                                                                               FILED
                                                                           Apr 18 2018, 9:19 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Daniel Siewers                                             Michael C. Healy
Katie Kotter                                               Indiana Civil Rights Commission
Hart Bell, LLC                                             Indianapolis, Indiana
Vincennes, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Knox County Association for                                April 18, 2018
Retarded Citizens, Inc.,                                   Court of Appeals Case No.
Appellant-Defendant,                                       93A02-1701-EX-141
                                                           Appeal from the Indiana Civil
        v.                                                 Rights Commission
                                                           Alpha Blackburn, Commissioner
Melissa (Cope) Davis,                                      Sheryl Edwards, Commissioner
                                                           Steven Ramos, Commissioner
Appellee-Plaintiff
                                                           Ahmed Young, Commissioner
                                                           Docket No.
                                                           EMHA12091467




May, Judge.




Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018                           Page 1 of 40
[1]   Knox County Association for Retarded Citizens, Inc. (“KCARC”) appeals the

      Indiana Civil Rights Commission’s (“ICRC”) conclusion that KCARC engaged

      in an unlawful discriminatory practice when it terminated Mellissa Davis’

      employment with KCARC. KCARC presents two issues for our review, which

      we restate, generally:


              1. Whether the ICRC’s conclusion that KCARC engaged in
              discriminatory practices when it terminated Davis’ employment
              was supported by substantial evidence and applicable law; and


              2. Whether the amount of the ICRC’s monetary reward to Davis
              was supported by substantial evidence and applicable law.


[2]   We affirm in part, reverse in part, and remand.



                             Facts and Procedural History                              1




[3]   KCARC provides services to individuals with disabilities including residential

      care, group home care, educational assistance, and occupational assistance.

      Davis began working for KCARC as a Direct Support Professional (“DSP”) on

      March 12, 2012. Davis worked to KCARC’s satisfaction until August 26, 2012,

      when Davis left work for an unknown medical issue. The ICRC found,

      regarding this incident:




      1
       We held oral argument on this case on February 22, 2018, at Vincennes University. We thank the
      university for its hospitality and the students for their excellent participation.

      Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018                    Page 2 of 40
        [8.] . . . On this day, Davis arrived to work at Group Home 11
        confused and incoherent. She was unsure on how she arrived to
        work that day, Davis’ heart raced, and she could not walk. Davis
        went to the emergency room that day to receive a diagnosis on
        her health conditions. When Davis arrived to work the next day,
        Supervisor Shonk informed Davis she could not return to work
        without a written note from the doctor releasing her back to
        work.


(App. Vol. II at 5.) Davis then sought follow-up medical treatment:


        9. Davis made an appointment to see Dr. Nibel. Dr. Nibel saw
        Davis on August 30, 2012. Dr. Nibel diagnosed Davis as having
        a loss of consciousness or a “syncopal episode” but was unable to
        determine what caused this to occur. Dr. Nibel sent Davis back
        to work on August 31, 2012 to light duty. There were no details
        as to what “light duty” entailed. [Amy] O’Dell, HR Supervisor,
        called Davis to get further clarification.


        10. On September 7, 2012, Davis proposed [sic] O’Dell with an
        additional letter from Dr. Nibel clarifying her “light duty”
        restrictions. Dr. Nibel explained that Ms. Davis was suffering
        from a medical condition that was causing some dizziness and
        headaches. The dizziness could be caused by bending, stooping,
        rapid or repetitive rotational movements. Dr. Nibel also
        restricted Ms. Davis from lifting anything heavier than ten (10)
        pounds. Dr. Nibel recommended that Ms. Davis had [sic] a job
        that consisted of mostly sitting but did not require Davis to be in
        a sitting position for the entire eight (8) hour work day.


(Id. at 5-6.) On September 7, 2012, after conferring with KCARC Vice

President Jeff Darling, O’Dell decided to terminate Davis because “there were

no positions available to which [sic] met with [Davis’] work restrictions.” (Id.


Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 3 of 40
      at 47.) O’Dell encouraged Davis to reapply for the DSP position once Dr.

      Nibel lifted the restrictions on her ability to work.


[4]   On September 17, 2012, Davis filed a Complaint of Discrimination with the

      ICRC. She alleged:


              I believe I was discriminated against on the basis of a perceived
              disability. After suffering from my disability at work, I was sent
              home. When I returned to work the next day, I was told I
              needed a doctor’s note. I got a doctor’s note that put me on light
              duty until further notice, so the doctor could do more tests to
              figure out what was going on with me. I was told that since I
              couldn’t perform all the duties of my job while on light duty I
              “voluntarily terminating” [sic] my employment.


      (Id. at 17.) As part of a second pre-hearing order, the ICRC identified the issues

      before it, as defined by the parties in a conference call on April 15, 2014, as


              whether (1) [Davis] had a disability or was regarded as having a
              disability; (2) KCARC discriminated against [Davis] because of
              the disability or perceived disability by denying a reasonable
              accommodation when KCARC terminated [Davis’]
              employment; and (3) what remedies [Davis] may be entitled to.


      (Id. at 18-19.) On September 15-16, 2015, Administrative Law Judge (“ALJ”)

      Noell F. Allen held hearings in Vincennes. The parties and the ALJ also

      convened telephonically on September 30, 2015.


[5]   On April 13, 2016, the ALJ issued a Proposed Findings of Fact, Conclusions of

      Law, and Order (“Proposed Order”) that awarded Davis back pay damages of

      $25,837.37. On April 28, 2016, KCARC filed its objections to the proposed

      Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 4 of 40
      order. On August 26, 2016, the ICRC heard oral argument on KCARC’s

      objections. On December 19, 2016, the ICRC adopted the ALJ’s Proposed

      Order, but changed the amount of damages to include pre-judgment interest for

      a total damage award of $35,131.46.



                                   Discussion and Decision                                2




                                           I. Standard of Review
[6]   The standard by which we review decisions from administrative agencies is

      well-settled:


               In reviewing an administrative decision, we must determine
               “whether substantial evidence, together with any reasonable
               inferences that flow from such evidence, support the [agency’s]
               findings and conclusions.” Walker v. Muscatatuck State Dev. Ctr.,
               694 N.E.2d 258, 266 (Ind. 1998). In doing so, we do not reweigh
               the evidence or judge the credibility of witnesses, and we
               consider only the evidence most favorable to the ICRC’s
               findings. McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693
               N.E.2d 1314, 1317 (Ind. 1998), reh’g denied. However, if the
               question before us is primarily a legal question, “we do not grant



      2
        At the onset, we would like to note the lack of civility between the parties in this case, both in their briefs
      and during oral argument. Unnecessarily argumentative and snide comments such as, “Of course, the fact
      that Davis can’t seem to consistently state the nature of her alleged disability is because she doesn’t suffer
      from one[,]” (Br. of Appellant at 24), and “had the Commission actually bothered to read the case they cited
      in support of their conclusion that Davis is disabled, they would have discovered that it actually stands for
      the exact opposite of their assertion,” (id. at 27), as well as conduct during the oral argument, degrade the
      parties’ arguments by showcasing the incivility between the parties. We remind counsel of sections 1 and 9
      of the Preamble to the Indiana Rules of Professional Conduct, which state: “Whether or not engaging in the
      practice of law, lawyers should conduct themselves honorably[;]” and “[The principles of the Rules of
      Professional Responsibility] include the lawyer’s obligation to protect and pursue a client’s legitimate
      interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward
      all persons involved in the legal system.”

      Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018                             Page 5 of 40
        the same degree of deference to the [agency’s] decision, for law is
        the province of the judiciary and our constitutional system
        empowers the courts to draw legal conclusions.” Walker, 694
        N.E.2d at 266. Thus, we review conclusions of law to determine
        whether the ICRC correctly interpreted and applied the law. M
        & J Mgmt., Inc. v. Review Bd. of Dep’t of Workforce Dev., 711 N.E.2d
        58, 61 (Ind. Ct. App. 1999).


Zeller Elevator Co. v. Slygh, 796 N.E.2d 1198, 1206 (Ind. Ct. App. 2003), trans.

denied. In McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314,

1317 (Ind. 1998), reh’g denied, our Indiana Supreme Court explained:


        [An agency’s] conclusions as to ultimate facts involve an
        inference or deduction based on the findings of basic fact. These
        questions of ultimate fact are sometimes described as “questions
        of law.” They are, however, more appropriately characterized as
        mixed questions of law and fact. As such, they are typically
        reviewed to ensure that the Board’s inference is “reasonable” or
        “reasonable in light of [the Board’s] findings.” The term
        “reasonableness” is conveniently imprecise. Some questions of
        ultimate fact are within the special competence of the Board. If
        so, it is appropriate for a court to exercise greater deference to the
        “reasonableness” of the Board’s conclusion. . . . In evaluating
        this conclusion, if no proposition of law is contravened or
        ignored by the agency conclusions, the “reasonable” inference
        standard gives deference to the agency determination. However,
        not all ultimate facts are within the Board’s area of expertise. As
        to these, the reviewing court is more likely to exercise its own
        judgment. In either case the court examines the logic of the
        inference drawn and imposes any rules of law that may drive the
        result. That inference still requires reversal if the underlying facts
        are not supported by substantial evidence or the logic of the
        inference is faulty, even where the agency acts within its
        expertise, or if the agency proceeds under an incorrect view of the
        law.

Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018    Page 6 of 40
                  II. Applicability of Indiana Administrative Code
[7]   As an initial matter, we address the applicability of the portion of the Indiana

      Administrative Code (“IAC”) relevant to disability discrimination in

      employment, which is dedicated to “implement[ing] IC 22-9-5 that requires

      equal employment opportunities for qualified individuals with disabilities.” 910

      IAC 3-1-1 (2013). Indiana Code section 22-9-5-27, which grants the ICRC the

      authority to adopt rules regarding employment discrimination against disabled

      people, states: “These rules must not be in conflict with the provisions of the

      federal rules adopted under the employment discrimination provisions of the

      federal Americans with Disabilities Act (42 U.S.C. 12101 et seq).” Ind. Code §

      22-9-5-27.


[8]   In their briefs, both parties cite to the IAC and the Code of Federal Regulations

      (“CFR”), 3 the corresponding federal administrative rules, interchangeably.

      However, the most recent CFR sections conflict with their IAC counterparts to

      an extent that renders the provisions of the IAC invalid. 4




      3
        The CFR is an “administrative interpretation of the [ADA] by the enforcing agency . . . [that,] while not
      controlling upon courts by reason of their authority, do constitute a body of experience and informed
      judgment to which courts and litigants may properly resort for guidance.” Gile v. United Airlines, Inc., 95 F.3d
      492, 497 (7th Cir. 1996), reh’g and suggestion for reh’g en banc denied. We therefore cite to the ADA and
      relevant portions of the CFR interchangeably, despite the fact they were most recently amended in different
      years.
      4
        We find it unsettling that neither party recognized this difference between the current version of the CFR
      and the current version of the IAC, which do not comport. Further, Davis, who is represented by ICRC,
      cited the 2007 version of the CFR, which has been invalid for a decade. See Pub. L. No. 110-325, 122 Stat.
      3553 (2008) (amending relevant sections of the CFR). In addition to this inexplicable error, Davis’ brief is
      replete with citations that seem to be to the record, but do not indicate whether the material is from the

      Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018                            Page 7 of 40
                                                 A. Federal Regulations

[9]    Since its codification in 1990, the ADA has undergone several revisions, the

       most extensive being the ADA Amendments Act of 2008 (“ADAAA”). When

       Congress passed the ADAAA, it explicitly indicated it wished to abrogate two

       United States Supreme Court cases: Sutton v. United Air Lines, Inc., 527 U.S. 471

       (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184

       (2002). 5 Pub. L. No. 110-325(2) (2008). Congress acted because the Court had

       too narrowly interpreted the ADA, specifically regarding whether a condition

       substantially limits one or more of a person’s major life activities. Id. Thus, the

       ADAAA was intended to broaden the definitions used to determine whether a

       person is disabled. Id.


[10]   First, the ADAAA changed the list of “major life activities” that could be

       affected by a person’s condition. Id. In 2001, “major life activities” were

       “functions such as caring for oneself, performing manual tasks, walking, seeing,

       hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i)



       appendices or transcripts. This failure to properly cite the record has greatly hindered our review of this very
       complex record.
       5
           Sutton held, in relevant part:

                  “A person whose physical or mental impairment is corrected by medication or other measures does
                  not have an impairment that presently ‘substantially limits’ a major life activity. To be sure, a
                  person whose physical or mental impairment is corrected by mitigating measures still has an
                  impairment, but if the impairment is corrected it does not ‘substantially limi[t]’ a major life activity.”
       527 U.S. 482-3.
       Toyota held, in relevant part, “to be substantially limited in performing manual tasks, an individual must have
       an impairment that prevents or severely restricts the individual from doing activities that are of central
       importance to most people’s daily lives. The impairment’s impact must also be permanent or long term.”
       534 U.S. at 198.

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018                                Page 8 of 40
       (2001). In 2012, the definition of “major life activities” was amended to

       include, but not limit the applicable activities to: “[c]aring for oneself,

       performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,

       sitting, reaching, lifting, bending, speaking, breathing, learning, reading,

       concentrating, thinking, communicating, interacting with others, and working.”

       29 C.F.R. § 1630.2(i)(1)(i) (2012).


[11]   Second, the ADAAA amended the requirements for determining if a condition

       “substantially limits” a person’s performance of a major life activity. Pub. L.

       No. 110-325(2) (2008). In 2001, the CFR provided:


               The following factors should be considered in determining
               whether an individual is substantially limited in a major life
               activity:


               (i) The nature and severity of the impairment;


               (ii) The duration or expected duration of the impairment; and


               (iii) The permanent or long term impact, or the expected
               permanent or long term impact of or resulting from the
               impairment.


       29 C.F.R. § 1630.2(j)(2)(i)-(iii) (2001). But in 2012, that same section of the

       C.F.R. stated, in response to the ADAAA:


               (j) Substantially limits -


                        (1) Rules of construction. The following rules of
                        construction apply when determining whether an
       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018      Page 9 of 40
                 impairment substantially limits an individual in a major
                 life activity:


                          (i) The term “substantially limits” shall be construed
                          broadly in favor of expansive coverage, to the
                          maximum extent permitted by the terms of the
                          ADA. “Substantially limits” is not meant to be a
                          demanding standard.


                          (ii) An impairment is a disability within the
                          meaning of this section if it substantially limits the
                          ability of an individual to perform a major life
                          activity as compared to most people in the general
                          population. An impairment need not prevent, or
                          significantly or severely restrict, the individual from
                          performing a major life activity in order to be
                          considered substantially limiting. Nonetheless, not
                          every impairment will constitute a disability within
                          the meaning of this section.


                          (iii) The primary object of attention in cases brought
                          under the ADA should be whether covered entities
                          have complied with their obligations and whether
                          discrimination has occurred, not whether an
                          individual’s impairment substantially limits a major
                          life activity. Accordingly, the threshold issue of
                          whether an impairment “substantially limits” a
                          major life activity should not demand extensive
                          analysis.


                          (iv) The determination of whether an impairment
                          substantially limits a major life activity requires an
                          individualized assessment. However, in making
                          this assessment, the term “substantially limits” shall
                          be interpreted and applied to require a degree of

Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018       Page 10 of 40
                          functional limitation that is lower than the standard
                          for “substantially limits” applied prior to the
                          ADAAA.


                          (v) The comparison of an individual’s performance
                          of a major life activity to the performance of the
                          same major life activity by most people in the
                          general population usually will not require
                          scientific, medical, or statistical analysis. Nothing
                          in this paragraph is intended, however, to prohibit
                          the presentation of scientific, medical, or statistical
                          evidence to make such a comparison where
                          appropriate.


                          (vi) The determination of whether an impairment
                          substantially limits a major life activity shall be
                          made without regard to the ameliorative effects of
                          mitigating measures. However, the ameliorative
                          effects of ordinary eyeglasses or contact lenses shall
                          be considered in determining whether an
                          impairment substantially limits a major life activity.


                          (vii) An impairment that is episodic or in remission
                          is a disability if it would substantially limit a major
                          life activity when active.


                          (viii) An impairment that substantially limits one
                          major life activity need not substantially limit other
                          major life activities in order to be considered a
                          substantially limiting impairment.


                          (ix) The six-month “transitory” part of the
                          “transitory and minor” exception to “regarded as”
                          coverage in § 1630.15(f) does not apply to the
                          definition of “disability” under paragraphs (g)(1)(i)

Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018        Page 11 of 40
                                 (the “actual disability” prong) or (g)(1)(ii) (the
                                 “record of” prong) of this section. The effects of an
                                 impairment lasting or expected to last fewer than six
                                 months can be substantially limiting within the
                                 meaning of this section.


       29 C.F.R. § 1630.2(j)(1)(i)-(ix) (2012).


                                               B. State Regulations

[12]   Two years after the ADA was enacted, Indiana enacted statutes addressing

       employment discrimination against disabled people. P.L. 111-1992, Sec. 4

       (1992). The legislature granted authority to the ICRC to adopt rules regarding

       employment discrimination against disabled people but required: “These rules

       must not be in conflict with the provisions of the federal rules adopted under the

       employment discrimination provisions of the federal Americans with

       Disabilities Act (42 U.S.C. 12101 et seq).” Ind. Code § 22-9-5-27. The ICRC

       enacted the relevant portions of the IAC in 1998. Since 1998, the ICRC has

       “readopted” these provisions in 2005, 2007, and 2013.


[13]   The latest version of the IAC defines a ‘major life activity’ as “a function, such

       as the following: (1) Caring for oneself. (2) Performing a manual task. (3)

       Walking. (4) Seeing. (5) Hearing. (6) Speaking. (7) Breathing. (8) Learning. (9)

       Working.” 910 IAC § 3-2-9 (2013). This language tracks the 2001 version of 29

       C.F.R. § 1630.2(i). See supra ¶ 9. The latest IAC provision regarding

       ‘substantial limitation’ provides:




       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018     Page 12 of 40
               The following factors should be considered in determining
               whether an individual is substantially limited in a major life
               activity:


                        (1) The nature and severity of the impairment.


                        (2) The duration or expected duration of the impairment.


                        (3) The permanent or long term impact, or the expected
                        permanent or long term impact, of or resulting from the
                        impairment.


       910 IAC § 3-2-15(b) (2013). This language tracks the 2001 version of 29 C.F.R.

       § 1630.2(j)(2)(i)-(iii). See supra ¶ 10.


[14]   As can be seen from comparison of the federal and state regulations quoted

       herein, the definitions for determining disability under the IAC have not been

       modified to account for the changes produced by enactment of the ADAAA.

       The state regulations are outdated and narrower than the federal regulations.

       Because Indiana Code section 22-9-5-27 requires the portions of the IAC

       dealing with employment discrimination against disabled people not conflict

       with the ADA, the current version of the IAC is invalid and we cannot rely on

       it. See, e.g., Maraman v. City of Carmel, 47 N.E.3d 1218, 1224 (Ind. 2015)

       (invalidating local ordinance enacted in violation of authority granted to

       municipality by statute), trans. denied. Thus, our review is limited to the

       provisions of federal law.




       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018    Page 13 of 40
                  III. Prima Facie Case of Disability Discrimination
[15]   The ADA states: “No covered entity shall discriminate against a qualified

       individual on the basis of disability in regard to . . . discharge of employees[.]”

       42 U.S.C.A. § 12112 (2009). KCARC argues the ICRC’s conclusion that

       KCARC engaged in an unlawful discriminatory practice was not supported by

       substantial evidence and was contrary to applicable law because Davis did not

       establish a prima facie case of disability discrimination. To establish a prima facie

       case of disability discrimination in employment, a plaintiff must prove (1) she is

       disabled within the meaning of the ADA; (2) her work performance met the

       employer’s legitimate expectations; (3) she was discharged; and (4) “the

       circumstances surrounding the discharge indicate it is more likely than not that

       [her] disability was the reason for the discharge.” Powdertech, Inc. v. Joganic, 776

       N.E.2d 1251, 1256 (Ind. Ct. App. 2002).


                               A. Disabled Within the Meaning of the ADA

[16]   Pursuant to the ADA, a person has a disability if that person has “a physical or

       mental impairment that substantially limits one or more major life activities of

       such individual[.]” 42 U.S.C.A. § 12102(1) (2009). 6 Under the ADA, the




       6
         The full definition of “disability,” as codified in the ADA, is: “The term “disability” means, with respect to
       an individual -- (A) a physical or mental impairment that substantially limits one or more major life activities
       of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.”
       42 U.S.C.A. § 12102(1) (2009) (reference to other parts of the statute omitted). However, because the statute
       is written in the disjunctive and we conclude Davis is disabled as defined by the first prong, we need not
       consider the other two prongs of the definition. See In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999)
       (statute written in disjunctive requires proof of only one of the prongs), reh’g denied, trans. denied, cert. denied
       534 U.S. 1161 (2002).

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018                              Page 14 of 40
       definition of “major life activities” was amended to include, but not limit the

       applicable activities to: “[c]aring for oneself, performing manual tasks, seeing,

       hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending,

       speaking, breathing, learning, reading, concentrating, thinking, communicating,

       interacting with others, and working.” 29 C.F.R. § 1630.2(i)(1)(i) (2012).


[17]   The ADA further provides:


               The definition of “disability” in paragraph (1) shall be construed
               in accordance with the following:


                        (A) The definition of disability in this chapter shall be
                        construed in favor of broad coverage of individuals under
                        this chapter, to the maximum extent permitted by the
                        terms of this chapter.


                        (B) The term “substantially limits” shall be interpreted
                        consistently with the findings and purposes of the ADA
                        Amendments Act of 2008.


                        (C) An impairment that substantially limits one major life
                        activity need not limit other major life activities in order to
                        be considered a disability.


                        (D) An impairment that is episodic or in remission is a
                        disability if it would substantially limit a major life activity
                        when active.


       42 U.S.C.A. § 12102(4) (2009).


[18]   Regarding Davis’ disability, the ICRC found:


       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018       Page 15 of 40
               11. Davis had a syncopal episode, or lost consciousness, on
               August 26, 2012. This episode required Davis to be seen at the
               hospital. While Davis returned to work the next day, Davis
               sought follow-up treatment by a physician. This single incident
               led to Davis being on work restrictions imposed by Dr. Nibel.
               While the duration or expected duration of the impairment was
               unknown, the nature and severity of the impairment was
               minimum. Davis was allowed to return to work with lifting and
               movement restrictions.


       (App. Vol. II at 10.) Based thereon, the ICRC concluded, “Davis proved she

       meets the definition of ‘disabled’ under the law and therefore [is] a member of a

       protected class.” (Id. at 9.) KCARC challenges that finding and conclusion,

       arguing there “is nothing in the record that would support a finding that Davis’s

       single loss of consciousness incident has substantially limited her major life

       activities and Davis never asserted that it did.” (Br. of Appellant at 24.) We

       disagree as the record reflects Davis’ condition substantially limited one or

       more of her major life activities.


[19]   In response to KCARC’s request for clarification of the light duty restrictions,

       Dr. Nibel wrote a letter explaining:


               [Davis] is currently suffering from a medical condition that is
               causing some dizziness and headaches. The dizziness appears to
               be positional in nature. Therefore, part of her restrictions would
               include minimizing any kind of bending, stooping, rapid or
               repetitive rotational movements (such as turning from side to
               side), etc. Similarly she should not lift anything greater than 10
               pounds or so, predominantly because such lifting could require
               positional changes that could exacerbate her dizziness and/or
               headache. [Davis] is taking medications to help her with her

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 16 of 40
               condition that have as a side effect fatigue. As a result, she
               should not do anything that requires a lot of energy expenditure,
               such as walking long distances, using stair cases, etc. Also,
               [Davis] suffered from a syncopal episode (essentially a loss of
               consciousness), so it would definitely be to her benefit to have a
               job that consists mostly of sitting.


       (Id. at 43.) Therefore, based on the fact Dr. Nibel’s restrictions included

       walking, standing, lifting, and bending, we conclude the ICRC did not err when

       it determined at least one of Davis’ major life activities was affected by her

       condition. See 29 C.F.R. § 1630.2(i)(1)(i) (2012) (non-exhaustive list of “major

       life activities” as defined by the ADA, including walking, standing, lifting, and

       bending).


[20]   As we conclude Davis’ condition affected one or more major life activities, we

       now examine whether those major life activities are “substantially limit[ed]” by

       her condition. See 42 U.S.C.A. § 12102(1) (a person has a disability if that

       person has “a physical or mental impairment that substantially limits one or

       more major life activities of such individual”).


[21]   KCARC likens the facts here to those in Couts v. Beaulieu Group, LLC, 288 F.

       Supp. 2d 1292 (N.D. Georgia 2003), in which the District Court held “simply

       having an impairment or condition . . . is not sufficient to satisfy the ADA’s

       requirements [to consider a person disabled under the ADA].” Id. at 1303

       (citing Toyota, 534 U.S. at 195). “Instead, the impairment must substantially

       limit one or more of Plaintiff’s major life activities.” Id. (citing Toyota, 534 U.S.

       at 195). In Couts, the court held Couts was not disabled under the ADA

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 17 of 40
       because he had not presented evidence he was substantially limited from

       performing any major life activities.


[22]   However, Couts relied on Toyota, which was explicitly abrogated by the

       ADAAA, which states in relevant part:


               SEC. 2. FINDINGS AND PURPOSES.


               (a) FINDINGS. - Congress finds that -


                        (1) in enacting the Americans with Disabilities Act of 1990
                        (ADA), Congress intended that the Act “provide a clear
                        and comprehensive national mandate for the elimination
                        of discrimination against individuals with disabilities” and
                        provide broad coverage;


                        (2) in enacting the ADA, Congress recognized that
                        physical and mental disabilities in no way diminish a
                        person’s right to fully participate in all aspects of society,
                        but that people with physical or mental disabilities are
                        frequently precluded from doing so because of prejudice,
                        antiquated attitudes, or the failure to remove societal and
                        institutional barriers;


                        (3) while Congress expected that the definition of disability
                        under the ADA would be interpreted consistently with
                        how courts had applied the definition of a handicapped
                        individual under the Rehabilitation Act of 1973, that
                        expectation has not been fulfilled;


                        (4) the holdings of the Supreme Court in Sutton v. United
                        Air Lines, Inc., 527 U.S. 471 (1999) and its companion
                        cases have narrowed the broad scope of protection

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018      Page 18 of 40
                 intended to be afforded by the ADA, thus eliminating
                 protection for many individuals whom Congress intended
                 to protect;


                 (5) the holding of the Supreme Court in Toyota Motor
                 Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184
                 (2002) further narrowed the broad scope of protection
                 intended to be afforded by the ADA;


                 (6) as a result of these Supreme Court cases, lower courts
                 have incorrectly found in individual cases that people with
                 a range of substantially limiting impairments are not
                 people with disabilities;


                 (7) in particular, the Supreme Court, in the case of Toyota
                 Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.
                 184 (2002), interpreted the term “substantially limits” to
                 require a greater degree of limitation than was intended by
                 Congress; and


                 (8) Congress finds that the current Equal Employment
                 Opportunity Commission ADA regulations defining the
                 term “substantially limits” as “significantly restricted” are
                 inconsistent with congressional intent, by expressing too
                 high a standard.


        (b) PURPOSES.—The purposes of this Act are—


                 (1) to carry out the ADA’s objectives of providing “a clear
                 and comprehensive national mandate for the elimination
                 of discrimination” and “clear, strong, consistent,
                 enforceable standards addressing discrimination” by
                 reinstating a broad scope of protection to be available
                 under the ADA;

Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018     Page 19 of 40
                 (2) to reject the requirement enunciated by the Supreme
                 Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)
                 and its companion cases that whether an impairment
                 substantially limits a major life activity is to be determined
                 with reference to the ameliorative effects of mitigating
                 measures;


                 (3) to reject the Supreme Court’s reasoning in Sutton v.
                 United Air Lines, Inc., 527 U.S. 471 (1999) with regard to
                 coverage under the third prong of the definition of
                 disability and to reinstate the reasoning of the Supreme
                 Court in School Board of Nassau County v. Arline, 480 U.S.
                 273 (1987) which set forth a broad view of the third prong
                 of the definition of handicap under the Rehabilitation Act
                 of 1973;


                 (4) to reject the standards enunciated by the Supreme
                 Court in Toyota Motor Manufacturing, Kentucky, Inc. v.
                 Williams, 534 U.S. 184 (2002), that the terms
                 “substantially” and “major” in the definition of disability
                 under the ADA “need to be interpreted strictly to create a
                 demanding standard for qualifying as disabled,” and that
                 to be substantially limited in performing a major life
                 activity under the ADA “an individual must have an
                 impairment that prevents or severely restricts the
                 individual from doing activities that are of central
                 importance to most people’s daily lives”;


                 (5) to convey congressional intent that the standard created
                 by the Supreme Court in the case of Toyota Motor
                 Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184
                 (2002) for “substantially limits”, and applied by lower
                 courts in numerous decisions, has created an
                 inappropriately high level of limitation necessary to obtain
                 coverage under the ADA, to convey that it is the intent of

Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018     Page 20 of 40
                        Congress that the primary object of attention in cases
                        brought under the ADA should be whether entities
                        covered under the ADA have complied with their
                        obligations, and to convey that the question of whether an
                        individual’s impairment is a disability under the ADA
                        should not demand extensive analysis; and


                        (6) to express Congress’ expectation that the Equal
                        Employment Opportunity Commission will revise that
                        portion of its current regulations that defines the term
                        “substantially limits” as “significantly restricted” to be
                        consistent with this Act, including the amendments made
                        by this Act.


       Pub. L. No. 110-325, 122 Stat. 3553 (2008). As indicated in the notes to the

       ADAAA, Toyota was overruled because its holding was too restrictive regarding

       the meaning of “substantially limits” within the ADA requirements. Id.


[23]   Additionally, the Toyota Court relied on the 2001 version of 29 C.F.R. §

       1630.2(j)(2)(ii)-(iii) (2001) to support its interpretation “substantially limits.”

       Since then, in accordance with the ADAAA, that section has been amended to

       broaden the scope of protection under the ADA. See supra ¶ 10. Because Couts

       relied on Toyota, which was abrogated by the ADAAA and decided under a

       different set of definitions, we decline to rely on Couts as we decide whether

       Davis’ disability was substantially limiting.


[24]   Turning to the facts in this case, KCARC argues Davis is not substantially

       limited in her major life activities because:




       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018    Page 21 of 40
               The undisputed facts are that Davis never experienced a
               “syncopal” incident before or after August 26, 2012, and never
               suffered any long term effects from it. Rather, the evidence
               shows that she experienced “some dizziness and headaches” that
               resolved within three weeks of the incident prompting her
               treating physician to determine that she could return to work
               without restrictions.


       (Br. of Appellant at 24.) KCARC is incorrect, as it seems to rely on an

       outdated version of the ADA and corresponding CFR provisions.


[25]   We have already concluded Davis’ condition affected a major life activity, that

       is walking, standing, lifting, and bending. There is no time threshold to

       overcome for a restriction to substantially limit a major life activity. 29 C.F.R.

       § 1630.2(j)(1)(ix). As the ADAAA requires the term substantially limit to be

       “construed broadly in favor of expansive coverage,” 29 C.F.R. § 1630.2(j)(1)(i),

       we conclude the ICRC did not err when it determined Davis had a disability

       under the ADA. See Atwell v. Indianapolis-Marion Cty. Forensic Servs. Agency, 168

       F.Supp.3d 1125, 1136 (S.D. Ind. 2016) (reasonable jury could conclude

       employee with post-concussive syndrome was disabled under the ADA because

       employee provided evidence, including letter from her doctor, that her

       condition limited her performance of major life activities such as “short-term

       memory, speaking, concentrating, and thinking”). See also Heatherly v. Portillo’s

       Hot Dogs, Inc., 958 F.Supp.2d 913, 920 (N.D. Ill. 2013) (declining to accept

       Portillo’s argument that the short duration of Heatherly’s work restrictions

       prevents her from being disabled under the ADAAA).



       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 22 of 40
                                            B. “Qualified Individual”


[26]   The ADA defines “qualified individual” as “an individual 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.A. §

       12111(8) (2009). “[C]onsideration shall be given to the employer’s judgment as

       to what functions of a job are essential, and if an employer has prepared a

       written description before advertising or interviewing applicants for the job, this

       description shall be considered evidence of the essential functions of the job.”

       Id. The CFR gives additional, more specific criteria:


               Essential functions -


               (1) In general. The term essential functions means the
               fundamental job duties of the employment position the
               individual with a disability holds or desires. The term “essential
               functions” does not include the marginal functions of the
               position.


               (2) A job function may be considered essential for any of several
               reasons, including but not limited to the following:


                        (i) The function may be essential because the reason the
                        position exists is to perform that function;


                        (ii) The function may be essential because of the limited
                        number of employees available among whom the
                        performance of that job function can be distributed;
                        and/or



       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018     Page 23 of 40
                        (iii) The function may be highly specialized so that the
                        incumbent in the position is hired for his or her expertise
                        or ability to perform the particular function.


               (3) Evidence of whether a particular function is essential
               includes, but is not limited to:


                        (i) The employer’s judgment as to which functions are
                        essential;


                        (ii) Written job descriptions prepared before advertising or
                        interviewing applicants for the job;


                        (iii) The amount of time spent on the job performing the
                        function;


                        (iv) The consequences of not requiring the incumbent to
                        perform the function;


                        (v) The terms of a collective bargaining agreement;


                        (vi) The work experience of past incumbents in the job;
                        and/or


                        (vii) The current work experience of incumbents in similar
                        jobs.


       29 C.F.R. § 1630.2(n) (2012).


[27]   The ICRC found: “KCARC had no issues with Ms. Davis’ work performance

       until August 26, 2012, [when Davis experienced a syncopal episode].” (App.



       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018       Page 24 of 40
Vol. II at 5.) Regarding whether Davis could perform the essential functions of

her job without reasonable accommodation, the ICRC found and concluded:


        The ALJ concludes Davis could have performed the essential
        functions of the job of cooking, cleaning, grocery shopping, and
        providing day-to-day assistance to residents even in her
        condition. KCARC points out that Davis would not be able to
        run after individuals who are “flight risks” or protect herself from
        residents who may be physically aggressive. While the ALJ
        agrees with this point, the same would be true for an individual
        without a disability if the DSP are slower or weaker than the
        residents. Further, chasing after residents or defending oneself
        from aggressive residents were not “essential functions” of the
        job. Davis presented no evidence to answer the question on how
        she would perform the duties as a DSP with the restrictions. If
        Davis was to remain in the house, her ability to assist another
        DSP with a resident would be limited. Further, Davis’ inability
        to move quickly in times of emergencies would be restricted as
        well.


(Id. at 11-12.) In addition, it is likely Dr. Nibel’s restrictions on Davis’ ability to

work prevented her from performing some of the duties listed on the job

description without reasonable accommodations. For example, some of the

duties listed on the job description for a DSP are “house cleaning duties,” (id. at

35); “[a]ssist with lifting, turning, moving, positioning, and transporting

consumers into and out of beds, chairs, bathtubs, wheelchairs, lifts, etc. (as

needed),” (id.); “[a]ssist consumers with operation, usage, and maintenance of

adaptive devices,” (id.); and “lift 75 pounds independently and over 75 pounds

with assistance.” (Id.) These duties would have been affected by Davis’

restrictions from Dr. Nibel, which included: “minimizing any kind of bending,

Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018    Page 25 of 40
       stooping, rapid or repetitive rotational movements . . . not lift[ing] anything

       greater than 10 pounds or so . . . and not do[ing] anything that requires a lot of

       energy expenditure, such as walking long distances, using staircases[.]” (Id. at

       43.)


[28]   Neither party presented evidence regarding whether Davis could perform the

       essential functions of her job with reasonable accommodations, because

       KCARC did not investigate possible accommodations. The ICRC found,

       “KCARC did not attempt to see what alternatives were available in Group

       Home 11. KCARC could assign a third DSP to the house to assist in areas

       Davis could not perform as it did with [two other KCARC employees] who

       could not administer medication.” (Id. at 12.)


[29]   The United States Supreme Court explained the interaction between the

       requirement a person be a “qualified individual” with a disability and the

       employer’s duty to seek a reasonable accommodation:


               First, the ADA says that an employer may not “discriminate
               against a qualified individual with a disability.” 42 U.S.C. §
               12112(a). Second, the ADA says that a “qualified” individual
               includes “an individual with a disability who, with or without
               reasonable accommodation, can perform the essential functions of”
               the relevant “employment position.” § 12111(8) (emphasis
               added). Third, the ADA says that “discrimination” includes an
               employer’s “not making reasonable accommodations to the known
               physical or mental limitations of an otherwise qualified . . .
               employee, unless [the employer] can demonstrate that the
               accommodation would impose an undue hardship on the
               operation of [its] business.” § 12112(b)(5)(A) (emphasis added).


       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 26 of 40
       U.S. Airways v. Barnett, 535 U.S. 391, 386 (2002) (emphasis in original). Thus,

       we must turn to whether KCARC discriminated against Davis when it did not

       offer her a reasonable accommodation in an effort to determine if she could

       perform the essential functions of her job with a reasonable accommodation

       following her syncopal episode and Dr. Nibel’s restrictions.


[30]   The Seventh Circuit Court of Appeals explained in Brown v. Milwaukee Board of

       School Directors, 855 F.3d 818, 821 (7th Cir. 2017):


               Identifying reasonable accommodations for a disabled employee
               requires both employer and employee to engage in a flexible,
               interactive process. Both parties are responsible for that process.
               If a reasonable accommodation was available but the employer
               prevented its identification by failing to engage in the interactive
               process, that failure is actionable. On the other hand, if the
               employee “does not provide sufficient information to the
               employer to determine the necessary accommodations, the
               employer cannot be held liable for failing to accommodate the
               disabled employee.”


       (internal citations omitted). Further:


               The legislative history makes clear that employers are required to
               engage in an interactive process with employees in order to
               identify and implement appropriate reasonable accommodations.
               The Senate Report explained that: “A problem-solving approach
               should be used to identify the particular tasks or aspects of the
               work environment that limit performance and to identify possible
               accommodations . . . employers first will consult with and
               involve the individual with a disability in deciding on the
               appropriate accommodation.” S.Rep. No. 101-116, at 34 (1989);
               see also H.R. Rep. No. 101-485, pt. 2, at 65 (1990), U.S. Code
               Cong. & Admin. News at 303, 348.
       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 27 of 40
       Barnett v. U.S. Air, Inc. 228 F.3d 1105, 1111 (9th Cir. 2000), overturned on other

       grounds by U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002).


[31]   The CFR directs:


                To determine the appropriate reasonable accommodation it may
                be necessary for the covered entity to initiate an informal,
                interactive process with the qualified individual with a disability
                in need of the accommodation. This process should identify the
                precise limitations resulting from the disability and potential
                reasonable accommodations that could overcome those
                limitations.


       29 C.F.R. § 1630.2(o)(3). “Failing to discuss a reasonable accommodation in a

       meeting in which the employer takes an adverse employment action against an

       injured employee may demonstrate a lack of good faith.” Rorrer v. City of Stow,

       743 F.3d 1025, 1040 (6th Cir. 2014). Based on the legislative history and case

       law, we conclude this interactive process is mandatory. See Klieber v. Honda of

       America Mfg., Inc., 485 F.3d 862, 871 (6th Cir. 2007) (“Even though the

       interactive process is not described in the [ADA] statute’s text, the interactive

       process is mandatory, and both parties have a duty to participate in good

       faith.”). “Failure to engage in this ‘interactive process’ cannot give rise to a

       claim for relief, however, if the employer can show that no reasonable

       accommodation was possible.” Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir.

       2000).


[32]   Here, KCARC’s policy indicated,



       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 28 of 40
        If for any reason you are (or become) unable to perform all or
        part of the essential functions of the job (for example lifting), it is
        your obligation to inform the Human Resources Department
        immediately.


        Failure to do so could result in disciplinary action up to and/or
        including termination.


        Human Resources will engage in the Good Faith Interactive
        process in the hope that an effective accommodation can be
        identified. The process cannot guarantee that an effective
        accommodation will be identified. However, by participation in
        this process we can be assured that all alternatives have been
        fairly considered.


(App. Vol. II at 37.) Human Resources Supervisor Amy O’Dell testified when

“staff were to come to me and say they cannot complete functions of their job,

[she] would pull [out a reasonable accommodations worksheet] and go talk to

[her] supervisor.” (Tr. Vol. II at 22.) However, when Davis approached

KCARC with the information regarding her work restrictions as ordered by Dr.

Nibel, O’Dell conferred with KCARC Vice President Jeff Darling instead of

beginning an investigation into possible reasonable accommodations. O’Dell

told Darling that Davis did not have any paid time off and was not eligible for

FMLA leave because she had not worked for KCARC for very long. O’Dell

and Darling “looked at the doctor’s notes, and [they] determined there’s no

accommodation.” (Id. at 16.) O’Dell testified she also did not know how long

Davis’ restrictions would last. O’Dell and Darling decided to terminate Davis,

based on the fact she did not have any available leave and Dr. Nibel’s


Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018     Page 29 of 40
       restrictions made her unable to perform the essential functions of her job

       without reasonable accommodations. When terminating Davis, O’Dell

       encouraged Davis to reapply for a position with KCARC when Dr. Nibel lifted

       her work restrictions.


[33]   When asked why she did not complete a reasonable accommodation

       worksheet, O’Dell testified “it was obvious from the doctor’s note that there

       was no accommodation,” (id.), and her analysis would not have changed had

       she filled out the worksheet. She claimed completion of the worksheet “was

       not necessary.” (Id.) O’Dell also testified she did not complete the worksheet

       because Davis did not ask for an accommodation. However, the submission of

       Dr. Nibel’s note was sufficient to put O’Dell and KCARC on notice that Davis

       was requesting a reasonable accommodation. See Ekstrand v. School District of

       Somerset, 583 F.3d 972, 976 (7th Cir. 2009) (“cases have consistently held that

       disabled employees must make their employers aware of any nonobvious,

       medically necessary accommodations with corroborating evidence such as a

       doctor’s note . . . before an employer may be required under the ADA’s

       reasonableness standard” to provide an accommodation.”) See also Gile v.

       United Airlines, Inc., 213 F.3d 365, 373 (7th Cir. 2000) (holding employer did not

       engage in interactive process when it refused shift transfer based on a doctor’s

       note recommending a shift transfer to ameliorate Gile’s depression and other

       psychological disorders and enable Gile to perform the essential functions of

       her job), reh’g and suggestion for reh’g en banc denied.




       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 30 of 40
[34]   Although KCARC did not engage in the interactive process of determining

       whether a reasonable accommodation was available, it still can defeat Davis’

       claim if it demonstrated no reasonable accommodation was possible. The

       ICRC found: “KCARC could assign a third DSP to the house to assist in areas

       Davis could not perform as it did with [other allegedly similarly situated

       employees].” (App. Vol. II at 12.) Based on this unchallenged finding,

       KCARC could have implemented a reasonable accommodation. See Madlem v.

       Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge

       the findings of the trial court, they must be accepted as correct.”). Thus,

       KCARC failed to meet its burden to demonstrate no reasonable

       accommodation was available.


[35]   In summary, Davis was a qualified individual with a disability. Prior to her

       syncopal episode, she was able to perform the essential functions of her job

       without reasonable accommodation. After her syncopal episode, she was

       restricted from performing some of the essential functions of her job, triggering

       KCARC’s duty to engage in an interactive process with Davis to determine if

       she could perform the duties of her job with reasonable accommodation.

       KCARC did not engage in this process, and instead terminated Davis.

       Contrary to O’Dell’s allegation, such accommodation was possible, as shown

       by the ICRC’s uncontested finding. Thus, we conclude KCARC discriminated

       against Davis based on her disability when it fired her instead of attempting to

       determine if there was a reasonable accommodation available. See, e.g.,

       E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 807 (7th Cir. 2005) (genuine


       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 31 of 40
       issue of material fact existed regarding the interactive process between employer

       and employee to determine a reasonable accommodation was feasible when

       evidence a reasonable accommodation was available was presented). 7


                                                    II. Damages
                                                        A. Backpay

[36]   The Seventh Circuit Court of Appeals recently explained, a plaintiff “who wins

       a favorable verdict on an ADA claim is presumptively entitled to backpay.”

       Stragapede v. City of Evanston, Illinois, 865 F.3d 861, 868 (7th Cir. 2017). 8 The

       plaintiff must submit evidence to support her calculation of backpay and the

       burden then “shifts to the defendant to show that the [employee] failed to

       mitigate damages or that damages were in fact less than [she] asserts.” Id. To

       prove a failure to mitigate in this context, the employer must show that “(1) the

       [employee] failed to exercise reasonable diligence to mitigate his damages, and

       [that] (2) there was a reasonable likelihood that the [employee] might have

       found comparable work by exercising reasonable diligence.” Id. (quoting




       7
         The parties’ arguments focus on the first two prongs of the Powdertech test to establish a prima facie case of
       disability discrimination in employment: whether Davis is disabled within the meaning of the ADA and
       whether she is qualified to complete the essential functions of her position. See Powdertech, 776 N.E.2d at
       1256 (listing first two prongs of prima facie test). Regarding the other two prongs, it is undisputed KCARC
       terminated Davis’ employment after learning of certain restrictions Dr. Nibel placed on her ability to work
       and concluding, without investigation, that KCARC could not accommodate Davis’ restrictions stemming
       from her disability. (See App. Vol. II at 6 (ICRC’s findings regarding the actions surrounding Davis’
       termination).)
       8
         Similarly, Indiana Code section 22-9-1-6(j) authorizes the ICRC to order damages “to restore complainant’s
       losses incurred as a result of discriminatory treatment, as the commission may deem necessary to assure
       justice; however, except in discriminatory practices involving veterans, this specific provision when applied to
       orders pertaining to employment shall include only wages, salary, or commissions[.]”

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018                             Page 32 of 40
       Fleming v. County of Kane, 898 F.2d 553, 560 (7th Cir. 1990) (emphases

       omitted)).


[37]   The ICRC awarded Davis $25,837.37 in lost wages. KCARC argues this

       amount is incorrect because Davis did not mitigate her damages. Specifically,

       KCARC asserts:


               Although Davis was unable to secure employment at the rate of
               pay she received at KCARC for almost two years, it was due to
               her own actions. Furthermore, Davis secured three other
               positions of comparable employment following her termination
               from KCARC that should have cut off her back pay award.
               Davis’s inability to maintain comparable employment was the
               result of her own failures and the back pay award should not
               subsidize her time between jobs as her subsequent unemployment
               was not the result of KCARC’s actions.


       (Br. of Appellant at 45.) KCARC contends if Davis is entitled to any damages

       for backpay, the amount should reflect her pay between the day she was

       terminated, September 7, 2012, and the day she was released to go back to

       work, September 18, 2012. KCARC argues it invited Davis to reapply to her

       position when her work restrictions were lifted, and thus when she chose not to

       reapply, she ceased mitigating her damages. KCARC claims this would result

       in a damage award of “approximately 2 weeks of missed wages, or $704.15.”

       (Id.)


[38]   Regarding the calculation of Davis’ backpay, the ICRC found:




       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 33 of 40
        16. At the time of termination, Davis earned $9.50 per hour and
        worked approximately forty (40) hours per week. Davis’ average
        gross pay was $704.51 bi-weekly ($352.26 weekly).


        17. Following Davis’ termination, Davis worked at the following
        companies and earned wages accordingly:


                 a. Bridges of Indiana (October 18, 2012 through April 2,
                 2013)                           $4,013.26


                 b. Eastgate (May 17, 2013 through August 15, 2013)
                                                $3,028.86


                 c. Hillside Manor (September 19, 2013 through November
                 21, 2013)                      $1,994.25


        Davis earned a total of $9,036.37.


        18. Davis began employment at Lewis Bakery on July 31, 2014
        and is currently employed. She earns a salary greater than what
        she earned at KCARC.


        19. KCARC terminated Davis on September 7, 2012. Davis
        obtained employment that provided a greater salary starting on
        July 31, 2014. There is [sic] a total of 99 weeks between the date
        of termination and the date of substantial employment. Davis
        would have earned $34,873.74 had she remained employed at
        KCARC. Factoring in Davis’ interim earnings, Davis’ potential
        loss of earnings are [sic] $25,837.37.


(App. Vol. II at 8.) We agree with KCARC that this calculation of lost wages is

excessive.


Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018    Page 34 of 40
[39]   As is required, Davis presented evidence of her efforts to mitigate damages

       related to backpay from KCARC. However, in its rebuttal of Davis’

       contentions, KCARC highlighted the reasons it took Davis almost two years to

       obtain employment comparable to her position at KCARC. Davis testified at

       the ALJ hearing that she worked at “Bridges of Indiana[,]” (Tr. Vol. I at 86),

       which is “almost the same as KCARC[.]” (Id.) She testified she was

       terminated based on what she referred to as a false accusation that she “took a

       resident to a bar.” (Id. at 87.) However, the disciplinary report from Bridges

       stated, regarding the incident with the C.H., a resident in Davis’ care:


               BOI was notified on 04/02/2013 at 6:00pm of the following
               incident. Melissa [sic] Davis, Bridges of Indiana staff was
               reported present during the Incident. On 4/2/2013 Assistant
               Director, Stacy Lee, received a phone call from [W.B.]. [W.B.]
               reported that her daughter, [C.H.], told her that on that [sic] way
               to Friend’s Group on Monday (4/1/2013), that staff went by a
               bar and left [C.H.] outside in the car. [C.H.] reported that staff
               went inside to check on her husband. [C.H.] then reported that
               staff came out with her husband and they were hugging and
               kissing and the husband offered Cindy a beer. At that time
               [C.H.] and staff left and went to [F]riend’s [G]roup. During the
               investigation and interviews, [C.H.] identified the same event as
               she described to her Mother, [W.B.]. [C.H.] is very upset about
               the situation. Staff, Melissa [sic] Davis, denied the account of the
               incident and wrote a statement including the activities that she
               claims occurred on the date of the alleged event. It has been
               determined that although we can not [sic] substantiate due to
               lack of supporting evidence, Bridges of Indiana will be dismissing
               Melissa [sic] Davis as an employee. This decision was made as
               an effort to protect the consumer from any and all instances of
               alleged abuse, neglect and exploitation.


       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 35 of 40
       (App. Vol. II at 75.)


[40]   Davis then worked at Hillside Manor and Eastgate Manor caring for elderly

       residents. Davis testified she had to lift patients at both Hillside and Eastgate,

       and she left both places of employment because her doctor “was trying to figure

       out what heart medication to put her on . . . [because the medicine] had

       lowered [her] blood pressure . . . too low, to where [her] lifting was – could

       have ended badly as far as, you know, dropping a patient.” (Tr. Vol. I at 92.)

       However, a Disciplinary Action Report from Eastgate indicated Davis failed

       “to immediately report to supervisor an incident of abuse neglect misconduct.”

       (App. Vol. II at 72) (errors in original). Additionally, the “Employee

       Counseling Form,” (id. at 78), from Hillside indicated:


               [Davis] has been counceled of her attendance on Oct 11th after
               NO call NO show was warned of her attendance. On this day
               11/21/13, [Davis] came in to her shirt after 2 pm stated her “B/P
               was dropping.” B/P was taken by nurse on duty 107/84.
               Informed [Davis] she needed to try to finish her shift to not leave
               staff short. [Davis] walked out of building to not return. Leaving
               staff on shift.


       (Id.) (errors in original).


[41]   We conclude KCARC cannot be held responsible for backpay when Davis

       obtained positions comparable to her position at KCARC, then was terminated

       from those positions for her behavior. To the extent she mitigated her damages,

       we determine that mitigation ended the day she was fired from Bridges.

       Therefore, the calculation of damages is as follows: for the time between

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 36 of 40
       September 7, 2012, when KCARC terminated Davis and October 18, 2012, the

       date she was hired at Bridges, Davis would have made $2,113.56. 9 Between

       October 18, 2012, and April 3, 2013, Davis was employed by Bridges for $9.00

       for ten to thirty hours per week. For that period of time, her earnings were

       $4,013.26. For the same period of time, Davis could have earned $8,101.98 10 at

       KCARC, for a difference of $4,088.72. Based thereon, we reduce Davis’

       backpay damages to $6,202.28 to reflect the time she exercised reasonable

       diligence in finding employment comparable to the job she had at KCARC.


                                              B. Prejudgment Interest

[42]   The ICRC awarded Davis prejudgment interest of $9,314.09, concluding:


                  Interest is calculated at the statutory rate of eight percent
                  compounded annually. Pre-judgment interest is calculated from
                  the date of termination, Woods v. Von Maur, Inc., No 09 C 7800,
                  2012 WL 2062400, at *7 (N.D.Ill. June 7, 2012), and ends when
                  “damages have been ascertained in a meaningful way.” S.E.C. v.
                  Koenig, No. 02 C 2180, 2009 WL 4043319, at *4 (N.D.Ill. Nov.
                  23, 2009) (citing Kaiser Aluminum & Chemical Corp v. Bonjorno, 494
                  U.S. 827, 836, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990)). The
                  ICRC finds that damages in this matter had not been ascertained
                  in a meaningful way until the filing of the Proposed Findings of
                  Fact, Conclusion of Law, and Order by previously appointed
                  ALJ Noell F. Allen. The pre-judgment interest calculation will




       9
           $352.26 x 6 weeks = $2,113.56.
       10
            $352.26 x 23 weeks = $8,101.98.


       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 37 of 40
                therefore cover the period from Complainant’s termination until
                April 13, 2016 for a total of $9,314.09.


       (App. Vol. II at 12-13.) 11 As the United States District Court of the Northern

       District of Indiana explained:


                Pre-judgment interest is “presumptively available to victims of
                federal law violations.” McKnight v. General Motors Corp., 973
                F.2d 1366, 1372 (7th Cir. 1992); see also Hutchison v. Amateur
                Electronic Supply, Inc., 42 F.3d 1037, 1047 (7th Cir. 1994). Pre-
                judgment interest on back pay awards compensates a plaintiff for
                the loss of the use of the money. Downes v. Volkswagen of America,
                Inc., 41 F.3d 1132, 1144 (7th Cir.1994); see also Partington v.
                Broyhill Furniture Industries, Inc., 999 F.2d 269, 274 (7th Cir. 1993)
                (“Money has a time value, and prejudgment interest is therefore
                necessary in the ordinary case to compensate a plaintiff fully for a
                loss suffered at time t and not compensated until t + 1, 2, 3 ...
                n.”).


       Wilson v. AM General Corp., 979 F.Supp. 800, 802 (N.D. Ind. 1997).


[43]   It is within the trial court’s discretion, here the ICRC’s discretion, to determine

       the interest rate to be used to determine the appropriate amount of prejudgment

       interest. Ward v. Tipton County Sheriff Dept., 937 F.Supp. 791, 800 (S.D. Ind.

       1996). However, we note “[o]ther district courts in the Seventh Circuit have



       11
          While we agree that prejudgment interest was appropriate in this case, we remind the ICRC that the
       citation of unpublished opinions as precedent is generally discouraged. See Kuehne v. United Parcel Service, Inc.
       868 N.E.2d 870, 874 (Ind. Ct. App. 2007) (“unpublished decisions issued by federal district courts do not
       constitute binding precedent upon this court.”). “However, unpublished cases may be deemed worthy of
       mentioning when a similar issue is presented to us and there is a dearth of other authority on point.” Id.
       There is abundant published authority from the Indiana District Courts and the Seventh Circuit Court of
       Appeals on this issue, and thus that shortfall in available case law does not exist here.

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018                           Page 38 of 40
       used the federal post-judgment interest rate.” Id. The federal post-judgment

       interest rate is found at 28 U.S.C.A. § 1961, which states in relevant part, “Such

       interest shall be calculated from the date of the entry of the judgment, at a rate

       equal to the weekly average 1-year constant maturity Treasury yield, as

       published by the Board of Governors of the Federal Reserve System, for the

       calendar week preceding. [sic] the date of the judgment.” Because prejudgment

       interest is a way by which an employee who was wrongly terminated can regain

       the value of his or her money, the ICRC was correct on the time frame for the

       calculation of prejudgment interest, which was from the date of Davis’

       termination, September 7, 2012, to the date ALJ Allen issued her order on April

       13, 2016. See Wilson, 979 F.Supp. at 802 (“Pre-judgment interest on back pay

       awards compensates a plaintiff for the loss of the use of the money.”).


[44]   Based thereon, we remand for calculation of prejudgment interest on the

       amended backpay amount of $6,202.28. We encourage the ICRC to plainly

       state its method for calculating the amount of interest ordered and the legal

       basis for such calculation method.



                                                 Conclusion
[45]   As an initial matter we conclude the portions of the IAC that do not comport

       with the language of the ADA and the CFR are invalid. Regarding the facts of

       this case in light of the relevant federal statutes, we conclude Davis had a

       disability because one or more of her major life activities was substantially

       limited. Therefore, KCARC violated the ADA when it did not engage in the

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 39 of 40
       interactive process of determining if there existed a reasonable accommodation

       to allow Davis to perform the essential functions of her position subject to Dr.

       Nibel’s restrictions. However, the ICRC erred in its calculation of damages

       because Davis ceased to mitigate her damages when she was terminated from

       Bridges. Finally, prejudgment interest was appropriate.


[46]   Accordingly, we affirm the ICRC’s determination that Davis was disabled and

       KCARC unlawfully discriminated against her when it terminated her

       employment. However, we reverse the ICRC’s damage award and reduce

       Davis’ backpay damages to $6,202.28 to reflect the time she exercised

       reasonable diligence in finding employment comparable to the job she had at

       KCARC. We remand for the calculation of prejudgment interest on $6,202.28

       in accordance with this opinion.


[47]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 93A02-1701-EX-141 | April 18, 2018   Page 40 of 40
