MEMORANDUM DECISION
ON REHEARING
FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 02 2018, 9:05 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
Court of Appeals
court except for the purpose of and Tax Court
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
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 July 2, 2018
Retarded Citizens, Inc., Court of Appeals Case No.
Appellant-Defendant, 93A02-1701-EX-141
Appeal from the Indiana Civil
v. Rights Commission
Docket No.
Mellissa (Cope) Davis, EMha12091467
Appellee-Plaintiff
May, Judge.
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[1] The Knox County Association for Retarded Citizens, Inc. (“KCARC”) requests
rehearing of our opinion affirming the Indiana Civil Right Commission’s
(“ICRC”) conclusion that the KCARC engaged in an unlawful discriminatory
practice when it terminated Mellissa Davis’ employment with KCARC. We
grant rehearing to clarify, but we affirm our original opinion in all respects.
[2] In our opinion, when discussing whether the ICRC erred when it determined
Davis was a qualified individual as defined by the Americans with Disabilities
Act (“ADA”), we stated:
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.
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
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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 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).
Knox Cty. Ass’n for Retarded Citizens, Inc. v. Davis, 2018 WL 1833607 at *13-*14
(Ind. Ct. App. April 18, 2018). On rehearing, KCARC argues it challenged the
finding we claimed it did not, and based on that challenge, our holding that
Davis was a qualified individual under the ADA should be reversed.
[3] The challenged finding was classified by the trial court as a conclusion and
stated, in its entirety:
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 was 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
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to move quickly in times of emergencies would be restricted as
well. While that may be the case, KCARC did not attempt to see
what alternatives were available for Davis 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 Akers and another DSP
who could not administer medication.
(App. Vol. II at 11-12.)
[4] “[W[hile an employer’s failure to engage in the interactive process alone is not
an independent basis for liability, it is actionable ‘if it prevents identification of
an appropriate accommodation for a qualified individual.’” Spurling v. C&M
Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014) (quoting Basden v. Prof’l
Transp., Inc., 714 F.3d 1034, 1039 (7th Cir. 2013)). To prove the employer
ignored an appropriate accommodation for a qualified individual, the claimant
must provide evidence that a reasonable accommodation was available. Id.
[5] Here, it is undisputed that KCARC failed to engage in a discussion with Davis
regarding accommodation of her limitations. O’Dell admitted she did not
engage in the interactive process because she did not believe it to be necessary,
and when asked whether the process would have changed her analysis of
whether a reasonable accommodation could be made for Davis, she answered
in the negative. KCARC argues Davis did not fulfill the second part of the
analysis - that possible accommodations were available. We disagree.
[6] In her rebuttal interview submitted as part of the disability claims process on
December 21, 2012, Davis indicated in response to certain interrogatories:
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3). Respondent states you provided medical documentation on
9/4/12 which [indicated] that part of your work restrictions
includes [sic] minimizing any kind of bending, stooping, rapid or
repetitive rotational movements such as turning from side to side
and that you should not lift anything greater than 10 pounds, and
that you should be limited to job functions that would involve
sitting, without a lot of position changes. How do you respond?
[Davis]: That is [sic] my work restrictions[. T]hey didn’t
even try to accommodate the restrictions.
4). Respondent states that as a Direct Support Professional it
requires that you assist and train and supervise all physically
challenged individuals being served in the home. Respondent
states that it does not have a position open that would enable you
to primarily sit for an 8 hour shift, how do you respond?
[Davis]: They could have worked out something like
answering the phones or something; I could have done
receptionist work[.]
5). Respondent states that your physician did not give the
diagnos[is] of what your medical condition is, nor did he indicate
that you have a disability? How do you respond?
[Davis]: I didn’t think that he had to tell them what I was
dealing with[. N]o he did not tell them what was dealing
with. He just gave me work restrictions. They could have
placed me as a full time teacher assistant[;] this job entails
mostly sitting as an assistant, and they never offered me
light duty of any sort.
6). Did [Respondent] engage in the interactive process with you
regarding your work restrictions?
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[Davis]: The only thing they said to me was that since I
could not perform my job functions of my previous
position, I was being let go because they had no positions
available to which I could sit all day, but they did have
positions in the office I could have answered the phones,
or like I said, they could have made me a teacher’s
assistant. They never even tried.
(Ex. Vol. I at 143-4.)
[7] Additionally, in the hearing before the Administrative Law Judge, Davis
testified:
[Healy 1]: Okay. Do you think you needed an
accommodation, given what it was that you were doing day in
and day out at KCARC, or were you able to still do much of
your jobs?
[Davis]: At Group Home 11?
[Healy]: Yes.
[Davis]: I could have -- I still could have been able to do my
job.
[Healy]: And why do you believe that?
1
Michael Healy was Davis’ attorney.
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[Davis]: Dr. Nibel had put me on medication to keep me
from getting dizzy. He was wanting to run more tests to find out
what -- what could have caused the -- the seizure.
(Tr. Vol. I at 80.) Davis’ attorney then introduced into evidence information
regarding the jobs at KCARC available at the time of Davis’ termination. The
jobs included Office Support Staff, Waiver House Manager, Waiver Direct
Support Professional/Staff, and Assistant Manager of a residential home.
While each job had a qualification that Davis did not meet, for example, the
Office Support Staff position required the applicant have office experience,
Davis testified, regarding the qualifications of a DSP and how those
requirements factored into KCARC’s decision to hire her:
[Healy]: . . . When you were hired in as a Group Home
Direct Support Professional, you did not have any experience
working with individuals with developmental disabilities before
that; is that correct?
[Davis]: That’s correct.
[Healy]: But you were still hired despite the fact they had
asked for one year’s experience?
[Davis]: Yes.
(Tr. Vol. I at 84.)
[8] Amy O’Dell, Human Resources Director for KCARC testified she did not
discuss the positions available at the time with Davis because she knew Davis
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was not qualified for them. However, she did not engage with Davis to
determine her eligibility for those positions or temporary work restrictions to be
accommodated in her position at the time. KCARC cannot contend Davis
failed to argue that there were available accommodations when she was never
afforded the opportunity to begin that conversation. KCARC’s inaction is
precisely the type of bad faith imagined by the ADA - it is not the sole
responsibility of an employee, who may or may not be well-versed in the law,
to identify the need for an accommodation, ask for an accommodation, and
provide all possible accommodations to an employer, who is required by law to
have policies to accommodate disabled employees. See Rednour v. Wayne Twp.,
51 F.Supp.3d 799, 828 (S.D. Ind. 2014) (employer violated ADA when it knew
employee had light duty restrictions and unilaterally concluded that no
accommodation was available before terminating employee, despite suggested
accommodation from employee’s doctor).
[9] We affirm our earlier opinion in all respects.
Baker, J., and Altice, J., concur.
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Knox County Association for Retarded Citizens, Inc. v. Mellissa (Cope) Davis (mem. dec.)
Combined Opinion