Wheatley v. Factory Card & Party Outlet, 15-2083

• Decision Date: 13 June 2016
• Docket Number: No. 15-2083,15-2083
• Citation: 826 F.3d 412,32 A.D. Cases 1457
• Parties: Lora J. Wheatley, Plaintiff–Appellant, v. Factory Card and Party Outlet, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

826 F.3d 412

32 A.D. Cases 1457

Lora J. Wheatley, Plaintiff–Appellant

v.Factory Card and Party Outlet, Defendant–Appellee.

No. 15-2083

United States Court of Appeals, Seventh Circuit.

Argued November 30, 2015

Decided June 13, 2016

John A. Baker, Attorney, Baker, Baker & Krajewski, Springfield, IL, for Plaintiff–Appellant.

Peter E. Naylor, Attorney, Brown, Hay & Stephens, LLP, Springfield, IL, for Defendant–Appellee.

Before Rovner and Williams, Circuit Judges and Shah, District Judge.^*

Rovner

, Circuit Judge.

Lora Wheatley worked for Factory Card and Party Outlet (“Factory Card”) from 1996 until her employment was terminated on July 11, 2009, for failure to report to work. Wheatley filed an action against Factory Card alleging that it violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.,

when it terminated her employment. The district court granted Factory Card's motion for summary judgment, and Wheatley appeals.

The facts underlying this appeal are set forth in detail in the district court's orders in this case. In March 2009, Wheatley injured her foot in an incident at her home. She was unable to work for several days, but returned to work on March 27 with a note from her primary care physician, Dr. James A. Bogan, stating that she could work “without restrictions.” At the end of her shift that day, however, Wheatley could not walk and she returned to Dr. Bogan. He provided a note indicating that Wheatley should not work for one week, and recommended that she see Dr. Karolyn Senica, an orthopedist.

Wheatley was off work for the ensuing months because of the injury. In April 2009, Factory Card sent her a letter acknowledging that she had requested leave under the Family and Medical Leave Act (FMLA) beginning April 8, and stating that she had 9.3 of her 12 weeks of FMLA leave remaining. In that letter Factory Card also asked Wheatley to have her physician fill out a “Certification of Healthcare Provider for Employee's Serious Health Condition” form and return it within 15 days. Finally, Factory Card provided Wheatley with the forms necessary should she choose to seek disability benefits through Aetna Insurance.

Over the next three months, Wheatley had numerous appointments with Dr. Senica and with Dr. Jeffrey Fleischli, a podiatrist at the Foot & Ankle Associates of Central Illinois. Although Wheatley's FMLA leave was set to expire on June 13, 2009, Factory Card provided her with four additional weeks of leave, lasting until July 11, 2009. It also informed her that if she could not return to work when that time period expired, her employment would be terminated but that she would be eligible for rehire by the company if she subsequently recovered from her foot injury.

On June 22, Wheatley was seen once again by Dr. Senica, who issued a note to Wheatley providing that she could return to work on July 6, 2009, with no restrictions. Wheatley disagreed with that assessment and sought a second opinion from Dr. Fleischli on July 1, 2009. Dr. Fleischli ultimately provided a different assessment of her medical status which was reflected in the Aetna Attending Physician Statement entered into the record. In that statement, dated July 8, 2009, Dr. Fleischli checked a box indicating that Wheatley had “No ability to work. Severe limitation of functional capacity; incapable of minimal activity.” In response to a form question as to what medical restrictions are placed on the patient, Dr. Fleischli wrote “immobilization.” He further noted on the form that Wheatley would “need to be absent from work due to a disability beginning on July 1, 2009 and ending on August 15, 2009.

Although that form indicated that Wheatley would not be able to return to work until August 15, Wheatley submitted an affidavit recounting a conversation with Dr. Fleischli which would have allowed her to return before her FMLA leave expired on July 11. According to Wheatley, in her July 1 visit with Dr. Fleischli she asked him if she could return to work by July 11 and he told her that she could return to work if her foot were immobilized in a medical boot.

Wheatley contends that she informed Cheryl Cole, Factory Card's Regional Resources Manager, that she would need an additional two weeks off of work, but was informed that if she could not return by July 11 she would be terminated although eligible for rehire. Wheatley then informed her immediate supervisor, Foster Bliss, that she would be able to return to work wearing a walking boot by that time, but Bliss was doubtful that such an accommodation would be allowed. On July 2, Cole sent a letter to Wheatley following up on their conversation regarding the July 11 deadline for her return to work, and requesting that Wheatley have her physician fill out a Fitness for Duty Certification which was enclosed with the letter. That form contained spaces for the physician to include the date on which the employee could return to work, whether the employee would have any work restrictions and how such restrictions would relate to time and duties. Upon receiving that letter, Wheatley called Cole and informed Cole that Dr. Fleischli indicated she could return to work wearing a walking boot, but Cole stated that it would not be possible because Wheatley needed to be able to climb a ladder to do her job. Concluding that Factory Card would not allow her to return to work with the boot, Wheatley chose not to return the certification form or provide any other written documentation regarding her ability to return to work by July 11. She instead applied for disability benefits using the Aetna Attending Physician Statement discussed above, and Aetna determined that she was totally disabled from her occupation. Wheatley then filed this lawsuit claiming that Factory Card violated the ADA in failing to accommodate her disability in that it should have allowed her to return to work with a medical boot immobilizing her foot and to delegate to other employees the tasks requiring the use of the ladder. Factory Card disputes Wheatley's version of events, contending that Wheatley did not request any accommodations or indicate that she could return with a medical boot, but concedes that we must view the facts in the light most favorable to Wheatley as the non-moving party.

Factory Card filed a motion for summary judgment in the district court, arguing that Wheatley failed to demonstrate that she was a qualified individual under the ADA because she did not allege facts showing that she could perform the essential functions of the job with or without reasonable accommodations. It argued that Wheatley was not “released” to work on the date of her request for an alleged accommodation, July 7, or on the date of termination, July 11, and therefore could not perform an essential function of work—regular attendance. The district court denied that request for summary judgment. The court held that Wheatley had alleged sufficient evidence to survive summary judgment as to whether she was a qualified individual. Specifically, the court declared that deposition or trial testimony from Dr. Fleischli would clarify what he told Wheatley as to her ability to return to work and what was meant by the requirement of immobilization. The court further indicated that the competing conclusions of Drs. Fleischli, Bogan and Senica indicated issues of fact as to her ability to return to work.

Following the district court's denial of the motion for summary judgment, Factory Card filed a motion in limine to bar Dr. Fleischli from testifying as an expert witness at trial because Wheatley had disclosed him only as a lay witness and not as an expert witness as required by Federal Rule of Civil Procedure 26(a)(2)

. The district court granted Wheatley leave to file amended witness disclosures to disclose Dr. Fleischli as an expert witness in compliance with that Rule, if Wheatley would also present a detailed description as to what Dr. Fleischli's testimony would be at trial. Wheatley, however, responded by filing a notice stating that she would not be calling Dr. Fleischli as a witness at all.

In light of that revelation, Factory Card filed a Renewed Motion for Summary Judgment. Wheatley opposed that motion, contending that her testimony alone as to her ability to return to work with a walking boot, based on her experience using the boot at home, sufficed to raise an issue of fact. The district court rejected that argument and granted summary judgment in favor of Factory Card. The court stated that in most cases the question as to whether a person can perform a job function with a reasonable accommodation is an inherently medical question which requires expert testimony. Here, the court noted that the relevant question is whether Wheatley's foot could medically withstand the pressure and exertion of performing her job in a walking boot. For that question, the court believed that expert testimony was necessary. The court noted that the record contained releases by Drs. Bogan and Senica, which would indicate that Wheatley could work without restrictions and therefore was not even disabled under the Act, and the Attending Physician's Statement by Dr. Fleischli stating that Wheatley had to be immobilized and could not return to work until August 15, 2009. All of those statements were inconsistent with Wheatley's contention that she could return to work on July 11 only if allowed to wear a walking boot and allowed to forego the duty of climbing the ladder.

We will not consider Dr. Senica's release of Wheatley, because the court recognized that Dr. Senica was not disclosed as an expert witness and would therefore not be permitted to testify in that capacity. The parties on appeal do not challenge that determination, and neither party relies on Dr. Senica's release for their arguments to this court. Regarding the statement by Dr. Fleischli, the court held that the statement had been part of the record without objection for over a year and was admissible....