NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 9, 2013*
Decided January 13, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13‐1199
Appeal from the United States
JANICE JOHNSON, District Court for the Northern District of
Plaintiff‐Appellant, Illinois, Eastern Division.
v. No. 09 C 7686
CITY OF CHICAGO, Charles R. Norgle,
Defendant‐Appellee. Judge.
ORDER
Janice Johnson appeals the grant of summary judgment against her in this
employment‐discrimination suit against her former employer, the City of Chicago,
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and record.
See FED. R. APP. P. 34(a)(2)(C).
No. 13‐1199 Page 2
raising claims of failure to accommodate and retaliation under the Americans with
Disabilities Act and the Rehabilitation Act, 42 U.S.C. § 12112; 29 U.S.C. § 701. She
appeals only the ruling on her failure‐to‐accommodate claim. Because reasonable jurors
could conclude that Johnson was disabled under the ADA, we reverse and remand this
case for further proceedings.
Johnson, who had worked as a public‐health aide for the City of Chicago’s
Department of Public Health for a decade, missed eleven days of work in early 2008.
During this eleven‐day absence, supervisors tried unsuccessfully to reach her. Because
she had been absent without leave for five consecutive days (in violation of the City’s
personnel rules), the City initiated discharge proceedings against her, informing her in
writing that she would be fired on March 10 unless she accounted for her absence. On
March 10, Johnson returned to work. She presented her supervisors with a “Consent to
Return to Work Form” issued by the Sickle Cell Clinic at the University of Illinois
College of Medicine at Chicago, stating that she was hospitalized from February 16 to
the 23 and could return to work on March 10; the note added that she should refrain
from physical exertion and be limited to desk duty. Her supervisors advised her that
she could request reasonable accommodation under the ADA or medical leave under
the Family and Medical Leave Act, or she could use accrued vacation time for her
absence. Johnson told them she would not use her vacation time, so the City coded her
in its time records as absent “no pay” status. The City did not continue with the
discharge proceedings.
Johnson soon thereafter met with supervisors, explained that she had recently
been hospitalized, and submitted a “Reasonable Accommodation Request Form.” The
form was accompanied by a medical questionnaire completed by her physician stating
that Johnson needed to use a walker and would suffer from “gait instability” for six to
nine months. A notation on the questionnaire also suggested that Johnson be allowed to
work at a desk “until further medical notice.” The Department denied the request,
explaining that she would not be able to perform one of the essential functions of her
job—doing five to seven home visits per day. According to the Department, the
accommodation request “would change the job of PHA [public health aide].”
Johnson did not return to work, believing that she had already been fired, and
the following month the Department sent her another letter reiterating that her
accommodation request had been denied, that she remained in “sick no‐pay status,”
and that her failure to return to work with a full medical release (or to submit
No. 13‐1199 Page 3
paperwork requesting medical leave) could lead to disciplinary action, including
discharge. Johnson did not respond to the letter.
In June the Department sent Johnson documentation explaining its reasons for
disciplining her: she had been absent without leave from May 1 to June 30, 2008, and
she had failed to update her current address during that same time period. A
pre‐disciplinary hearing at which Johnson could contest her discharge was scheduled
for July 16. But she did not show up (she later said that she never received either the
notice of the hearing or the statement of charges), and the City fired her effective
August 1.
Johnson sued the city under the ADA and the Rehabilitation Act, asserting that
the Department: (1) discriminated against her because of her medical condition (sickle
cell anemia) by denying her accommodation request for desk work and terminating her
job; and (2) retaliated against her for requesting the accommodation. Johnson contended
that her sickle cell anemia substantially limited her life activities of walking, standing,
lifting, bending, and working.
The district court granted the City’s motion for summary judgment. The court
determined that Johnson failed to establish that she was a qualified individual subject to
the protections of the ADA and the Rehabilitation Act. The court explained that Johnson
had not shown that her walking (or any other major life activity) was substantially
impaired and in fact found her condition “merely temporary,” so she was not disabled
under the ADA, dooming her failure‐to‐accommodate claim. The court also determined
that Johnson failed to adduce evidence sufficient to raise a fact issue on her retaliation
claim.
In order to succeed on her failure‐to‐accommodate claim, Johnson needed to
show that: (1) she is a qualified individual with a disability; (2) the Department was
aware of her disability; and (3) the Department failed to reasonably accommodate her
disability. Kotwica v. Rose Packing Co., 637 F.3d 744, 747–48 (7th Cir. 2011). Under the
pre‐amendment ADA to which Johnson is subject (the amendments went into effect in
January 2009, after Johnson’s discharge, and were not made retroactive, see Fredrickson
v. United Parcel Serv. Co., 581 F.3d 516, 521 n.1 (7th Cir. 2008)), a qualified individual is
one “with a disability who, with or without reasonable accommodation, can perform
the essential functions of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8) (2006).
No. 13‐1199 Page 4
Johnson confines her appeal to challenging the denial of her failure‐to‐
accommodate claim and contends that she is disabled due to her sickle cell disease. She
maintains that at the time of her discharge her sickle cell anemia limited her walking
and working, and she asserts that this condition required the City to provide her with
reasonable accommodation.
We must first determine whether Johnson presented sufficient evidence from
which a reasonable jury could conclude that she was disabled under the ADA.
See E.E.O.C. v. Auto Zone, Inc., 630 F.3d 635, 639 (7th Cir. 2010). The Supreme Court
devised a three part test to determine if a person has a disability: (1) does the person
have a physical or mental impairment; (2) does the person’s proposed life activity fit the
definition of a “major life activity” under the ADA; and (3) does the person’s
impairment substantially limit their major life activity. Lawson v. CSX Transp., Inc., 245
F.3d 916, 923 (7th Cir. 2001) (quoting Bragdon v. Abbott, 524 U.S. 624, 631 (1998)); 42
U.S.C. § 12102(2) (2006) see also E.E.O.C. v. Lee’s Log Cabin, Inc., 546 F.3d 438, 442 (7th
Cir. 2008). We, like the district court, have little difficulty concluding that Johnson’s
sickle cell anemia is a physical impairment, see Hines v. Barnhart, 453 F.3d 559, 560‐61
(4th Cir. 2006); Norman‐Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1265, n.3 (9th
Cir. 1998), and that walking is a major life activity, 29 C.F.R. § 1630.2(i)(1)(i). Thus, we
are left to determine whether a reasonable jury could conclude that Johnson was
substantially limited in her walking. See E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789,
797 (7th Cir. 2005).
The district court erred when it determined that Johnson failed to show that her
walking was not substantially limited. Her “Consent to Return to Work Form,” which
was completed by her treating physician at the Sickle Cell Clinic after her
hospitalization for her sickle cell anemia, stated that she could return to work but
needed to refrain from physical exertion and should be restricted to desk duty. The
medical questionnaire (which was signed by her physician and accompanied her
request for an accommodation) also recommended that she should be limited to desk
duty, and added that she needed a walker and would have “gait instability” for six to
nine months. Johnson also testified that her sickle cell anemia substantially limited her
walking. Based on this evidence, a reasonable jury could conclude that Johnson was
substantially limited in her walking.
Because reasonable jurors could conclude that Johnson had a disability under the
ADA, summary judgment should not have been granted. Accordingly, the judgment is
REVERSED and REMANDED for further proceedings consistent with this order.