FILED
Apr 18 2018, 9:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Daniel Siewers Michael C. Healy
Katie Kotter Indiana Civil Rights Commission
Hart Bell, LLC Indianapolis, Indiana
Vincennes, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Knox County Association for April 18, 2018
Retarded Citizens, Inc., Court of Appeals Case No.
Appellant-Defendant, 93A02-1701-EX-141
Appeal from the Indiana Civil
v. Rights Commission
Alpha Blackburn, Commissioner
Melissa (Cope) Davis, Sheryl Edwards, Commissioner
Steven Ramos, Commissioner
Appellee-Plaintiff
Ahmed Young, Commissioner
Docket No.
EMHA12091467
May, Judge.
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 1 of 40
[1] Knox County Association for Retarded Citizens, Inc. (“KCARC”) appeals the
Indiana Civil Rights Commission’s (“ICRC”) conclusion that KCARC engaged
in an unlawful discriminatory practice when it terminated Mellissa Davis’
employment with KCARC. KCARC presents two issues for our review, which
we restate, generally:
1. Whether the ICRC’s conclusion that KCARC engaged in
discriminatory practices when it terminated Davis’ employment
was supported by substantial evidence and applicable law; and
2. Whether the amount of the ICRC’s monetary reward to Davis
was supported by substantial evidence and applicable law.
[2] We affirm in part, reverse in part, and remand.
Facts and Procedural History 1
[3] KCARC provides services to individuals with disabilities including residential
care, group home care, educational assistance, and occupational assistance.
Davis began working for KCARC as a Direct Support Professional (“DSP”) on
March 12, 2012. Davis worked to KCARC’s satisfaction until August 26, 2012,
when Davis left work for an unknown medical issue. The ICRC found,
regarding this incident:
1
We held oral argument on this case on February 22, 2018, at Vincennes University. We thank the
university for its hospitality and the students for their excellent participation.
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[8.] . . . On this day, Davis arrived to work at Group Home 11
confused and incoherent. She was unsure on how she arrived to
work that day, Davis’ heart raced, and she could not walk. Davis
went to the emergency room that day to receive a diagnosis on
her health conditions. When Davis arrived to work the next day,
Supervisor Shonk informed Davis she could not return to work
without a written note from the doctor releasing her back to
work.
(App. Vol. II at 5.) Davis then sought follow-up medical treatment:
9. Davis made an appointment to see Dr. Nibel. Dr. Nibel saw
Davis on August 30, 2012. Dr. Nibel diagnosed Davis as having
a loss of consciousness or a “syncopal episode” but was unable to
determine what caused this to occur. Dr. Nibel sent Davis back
to work on August 31, 2012 to light duty. There were no details
as to what “light duty” entailed. [Amy] O’Dell, HR Supervisor,
called Davis to get further clarification.
10. On September 7, 2012, Davis proposed [sic] O’Dell with an
additional letter from Dr. Nibel clarifying her “light duty”
restrictions. Dr. Nibel explained that Ms. Davis was suffering
from a medical condition that was causing some dizziness and
headaches. The dizziness could be caused by bending, stooping,
rapid or repetitive rotational movements. Dr. Nibel also
restricted Ms. Davis from lifting anything heavier than ten (10)
pounds. Dr. Nibel recommended that Ms. Davis had [sic] a job
that consisted of mostly sitting but did not require Davis to be in
a sitting position for the entire eight (8) hour work day.
(Id. at 5-6.) On September 7, 2012, after conferring with KCARC Vice
President Jeff Darling, O’Dell decided to terminate Davis because “there were
no positions available to which [sic] met with [Davis’] work restrictions.” (Id.
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at 47.) O’Dell encouraged Davis to reapply for the DSP position once Dr.
Nibel lifted the restrictions on her ability to work.
[4] On September 17, 2012, Davis filed a Complaint of Discrimination with the
ICRC. She alleged:
I believe I was discriminated against on the basis of a perceived
disability. After suffering from my disability at work, I was sent
home. When I returned to work the next day, I was told I
needed a doctor’s note. I got a doctor’s note that put me on light
duty until further notice, so the doctor could do more tests to
figure out what was going on with me. I was told that since I
couldn’t perform all the duties of my job while on light duty I
“voluntarily terminating” [sic] my employment.
(Id. at 17.) As part of a second pre-hearing order, the ICRC identified the issues
before it, as defined by the parties in a conference call on April 15, 2014, as
whether (1) [Davis] had a disability or was regarded as having a
disability; (2) KCARC discriminated against [Davis] because of
the disability or perceived disability by denying a reasonable
accommodation when KCARC terminated [Davis’]
employment; and (3) what remedies [Davis] may be entitled to.
(Id. at 18-19.) On September 15-16, 2015, Administrative Law Judge (“ALJ”)
Noell F. Allen held hearings in Vincennes. The parties and the ALJ also
convened telephonically on September 30, 2015.
[5] On April 13, 2016, the ALJ issued a Proposed Findings of Fact, Conclusions of
Law, and Order (“Proposed Order”) that awarded Davis back pay damages of
$25,837.37. On April 28, 2016, KCARC filed its objections to the proposed
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order. On August 26, 2016, the ICRC heard oral argument on KCARC’s
objections. On December 19, 2016, the ICRC adopted the ALJ’s Proposed
Order, but changed the amount of damages to include pre-judgment interest for
a total damage award of $35,131.46.
Discussion and Decision 2
I. Standard of Review
[6] The standard by which we review decisions from administrative agencies is
well-settled:
In reviewing an administrative decision, we must determine
“whether substantial evidence, together with any reasonable
inferences that flow from such evidence, support the [agency’s]
findings and conclusions.” Walker v. Muscatatuck State Dev. Ctr.,
694 N.E.2d 258, 266 (Ind. 1998). In doing so, we do not reweigh
the evidence or judge the credibility of witnesses, and we
consider only the evidence most favorable to the ICRC’s
findings. McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693
N.E.2d 1314, 1317 (Ind. 1998), reh’g denied. However, if the
question before us is primarily a legal question, “we do not grant
2
At the onset, we would like to note the lack of civility between the parties in this case, both in their briefs
and during oral argument. Unnecessarily argumentative and snide comments such as, “Of course, the fact
that Davis can’t seem to consistently state the nature of her alleged disability is because she doesn’t suffer
from one[,]” (Br. of Appellant at 24), and “had the Commission actually bothered to read the case they cited
in support of their conclusion that Davis is disabled, they would have discovered that it actually stands for
the exact opposite of their assertion,” (id. at 27), as well as conduct during the oral argument, degrade the
parties’ arguments by showcasing the incivility between the parties. We remind counsel of sections 1 and 9
of the Preamble to the Indiana Rules of Professional Conduct, which state: “Whether or not engaging in the
practice of law, lawyers should conduct themselves honorably[;]” and “[The principles of the Rules of
Professional Responsibility] include the lawyer’s obligation to protect and pursue a client’s legitimate
interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward
all persons involved in the legal system.”
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the same degree of deference to the [agency’s] decision, for law is
the province of the judiciary and our constitutional system
empowers the courts to draw legal conclusions.” Walker, 694
N.E.2d at 266. Thus, we review conclusions of law to determine
whether the ICRC correctly interpreted and applied the law. M
& J Mgmt., Inc. v. Review Bd. of Dep’t of Workforce Dev., 711 N.E.2d
58, 61 (Ind. Ct. App. 1999).
Zeller Elevator Co. v. Slygh, 796 N.E.2d 1198, 1206 (Ind. Ct. App. 2003), trans.
denied. In McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314,
1317 (Ind. 1998), reh’g denied, our Indiana Supreme Court explained:
[An agency’s] conclusions as to ultimate facts involve an
inference or deduction based on the findings of basic fact. These
questions of ultimate fact are sometimes described as “questions
of law.” They are, however, more appropriately characterized as
mixed questions of law and fact. As such, they are typically
reviewed to ensure that the Board’s inference is “reasonable” or
“reasonable in light of [the Board’s] findings.” The term
“reasonableness” is conveniently imprecise. Some questions of
ultimate fact are within the special competence of the Board. If
so, it is appropriate for a court to exercise greater deference to the
“reasonableness” of the Board’s conclusion. . . . In evaluating
this conclusion, if no proposition of law is contravened or
ignored by the agency conclusions, the “reasonable” inference
standard gives deference to the agency determination. However,
not all ultimate facts are within the Board’s area of expertise. As
to these, the reviewing court is more likely to exercise its own
judgment. In either case the court examines the logic of the
inference drawn and imposes any rules of law that may drive the
result. That inference still requires reversal if the underlying facts
are not supported by substantial evidence or the logic of the
inference is faulty, even where the agency acts within its
expertise, or if the agency proceeds under an incorrect view of the
law.
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II. Applicability of Indiana Administrative Code
[7] As an initial matter, we address the applicability of the portion of the Indiana
Administrative Code (“IAC”) relevant to disability discrimination in
employment, which is dedicated to “implement[ing] IC 22-9-5 that requires
equal employment opportunities for qualified individuals with disabilities.” 910
IAC 3-1-1 (2013). Indiana Code section 22-9-5-27, which grants the ICRC the
authority to adopt rules regarding employment discrimination against disabled
people, states: “These rules must not be in conflict with the provisions of the
federal rules adopted under the employment discrimination provisions of the
federal Americans with Disabilities Act (42 U.S.C. 12101 et seq).” Ind. Code §
22-9-5-27.
[8] In their briefs, both parties cite to the IAC and the Code of Federal Regulations
(“CFR”), 3 the corresponding federal administrative rules, interchangeably.
However, the most recent CFR sections conflict with their IAC counterparts to
an extent that renders the provisions of the IAC invalid. 4
3
The CFR is an “administrative interpretation of the [ADA] by the enforcing agency . . . [that,] while not
controlling upon courts by reason of their authority, do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.” Gile v. United Airlines, Inc., 95 F.3d
492, 497 (7th Cir. 1996), reh’g and suggestion for reh’g en banc denied. We therefore cite to the ADA and
relevant portions of the CFR interchangeably, despite the fact they were most recently amended in different
years.
4
We find it unsettling that neither party recognized this difference between the current version of the CFR
and the current version of the IAC, which do not comport. Further, Davis, who is represented by ICRC,
cited the 2007 version of the CFR, which has been invalid for a decade. See Pub. L. No. 110-325, 122 Stat.
3553 (2008) (amending relevant sections of the CFR). In addition to this inexplicable error, Davis’ brief is
replete with citations that seem to be to the record, but do not indicate whether the material is from the
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A. Federal Regulations
[9] Since its codification in 1990, the ADA has undergone several revisions, the
most extensive being the ADA Amendments Act of 2008 (“ADAAA”). When
Congress passed the ADAAA, it explicitly indicated it wished to abrogate two
United States Supreme Court cases: Sutton v. United Air Lines, Inc., 527 U.S. 471
(1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184
(2002). 5 Pub. L. No. 110-325(2) (2008). Congress acted because the Court had
too narrowly interpreted the ADA, specifically regarding whether a condition
substantially limits one or more of a person’s major life activities. Id. Thus, the
ADAAA was intended to broaden the definitions used to determine whether a
person is disabled. Id.
[10] First, the ADAAA changed the list of “major life activities” that could be
affected by a person’s condition. Id. In 2001, “major life activities” were
“functions such as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i)
appendices or transcripts. This failure to properly cite the record has greatly hindered our review of this very
complex record.
5
Sutton held, in relevant part:
“A person whose physical or mental impairment is corrected by medication or other measures does
not have an impairment that presently ‘substantially limits’ a major life activity. To be sure, a
person whose physical or mental impairment is corrected by mitigating measures still has an
impairment, but if the impairment is corrected it does not ‘substantially limi[t]’ a major life activity.”
527 U.S. 482-3.
Toyota held, in relevant part, “to be substantially limited in performing manual tasks, an individual must have
an impairment that prevents or severely restricts the individual from doing activities that are of central
importance to most people’s daily lives. The impairment’s impact must also be permanent or long term.”
534 U.S. at 198.
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(2001). In 2012, the definition of “major life activities” was amended to
include, but not limit the applicable activities to: “[c]aring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
sitting, reaching, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, interacting with others, and working.”
29 C.F.R. § 1630.2(i)(1)(i) (2012).
[11] Second, the ADAAA amended the requirements for determining if a condition
“substantially limits” a person’s performance of a major life activity. Pub. L.
No. 110-325(2) (2008). In 2001, the CFR provided:
The following factors should be considered in determining
whether an individual is substantially limited in a major life
activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected
permanent or long term impact of or resulting from the
impairment.
29 C.F.R. § 1630.2(j)(2)(i)-(iii) (2001). But in 2012, that same section of the
C.F.R. stated, in response to the ADAAA:
(j) Substantially limits -
(1) Rules of construction. The following rules of
construction apply when determining whether an
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impairment substantially limits an individual in a major
life activity:
(i) The term “substantially limits” shall be construed
broadly in favor of expansive coverage, to the
maximum extent permitted by the terms of the
ADA. “Substantially limits” is not meant to be a
demanding standard.
(ii) An impairment is a disability within the
meaning of this section if it substantially limits the
ability of an individual to perform a major life
activity as compared to most people in the general
population. An impairment need not prevent, or
significantly or severely restrict, the individual from
performing a major life activity in order to be
considered substantially limiting. Nonetheless, not
every impairment will constitute a disability within
the meaning of this section.
(iii) The primary object of attention in cases brought
under the ADA should be whether covered entities
have complied with their obligations and whether
discrimination has occurred, not whether an
individual’s impairment substantially limits a major
life activity. Accordingly, the threshold issue of
whether an impairment “substantially limits” a
major life activity should not demand extensive
analysis.
(iv) The determination of whether an impairment
substantially limits a major life activity requires an
individualized assessment. However, in making
this assessment, the term “substantially limits” shall
be interpreted and applied to require a degree of
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functional limitation that is lower than the standard
for “substantially limits” applied prior to the
ADAAA.
(v) The comparison of an individual’s performance
of a major life activity to the performance of the
same major life activity by most people in the
general population usually will not require
scientific, medical, or statistical analysis. Nothing
in this paragraph is intended, however, to prohibit
the presentation of scientific, medical, or statistical
evidence to make such a comparison where
appropriate.
(vi) The determination of whether an impairment
substantially limits a major life activity shall be
made without regard to the ameliorative effects of
mitigating measures. However, the ameliorative
effects of ordinary eyeglasses or contact lenses shall
be considered in determining whether an
impairment substantially limits a major life activity.
(vii) An impairment that is episodic or in remission
is a disability if it would substantially limit a major
life activity when active.
(viii) An impairment that substantially limits one
major life activity need not substantially limit other
major life activities in order to be considered a
substantially limiting impairment.
(ix) The six-month “transitory” part of the
“transitory and minor” exception to “regarded as”
coverage in § 1630.15(f) does not apply to the
definition of “disability” under paragraphs (g)(1)(i)
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(the “actual disability” prong) or (g)(1)(ii) (the
“record of” prong) of this section. The effects of an
impairment lasting or expected to last fewer than six
months can be substantially limiting within the
meaning of this section.
29 C.F.R. § 1630.2(j)(1)(i)-(ix) (2012).
B. State Regulations
[12] Two years after the ADA was enacted, Indiana enacted statutes addressing
employment discrimination against disabled people. P.L. 111-1992, Sec. 4
(1992). The legislature granted authority to the ICRC to adopt rules regarding
employment discrimination against disabled people but required: “These rules
must not be in conflict with the provisions of the federal rules adopted under the
employment discrimination provisions of the federal Americans with
Disabilities Act (42 U.S.C. 12101 et seq).” Ind. Code § 22-9-5-27. The ICRC
enacted the relevant portions of the IAC in 1998. Since 1998, the ICRC has
“readopted” these provisions in 2005, 2007, and 2013.
[13] The latest version of the IAC defines a ‘major life activity’ as “a function, such
as the following: (1) Caring for oneself. (2) Performing a manual task. (3)
Walking. (4) Seeing. (5) Hearing. (6) Speaking. (7) Breathing. (8) Learning. (9)
Working.” 910 IAC § 3-2-9 (2013). This language tracks the 2001 version of 29
C.F.R. § 1630.2(i). See supra ¶ 9. The latest IAC provision regarding
‘substantial limitation’ provides:
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The following factors should be considered in determining
whether an individual is substantially limited in a major life
activity:
(1) The nature and severity of the impairment.
(2) The duration or expected duration of the impairment.
(3) The permanent or long term impact, or the expected
permanent or long term impact, of or resulting from the
impairment.
910 IAC § 3-2-15(b) (2013). This language tracks the 2001 version of 29 C.F.R.
§ 1630.2(j)(2)(i)-(iii). See supra ¶ 10.
[14] As can be seen from comparison of the federal and state regulations quoted
herein, the definitions for determining disability under the IAC have not been
modified to account for the changes produced by enactment of the ADAAA.
The state regulations are outdated and narrower than the federal regulations.
Because Indiana Code section 22-9-5-27 requires the portions of the IAC
dealing with employment discrimination against disabled people not conflict
with the ADA, the current version of the IAC is invalid and we cannot rely on
it. See, e.g., Maraman v. City of Carmel, 47 N.E.3d 1218, 1224 (Ind. 2015)
(invalidating local ordinance enacted in violation of authority granted to
municipality by statute), trans. denied. Thus, our review is limited to the
provisions of federal law.
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III. Prima Facie Case of Disability Discrimination
[15] The ADA states: “No covered entity shall discriminate against a qualified
individual on the basis of disability in regard to . . . discharge of employees[.]”
42 U.S.C.A. § 12112 (2009). KCARC argues the ICRC’s conclusion that
KCARC engaged in an unlawful discriminatory practice was not supported by
substantial evidence and was contrary to applicable law because Davis did not
establish a prima facie case of disability discrimination. To establish a prima facie
case of disability discrimination in employment, a plaintiff must prove (1) she is
disabled within the meaning of the ADA; (2) her work performance met the
employer’s legitimate expectations; (3) she was discharged; and (4) “the
circumstances surrounding the discharge indicate it is more likely than not that
[her] disability was the reason for the discharge.” Powdertech, Inc. v. Joganic, 776
N.E.2d 1251, 1256 (Ind. Ct. App. 2002).
A. Disabled Within the Meaning of the ADA
[16] Pursuant to the ADA, a person has a disability if that person has “a physical or
mental impairment that substantially limits one or more major life activities of
such individual[.]” 42 U.S.C.A. § 12102(1) (2009). 6 Under the ADA, the
6
The full definition of “disability,” as codified in the ADA, is: “The term “disability” means, with respect to
an individual -- (A) a physical or mental impairment that substantially limits one or more major life activities
of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.”
42 U.S.C.A. § 12102(1) (2009) (reference to other parts of the statute omitted). However, because the statute
is written in the disjunctive and we conclude Davis is disabled as defined by the first prong, we need not
consider the other two prongs of the definition. See In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999)
(statute written in disjunctive requires proof of only one of the prongs), reh’g denied, trans. denied, cert. denied
534 U.S. 1161 (2002).
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definition of “major life activities” was amended to include, but not limit the
applicable activities to: “[c]aring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating,
interacting with others, and working.” 29 C.F.R. § 1630.2(i)(1)(i) (2012).
[17] The ADA further provides:
The definition of “disability” in paragraph (1) shall be construed
in accordance with the following:
(A) The definition of disability in this chapter shall be
construed in favor of broad coverage of individuals under
this chapter, to the maximum extent permitted by the
terms of this chapter.
(B) The term “substantially limits” shall be interpreted
consistently with the findings and purposes of the ADA
Amendments Act of 2008.
(C) An impairment that substantially limits one major life
activity need not limit other major life activities in order to
be considered a disability.
(D) An impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity
when active.
42 U.S.C.A. § 12102(4) (2009).
[18] Regarding Davis’ disability, the ICRC found:
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11. Davis had a syncopal episode, or lost consciousness, on
August 26, 2012. This episode required Davis to be seen at the
hospital. While Davis returned to work the next day, Davis
sought follow-up treatment by a physician. This single incident
led to Davis being on work restrictions imposed by Dr. Nibel.
While the duration or expected duration of the impairment was
unknown, the nature and severity of the impairment was
minimum. Davis was allowed to return to work with lifting and
movement restrictions.
(App. Vol. II at 10.) Based thereon, the ICRC concluded, “Davis proved she
meets the definition of ‘disabled’ under the law and therefore [is] a member of a
protected class.” (Id. at 9.) KCARC challenges that finding and conclusion,
arguing there “is nothing in the record that would support a finding that Davis’s
single loss of consciousness incident has substantially limited her major life
activities and Davis never asserted that it did.” (Br. of Appellant at 24.) We
disagree as the record reflects Davis’ condition substantially limited one or
more of her major life activities.
[19] In response to KCARC’s request for clarification of the light duty restrictions,
Dr. Nibel wrote a letter explaining:
[Davis] is currently suffering from a medical condition that is
causing some dizziness and headaches. The dizziness appears to
be positional in nature. Therefore, part of her restrictions would
include minimizing any kind of bending, stooping, rapid or
repetitive rotational movements (such as turning from side to
side), etc. Similarly she should not lift anything greater than 10
pounds or so, predominantly because such lifting could require
positional changes that could exacerbate her dizziness and/or
headache. [Davis] is taking medications to help her with her
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condition that have as a side effect fatigue. As a result, she
should not do anything that requires a lot of energy expenditure,
such as walking long distances, using stair cases, etc. Also,
[Davis] suffered from a syncopal episode (essentially a loss of
consciousness), so it would definitely be to her benefit to have a
job that consists mostly of sitting.
(Id. at 43.) Therefore, based on the fact Dr. Nibel’s restrictions included
walking, standing, lifting, and bending, we conclude the ICRC did not err when
it determined at least one of Davis’ major life activities was affected by her
condition. See 29 C.F.R. § 1630.2(i)(1)(i) (2012) (non-exhaustive list of “major
life activities” as defined by the ADA, including walking, standing, lifting, and
bending).
[20] As we conclude Davis’ condition affected one or more major life activities, we
now examine whether those major life activities are “substantially limit[ed]” by
her condition. See 42 U.S.C.A. § 12102(1) (a person has a disability if that
person has “a physical or mental impairment that substantially limits one or
more major life activities of such individual”).
[21] KCARC likens the facts here to those in Couts v. Beaulieu Group, LLC, 288 F.
Supp. 2d 1292 (N.D. Georgia 2003), in which the District Court held “simply
having an impairment or condition . . . is not sufficient to satisfy the ADA’s
requirements [to consider a person disabled under the ADA].” Id. at 1303
(citing Toyota, 534 U.S. at 195). “Instead, the impairment must substantially
limit one or more of Plaintiff’s major life activities.” Id. (citing Toyota, 534 U.S.
at 195). In Couts, the court held Couts was not disabled under the ADA
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because he had not presented evidence he was substantially limited from
performing any major life activities.
[22] However, Couts relied on Toyota, which was explicitly abrogated by the
ADAAA, which states in relevant part:
SEC. 2. FINDINGS AND PURPOSES.
(a) FINDINGS. - Congress finds that -
(1) in enacting the Americans with Disabilities Act of 1990
(ADA), Congress intended that the Act “provide a clear
and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities” and
provide broad coverage;
(2) in enacting the ADA, Congress recognized that
physical and mental disabilities in no way diminish a
person’s right to fully participate in all aspects of society,
but that people with physical or mental disabilities are
frequently precluded from doing so because of prejudice,
antiquated attitudes, or the failure to remove societal and
institutional barriers;
(3) while Congress expected that the definition of disability
under the ADA would be interpreted consistently with
how courts had applied the definition of a handicapped
individual under the Rehabilitation Act of 1973, that
expectation has not been fulfilled;
(4) the holdings of the Supreme Court in Sutton v. United
Air Lines, Inc., 527 U.S. 471 (1999) and its companion
cases have narrowed the broad scope of protection
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intended to be afforded by the ADA, thus eliminating
protection for many individuals whom Congress intended
to protect;
(5) the holding of the Supreme Court in Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184
(2002) further narrowed the broad scope of protection
intended to be afforded by the ADA;
(6) as a result of these Supreme Court cases, lower courts
have incorrectly found in individual cases that people with
a range of substantially limiting impairments are not
people with disabilities;
(7) in particular, the Supreme Court, in the case of Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.
184 (2002), interpreted the term “substantially limits” to
require a greater degree of limitation than was intended by
Congress; and
(8) Congress finds that the current Equal Employment
Opportunity Commission ADA regulations defining the
term “substantially limits” as “significantly restricted” are
inconsistent with congressional intent, by expressing too
high a standard.
(b) PURPOSES.—The purposes of this Act are—
(1) to carry out the ADA’s objectives of providing “a clear
and comprehensive national mandate for the elimination
of discrimination” and “clear, strong, consistent,
enforceable standards addressing discrimination” by
reinstating a broad scope of protection to be available
under the ADA;
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(2) to reject the requirement enunciated by the Supreme
Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)
and its companion cases that whether an impairment
substantially limits a major life activity is to be determined
with reference to the ameliorative effects of mitigating
measures;
(3) to reject the Supreme Court’s reasoning in Sutton v.
United Air Lines, Inc., 527 U.S. 471 (1999) with regard to
coverage under the third prong of the definition of
disability and to reinstate the reasoning of the Supreme
Court in School Board of Nassau County v. Arline, 480 U.S.
273 (1987) which set forth a broad view of the third prong
of the definition of handicap under the Rehabilitation Act
of 1973;
(4) to reject the standards enunciated by the Supreme
Court in Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002), that the terms
“substantially” and “major” in the definition of disability
under the ADA “need to be interpreted strictly to create a
demanding standard for qualifying as disabled,” and that
to be substantially limited in performing a major life
activity under the ADA “an individual must have an
impairment that prevents or severely restricts the
individual from doing activities that are of central
importance to most people’s daily lives”;
(5) to convey congressional intent that the standard created
by the Supreme Court in the case of Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184
(2002) for “substantially limits”, and applied by lower
courts in numerous decisions, has created an
inappropriately high level of limitation necessary to obtain
coverage under the ADA, to convey that it is the intent of
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Congress that the primary object of attention in cases
brought under the ADA should be whether entities
covered under the ADA have complied with their
obligations, and to convey that the question of whether an
individual’s impairment is a disability under the ADA
should not demand extensive analysis; and
(6) to express Congress’ expectation that the Equal
Employment Opportunity Commission will revise that
portion of its current regulations that defines the term
“substantially limits” as “significantly restricted” to be
consistent with this Act, including the amendments made
by this Act.
Pub. L. No. 110-325, 122 Stat. 3553 (2008). As indicated in the notes to the
ADAAA, Toyota was overruled because its holding was too restrictive regarding
the meaning of “substantially limits” within the ADA requirements. Id.
[23] Additionally, the Toyota Court relied on the 2001 version of 29 C.F.R. §
1630.2(j)(2)(ii)-(iii) (2001) to support its interpretation “substantially limits.”
Since then, in accordance with the ADAAA, that section has been amended to
broaden the scope of protection under the ADA. See supra ¶ 10. Because Couts
relied on Toyota, which was abrogated by the ADAAA and decided under a
different set of definitions, we decline to rely on Couts as we decide whether
Davis’ disability was substantially limiting.
[24] Turning to the facts in this case, KCARC argues Davis is not substantially
limited in her major life activities because:
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 21 of 40
The undisputed facts are that Davis never experienced a
“syncopal” incident before or after August 26, 2012, and never
suffered any long term effects from it. Rather, the evidence
shows that she experienced “some dizziness and headaches” that
resolved within three weeks of the incident prompting her
treating physician to determine that she could return to work
without restrictions.
(Br. of Appellant at 24.) KCARC is incorrect, as it seems to rely on an
outdated version of the ADA and corresponding CFR provisions.
[25] We have already concluded Davis’ condition affected a major life activity, that
is walking, standing, lifting, and bending. There is no time threshold to
overcome for a restriction to substantially limit a major life activity. 29 C.F.R.
§ 1630.2(j)(1)(ix). As the ADAAA requires the term substantially limit to be
“construed broadly in favor of expansive coverage,” 29 C.F.R. § 1630.2(j)(1)(i),
we conclude the ICRC did not err when it determined Davis had a disability
under the ADA. See Atwell v. Indianapolis-Marion Cty. Forensic Servs. Agency, 168
F.Supp.3d 1125, 1136 (S.D. Ind. 2016) (reasonable jury could conclude
employee with post-concussive syndrome was disabled under the ADA because
employee provided evidence, including letter from her doctor, that her
condition limited her performance of major life activities such as “short-term
memory, speaking, concentrating, and thinking”). See also Heatherly v. Portillo’s
Hot Dogs, Inc., 958 F.Supp.2d 913, 920 (N.D. Ill. 2013) (declining to accept
Portillo’s argument that the short duration of Heatherly’s work restrictions
prevents her from being disabled under the ADAAA).
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 22 of 40
B. “Qualified Individual”
[26] The ADA defines “qualified individual” as “an individual 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.A. §
12111(8) (2009). “[C]onsideration shall be given to the employer’s judgment as
to what functions of a job are essential, and if an employer has prepared a
written description before advertising or interviewing applicants for the job, this
description shall be considered evidence of the essential functions of the job.”
Id. The CFR gives additional, more specific criteria:
Essential functions -
(1) In general. The term essential functions means the
fundamental job duties of the employment position the
individual with a disability holds or desires. The term “essential
functions” does not include the marginal functions of the
position.
(2) A job function may be considered essential for any of several
reasons, including but not limited to the following:
(i) The function may be essential because the reason the
position exists is to perform that function;
(ii) The function may be essential because of the limited
number of employees available among whom the
performance of that job function can be distributed;
and/or
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 23 of 40
(iii) The function may be highly specialized so that the
incumbent in the position is hired for his or her expertise
or ability to perform the particular function.
(3) Evidence of whether a particular function is essential
includes, but is not limited to:
(i) The employer’s judgment as to which functions are
essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the
function;
(iv) The consequences of not requiring the incumbent to
perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job;
and/or
(vii) The current work experience of incumbents in similar
jobs.
29 C.F.R. § 1630.2(n) (2012).
[27] The ICRC found: “KCARC had no issues with Ms. Davis’ work performance
until August 26, 2012, [when Davis experienced a syncopal episode].” (App.
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Vol. II at 5.) Regarding whether Davis could perform the essential functions of
her job without reasonable accommodation, the ICRC found and concluded:
The ALJ concludes Davis could have performed the essential
functions of the job of cooking, cleaning, grocery shopping, and
providing day-to-day assistance to residents even in her
condition. KCARC points out that Davis would not be able to
run after individuals who are “flight risks” or protect herself from
residents who may be physically aggressive. While the ALJ
agrees with this point, the same would be true for an individual
without a disability if the DSP are slower or weaker than the
residents. Further, chasing after residents or defending oneself
from aggressive residents were not “essential functions” of the
job. Davis presented no evidence to answer the question on how
she would perform the duties as a DSP with the restrictions. If
Davis was to remain in the house, her ability to assist another
DSP with a resident would be limited. Further, Davis’ inability
to move quickly in times of emergencies would be restricted as
well.
(Id. at 11-12.) In addition, it is likely Dr. Nibel’s restrictions on Davis’ ability to
work prevented her from performing some of the duties listed on the job
description without reasonable accommodations. For example, some of the
duties listed on the job description for a DSP are “house cleaning duties,” (id. at
35); “[a]ssist with lifting, turning, moving, positioning, and transporting
consumers into and out of beds, chairs, bathtubs, wheelchairs, lifts, etc. (as
needed),” (id.); “[a]ssist consumers with operation, usage, and maintenance of
adaptive devices,” (id.); and “lift 75 pounds independently and over 75 pounds
with assistance.” (Id.) These duties would have been affected by Davis’
restrictions from Dr. Nibel, which included: “minimizing any kind of bending,
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 25 of 40
stooping, rapid or repetitive rotational movements . . . not lift[ing] anything
greater than 10 pounds or so . . . and not do[ing] anything that requires a lot of
energy expenditure, such as walking long distances, using staircases[.]” (Id. at
43.)
[28] Neither party presented evidence regarding whether Davis could perform the
essential functions of her job with reasonable accommodations, because
KCARC did not investigate possible accommodations. The ICRC found,
“KCARC did not attempt to see what alternatives were available in Group
Home 11. KCARC could assign a third DSP to the house to assist in areas
Davis could not perform as it did with [two other KCARC employees] who
could not administer medication.” (Id. at 12.)
[29] The United States Supreme Court explained the interaction between the
requirement a person be a “qualified individual” with a disability and the
employer’s duty to seek a reasonable accommodation:
First, the ADA says that an employer may not “discriminate
against a qualified individual with a disability.” 42 U.S.C. §
12112(a). Second, the ADA says that a “qualified” individual
includes “an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of”
the relevant “employment position.” § 12111(8) (emphasis
added). Third, the ADA says that “discrimination” includes an
employer’s “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified . . .
employee, unless [the employer] can demonstrate that the
accommodation would impose an undue hardship on the
operation of [its] business.” § 12112(b)(5)(A) (emphasis added).
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 26 of 40
U.S. Airways v. Barnett, 535 U.S. 391, 386 (2002) (emphasis in original). Thus,
we must turn to whether KCARC discriminated against Davis when it did not
offer her a reasonable accommodation in an effort to determine if she could
perform the essential functions of her job with a reasonable accommodation
following her syncopal episode and Dr. Nibel’s restrictions.
[30] The Seventh Circuit Court of Appeals explained in Brown v. Milwaukee Board of
School Directors, 855 F.3d 818, 821 (7th Cir. 2017):
Identifying reasonable accommodations for a disabled employee
requires both employer and employee to engage in a flexible,
interactive process. Both parties are responsible for that process.
If a reasonable accommodation was available but the employer
prevented its identification by failing to engage in the interactive
process, that failure is actionable. On the other hand, if the
employee “does not provide sufficient information to the
employer to determine the necessary accommodations, the
employer cannot be held liable for failing to accommodate the
disabled employee.”
(internal citations omitted). Further:
The legislative history makes clear that employers are required to
engage in an interactive process with employees in order to
identify and implement appropriate reasonable accommodations.
The Senate Report explained that: “A problem-solving approach
should be used to identify the particular tasks or aspects of the
work environment that limit performance and to identify possible
accommodations . . . employers first will consult with and
involve the individual with a disability in deciding on the
appropriate accommodation.” S.Rep. No. 101-116, at 34 (1989);
see also H.R. Rep. No. 101-485, pt. 2, at 65 (1990), U.S. Code
Cong. & Admin. News at 303, 348.
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Barnett v. U.S. Air, Inc. 228 F.3d 1105, 1111 (9th Cir. 2000), overturned on other
grounds by U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002).
[31] The CFR directs:
To determine the appropriate reasonable accommodation it may
be necessary for the covered entity to initiate an informal,
interactive process with the qualified individual with a disability
in need of the accommodation. This process should identify the
precise limitations resulting from the disability and potential
reasonable accommodations that could overcome those
limitations.
29 C.F.R. § 1630.2(o)(3). “Failing to discuss a reasonable accommodation in a
meeting in which the employer takes an adverse employment action against an
injured employee may demonstrate a lack of good faith.” Rorrer v. City of Stow,
743 F.3d 1025, 1040 (6th Cir. 2014). Based on the legislative history and case
law, we conclude this interactive process is mandatory. See Klieber v. Honda of
America Mfg., Inc., 485 F.3d 862, 871 (6th Cir. 2007) (“Even though the
interactive process is not described in the [ADA] statute’s text, the interactive
process is mandatory, and both parties have a duty to participate in good
faith.”). “Failure to engage in this ‘interactive process’ cannot give rise to a
claim for relief, however, if the employer can show that no reasonable
accommodation was possible.” Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir.
2000).
[32] Here, KCARC’s policy indicated,
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If for any reason you are (or become) unable to perform all or
part of the essential functions of the job (for example lifting), it is
your obligation to inform the Human Resources Department
immediately.
Failure to do so could result in disciplinary action up to and/or
including termination.
Human Resources will engage in the Good Faith Interactive
process in the hope that an effective accommodation can be
identified. The process cannot guarantee that an effective
accommodation will be identified. However, by participation in
this process we can be assured that all alternatives have been
fairly considered.
(App. Vol. II at 37.) Human Resources Supervisor Amy O’Dell testified when
“staff were to come to me and say they cannot complete functions of their job,
[she] would pull [out a reasonable accommodations worksheet] and go talk to
[her] supervisor.” (Tr. Vol. II at 22.) However, when Davis approached
KCARC with the information regarding her work restrictions as ordered by Dr.
Nibel, O’Dell conferred with KCARC Vice President Jeff Darling instead of
beginning an investigation into possible reasonable accommodations. O’Dell
told Darling that Davis did not have any paid time off and was not eligible for
FMLA leave because she had not worked for KCARC for very long. O’Dell
and Darling “looked at the doctor’s notes, and [they] determined there’s no
accommodation.” (Id. at 16.) O’Dell testified she also did not know how long
Davis’ restrictions would last. O’Dell and Darling decided to terminate Davis,
based on the fact she did not have any available leave and Dr. Nibel’s
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restrictions made her unable to perform the essential functions of her job
without reasonable accommodations. When terminating Davis, O’Dell
encouraged Davis to reapply for a position with KCARC when Dr. Nibel lifted
her work restrictions.
[33] When asked why she did not complete a reasonable accommodation
worksheet, O’Dell testified “it was obvious from the doctor’s note that there
was no accommodation,” (id.), and her analysis would not have changed had
she filled out the worksheet. She claimed completion of the worksheet “was
not necessary.” (Id.) O’Dell also testified she did not complete the worksheet
because Davis did not ask for an accommodation. However, the submission of
Dr. Nibel’s note was sufficient to put O’Dell and KCARC on notice that Davis
was requesting a reasonable accommodation. See Ekstrand v. School District of
Somerset, 583 F.3d 972, 976 (7th Cir. 2009) (“cases have consistently held that
disabled employees must make their employers aware of any nonobvious,
medically necessary accommodations with corroborating evidence such as a
doctor’s note . . . before an employer may be required under the ADA’s
reasonableness standard” to provide an accommodation.”) See also Gile v.
United Airlines, Inc., 213 F.3d 365, 373 (7th Cir. 2000) (holding employer did not
engage in interactive process when it refused shift transfer based on a doctor’s
note recommending a shift transfer to ameliorate Gile’s depression and other
psychological disorders and enable Gile to perform the essential functions of
her job), reh’g and suggestion for reh’g en banc denied.
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 30 of 40
[34] Although KCARC did not engage in the interactive process of determining
whether a reasonable accommodation was available, it still can defeat Davis’
claim if it demonstrated no reasonable accommodation was possible. The
ICRC found: “KCARC could assign a third DSP to the house to assist in areas
Davis could not perform as it did with [other allegedly similarly situated
employees].” (App. Vol. II at 12.) Based on this unchallenged finding,
KCARC could have implemented a reasonable accommodation. See Madlem v.
Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge
the findings of the trial court, they must be accepted as correct.”). Thus,
KCARC failed to meet its burden to demonstrate no reasonable
accommodation was available.
[35] In summary, Davis was a qualified individual with a disability. Prior to her
syncopal episode, she was able to perform the essential functions of her job
without reasonable accommodation. After her syncopal episode, she was
restricted from performing some of the essential functions of her job, triggering
KCARC’s duty to engage in an interactive process with Davis to determine if
she could perform the duties of her job with reasonable accommodation.
KCARC did not engage in this process, and instead terminated Davis.
Contrary to O’Dell’s allegation, such accommodation was possible, as shown
by the ICRC’s uncontested finding. Thus, we conclude KCARC discriminated
against Davis based on her disability when it fired her instead of attempting to
determine if there was a reasonable accommodation available. See, e.g.,
E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 807 (7th Cir. 2005) (genuine
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 31 of 40
issue of material fact existed regarding the interactive process between employer
and employee to determine a reasonable accommodation was feasible when
evidence a reasonable accommodation was available was presented). 7
II. Damages
A. Backpay
[36] The Seventh Circuit Court of Appeals recently explained, a plaintiff “who wins
a favorable verdict on an ADA claim is presumptively entitled to backpay.”
Stragapede v. City of Evanston, Illinois, 865 F.3d 861, 868 (7th Cir. 2017). 8 The
plaintiff must submit evidence to support her calculation of backpay and the
burden then “shifts to the defendant to show that the [employee] failed to
mitigate damages or that damages were in fact less than [she] asserts.” Id. To
prove a failure to mitigate in this context, the employer must show that “(1) the
[employee] failed to exercise reasonable diligence to mitigate his damages, and
[that] (2) there was a reasonable likelihood that the [employee] might have
found comparable work by exercising reasonable diligence.” Id. (quoting
7
The parties’ arguments focus on the first two prongs of the Powdertech test to establish a prima facie case of
disability discrimination in employment: whether Davis is disabled within the meaning of the ADA and
whether she is qualified to complete the essential functions of her position. See Powdertech, 776 N.E.2d at
1256 (listing first two prongs of prima facie test). Regarding the other two prongs, it is undisputed KCARC
terminated Davis’ employment after learning of certain restrictions Dr. Nibel placed on her ability to work
and concluding, without investigation, that KCARC could not accommodate Davis’ restrictions stemming
from her disability. (See App. Vol. II at 6 (ICRC’s findings regarding the actions surrounding Davis’
termination).)
8
Similarly, Indiana Code section 22-9-1-6(j) authorizes the ICRC to order damages “to restore complainant’s
losses incurred as a result of discriminatory treatment, as the commission may deem necessary to assure
justice; however, except in discriminatory practices involving veterans, this specific provision when applied to
orders pertaining to employment shall include only wages, salary, or commissions[.]”
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 32 of 40
Fleming v. County of Kane, 898 F.2d 553, 560 (7th Cir. 1990) (emphases
omitted)).
[37] The ICRC awarded Davis $25,837.37 in lost wages. KCARC argues this
amount is incorrect because Davis did not mitigate her damages. Specifically,
KCARC asserts:
Although Davis was unable to secure employment at the rate of
pay she received at KCARC for almost two years, it was due to
her own actions. Furthermore, Davis secured three other
positions of comparable employment following her termination
from KCARC that should have cut off her back pay award.
Davis’s inability to maintain comparable employment was the
result of her own failures and the back pay award should not
subsidize her time between jobs as her subsequent unemployment
was not the result of KCARC’s actions.
(Br. of Appellant at 45.) KCARC contends if Davis is entitled to any damages
for backpay, the amount should reflect her pay between the day she was
terminated, September 7, 2012, and the day she was released to go back to
work, September 18, 2012. KCARC argues it invited Davis to reapply to her
position when her work restrictions were lifted, and thus when she chose not to
reapply, she ceased mitigating her damages. KCARC claims this would result
in a damage award of “approximately 2 weeks of missed wages, or $704.15.”
(Id.)
[38] Regarding the calculation of Davis’ backpay, the ICRC found:
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 33 of 40
16. At the time of termination, Davis earned $9.50 per hour and
worked approximately forty (40) hours per week. Davis’ average
gross pay was $704.51 bi-weekly ($352.26 weekly).
17. Following Davis’ termination, Davis worked at the following
companies and earned wages accordingly:
a. Bridges of Indiana (October 18, 2012 through April 2,
2013) $4,013.26
b. Eastgate (May 17, 2013 through August 15, 2013)
$3,028.86
c. Hillside Manor (September 19, 2013 through November
21, 2013) $1,994.25
Davis earned a total of $9,036.37.
18. Davis began employment at Lewis Bakery on July 31, 2014
and is currently employed. She earns a salary greater than what
she earned at KCARC.
19. KCARC terminated Davis on September 7, 2012. Davis
obtained employment that provided a greater salary starting on
July 31, 2014. There is [sic] a total of 99 weeks between the date
of termination and the date of substantial employment. Davis
would have earned $34,873.74 had she remained employed at
KCARC. Factoring in Davis’ interim earnings, Davis’ potential
loss of earnings are [sic] $25,837.37.
(App. Vol. II at 8.) We agree with KCARC that this calculation of lost wages is
excessive.
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 34 of 40
[39] As is required, Davis presented evidence of her efforts to mitigate damages
related to backpay from KCARC. However, in its rebuttal of Davis’
contentions, KCARC highlighted the reasons it took Davis almost two years to
obtain employment comparable to her position at KCARC. Davis testified at
the ALJ hearing that she worked at “Bridges of Indiana[,]” (Tr. Vol. I at 86),
which is “almost the same as KCARC[.]” (Id.) She testified she was
terminated based on what she referred to as a false accusation that she “took a
resident to a bar.” (Id. at 87.) However, the disciplinary report from Bridges
stated, regarding the incident with the C.H., a resident in Davis’ care:
BOI was notified on 04/02/2013 at 6:00pm of the following
incident. Melissa [sic] Davis, Bridges of Indiana staff was
reported present during the Incident. On 4/2/2013 Assistant
Director, Stacy Lee, received a phone call from [W.B.]. [W.B.]
reported that her daughter, [C.H.], told her that on that [sic] way
to Friend’s Group on Monday (4/1/2013), that staff went by a
bar and left [C.H.] outside in the car. [C.H.] reported that staff
went inside to check on her husband. [C.H.] then reported that
staff came out with her husband and they were hugging and
kissing and the husband offered Cindy a beer. At that time
[C.H.] and staff left and went to [F]riend’s [G]roup. During the
investigation and interviews, [C.H.] identified the same event as
she described to her Mother, [W.B.]. [C.H.] is very upset about
the situation. Staff, Melissa [sic] Davis, denied the account of the
incident and wrote a statement including the activities that she
claims occurred on the date of the alleged event. It has been
determined that although we can not [sic] substantiate due to
lack of supporting evidence, Bridges of Indiana will be dismissing
Melissa [sic] Davis as an employee. This decision was made as
an effort to protect the consumer from any and all instances of
alleged abuse, neglect and exploitation.
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 35 of 40
(App. Vol. II at 75.)
[40] Davis then worked at Hillside Manor and Eastgate Manor caring for elderly
residents. Davis testified she had to lift patients at both Hillside and Eastgate,
and she left both places of employment because her doctor “was trying to figure
out what heart medication to put her on . . . [because the medicine] had
lowered [her] blood pressure . . . too low, to where [her] lifting was – could
have ended badly as far as, you know, dropping a patient.” (Tr. Vol. I at 92.)
However, a Disciplinary Action Report from Eastgate indicated Davis failed
“to immediately report to supervisor an incident of abuse neglect misconduct.”
(App. Vol. II at 72) (errors in original). Additionally, the “Employee
Counseling Form,” (id. at 78), from Hillside indicated:
[Davis] has been counceled of her attendance on Oct 11th after
NO call NO show was warned of her attendance. On this day
11/21/13, [Davis] came in to her shirt after 2 pm stated her “B/P
was dropping.” B/P was taken by nurse on duty 107/84.
Informed [Davis] she needed to try to finish her shift to not leave
staff short. [Davis] walked out of building to not return. Leaving
staff on shift.
(Id.) (errors in original).
[41] We conclude KCARC cannot be held responsible for backpay when Davis
obtained positions comparable to her position at KCARC, then was terminated
from those positions for her behavior. To the extent she mitigated her damages,
we determine that mitigation ended the day she was fired from Bridges.
Therefore, the calculation of damages is as follows: for the time between
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 36 of 40
September 7, 2012, when KCARC terminated Davis and October 18, 2012, the
date she was hired at Bridges, Davis would have made $2,113.56. 9 Between
October 18, 2012, and April 3, 2013, Davis was employed by Bridges for $9.00
for ten to thirty hours per week. For that period of time, her earnings were
$4,013.26. For the same period of time, Davis could have earned $8,101.98 10 at
KCARC, for a difference of $4,088.72. Based thereon, we reduce Davis’
backpay damages to $6,202.28 to reflect the time she exercised reasonable
diligence in finding employment comparable to the job she had at KCARC.
B. Prejudgment Interest
[42] The ICRC awarded Davis prejudgment interest of $9,314.09, concluding:
Interest is calculated at the statutory rate of eight percent
compounded annually. Pre-judgment interest is calculated from
the date of termination, Woods v. Von Maur, Inc., No 09 C 7800,
2012 WL 2062400, at *7 (N.D.Ill. June 7, 2012), and ends when
“damages have been ascertained in a meaningful way.” S.E.C. v.
Koenig, No. 02 C 2180, 2009 WL 4043319, at *4 (N.D.Ill. Nov.
23, 2009) (citing Kaiser Aluminum & Chemical Corp v. Bonjorno, 494
U.S. 827, 836, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990)). The
ICRC finds that damages in this matter had not been ascertained
in a meaningful way until the filing of the Proposed Findings of
Fact, Conclusion of Law, and Order by previously appointed
ALJ Noell F. Allen. The pre-judgment interest calculation will
9
$352.26 x 6 weeks = $2,113.56.
10
$352.26 x 23 weeks = $8,101.98.
Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018 Page 37 of 40
therefore cover the period from Complainant’s termination until
April 13, 2016 for a total of $9,314.09.
(App. Vol. II at 12-13.) 11 As the United States District Court of the Northern
District of Indiana explained:
Pre-judgment interest is “presumptively available to victims of
federal law violations.” McKnight v. General Motors Corp., 973
F.2d 1366, 1372 (7th Cir. 1992); see also Hutchison v. Amateur
Electronic Supply, Inc., 42 F.3d 1037, 1047 (7th Cir. 1994). Pre-
judgment interest on back pay awards compensates a plaintiff for
the loss of the use of the money. Downes v. Volkswagen of America,
Inc., 41 F.3d 1132, 1144 (7th Cir.1994); see also Partington v.
Broyhill Furniture Industries, Inc., 999 F.2d 269, 274 (7th Cir. 1993)
(“Money has a time value, and prejudgment interest is therefore
necessary in the ordinary case to compensate a plaintiff fully for a
loss suffered at time t and not compensated until t + 1, 2, 3 ...
n.”).
Wilson v. AM General Corp., 979 F.Supp. 800, 802 (N.D. Ind. 1997).
[43] It is within the trial court’s discretion, here the ICRC’s discretion, to determine
the interest rate to be used to determine the appropriate amount of prejudgment
interest. Ward v. Tipton County Sheriff Dept., 937 F.Supp. 791, 800 (S.D. Ind.
1996). However, we note “[o]ther district courts in the Seventh Circuit have
11
While we agree that prejudgment interest was appropriate in this case, we remind the ICRC that the
citation of unpublished opinions as precedent is generally discouraged. See Kuehne v. United Parcel Service, Inc.
868 N.E.2d 870, 874 (Ind. Ct. App. 2007) (“unpublished decisions issued by federal district courts do not
constitute binding precedent upon this court.”). “However, unpublished cases may be deemed worthy of
mentioning when a similar issue is presented to us and there is a dearth of other authority on point.” Id.
There is abundant published authority from the Indiana District Courts and the Seventh Circuit Court of
Appeals on this issue, and thus that shortfall in available case law does not exist here.
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used the federal post-judgment interest rate.” Id. The federal post-judgment
interest rate is found at 28 U.S.C.A. § 1961, which states in relevant part, “Such
interest shall be calculated from the date of the entry of the judgment, at a rate
equal to the weekly average 1-year constant maturity Treasury yield, as
published by the Board of Governors of the Federal Reserve System, for the
calendar week preceding. [sic] the date of the judgment.” Because prejudgment
interest is a way by which an employee who was wrongly terminated can regain
the value of his or her money, the ICRC was correct on the time frame for the
calculation of prejudgment interest, which was from the date of Davis’
termination, September 7, 2012, to the date ALJ Allen issued her order on April
13, 2016. See Wilson, 979 F.Supp. at 802 (“Pre-judgment interest on back pay
awards compensates a plaintiff for the loss of the use of the money.”).
[44] Based thereon, we remand for calculation of prejudgment interest on the
amended backpay amount of $6,202.28. We encourage the ICRC to plainly
state its method for calculating the amount of interest ordered and the legal
basis for such calculation method.
Conclusion
[45] As an initial matter we conclude the portions of the IAC that do not comport
with the language of the ADA and the CFR are invalid. Regarding the facts of
this case in light of the relevant federal statutes, we conclude Davis had a
disability because one or more of her major life activities was substantially
limited. Therefore, KCARC violated the ADA when it did not engage in the
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interactive process of determining if there existed a reasonable accommodation
to allow Davis to perform the essential functions of her position subject to Dr.
Nibel’s restrictions. However, the ICRC erred in its calculation of damages
because Davis ceased to mitigate her damages when she was terminated from
Bridges. Finally, prejudgment interest was appropriate.
[46] Accordingly, we affirm the ICRC’s determination that Davis was disabled and
KCARC unlawfully discriminated against her when it terminated her
employment. However, we reverse the ICRC’s damage award and reduce
Davis’ backpay damages to $6,202.28 to reflect the time she exercised
reasonable diligence in finding employment comparable to the job she had at
KCARC. We remand for the calculation of prejudgment interest on $6,202.28
in accordance with this opinion.
[47] Affirmed in part, reversed in part, and remanded.
Baker, J., and Altice, J., concur.
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