet, had multiple panic attacks, decreased mobility, difficulty speaking and increased pain. At 8:50 a.m. that day, Cunningham and Zajler went to the camp and saw intern Haas administering medication to participants.

Cunningham and Zajler told Schiller that she was the leader of the trip, and as such, “needed to be overseeing dietary restrictions and medication,” delegating behavior management issues, and calling a designated on-call staff member when there were problems. Schiller “acknowledged that she was the assigned leader of the trip and said she felt confident that she could lead the trip safely and successfully.”

Later that day, Zajler told Schiller that Sabini would leave the next morning because the participant assigned to Sabini was leaving the camp, but the participant’s aide would remain. Schiller told Zajler that she was frustrated, felt unprepared for the trip, and was being pulled in too many directions as leader. Schiller also said she knew other staff on the trip were being questioned about her leadership, which hurt her feelings. Ultimately, however, Schiller said she could lead the trip successfully without Sabini. When Zajler returned from Camp Duncan, she told NSSRD’s executive director (Craig Culp) that she and Cunningham had coached Schiller on her performance.

At 5:30 p.m. the same day, Schiller called Culp and told him she had been disrespected by Zajler and Cunningham. In addition, she told Culp she “was confused as to the plans for Camp Duncan,” and “could not run the camp without further support.” Culp admitted Schiller told him she could not stay at the camp because she had been disrespected by other staff members. After this interaction, Schiller left the camp and Culp decided to terminate her. He terminated her employment with NSSRD the next day.

Summary Judgment
In response to Schiller’s complaint, NSSRD claimed Schiller had failed to show any legal basis for her ADA claim under the circumstances of this case. NSSRD, therefore, brought a pretrial motion asking the federal district court to issue a summary judgment in NSSPR’s favor.

To prevail on a summary judgment motion, which would effectively dismiss Schiller’s lawsuit without a trial, NSSRD had to show that there was “no genuine dispute as to any material fact” to support Schiller’s ADA claim. If so, NSSRD would be entitled to a judgment without going to trial. As noted by the court, summary judgment is appropriate only when the entire pretrial record establishes that no reasonable jury could find a legal basis for Schiller’s ADA claim.

Americans with Disabilities Act
As cited by the federal district court: “The ADA prohibits certain employers from discriminating against a qualified individual on the basis of disability in regard to the discharge of employees and other terms, conditions, and privileges of employment” (42 U.S.C. § 12112(a)). Moreover, the court noted that “discrimination” within the context of the ADA includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability” (42 U.S.C. § 12112(b)(5)(A)).

To overcome NSSRD’s motion for summary judgment on her failure-to-accommodate claim, the federal district court found Schiller “must offer evidence that suggests she is a qualified individual with a disability, defendant was aware of the disability, and defendant failed to reasonably accommodate that disability.” NSSRD argued it was entitled to summary judgment because “the record does not support any of these elements.”

Essential Job Functions
As cited by the federal district court, within the context of the ADA: “Plaintiff is a qualified individual with a disability if she can, ‘with or without reasonable accommodation,’ perform the essential functions of her job” (42 U.S.C. § 12111(8)). To “determine whether a task is an essential function,” the federal district court would consider, but not be limited to, the following factors:

…evidence of the employer’s judgment of a position, written job descriptions prepared before advertising or interviewing applicants for the job, the work experience of past incumbents of the job, the work experience of current incumbents in similar jobs, and the amount of time spent on the job performing the function.

In this case, NSSRD claimed Schiller was “unable to perform the essential function of leading recreation programs.”

As noted by the federal district court, it was undisputed that NSSRD’s job description listed the “function” of the recreation specialist as being “responsible for the coordination and implementation of safe, high-quality recreation services for individuals with disabilities of all ages” and listed “direct leadership of recreation programs and overnight trips for individuals with disabilities of all ages” as an essential duty.

In response, Schiller claimed leadership was not an essential job function within the context of the ADA because NSSRD “sometimes excused staff from the assigned responsibility of leading assigned programs due to illness.” The federal district court disagreed. According to the court, “occasionally excusing the performance of a function does not mean the function is not essential.” Moreover, the court acknowledged that because “not all employees perform at a particular time all the essential job functions does not make those functions non-essential.”

In this instance, the court found “the only evidence with respect to the essential functions of the Recreation Specialist position was the undisputed job description.” As a result, the court determined “leading recreation programs is an essential function of the job.”

Schiller also claimed she could have performed this essential function for the recreation specialist position “with the accommodation of a co-leader.” In response, NSSRD argued “assigning a co-leader is not a reasonable accommodation because doing so would just shift the leadership function to another employee.” The federal district court agreed.

In the opinion of the court, it would not be a reasonable accommodation required by the ADA: “To have another employee perform a position’s essential function, and to a certain extent perform the job for the employee.” That being said, the court also found sharing responsibility for a task was not “the same as reassigning it, and sharing tasks may be a reasonable accommodation.” In particular, the court noted: “Circumstances might exist when employees working in teams are able to share duties among themselves, so that such sharing might be a form of reasonable accommodation.”

Moreover, given that NSSRD originally assigned two recreation specialists, Schiller and Vermeer, as program leaders for the Camp Duncan trip, in the opinion of the federal district court, “a jury might find co-leadership to be a reasonable accommodation in this case.” Further, the court acknowledged: “The reasonableness of a requested accommodation is a question of fact.” (Unlike questions of law decided by judges, questions of fact are typically left for a jury to decide at trial.)

Qualified Disabled Individual
Under the circumstances of this case, the federal district court found the pretrial record had also raised “an issue of material fact” as to whether NSSRD knew about Schiller’s alleged disabilities.

In this instance, Schiller claimed NSSRD knew of her alleged disabilities because “she told Barton, a week before the Camp Duncan trip, that she struggled with stress, anxiety, fibromyalgia, and chronic fatigue and that standing on her feet for extended periods of time made her weak.” In response, NSSRD argued Barton’s alleged knowledge was irrelevant because Executive Director Culp was “the decision maker behind the actions that Plaintiff [Schiller] alleges to be discriminatory.”

The federal district court, however, found undisputed facts in the pretrial record that Barton was Schiller’s supervisor and NSSRD offered “no evidence that suggests employees were required to go to Culp, rather than their supervisor, to seek an accommodation.” As a result, the federal district court held Schiller had sufficiently alleged “a triable fact issue” that NSSRD knew about her alleged disabilities.

Interactive Accommodation Process
NSSRD had also argued Schiller had failed to sufficiently allege a violation of the ADA because she had “stopped engaging in the interactive process to determine an appropriate accommodation.” As cited by the federal district court, once an employee has disclosed that he/she has a disability, “the ADA requires an employer to engage with the employee in an interactive process to determine the appropriate accommodation under the circumstances.” In this instance, NSSRD claimed the required interactive process had begun at the August 9, 2016, meeting Schiller had with Barton, but broke down when Schiller “failed to tell Zajler and Cunningham about her disabilities and request an accommodation when she met with them at Camp Duncan.”

The federal district court, however, found the pretrial record indicated, “the interactive process started and ended on August 9, 2016.” Moreover, at this meeting, the court found evidence that Barton had effectively granted Schiller’s accommodation request “to assign another full-time staff member to the camp, allow Schiller to call him and Vermeer when needed, and have Haas and Sabini act as Schiller’s co-leaders, and Barton agreed to do so.”

Given evidence in the pretrial record that “the parties agreed to an accommodation” and NSSRD failed to provide it, the federal district court found Schiller had indeed “raised a genuine issue of fact,” which, if proven at trial, would establish her ADA failure-to-accommodate claim.

Disability-Based Termination
In her complaint, Schiller had also claimed that NSSRD’s termination of her employment violated the ADA. As cited by the federal district court, to overcome NSSRD’s motion for summary judgment, Schiller would have to produce evidence of the following if her ADA claim was to proceed to trial:

(1) she is disabled within the meaning of the ADA, (2) she is qualified to perform the essential functions of her job either with or without reasonable accommodation, and (3) she has suffered from an adverse employment decision because of her disability.

NSSRD argued there was no causal connection between Schiller’s disability and her termination from employment at NSSRD. The federal district court disagreed. Based on the following facts, the federal district court found Schiller had produced sufficient evidence to create “a genuine issue as to whether defendant terminated plaintiff because of her disabilities”:

(1) when Zajler visited Camp Duncan, plaintiff told Zajler that she was struggling with anxiety; (2) Zajler reported on the Camp Duncan visit to Culp; (3) later the same day, when plaintiff called Culp, she told him she would have to leave the camp ‘due to her health concerns’ unless she got more support, and he told her she was being ‘selfish’; (4) Culp asked Barton, who knew about plaintiff’s alleged disabilities, whether he thought plaintiff should be fired; and (5) though defendant’s policies permit the use of progressive discipline, Culp did not consider discipline other than termination for plaintiff.

In her ADA claim, Schiller also alleged NSSRD terminated her employment in retaliation for her request for a reasonable accommodation. According to the court, evidence that an ADA accommodation request prompted the retaliatory termination of an employee could include the following:

(1) suspicious timing; (2) ambiguous statements or behavior towards other employees in the protected group; (3) evidence, statistical or otherwise, that similarly situated employees outside of the protected group systematically received better treatment; and (4) evidence that the employer offered a pretextual reason for an adverse employment action.

In this instance, the federal district court found the following facts alleged in Schiller’s ADA claim were “sufficient to create a triable fact issue on plaintiff’s retaliation claim”:

Here, the record shows that Culp: (1) terminated plaintiff eight days after she requested an accommodation; (2) gave another employee who was accused of stealing a participant’s money, but had not asked for an accommodation, the opportunity to resign rather than be terminated; (3) told plaintiff she was being selfish when she said she had to leave the camp for health reasons and (4) did not consider any form of discipline other than termination for plaintiff.

Having found “genuine issues of material fact as to plaintiff’s ADA claims” in the pretrial record, the federal district court denied NSSRD’s motion for summary judgment. As a result, Schiller would have an opportunity to proceed to trial and have a jury determine whether she could prove NSSRD violated the ADA when it allegedly failed to provide an agreed on accommodation under the circumstances of this case.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism at George Mason University. Webpage with link to law review articles archive (1982 to present).