100 F.3d 1281 (7th Cir. 1996), 96-1984, Bultemeyer v. Fort Wayne Community Schools

Docket Nº:96-1984
Citation:100 F.3d 1281
Party Name:ROBERT E. BULTEMEYER, Plaintiff-Appellant, v. FORT WAYNE COMMUNITY SCHOOLS, Defendant-Appellee.
Case Date:November 18, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1281

100 F.3d 1281 (7th Cir. 1996)

ROBERT E. BULTEMEYER, Plaintiff-Appellant,

v.

FORT WAYNE COMMUNITY SCHOOLS, Defendant-Appellee.

No. 96-1984

In the United States Court of Appeals, Seventh Circuit

November 18, 1996

ARGUED SEPTEMBER 24, 1996

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division, Roger B. Cosbey, Magistrate Judge, No. 95 C 154

Christopher C. Myers (argued), Samuel L. Bolinger, Myers & Geisleman, Fort Wayne, IN, for Plaintiff-Appellant.

William Sweet (argued), Kristen L. Maly, Beckman Lawson, Sandler, Snyder & Federoff, Fort Wanye, IN, for Defendant-Appellee.

Before POSNER, Chief Judge, and HARLINGTON WOOD, JR. and ESCHBACH, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge.

Robert Bultemeyer filed this claim under the Americans with Disabilities Act of 1990 (ADA) against the Fort Wayne Community Schools, his former employer, for allegedly failing to accommodate his mental illness and for terminating his employment. The district court, Magistrate Robert Cosbey presiding, granted summary judgment for the defendant. Bultemeyer appealed, and we reverse.

FACTS

Robert Bultemeyer began working for the Fort Wayne Community Schools ("FWCS") in 1978, and was employed as a custodian until 1993. During that period, he developed serious mental illnesses, including bipolar

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disorder, anxiety attacks and paranoid schizophrenia. Bultemeyer went on a series of disability leaves; the last one extended from May, 1993 until April, 1994. In April, 1994, he began working for the Fort Wayne Park and Recreations Department. On May 16, 1994, FWCS' employee relations director, Brenda Singleton, contacted Bultemeyer to see if he were ready to return to work at FWCS. He responded that he was, and she told him of an open position at Northrop High School, one of the largest of the thirty or more schools operated by FWCS. She told him that in order to begin working again, he would have to take a physical required of all employees returning from disability leave. She then informed him that he would not receive any special accommodations at Northrop, as he had at the other FWCS schools where he had worked. She was referring to his employment at North Side High School, where, at his psychiatrist's request, his duties had been limited to cleaning hallways, stairwells, locker rooms and the like, and not classrooms. In a letter dated May 17, 1994, Singleton instructed Bultemeyer that he was to report to work at Northrop at 3:30 p.m., and that if he did not, his employment would be terminated.

That same day, Bultemeyer toured Northrop High School with Steve Mock, the custodial foreman. During their walk, Mock commented to Bultemeyer that if he (Bultemeyer) moved as slowly while he worked as he was walking then, he would never get his work done on time. Bultemeyer then went to Singleton and told her that he could not work at Northrop. He said he did not think he was equal to the task, but he also told her that he was not resigning. Bultemeyer was also afraid to take the physical, because he thought that if he passed, he would have to work at Northrop, and if he worked there, he would be unable to perform his tasks and would get fired. So Bultemeyer did not take the physical, and he did not report for work on May 17.

On May 20, Bultemeyer went to Dr. Fawver, his psychiatrist, and obtained a letter to FWCS saying "due to Bob's illness and his past inability to return to work, it would be in his best interest to return to a school that might be less stressful than Northrop High School." On May 24, Singleton decided to fire Bultemeyer and sent him a letter notifying him that his employment with FWCS was terminated because he had not reported for work and had not taken the physical. A few hours later, Bultemeyer delivered the note from Dr. Fawver. He received no response from Singleton, but someone from FWCS contacted him about rescheduling his physical. When he called FWCS on May 26 to reschedule, he received no response.

Bultemeyer filed suit against FWCS, alleging that FWCS had violated the ADA by failing to make reasonable accommodations for his mental disability. He alleged that although FWCS knew of his illness and had been given a note from Dr. Fawver requesting a less stressful position, it did nothing to accommodate him. FWCS moved for summary judgment.

Following our holding in DeLuca v. Winer Industries, 53 F.3d 793 (7th Cir. 1995), the trial court applied the McDonnell-Douglas four-part burden-shifting test for disparate treatment to Bultemeyer's ADA claim. The court then held that Bultemeyer had not stated the elements of a prima facie case under that test. The court also found that Bultemeyer had not asked for reasonable accommodation, and held that even if Dr. Fawver's letter could be considered a request for accommodation, it was not delivered in time, because he had already been fired. In addition, the court notes, as FWCS does here, that Bultemeyer presented no evidence that any other custodial position in the FWCS district was less stressful than the job at Northrop. The court thus concluded that Bultemeyer could not prove he was qualified for reassignment.

Because this case should have been decided as a reasonable accommodation case and not as a disparate treatment case, and because Bultemeyer has presented genuine issues as to whether FWCS reasonably accommodated his disability, we reverse the trial court's grant of summary...

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