MEMORANDUM DECISION

ON REHEARING
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                               Jul 02 2018, 9:05 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of                                           and Tax Court

establishing the defense of res judicata,
collateral estoppel, or the law of the case.


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                              July 2, 2018
Retarded Citizens, Inc.,                                 Court of Appeals Case No.
Appellant-Defendant,                                     93A02-1701-EX-141
                                                         Appeal from the Indiana Civil
        v.                                               Rights Commission
                                                         Docket No.
Mellissa (Cope) Davis,                                   EMha12091467
Appellee-Plaintiff



May, Judge.




Court of Appeals of Indiana |Memorandum Decision on Rehearing 93A02-1701-EX-141 | July 2, 2018 Page 1 of 8
[1]   The Knox County Association for Retarded Citizens, Inc. (“KCARC”) requests

      rehearing of our opinion affirming the Indiana Civil Right Commission’s

      (“ICRC”) conclusion that the KCARC engaged in an unlawful discriminatory

      practice when it terminated Mellissa Davis’ employment with KCARC. We

      grant rehearing to clarify, but we affirm our original opinion in all respects.


[2]   In our opinion, when discussing whether the ICRC erred when it determined

      Davis was a qualified individual as defined by the Americans with Disabilities

      Act (“ADA”), we stated:


              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.


              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

      Court of Appeals of Indiana |Memorandum Decision on Rehearing 93A02-1701-EX-141 | July 2, 2018 Page 2 of 8
              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 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).


      Knox Cty. Ass’n for Retarded Citizens, Inc. v. Davis, 2018 WL 1833607 at *13-*14

      (Ind. Ct. App. April 18, 2018). On rehearing, KCARC argues it challenged the

      finding we claimed it did not, and based on that challenge, our holding that

      Davis was a qualified individual under the ADA should be reversed.


[3]   The challenged finding was classified by the trial court as a conclusion and

      stated, in its entirety:


              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 was 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
      Court of Appeals of Indiana |Memorandum Decision on Rehearing 93A02-1701-EX-141 | July 2, 2018 Page 3 of 8
              to move quickly in times of emergencies would be restricted as
              well. While that may be the case, KCARC did not attempt to see
              what alternatives were available for Davis 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 Akers and another DSP
              who could not administer medication.


      (App. Vol. II at 11-12.)


[4]   “[W[hile an employer’s failure to engage in the interactive process alone is not

      an independent basis for liability, it is actionable ‘if it prevents identification of

      an appropriate accommodation for a qualified individual.’” Spurling v. C&M

      Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014) (quoting Basden v. Prof’l

      Transp., Inc., 714 F.3d 1034, 1039 (7th Cir. 2013)). To prove the employer

      ignored an appropriate accommodation for a qualified individual, the claimant

      must provide evidence that a reasonable accommodation was available. Id.


[5]   Here, it is undisputed that KCARC failed to engage in a discussion with Davis

      regarding accommodation of her limitations. O’Dell admitted she did not

      engage in the interactive process because she did not believe it to be necessary,

      and when asked whether the process would have changed her analysis of

      whether a reasonable accommodation could be made for Davis, she answered

      in the negative. KCARC argues Davis did not fulfill the second part of the

      analysis - that possible accommodations were available. We disagree.


[6]   In her rebuttal interview submitted as part of the disability claims process on

      December 21, 2012, Davis indicated in response to certain interrogatories:


      Court of Appeals of Indiana |Memorandum Decision on Rehearing 93A02-1701-EX-141 | July 2, 2018 Page 4 of 8
        3). Respondent states you provided medical documentation on
        9/4/12 which [indicated] that part of your work restrictions
        includes [sic] minimizing any kind of bending, stooping, rapid or
        repetitive rotational movements such as turning from side to side
        and that you should not lift anything greater than 10 pounds, and
        that you should be limited to job functions that would involve
        sitting, without a lot of position changes. How do you respond?


                 [Davis]: That is [sic] my work restrictions[. T]hey didn’t
                 even try to accommodate the restrictions.


        4). Respondent states that as a Direct Support Professional it
        requires that you assist and train and supervise all physically
        challenged individuals being served in the home. Respondent
        states that it does not have a position open that would enable you
        to primarily sit for an 8 hour shift, how do you respond?


                 [Davis]: They could have worked out something like
                 answering the phones or something; I could have done
                 receptionist work[.]


        5). Respondent states that your physician did not give the
        diagnos[is] of what your medical condition is, nor did he indicate
        that you have a disability? How do you respond?


                 [Davis]: I didn’t think that he had to tell them what I was
                 dealing with[. N]o he did not tell them what was dealing
                 with. He just gave me work restrictions. They could have
                 placed me as a full time teacher assistant[;] this job entails
                 mostly sitting as an assistant, and they never offered me
                 light duty of any sort.


        6). Did [Respondent] engage in the interactive process with you
        regarding your work restrictions?

Court of Appeals of Indiana |Memorandum Decision on Rehearing 93A02-1701-EX-141 | July 2, 2018 Page 5 of 8
                         [Davis]: The only thing they said to me was that since I
                         could not perform my job functions of my previous
                         position, I was being let go because they had no positions
                         available to which I could sit all day, but they did have
                         positions in the office I could have answered the phones,
                         or like I said, they could have made me a teacher’s
                         assistant. They never even tried.


      (Ex. Vol. I at 143-4.)


[7]   Additionally, in the hearing before the Administrative Law Judge, Davis

      testified:


                 [Healy 1]:  Okay. Do you think you needed an
                 accommodation, given what it was that you were doing day in
                 and day out at KCARC, or were you able to still do much of
                 your jobs?


                 [Davis]:         At Group Home 11?


                 [Healy]:         Yes.


                 [Davis]:         I could have -- I still could have been able to do my
                 job.


                 [Healy]:         And why do you believe that?




      1
          Michael Healy was Davis’ attorney.


      Court of Appeals of Indiana |Memorandum Decision on Rehearing 93A02-1701-EX-141 | July 2, 2018 Page 6 of 8
              [Davis]:     Dr. Nibel had put me on medication to keep me
              from getting dizzy. He was wanting to run more tests to find out
              what -- what could have caused the -- the seizure.


      (Tr. Vol. I at 80.) Davis’ attorney then introduced into evidence information

      regarding the jobs at KCARC available at the time of Davis’ termination. The

      jobs included Office Support Staff, Waiver House Manager, Waiver Direct

      Support Professional/Staff, and Assistant Manager of a residential home.

      While each job had a qualification that Davis did not meet, for example, the

      Office Support Staff position required the applicant have office experience,

      Davis testified, regarding the qualifications of a DSP and how those

      requirements factored into KCARC’s decision to hire her:


              [Healy]:       . . . When you were hired in as a Group Home
              Direct Support Professional, you did not have any experience
              working with individuals with developmental disabilities before
              that; is that correct?


              [Davis]:          That’s correct.


              [Healy]:     But you were still hired despite the fact they had
              asked for one year’s experience?


              [Davis]:          Yes.


      (Tr. Vol. I at 84.)


[8]   Amy O’Dell, Human Resources Director for KCARC testified she did not

      discuss the positions available at the time with Davis because she knew Davis


      Court of Appeals of Indiana |Memorandum Decision on Rehearing 93A02-1701-EX-141 | July 2, 2018 Page 7 of 8
      was not qualified for them. However, she did not engage with Davis to

      determine her eligibility for those positions or temporary work restrictions to be

      accommodated in her position at the time. KCARC cannot contend Davis

      failed to argue that there were available accommodations when she was never

      afforded the opportunity to begin that conversation. KCARC’s inaction is

      precisely the type of bad faith imagined by the ADA - it is not the sole

      responsibility of an employee, who may or may not be well-versed in the law,

      to identify the need for an accommodation, ask for an accommodation, and

      provide all possible accommodations to an employer, who is required by law to

      have policies to accommodate disabled employees. See Rednour v. Wayne Twp.,

      51 F.Supp.3d 799, 828 (S.D. Ind. 2014) (employer violated ADA when it knew

      employee had light duty restrictions and unilaterally concluded that no

      accommodation was available before terminating employee, despite suggested

      accommodation from employee’s doctor).


[9]   We affirm our earlier opinion in all respects.


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




      Court of Appeals of Indiana |Memorandum Decision on Rehearing 93A02-1701-EX-141 | July 2, 2018 Page 8 of 8
