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May 13, 2003


The opinion of the court was delivered by: Charles P. Kocoras, Chief Judge, United States District Court


This matter is before the court on Defendant's motion for summary judgment. For the reasons stated below we grant the motion.


Plaintiff Barbara J. Kendra ("Kendra") worked for the Veteran's Administration ("EVA") as a secretary for Dr. Robed Craig ("Craig"). Kendra claims that she has difficultly walking because, sometime prior to 1995, Kendra had the joints in her feet removed. In July 1995, Kendra was diagnosed with a Baker's cyst on the back of one of her knees. According to Kendra, when the cyst is inflamed she cannot squat, sit for a long time, kneel, or walk for extended periods of time. The cyst was treated in 1995, but continues to become inflamed at times. In August 1996, Kendra injured her back at work. She applied for worker's compensation and received forty-five days off work with pay. She claims that she still has bulging and herniated discs in her back. In August 1996, the entire staff in Kendra's office was relocated to the an outpatient clinic four blocks away from the VA hospital. Kendra claims that she was forced to retire in 1998 because she did not receive accommodations for her alleged disabilities and because she suffered another unspecified injury to her leg.

Kendra acknowledged at her deposition that the cyst and back conditions make it difficult for her to sit at a typewriter long enough to effectively transcribe dictation and make it difficult for her to type and file documents. In addition she claimed that she has trouble walking and thus had difficulty answering the phones at work, delivering documents around the office, and making the necessary trips between the clinic and hospital. She contends that the Defendants did not offer her reasonable accommodations for her alleged disability. Kendra requested a transfer to a light duty position. She also asked to be allowed to work at the VA hospital or in the alternative to have reasonable access to the VA van to allow her to travel between the clinic and the hospital.

Kendra filed a complaint pro se alleging that she was discriminated against because of her alleged disability and alleging that Defendants failed to provide her with reasonable accommodations in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 701 et seq. Subsequent to the filing of the motion for summary judgment by Defendants, Defendants provided Kendra with appropriate written notice of the purpose of a summary judgment motion and an explanation of the consequences of failing to respond to the motion. See Local Rule 56.2; Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992).


Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue" in the context of a motion for summary judgment is not simply a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole in a light most favorable to the nonmoving party and draw all reasonable inferences that favor the nonmoving party. Anderson, 477 U.S. at 255; B Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). In addition pleadings filed by pro se plaintiffs are entitled to a liberal reading and are held to a less stringent standard than the standard that is applied to pleadings drafted by licensed attorneys. Kyle v. Patterson, 196 F.3d 695, 697 (7th Cir. 1999).


The ADA states that no covered employer shall "discriminate against a qualified individual with a disability because of the disability. . . ." 42 U.S.C. § 12112 (a). The RA states that no "otherwise qualified individual with a disability" shall "be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . ." solely because of the individual's disability. 29 U.S.C. § 794 (a). Two distinct types of discrimination claims that can be brought under the ADA and RA are: 1) failure to accommodate claims, and 2) disparate treatment claims. See Foster v. Arthur Anderson, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999) (indicating the two types of claims for ADA cases); Lenker v. Methodist Hosp., 210 F.3d 792, 799 (7th Cir. 2000) (indicating the above types of ADA claims); Washington v. Indiana High School Athletic Ass'n, Inc., 181 F.3d 840, 847 (7th Cir. 1999) (indicating that the above mentioned types of claims are two of the three types of claims under the RA and ADA).

In order to establish a claim for a failure to accommodate under the ADA and RA, a plaintiff must show that: 1) she is disabled under the ADA or RA, 2) her employer knew about the disability, and 3) she is "otherwise qualified to perform the essential functions of the job sought, with or without reasonable accommodation." Winfrey v. City of Chicago, 259 F.3d 610, 614 (7th Cir. 2001); McPhaul v. Board of Comm'rs of Madison County, 226 F.3d 558, 563 (7th Cir. 2000); But see Foster, 168 F.3d at 1032 (indicating that for a failure to accommodate claim a plaintiff must also show that she suffered an adverse employment action). See also Lenker, 210 F.3d at 799 (holding that it is not appropriate to apply the McDonnell Douglas burden shifting method to cases brought under the reasonable accommodation part of the ADA); Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999) (indicating that elements of ADA and RA claims are extremely similar and are "distinguishable only because [the RA] is limited to programs receiving federal financial assistance."); Gile v. United Airlines, Inc., 95 F.3d 492, 496-97 (7th Cir. 1996) (indicating that RA incorporates standards from ADA).

For an ADA or RA disparate treatment claim a plaintiff must show that; 1) she is disabled under the ADA and RA, 2) she is "qualified to perform the essential functions of [her] job either with or without reasonable accommodation," and 3) her employer took an adverse employment action against her because of her disability. Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1115 (7th Cir. 2001); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669 (7th Cir. 2000). But see Rehling v. City of Chicago, 207 F.3d 1009, 1018 n. 7 (7th Cir. 2000) (applying burden shifting McDonnell Douglas method and elements to ADA disparate treatment claim).

I. Whether Kendra Can Perform the Essential Functions of Her Position

Defendants argue that, even with reasonable accommodations, Kendra could not have performed the essential functions of her position. For an ADA or RA claim a plaintiff must show that she is a "qualified individual with a disability." 42 U.S.C. § 12112 (a). To be a "qualified individual with a disability" a plaintiff must be "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111 (8); Peters v. City of Mauston, 311 F.3d 835, 842, 845 (7th Cir. 2002) (holding that RA looks to standards of ADA and holding that for RA case plaintiff must show that she is a "qualified individual with a disability"); Dvorak v. Mostardi Platt Assocs., Inc., 289 F.3d 479, 484 (7th Cir. 2002) (stating that ADA does not require an employer to "modify, reduce, or relocate the essential functions of a job to accommodate an employee."). See also Winfrey, 259 F.3d at 614 (dealing with accommodation claim); Kersting, 250 F.3d at 1115 (dealing with disparate treatment claim); Peters, 311 F.3d at 845 (holding that plaintiff could not perform essential functions of his job and holding that an accommodation that would require another person to perform the essential functions of plaintiffs job would be unreasonable). A two step test is used to determine if an individual is a "qualified individual with a disability." Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. ...

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