# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 9, 2013 *

Decided January 13, 2014

Before

RICHARD D. CUDAHY, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 13

‐ 1199

JANICE JOHNSON,

Plaintiff

‐ Appellant,

v.

CITY OF CHICAGO,

Defendant

‐ Appellee

. Appeal from the United States

District Court for the Northern District of

Illinois, Eastern Division.

No. 09 C 7686

Charles R. Norgle,

Judge

.

ORDER

Janice Johnson appeals the grant of summary judgment against her in this

employment

‐ discrimination suit against her former employer, the City of Chicago, NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and the record, we have concluded that oral

argument is unnecessary. Thus, the appeal is submitted on the briefs and record.

See F ED

. R. A PP

. P. 34(a)(2)(C).No. 13

‐ 1199 Page 2

raising claims of failure to accommodate and retaliation under the Americans with

Disabilities Act and the Rehabilitation Act, 42 U.S.C. § 12112; 29 U.S.C. § 701. She

appeals only the ruling on her failure

‐ to

‐ accommodate claim. Because reasonable jurors

could conclude that Johnson was disabled under the ADA, we reverse and remand this

case for further proceedings.

Johnson, who had worked as a public

‐ health aide for the City of Chicago’s

Department of Public Health for a decade, missed eleven days of work in early 2008.

During this eleven

‐ day absence, supervisors tried unsuccessfully to reach her. Because

she had been absent without leave for five consecutive days (in violation of the City’s

personnel rules), the City initiated discharge proceedings against her, informing her in

writing that she would be fired on March 10 unless she accounted for her absence. On

March 10, Johnson returned to work. She presented her supervisors with a “Consent to

Return to Work Form” issued by the Sickle Cell Clinic at the University of Illinois

College of Medicine at Chicago, stating that she was hospitalized from February 16 to

the 23 and could return to work on March 10; the note added that she should refrain

from physical exertion and be limited to desk duty. Her supervisors advised her that

she could request reasonable accommodation under the ADA or medical leave under

the Family and Medical Leave Act, or she could use accrued vacation time for her

absence. Johnson told them she would not use her vacation time, so the City coded her

in its time records as absent “no pay” status. The City did not continue with the

discharge proceedings.

Johnson soon thereafter met with supervisors, explained that she had recently

been hospitalized, and submitted a “Reasonable Accommodation Request Form.” The

form was accompanied by a medical questionnaire completed by her physician stating

that Johnson needed to use a walker and would suffer from “gait instability” for six to

nine months. A notation on the questionnaire also suggested that Johnson be allowed to

work at a desk “until further medical notice.” The Department denied the request,

explaining that she would not be able to perform one of the essential functions of her

job—doing five to seven home visits per day. According to the Department, the

accommodation request “would change the job of PHA [public health aide].”

Johnson did not return to work, believing that she had already been fired, and

the following month the Department sent her another letter reiterating that her

accommodation request had been denied, that she remained in “sick no

‐ pay status,”

and that her failure to return to work with a full medical release (or to submitNo. 13

‐ 1199 Page 3

paperwork requesting medical leave) could lead to disciplinary action, including

discharge. Johnson did not respond to the letter.

In June the Department sent Johnson documentation explaining its reasons for

disciplining her: she had been absent without leave from May 1 to June 30, 2008, and

she had failed to update her current address during that same time period. A

pre

‐ disciplinary hearing at which Johnson could contest her discharge was scheduled

for July 16. But she did not show up (she later said that she never received either the

notice of the hearing or the statement of charges), and the City fired her effective

August 1.

Johnson sued the city under the ADA and the Rehabilitation Act, asserting that

the Department: (1) discriminated against her because of her medical condition (sickle

cell anemia) by denying her accommodation request for desk work and terminating her

job; and (2) retaliated against her for requesting the accommodation. Johnson contended

that her sickle cell anemia substantially limited her life activities of walking, standing,

lifting, bending, and working.

The district court granted the City’s motion for summary judgment. The court

determined that Johnson failed to establish that she was a qualified individual subject to

the protections of the ADA and the Rehabilitation Act. The court explained that Johnson

had not shown that her walking (or any other major life activity) was substantially

impaired and in fact found her condition “merely temporary,” so she was not disabled

under the ADA, dooming her failure

‐ to

‐ accommodate claim. The court also determined

that Johnson failed to adduce evidence sufficient to raise a fact issue on her retaliation

claim.

In order to succeed on her failure

‐ to

‐ accommodate claim, Johnson needed to

show that: (1) she is a qualified individual with a disability; (2) the Department was

aware of her disability; and (3) the Department failed to reasonably accommodate her

disability. Kotwica v. Rose Packing Co.

, 637 F.3d 744, 747–48 (7th Cir. 2011). Under the

pre

‐ amendment ADA to which Johnson is subject (the amendments went into effect in

January 2009, after Johnson’s discharge, and were not made retroactive, see Fredrickson

v. United Parcel Serv. Co

., 581 F.3d 516, 521 n.1 (7th Cir. 2008)), a qualified individual is

one “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) (2006).No. 13

‐ 1199 Page 4

Johnson confines her appeal to challenging the denial of her failure

‐ to

‐

accommodate claim and contends that she is disabled due to her sickle cell disease. She

maintains that at the time of her discharge her sickle cell anemia limited her walking

and working, and she asserts that this condition required the City to provide her with

reasonable accommodation.

We must first determine whether Johnson presented sufficient evidence from

which a reasonable jury could conclude that she was disabled under the ADA.

See E.E.O.C. v. Auto Zone, Inc.

, 630 F.3d 635, 639 (7th Cir. 2010). The Supreme Court

devised a three part test to determine if a person has a disability: (1) does the person

have a physical or mental impairment; (2) does the person’s proposed life activity fit the

definition of a “major life activity” under the ADA; and (3) does the person’s

impairment substantially limit their major life activity. Lawson v. CSX Transp., Inc.

, 245

F.3d 916, 923 (7th Cir. 2001) (quoting Bragdon v. Abbott

, 524 U.S. 624, 631 (1998)); 42

U.S.C. § 12102(2) (2006) see also E.E.O.C. v. Lee’s Log Cabin, Inc.

, 546 F.3d 438, 442 (7th

Cir. 2008). We, like the district court, have little difficulty concluding that Johnson’s

sickle cell anemia is a physical impairment, see Hines v. Barnhart

, 453 F.3d 559, 560

‐ 61

(4th Cir. 2006); Norman

‐ Bloodsaw v. Lawrence Berkeley Lab.

, 135 F.3d 1260, 1265, n.3 (9th

Cir. 1998), and that walking is a major life activity, 29 C.F.R. § 1630.2(i)(1)(i). Thus, we

are left to determine whether a reasonable jury could conclude that Johnson was

substantially limited in her walking. See E.E.O.C. v. Sears, Roebuck & Co.

, 417 F.3d 789,

797 (7th Cir. 2005).

The district court erred when it determined that Johnson failed to show that her

walking was not substantially limited. Her “Consent to Return to Work Form,” which

was completed by her treating physician at the Sickle Cell Clinic after her

hospitalization for her sickle cell anemia, stated that she could return to work but

needed to refrain from physical exertion and should be restricted to desk duty. The

medical questionnaire (which was signed by her physician and accompanied her

request for an accommodation) also recommended that she should be limited to desk

duty, and added that she needed a walker and would have “gait instability” for six to

nine months. Johnson also testified that her sickle cell anemia substantially limited her

walking. Based on this evidence, a reasonable jury could conclude that Johnson was

substantially limited in her walking.

Because reasonable jurors could conclude that Johnson had a disability under the

ADA, summary judgment should not have been granted. Accordingly, the judgment is

REVERSED and REMANDED for further proceedings consistent with this order.