NONPRECEDENTIAL DISPOSITION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
Argued September 15, 2017
Decided October 17, 2017
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17‐1359
Marytza Golden, Appeal from the United States
Plaintiff‐Appellant, District Court for the Southern
District of Indiana, Indianapolis
v. Division.
Indianapolis Housing Agency, No. 1:15‐cv‐00766
Defendant‐Appellee.
Richard L. Young,
Judge.
O R D E R
Indianapolis Housing Agency police officer Marytza Golden was diagnosed with
breast cancer in November 2014. After Golden took sixteen weeks of unpaid medical
leave, her doctor still could not say when she would be able to return to work, so IHA
terminated her. Golden sued, arguing that IHA violated the Americans with Disabilities
Act (ADA) and the Rehabilitation Act by failing to accommodate her by granting six
additional months of unpaid leave. The district court granted summary judgment to
IHA. Because circuit precedent precludes Golden’s claim, we affirm.
No. 17‐1359 Page 2
I. Background
Golden became an IHA police officer in June 1999. IHA officers are full‐fledged
police officers “whose main functions include responding to calls for service,
investigating crimes, protecting the public, protecting IHA assets, responding to 911
calls, providing emergency aid, and protecting and serving the public.” Golden v.
Indianapolis Hous. Agency, No. 1:15‐cv‐766, 2017 WL 283481, at *1 (S.D. Ind. Jan. 23,
2017). Her position was federally funded within the meaning of Section 504 of the
Rehabilitation Act.
In November 2014, after fifteen years on the job, Golden was diagnosed with
breast cancer. She successfully requested leave under the Family and Medical Leave Act
of 1993 (FMLA) on December 11. A week later, Golden underwent a right‐side
mastectomy and had five lymph nodes removed. On December 19, Golden’s doctor
described her condition as “ongoing” and her period of incapacity as “until released,”
which was unsurprising considering that Golden still had to go through chemotherapy
and anticipated future surgeries.
Realizing that she wouldn’t be able to return to work after her twelve weeks of
FMLA leave, Golden applied for long‐term disability benefits on March 13, 2015. On the
application form, she represented that she “cannot perform [her] job descriptions
safely” and “needed hands‐on help to safely perform the activities of daily living.” Id. at
*2. Her direct supervisor certified on the application that her job could not be modified
to accommodate her disability. Her application was approved on April 21.
Also on March 13, Golden received a letter from IHA human resources informing
her that her FMLA leave would soon expire. The letter indicated that IHA custom
permitted Golden to take an additional four weeks of unpaid medical leave even
though her doctor had not indicated an end date for her treatment. Golden took the
additional four weeks of leave and was thus required to return to work on April 14 or
be automatically terminated. On March 31, her doctor returned an updated form that
still listed the duration of her condition as “ongoing” and her period of incapacity as
“until release.”
On April 13 (the day before her leave was slated to end), Golden showed up
unannounced at the IHA human resources office and had a meeting with HR director
No. 17‐1359 Page 3
Kathy Walden and generalist Richard Simmons. They discussed the March 13 letter as
well as Golden’s retirement and long‐term disability benefits, but Golden didn’t ask for
additional leave or any other accommodations. However, after Golden left the office,
she sent an after‐hours email to Walden and Simmons explaining that she was
“requesting an unpaid leave of absence per city policy.” Walden interpreted Golden’s
request as pursuant to IHA’s “General Leave of Absence (Unpaid Leave)” policy, which
permits leave for a specified period of time (not to exceed six months) when no other
form of leave is appropriate.1 Walden rejected Golden’s last‐minute request for leave.
Thus, Golden was effectively terminated on April 14, 2015. At that point, her doctor still
had not provided an expected return‐to‐work date.
Golden then filed this suit alleging that IHA’s actions violated the ADA and the
Rehabilitation Act. She argued that federal law required IHA to accommodate her
disability by providing her an additional six months of unpaid medical leave. She also
argued that her termination was a per se violation of the Rehabilitation Act. The parties
filed cross‐motions for summary judgment, and the district court granted it to IHA and
dismissed the case. Golden timely appealed.
II. Discussion
The Rehabilitation Act says that “[n]o otherwise qualified individual with a
disability ... shall, solely by reason of her or his disability ... be subjected to
discrimination under any program or activity receiving Federal financial assistance ....”
29 U.S.C. § 794(a). The legal standards under the Rehabilitation Act and the ADA are
identical. Id. § 794(d). So to prevail on a claim under either statute, Golden must be an
“otherwise qualified individual,” or someone “who, with or without reasonable
accommodation, can perform the essential functions of the employment position that
[she] holds or desires.” 42 U.S.C. § 12111(8). This is true for both the failure‐to‐
accommodate and the per se claims. Kotwica v. Rose Packing Co., 637 F.3d 744, 747–48 (7th
Cir. 2011) (failure to accommodate); Steffen v. Donahoe, 680 F.3d 738, 748 (7th Cir. 2012)
(per se).
The “qualified individual” requirement is fatal to Golden’s case. We recently
reaffirmed that “[a]n employee who needs long‐term medical leave cannot work and
thus is not a ‘qualified individual’ under the ADA.” Severson v. Heartland Woodcraft, Inc.,
1 The policy also requires that employees give two weeks’ notice before requesting such leave.
No. 17‐1359 Page 4
No. 15‐3754, 2017 WL 4160849, at *1 (7th Cir. Sept. 20, 2017) (citing Byrne v. Avon Prods.,
Inc., 328 F.3d 379, 381 (7th Cir. 2003)). We expressly declined to overrule Byrne and
concluded that “A multimonth leave of absence is beyond the scope of a reasonable
accommodation under the ADA.” Id. Severson requires us to hold that a request for six
months of medical leave in addition to the twelve weeks required by the FMLA
removes an employee from the protected class under the ADA and the Rehabilitation
Act. In short, because Golden is not a qualified individual, the district court correctly
granted summary judgment to IHA.
III. Conclusion
While we sympathize with Golden’s plight, clear circuit precedent controls this
case. Under Severson and Byrne, an employee who requires a multi‐month period of
medical leave is not a qualified individual under the ADA or the Rehabilitation Act.
Therefore, the judgment of the district court is AFFIRMED.
No. 17‐1359 Page 5
ROVNER, Circuit Judge, concurring. I agree that we are bound by the holdings in Byrne v.
Avon Prod., Inc., 328 F.3d 379 (7th Cir. 2003), and now Severson v. Heartland Woodcraft,
Inc., No. 15‐3754, 2017 WL 4160849 (7th Cir. Sept. 20, 2017), which have declared—
without any support from the text of the Americans with Disabilities Act—a per se rule
that “a long term leave of absence cannot be a reasonable accommodation.” Severson,
2017 WL 4160849 at *3. I question the holdings of these cases. The ADA, by its terms, is
meant to be flexible and to require individualized assessments of both the
reasonableness of an employee’s requested accommodation and the burden on
employers. Holding that a long term medical leave can never be part of a reasonable
accommodation does not reflect the flexible and individual nature of the protections
granted employees under the Act.
It is undisputed that the ADA allows for part‐time or modified work schedules
to accommodate individuals with disabilities. 42 U.S.C. § 12111(9). And so, for
example, the ADA may require an employer with a flexible work force to offer part‐
time work or a work‐when‐you‐can schedule to accommodate an employee undergoing
chemotherapy who cannot work a full day every day during a course of treatment that
may last many months. But our cases have declared a per se rule that would exclude an
employee from seeking an accommodation in which the employee requires four full
months off for chemotherapy treatment but then can return to work full time without
restriction. This per se rule applies regardless of whether the leave would cause any
hardship to the employer. The distinction is nonsensical.
This court and others have long interpreted the ADA’s reasonable
accommodation requirement as including paid or unpaid leave, subject to an
employer’s demonstration of undue hardship. See, e.g., Haschmann v. Time Warner
Entmʹt Co., 151 F.3d 591, 601 (7th Cir. 1998) (stating that there was sufficient evidence
from which a reasonable juror could conclude that the second medical leave of 2‐4
weeks, as requested—following an earlier leave of three weeks and a modified schedule
for three weeks—would have been a reasonable accommodation and was a question of
fact for the jury). Other courts have rejected the per se rule that an extended medical
leave can never be a reasonable accommodation under the ADA. See, e.g, Garcia‐Ayala v.
Lederle Parenterals, Inc., 212 F.3d 638, 647‐48 (1st Cir. 2000) (rejecting a per se rule that
extended leaves cannot be reasonable accommodations and citing other cases that have
held that a medical leave of absence is a reasonable accommodation under the Act in
some circumstances). In fact both Byrne and Severson point out that under the ADA it
may be appropriate to allow for intermittent short leaves of absence—a couple of days
No. 17‐1359 Page 6
or even a couple of weeks—for someone with a condition that at various times renders
her completely unable to work, such as arthritis or lupus. Severson, 2017 WL 4160849 at
*3, Byrne, 328 F.3d at 381. But what sense does it make that the ADA could require an
employer to accommodate an employee with lupus who requires one week leaves,
several times a year, every year, but can never require an employer to accommodate an
employee who needs a one‐time leave of four or five months to recuperate from, for
example, a kidney replacement? Whether an employer can reasonably accommodate an
employee who requires a leave of either the first or second type is a factual
determination that can be made in the latter case just as easily as in the former. It might
be that a particular employer cannot and has not ever authorized a leave of more than a
few weeks; but it might also be the case that the employer historically has permitted
employees to take multi‐month leaves for medical and non‐medical reasons. There is no
reason to think that the ADA was meant to accommodate one type of disability over
another or that the fact‐intensive assessments required to determine undue hardship
can be applied to some forms of leave but not others.
The indefinite and lengthy nature of Golden’s request for leave indeed may have
been an undue hardship for the Housing Authority, but this was a determination to be
made on the facts of the case. I continue to believe that a per se rule declaring that a
long‐term leave of absence can never be a reasonable accommodation under the ADA,
as opposed to one requiring a factual determination of undue hardship, is contrary to
the language of the Act. But because it is now the law of this circuit, I must concur in the
judgment.