Test Your Knowledge - July 2012July 2012By: Jennifer Adams Murphy, Esq. and Ryan L. Young, Esq. Fact of the MonthA disabled person under the ADA includes an individual with a mental impairment or who is regarded as having an impairment. 42 U.S.C. Sec. 12102. Mental impairments present particularly challenging issues for employers to address due to the fact that traits or behaviors are not necessarily mental impairments under the ADA but may be related to a mental impairment. It is important to carefully assess each such potential claim in the specific context in which it arises.The EEOC reports that EEOC enforcement lawsuits of ADA claims have increased from 12% of overall filings in 2007 to 27% in 2012. Reports have stated that overall ADA lawsuits (private and EEOC) have increased by nearly 90% over that past five years. The Northern District of Illinois ranks fourth among federal district court filings of ADA lawsuits as a percentage of area population. (TRAC Reports, Inc.)Test Your Knowledge - July 20121. Physician with attention deficit disorder ("ADD") was terminated from residency program as a result of persistent tardiness, failure to respond to pages, raising his voice and making derogatory comments to coworkers and exercising poor clinical judgment. Plaintiff alleges violation of ADA claiming that he should have been allowed a "slow gradual warm-up period" to adjust to the rigors of the residency program. Did Defendant hospital prevail on a motion for summary judgment?2. An emergency medical technician ("EMT") with ADD and difficulty concentrating on the job was terminated and filed a lawsuit against an ambulance company arguing that the stated reason for his discharge, being tardy five times within a four month time frame, was pretextual. Select the answer which you believe correctly describes the disposition of the case:a. The case is dismissed because ADD is not a disability under the ADA.b. The case is dismissed because repeated tardiness is a legitimate non-discriminatory reason for termination.c. The case is dismissed because an ability to concentrate under all situations is an essential job requirement for an EMT.d. All of the above.e. None of the above. The EMT defeated the motion for summary judgment and was allowed to proceed to trial.3. Plaintiff, a police officer, was placed on unpaid leave following diagnosis with post traumatic stress syndrome, depression, panic attacks, and after her doctor reported that her medications "put her at risk in the line of duty." Plaintiff then filed suit against her employer/city on the basis that her termination was based upon her disabilities and was in violation of the ADA. She complained that her request for reassignment to an "inside" job was not granted. Did Defendant prevail on a motion for summary judgment?4. Plaintiff, a Wal-Mart employee, filed suit against Wal-Mart alleging failure to accommodate her obesity related issues and claiming constructive discharge. Plaintiff, who had been using a "Mart-Cart," a motorized cart to transport herself and merchandise within the store, complained when she was told that she could no longer use the Mart-Cart which, she was told, was reserved for customers. Thereafter, plaintiff resigned, allegedly due to insulting comments from coworkers regarding her obesity, inability to use the Mart Cart, and after a coworker hid the stool she used while at the cash register. A couple of years after her "constructive discharge," the plaintiff filed for social security disability, alleging an inability to work due to her obesity and mental health issues. What happened?a. Wal-Mart was required to provide and customize a Mart-Cart for plaintiff;b. Wal-Mart was required to reinstate plaintiff, provide her with a lock-secured stool to use at the cash register;c. Plaintiff was barred from seeking back pay from the point after she filed her social security statement alleging an inability to work;d. Summary judgment was entered in favor of Wal-Mart on the basis that her workplace conditions were not so objectively intolerable as to support a constructive discharge claim.Answers:Question 1.Yes. Defendant's Motion for Summary Judgment was granted in Schwarz v. Loyola University Medical Center, 2012 US Dist. LEXIS 82749 (N.D. Ill., June 11, 2012). Northern District Court of Illinois held that Plaintiff was unable to perform the essential functions of the job, with or without accommodations. Court further held that the ADA was "no bar to discipline for misconduct" explaining that "whether Plaintiff attributes his behavior to a disability or to the number of hours he worked, or to displeasure over being required to do a reintegration into clinical practice after being absent from the profession for several years, is of no moment, because the ADA provides no bar to discipline for misconduct."Question 2.Answer: E. The federal district court for the Eastern District of Pennsylvania in McCarty v. Marple Township Ambulance Corps, 2012 US Dist. LEXIS 77519 (E.D. Pa. 6/5/12), denied the ambulance company's motion for summary judgment finding that there was an issue of fact as to whether ADD was a disability under the ADA. The Court also found that there was a question of fact as to whether the ambulance company's stated reason for plaintiff's discharge (tardiness) was pretextual. Interestingly, the ambulance company did not cite performance problems arising from his attention deficit as part of the reason for his discharge.Question 3.Answers: Yes. The federal district court for the Eastern District of Pennsylvania in Diaz v. City of Philadelphia, 2012 US Dist. LEXIS 66326 (E. D. Pa. 5/10/12), held that defendant did not violate the ADA by ensuring that officers are psychologically fit for duty, including "inside duty" jobs, noting that "not all requested accommodations are appropriate" and that the ADA only requires "reasonable accommodation" not necessarily the plaintiff's "preferred accommodation."Question 4.Answers: C and D. Court held in Bucklew v. Wal-Mart Stores, East, LLP, 2012 U.S. Dist. LEXIS 85172 (D. S.C. 6/18/12) that statements made in social security application alleging an inability to work could not be reconciled with claims in lawsuit and held that she could not recover damages for the period after she filed the social security application. The court held that the plaintiff failed to demonstrate Wal-Mart's offer of accommodations alternative to the Mart-Cart were not satisfactory accommodations. The court also held that the conditions at Wal-Mart were not so intolerable as to support her claim for constructive discharge.As readers can see, disability issues are complex and need to be carefully evaluated. Readers who would like assistance in handling these tricky issues should contact Jennifer Adams Murphy of the St. Charles, IL office of Wessels Sherman at (630) 377-1554 or email@example.com or Ryan L. Young of the Chicago, IL office of Wessels Sherman at (312) 629-9300 or firstname.lastname@example.org.