The Seventh Circuit held that the District Court could properly have found that defendant's disorder was not qualified disability under ADA as impairment that substantially limited any of plaintiff's major life activities. Further, the plaintiff had failed to establish that he had engaged in any protected conduct to establish a retaliation claim as he had not sought accommodation nor filed EEOC charge prior to his termination. Finally, the employee's new evidence about his medical condition submitted to Seventh Circuit was untimely.
Employe sued under the Americans with Disabilities Act (ADA), alleging that his employer fired him because of his sensitivity to electromagnetic voltage and in retaliation for complaining about alleged high levels of voltage in his workplace. Hirmiz v. New Harrison Hotel Corp., No. 16-3915 (April 6, 2017). The employer moved for summary judgement, which the District Court granted. The Seventh Circuit affirmed.
The Seventh Circuit held that the District Court could properly have found that defendant's disorder was not qualified disability under ADA as impairment that substantially limited any of plaintiff's major life activities. Further, the plaintiff had failed to establish that he had engaged in any protected conduct to establish a retaliation claim as he had not sought accommodation nor filed EEOC charge prior to his termination. Finally, the employee's new evidence about his medical condition submitted to Seventh Circuit was untimely.
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Today, April 7, 2017, Judge Neil Gorsuch was confirmed to the Supreme Court as its 113th justice. The vote was 54 senators in favor, 45 against, largely divided by party lines - only three Democrats voted with the GOP. For over a year, since February 2016, the Supreme Court has been operating with eight justices. 49-year-old Gorsuch is succeeding Justice Scalia. Gorsuch is slated to take his oath early next week. Congratulations to Bradley Levison for the winning appellate briefs in Williams, et al. v. Athletico, Ltd., et al., 2017 Ill. App. (1st) 161902. On March 21, 2017, the First District Appellate Court agreed with Brad’s argument. The First District held that a plaintiff was required to comply with the requirements of Illinois’ Healing Art Malpractice statute, 735 ILCS 5/2-622, where the complaint alleged negligence against a licensed athletic trainer for failing to assess and evaluate a concussion sustained by a student athletic during a high school football game. Brad served as lead author of defendants’ Rule 308 appeal in Williams. Williams is the first decision in Illinois to find that a lawsuit against a licensed athletic trainer for failing to perform his function as an athletic trainer alleges healing art malpractice and expands the application of section 2-622 of the Code. Williams confirms that healing art malpractice is not limited to merely doctors and nurses but includes those professions which treat medical ailments and injuries. In Williams, the parents of a disabled student athlete brought a lawsuit against a licensed athletic trainer and two athletic training service providers alleging that defendants were negligent for failing to assess the student athlete for symptoms of head trauma during a high school football game. The complaint alleged ordinary negligence and defendants moved to dismiss on the basis that plaintiffs failed to attach a certificate from a health care professional as required by section 2-622 of the Code of Civil Procedure. The trial court denied the motions to dismiss but certified three questions which the First District Appellate Court agreed to consider. The First District summarized that “as presented in both question one and question two, the core question of law to be answered is whether the alleged negligent conduct concerns the area of healing art malpractice and whether compliance with section 2-622 of the Code is required.” Williams, 2017 Ill. App. (1st) 161902 at ¶11. The First District answered the first and second questions in the affirmative holding that “plaintiffs were required to attach an affidavit and health professional’s report pursuant to section 2-622 of the Code, where the complaint alleges negligent conduct by a licensed athletic trainer hired to provide on-site injury evaluation and treatment to participants of an athletic competition for failing to assess and evaluate an athlete for a concussion and for failing to recognize signs of a concussion following head trauma sustained by a participant in the athletic competition.” Williams, 2017 Ill. App. (1st) 161902 at ¶31. Plaintiffs, home health care providers, brought a section 1983 action challenging the exclusive-bargaining-representative provision of Illinois Public Labor Relations Act ("IPLRA") under the 1st Amendment. Hill v. Service Employees International Union et al., No. 16-2327 (7th Cir., March 9, 2017). The plaintiffs claimed that the provision violated their associational rights. The District Court dismissed the complaint for failure to state a claim. The Seventh Circuit affirmed. The IPLRA that allowed single union (in this case, the SEIU, which is selected by a majority of the employees) to negotiate pay rates, hours and other conditions of employment for the plaintiffs under circumstances where the plaintiffs were under no obligation to join SEIU. Further, the plaintiffs were free to present their own grievances to the State and to associate with whomever they choose without retaliation from SEIU. The plaintiffs argued that the IPLRA improperly forced them into agency-like association with SEIU, however the Court rejected their claim that mandatory association with SEIU was subject to "exacting scrutiny." The plaintiffs were free to join their own groups and to oppose SEIU. Instead, the statute was subject to the "rational-basis scrutiny," which Illinois satisfied as the state has legitimate interest in negotiating with only one majority-elected exclusive bargaining representative when deciding what employment terms to offer plaintiffs. Professor brought Title VII and IX claims, alleging that she was retaliated against after forwarding a student complaint of sexual harassment and after filing an EEOC complaint. Burton v. Bd. of Regents of the Univ. of Wisconsin System, No. 16-2982 (7th Cir. March 17, 2017). The District Court granted summary judgment for the defendant and the Seventh Circuit affirmed. The Seventh Circuit held that staff criticism and failure to support her curriculum initiative were not sufficiently material to be adverse. While the "letter of direction" and letter seeking formal reprimand were materially adverse acts, the plaintiff failed to show that either act was linked to her filing of EEOC charge as the letters were issued six months after the EEOC charge. Furthermore, the plaintiff failed to present evidence that contested accuracy of allegations against her in either letter. Not only that, but the defendant also treated the plaintiff positively during the relevant time period by granting her tenure and seeking an upward salary adjustment. Employee, a police officer, sued his employer under Section 1983 alleging that the Village fired him in retaliation for his exercise of protected speech. McGreal v. The Village of Orland Park, No. 16-2365 (Seventh Circuit, March 6, 2017). More specifically, he advocated for a proposed police budget that would protect the salaries of lower-level police officers at expense of their superiors at a community board meeting. The employer moved for summary judgment and the District Court granted it. The Seventh Circuit held that the officer failed to show that the decision-makers were aware of his speech at the board meeting prior to firing him for misconduct. Further, the officer failed to present admissible evidence to dispute the Village's claim that the officer was fired for: (1) lying under oath during particular formal investigations; (2) being insubordinate; and (3) being reckless while on duty. The fact that the officer submitted his own unsigned affidavit and spreadsheet of undisputed evidence did not require different result. Plaintiff sued his former employer for breaching his employment contract by failing to pay him severance benefits. Rosenberger v. United Community Bancshares, Inc., 2017 Ill. App. (1st) 161102 (February 24, 2017). The Circuit Court granted summary judgment for the employer. The Appellate Court reversed and remanded. The Appellate Court held that a genuine issue of material fact exists regarding whether the employer's "performance under section 4(e) of the Employment Agreement was excused under the doctrine of legal impossibility." The Court noted that the employer presented no evidence "demonstrating that it applied for an exception to make the severance payment". Thus, the Circuit Court erred "in granting summary judgment in UCB's favor on grounds that its performance under the Employment Agreement was rendered objectively impossible by operation of law." Further, there was a genuine issue of material fact as to whether the plaintiff's conduct was cause for his employer to terminate him. Thus, the matter was remanded for further proceedings. Plaintiff-employee sued her employer for violating the Rehabilitation Act by failing to accommodate her back disability and by firing her after she had exhausted her medical leave. Whitacker v. Wisc. Dept. of Health Services, No. 16-1807 (7th Cir. February 27, 2017). Defendant moved for summary judgment, which the District Court granted. The Seventh Circuit affirmed. Plaintiff had requested an additional two-month leave of absence beyond what she was entitled to receive. However, the Seventh Circuit held that the plaintiff failed to show that she was "otherwise qualified for her job" because her job required regular attendance at work, and she had failed to present any evidence of the medical likelihood of her recovery to support her request for additional leave. Furthermore, the plaintiff's declaration that she would have been able to return to work on regular basis if she had received an additional leave of absence was insufficient to allow the trier of fact to find a likelihood that she would have returned to work on regular basis, particularly because the record showed that the plaintiff had repeatedly requested additional medical leave when her leave was about to expire. Employee brought a Section 1983 action alleging that his employer (1) improperly disciplined him for an alcohol-related incident resulting in his resignation and (2) that the discipline was in retaliation for his reports of misconduct by his fellow officers. Roake v. Forest Preserve Dist. of Cook County, No. 16-2976 (Seventh Circuit February 17, 2017). The District Court dismissed the employer's claims. The Seventh Circuit affirmed. As to the first claim, the employee claimed that his employer violated 14th Amendment because its conduct sullied his reputation. However, the Seventh Circuit upheld the dismissal because the employee failed to allege that his employer did anything to alter his legal status - instead the employee resigned. As to the second claim, the Seventh Circuit held that under Garcetti, 547 U.S. 410, the employee's speech reporting his co-workers' misconduct was not protected under the First Amendment, because the employee was not speaking as "private citizen," but as "employee" fulfilling his official job duties in reporting the matter. Employee Cable sued Fiat Chrysler Automobiles, for subjecting her to a hostile work environment because of her race. Glenda Cable v. FCA US LLC, No. 16-2283, (7th Circuit February 9, 2017). Fiat moved for summary judgment and the District Court granted it. The Seventh Circuit affirmed. Cable, the only African-American on her seven-member team claimed that she was harassed on five different occasions over a period of 14 months because of her race, starting with her team leader hanging a black voodoo doll from his belt and refusing to remove the doll when she asked. Cable reported the situation to her supervisor, after which the team lead never wore the doll again. The other instances include a drawing of a face with the words “Red Eye”, and etchings on various machines that said “N,” “NIG” or “bitch.” Each time, a supervisor ordered the drawings and etchings removed, sanded and painted over. The District Court held that the doll and the first two etchings were racially offensive, but that the harassment was not severe or pervasive. The Seventh Circuit questioned the District Court’s finding that the hostility directed towards Cable was “not sufficiently pervasive or severe.” However, the Seventh Circuit held that even if the conduct did amount to severe or pervasive harassment, Cable couldn’t hold Fiat liable because it “was not negligent in discovering or remedying the harassment: FCA promptly removed the etchings and investigated who made them, held anti‐harassment training after learning of the second etching, and in regard to the voodoo doll incident, directed [the team lead] to remove the doll.” Thus, Fiat was not liable. |
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