The 7th Circuit Court of Appeals affirmed judgment for an employee who claimed the city of Anderson did not accommodate his disability when it fired him for not having a commercial driver’s license he could no longer get because of his diabetes.
Jack Brown worked for the Anderson Transit System for 28 years in a number of positions. He was a street supervisor when he was fired in 2012 after new mayor Kevin Smith came into office because he did not have a commercial driver’s license in a position that required him to have one. The city under a previous mayor was aware of this when he was promoted to the position. Brown was unable to keep his CDL because of his insulin-dependent diabetes.
Brown filed suit against the city of Anderson alleging it failed to accommodate his diabetes-related disability in violation of the Americans with Disabilities Act, and that it retaliated against him in response to political support for the Smith’s opponent. The District Court denied the city’s motion for summary judgment, and a jury found against Brown on his political claim but for him on his ADA claim. The jury awarded him $25,000 in compensatory damages and $65,274.64 in lost wages, benefits and interest. The city appealed.
The city claimed that having a CDL was an essential function of Brown’s job, and that this was a question of law for the court, and not the jury, to decide. However, the 7th Circuit said the CDL issue was a question of fact.
Because the inquiry goes to the sufficiency of the evidence, the city waived its right to appeal because it did not file a post-verdict motion under Rule 50(b). However, even if city did not waive its appeal, Brown proved having a CDL was not an essential function of the job. Brown never had to drive a bus while in his position and if he did, replacement drivers could generally be secured within 10 minutes.
The 7th Circuit also ruled the District Court did not abuse its discretion when it gave a jury instruction that the jury could consider the amount of time spent on the job performing the function in question. Federal Regulation 29 C.F.R 1630.2 notes evidence of whether a function is essential includes time spent performing the function, Judge Ann Claire Williams wrote, and the city didn’t give any good reasons why this regulation should be ignored.
The case is Jack Brown v. Kevin Smith, Mayor of the City of Anderson, et al., 15-1114.