|Jottings By An Employer's Lawyer|
Sunday, May 23, 2004
Good Discussion on Various Aspects of a "Typical" ADA Case by 7th Circuit
Dr. Krieger also concluded that Ammons could not return to his normal duties at Aramark and that he was limited to a light-medium level of work with the following restrictions: minimal kneeling (no longer than five minutes at a time); a limited period of “static standing” (no longer than eight minutes at a time); a maximum of one hour of “dynamic standing”; limited climbing; and restricted walking on “pain-level basis.” Dr. Krieger also concluded that Ammons could not resume a heavy level of work activity. Such a level would include occasional lifting of 100 pounds, frequent lifting of 35 pounds or less, and constant lifting of 15 pounds.When his condition did not improve prior to the passage of the 18 month maximum leave of absence permitted under the collective bargaining agreement, Ammons was terminated.
Although both parties agreed that Ammons was disabled, there was a dispute as to whether he was qualified. In upholding the summary judgment granted by the district court, the appeals court also upheld striking an expert's testimony that he could perform the job, in large part because it was speculative. Most telling was the expert's inability to give an opinion as to whether or not Ammons could perform work on a number of specific machines given his physical condition. The court also rejected the argument that the company had not engaged in the interactive process because it would not hold a meeting with plaintiff's attorney and his vocational counselor, holding instead that the face to face meeting with the plaintiff was sufficient. Finally, while it agreed that plaintiff had identified two jobs he could perform, it also agreed with the employer that such duties would only fulfill half a day, and thus did not show that he could perform the essential functions of the job. Employers should be especially thankful that the court did not accede to the argument that would have required a meeting with plaintiff's counsel. This is not an atypical case and particularly as the work force ages, one would expect to be played out many more times.