In order to state a claim under the Americans with Disabilities Act (ADA), a plaintiff must prove that (1) he was disabled within the meaning of the ADA; (2) he was qualified to perform the essential functions of the job, with or without a reasonable accommodation; and (3) his employer took an adverse employment action against him because of his disability or without making a reasonable accommodation for it.
The US District Court for the Northern District of Illinois recently confronted the issue of whether an employee who had a four-inch nail lodged in his skull due to a non-work related incident was either (1) disabled; or (2) able to perform the essential functions of the job with or without reasonable accommodation. The Court concluded that the plaintiff, Gino Stragapede (Stragapede), was entitled to summary judgment as to whether he was “disabled” under the ADA, and that whether he could perform the essential functions of his job could only be resolved at trial. See Stragapede v. City of Evanston, No. 1:12-cv-08879 (N.D. Ill. Sept. 26, 2014), available here.
Stragapede began working for the City of Evanston (the City) as a water service worker in 1996. In 2009, he had a four-inch nail lodged in his head after an accident with a nail gun in his garage. When Stragapede asked to return to work in early 2010, the City requested that he first obtain a fitness-for-duty evaluation from a doctor. The first doctor to examine Stragapede was unable to clear him for duty, and she recommended that he receive an independent neurological assessment. A neurologist then examined Stragapede and concluded that, although Stragapede suffered from “mild residual cognitive deficits,” he “should be able to return to work.” Stragapede’s doctor recommended a work “trial” supervised by a coworker to ensure that he could properly perform his job functions. The City subjected Stragapede to a written test, tool recognition exam, and a fieldwork trial. In June 2010, Stragapede completed the work trial, accompanied by his supervisors and other City employees. Stragapede also passed the other tests, so the City cleared him to return to work.
Less than a month after he returned to work, the City placed Stragapede on administrative leave pending an assessment of his ability to perform his essential job functions. During Stragapede’s administrative leave, the City communicated with his doctor about Stragapede’s performance issues. Eventually, the City asked Stragapede to submit to another examination by his doctor. The doctor reported that Stragapede’s performance problems were consistent with cognitive dysfunction from Stragapede’s brain injury. The doctor also said that “the simplest accommodation would involve having a co-worker go out on work assignments with Mr. Stragapede.” Based in part on its discussions with the doctor, the City fired Stragapede on September 24, 2010. In December 2010, Stragapede filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that the City discriminated against him in violation of the ADA. After the EEOC issued its Notice of Right to Sue, Stragapede sued the City in federal court.
In the City’s motion for summary judgment, it argued that Stragapede was not disabled under the ADA and that the City did not consider him to be disabled. Stragapede argued in his own motion for summary judgment that the cognitive impairment he suffered — which affected his memory, attention, and executive function — clearly fit under the ADA’s definition of disability. Even if it did not fit the ADA’s definition, the City “regarded him” as being disabled.
The Court denied both parties’ motions as to whether Stragapede was actually disabled under the ADA. The Court looked to whether Stragapede’s major life activities — such as caring for himself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working — had been substantially impaired. Based on the evidence that the City had provided, and the lack of evidence that Stragapede submitted, the Court denied both parties’ motions, finding that a reasonable jury could conclude that Stragapede’s major life activities had been limited.
The Court agreed with Stragapede, however, that the City had regarded him as being disabled. Under the ADA, a person is regarded as disabled by his employer if he “has been subjected to an action prohibited under this chapter because of actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” As discovery had demonstrated, the City had acknowledged Stragapede was “disabled” in draft versions of his termination letter and in correspondence with Stragapede’s doctor. Some draft termination letters circulated among City employees stated that Stragapede’s firing was “not due to discipline, but to [his] disability.” The final termination letter also advised Stragapede to seek disability benefits. Whereas the letters between the City and Stragapede’s doctor did not use the word “disability,” they did discuss Stragapede’s injury, and included terms like “essential functions” and “accommodation” which, the Court concluded, are suggestive of the ADA framework. Thus, the Court found that the undisputed facts established that Stragapede was disabled under the “regarded as” prong of the ADA — thereby granting his motion for summary judgment in part.
The Court found that neither party had met their burden on the issue of whether Stragapede could nevertheless perform the essential functions of his job — and therefore denied summary judgment to the City and Stragapede on this point.
Separate from its unfortunate facts, the Stragapede case raises interesting issues regarding discovery of employer communications leading up to an employee’s termination. One major point that the Court relied upon in granting Stragapede’s motion was that earlier drafts of his termination notice referenced his “disability,” even though the ultimate version did not. This conclusion highlights the importance employers should place on keeping all drafts and communications prior to the final notice privileged as attorney-client communications if possible, and on taking care even in the drafting of preliminary drafts of communications to avoid unintentionally taking positions that may ultimately be used against them.