Miller v. Illinois Dep’t of Transportation, No. 09-3143 (7th Cir. May 10, 2011)

By Paul Mollica

Plaintiff, a fired bridge crew member in Southern Illinois, wins the opportunity to try his claims of ADA regarded-as disability discrimination and retaliation against IDOT. Plaintiff claims that the agency believed him to be substantially limited in the major life activity of work, owing to his acrophobia, and that he was fired after complaining about being given dangerous duty beyond his limitations.

Miller v. Illinois Dep’t of Transportation, No. 09-3143 (7th Cir. May 10, 2011): Miller’s job on the bridge crew took him to steep and sometimes unprotected heights. Despite the anxiety that he suffered due to his acrophobia, Miller reportedly completed his assignments and – for four years – IDOT accommodated his diagnosed condition by giving him lower-height duties. Significantly for this case, it was routine for IDOT to grant various accommodations to any crew member who asked. But after two incidents in March 2006, one of which resulted in Miller not completing a task (changing light bulbs on a span crossing the Mississippi River), IDOT ordered him to take disability leave and return for a fitness-for-duty examination.

For over a year, the parties were unable to reach agreement about whether Miller was fit for duty: IDOT took the position that it was an essential function of the job for employees to work at heights over 20 feet, while Miller’s doctor and a doctor chosen by IDOT both said Miller could return to duty with the same accommodations that he received from 2002 to 2006. Although Miller’s request for accommodations was denied, in May 2007 he was nevertheless returned to work.

Upon his return, Miller made what IDOT considered a threat against another employee, a woman (named Ritter), whom he proclaimed was his “Archenemy” and wished that he could “knock her teeth out.” He was fired for making the threat, though he was eventually able to grieve the termination down to a suspension.

The Seventh Circuit reverses summary judgment, holding that there were genuine issues of material fact about his discrimination and retaliation claims.

On the former, Miller presented evidence that IDOT considered him substantially limited in the major life activity of working, despite that he had shown for four years that he could perform all essential tasks with accommodations. Applying 29 C.F.R. § 1630.2(j)(3)(ii), the panel holds that – even under the prior version of the ADA (before the liberalizing amendments of the ADAAA) – “it is not necessary for an employee to show that the employer consciously conducted the same sort of full statutory analysis that a trial judge or jury would conduct in a case of actual impairment. An employer who is irrationally and illegally overreacting to a perceived disability is unlikely to carry out consciously the full ADA analysis.”

The panel holds that it is the employer’s subjective state of mind that counts. To prove such a state of mind, the panel analogizes to the deliberate indifference standard of the Eighth Amendment (Farmer v. Brennan, 511 U.S. 825 (1994)), and holds that such proof may be “addressed through circumstantial evidence, including reasonable inferences based on the evidence of the employer’s perceptions of Miller’s impairments.”

Thus, according to the record, despite providing Accomodation for four years:

“IDOT forced [Miller] on non occupational disability leave and exaggerated the relatively modest effects of the acrophobia. Even after two psychiatrists cleared him for work without any significant restrictions, IDOT continued to preclude Miller from returning to any and all tasks performed by the bridge crew.”

The panel also holds that there are genuine issues of material fact concerning whether working above 25 feet was an essential function of the job (applying 29 C.F.R. § 1630.2(n)(3)), noting that not every member of the crew necessarily had to be able to perform all tasks:

“Here, a reasonable fact-finder would have to conclude that some members of the bridge crew had to be able to work at heights in exposed or extreme positions so that the bridge crew-as a unit-could do its job, just as some members of the crew had to be able to weld, ride in the snooper bucket, spray, mow, and rake. That conclusion does not mean that the fact-finder would be required to conclude that each member of the bridge crew had to be able to do every task required of the entire team. In terms of the regulation, the evidence of actual experience of past and present incumbents in the job and similar jobs conflicts with the employer’s judgment about which functions are essential. See 29 C.F.R. § 1630.2(n)(3). On this record, a reasonable jury could find that working at heights in an exposed or extreme position was not an essential function for Miller as an individual member of the bridge crew.”

On the retaliation claim, the panel hols that there is sufficient evidence of pretext for a trial, holding that a jury could find that the alleged “threat” against Ritter was not a genuine threat, “or that even if IDOT properly construed it as such, its decision to terminate Miller was a disingenuous overreaction to justify dismissal of an annoying employee who asserted his rights under the ADA.” Additionally, there had been another IDOT employee (Maurizio) who, after a genuinely violent outburst, was not fired. “The combination of the ambiguity of the asserted threat, the response to Maurizio’s violent outburst, the hostility toward Miller’s request for accommodation, and the timing provided sufficient evidence to permit a reasonable trier of fact to infer pretext and retaliatory intent. The question must be decided at trial rather than on summary judgment.”