Bultemeyer v. Fort Wayne Community Schools

• Decision Date: 18 November 1996
• Docket Number: No. 96-1984,96-1984
• Citation: 100 F.3d 1281
• Parties: ROBERT E. BULTEMEYER, Plaintiff-Appellant, v. FORT WAYNE COMMUNITY SCHOOLS, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1281

100 F.3d 1281

ROBERT E. BULTEMEYER, Plaintiff-Appellant, v. FORT WAYNE COMMUNITY SCHOOLS, Defendant-Appellee.

No. 96-1984

In the United States Court of Appeals,

Seventh Circuit

ARGUED SEPTEMBER 24, 1996

DECIDED NOVEMBER 18, 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 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 judgment.

DISCUSSION

We review the district court's decision to grant summary judgment de novo, and only if genuine issues of material fact are evident in the record will we reverse. We examine all evidence and draw all inferences in the light most favorable to the non-moving party. Tolentino v. Friedman, 46 F.3d 645, 649 (7th Cir.), cert. denied, __ U.S. __, 115 S. Ct. 2613, 132 L.Ed.2d 856 (1995). Because this is an employment case, highly dependent on issues of intent and the credibility of witnesses, we must apply these standards with "added rigor." Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1162 (7th Cir. 1994). Thus, "we will affirm the decision of the district court only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict." Robinson, 23 F.3d at 1162. If there is evidence in the record on which a jury could reasonably find for the non-moving party, we will reverse. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

I.

The trial court mistakenly relied on our holding in DeLuca v. Winer Industries when it analyzed Bultemeyer's claim as a disparate treatment case and applied the McDonnell-Douglas burden-shifting test. In DeLuca, the plaintiff, who had multiple sclerosis, sued his employer for firing him because of his disability. He claimed that other employees who were not disabled were treated more favorably. Central to DeLuca's claim was the portion of the ADA prohibiting discrimination against "a qualified individual with a disability because of the disability . . ." 42 U.S.C. sec. 12112. This was a claim for disparate treatment, and because DeLuca had no direct proof of discrimination, he used the McDonnell-Douglas burden-shifting method to prove indirectly that his employer had fired him because he had multiple sclerosis. This court, although it affirmed the trial court's grant of summary judgment against DeLuca, approved the use of the McDonnell-Douglas burden-shifting method of proof in ADA cases. It explained that an ADA plaintiff could state a disparate treatment claim and use either direct evidence or the indirect McDonnell-Douglas method to establish the existence of discrimination. DeLuca, 53 F.3d at 797.

By contrast, Bultemeyer has not stated a claim for disparate treatment. He has based his complaint on the specific provision of the ADA which defines "discrimination" under the ADA. That provision defines the term "discriminate" as:

5(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]; or

(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of [the employer] to make a reasonable accommodation to the physical or mental impairments of the employee or applicant.

42 U.S.C. sec. 12112(b)(5)(A)-(B). Bultemeyer claims that he was a qualified individual with a disability, and that FWCS did not reasonably accommodate him. Unlike DeLuca's claim, Bultemeyer's claim alleges facts which, if proven, could directly establish a violation of the ADA. If it is true that FWCS should have reasonably accommodated Bultemeyer's disability and did not, FWCS has discriminated against him. There is no need for indirect proof or burden shifting. Recently, we have decided several reasonable accommodation cases in this circuit, all without using the McDonnell-Douglas analysis. E.g., Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130 (7th Cir. 1996); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir. 1996).

Again, like Beck and Bombard, this is not a disparate treatment claim, but a reasonable accommodation claim, and it must be analyzed differently. Bultemeyer is not complaining that FWCS treated him differently and less favorably than other, non-disabled employees. He is not comparing his treatment to that of any other FWCS employee. His complaint relates solely to FWCS' failure to reasonably accommodate his disability. Because this is not a disparate treatment case, the McDonnell-Douglas burdenshifting method of proof is unnecessary and...