Opposition Brief — Ross v. Indiana State Teachers Ass'n

No. 98-912

IN THE

Supreme Court of the ritesoesnt ara gE

OCTOBER TERM, 19

MARVIN O. ROSS,

Petitioner,

VS.

INDIANA STATE TEACHERS ASSOCIATION and

INDIANA STATE TEACHERS ASSOCIATION

INSURANCE TRUST,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT

INDIANA STATE TEACHERS ASSOCIATION

WAYNE O ADAMS III

Counsel of Record

DAVID D. ROBINSON

STEVEN F. POCKRASS

MARK W. FORD

JANE ANN HIMSEL

JULIE M. CONRAD

JOHNSON SMITH PENCE DENSBORN

WRIGHT & HEATH LLP

Attorneys for Respondent Indiana

State Teachers Association

1800 One Indiana Square

Indianapolis, Indiana 46204

(317) 634-9777

150923 @ Counsel! Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 * (800) 359-6859

i

PARTIES TO THE PROCEEDING

The caption of the petition accurately identifies the parties

to the proceeding. Respondent Indiana State Teachers

Association is a not-for-profit corporation. It has no parent

company and has no nonwholly owned subsidiaries.

il

TABLE OF CONTENTS

Page

Parties to the Froceegige =... sisias uses deny epeueun i

Table of Comet. kn ko ieee eee il

Fane of Cited Amore. 66k oo ie ve one sees ill

Statement of Tee OOO So sic os eo ok eo ees ee 1

A, Nee OF it Ce nds hoes hei ee eee ]

B. Course of ProceeGiees osc xcevt irae cues 2

C. Statement of Relevant Facts ............... 4

Reasons for Dewying Cee Wirt ook ond k dota teecs ses 8

I. This Case Bears No Resemblance To Cleveland

v. Policy Management Systems Corporation. . 9

Il. The Issue Presented By Petitioner Is Not

Outcome-Determinative. ..............-.-- 15

COTE go oe on oo oe ee a ee eee 17

ili

TABLE OF CITED AUTHORITIES

Page

Cases:

Blanton v. Inco Alloys International, Inc., 123 F.3d 916

a a 14

Cleveland v. Policy Management Systems Corporation,

120 F.3d 513 (Sth Cir. 1997), cert. granted, 119 S. Ct.

I asa cs en bhp cake toes 9, 10, 13, 14, 15

Haschmann vy. Time Warner Entertainment Co., 151 F.3d

I rs et a eS od 12

Johnson v. Oregon Department of Human Resources

Rehabilitation, 141 F.3d 1361 (9th Cir. 1998) ..... 14

Rascon v. U.S. West Communications, Inc., 143 F.3d 1324

I ds be, cig hs sa aec' 14

Swanks v. Washington Metropolitan Area Transit

Authority, 116 F.3d 582 (D.C. Cir. 1997) ........ 14

Talavera v. School Board of Palm County, 129 F.3d 1214

wwe 14

Weigel v. Target Stores, 122 F.3d 461 (7th Cir. 1997)

Seer eee Pata et daw ho pis sc b 6s few) Kook abe ss 12, 14

iv

Cited Authorities

Page

Statutes:

Be Ree Ce CI 5h ink sos eds Sa 1

Oe Wea Cee oa 5 os a nce Koos veh ees ]

Rules:

Peis Pa es MP a's chaebol oa sae ese ae 13

PE Se bss bee nee bbe ee ese 13

United States Supreme Court Rule 10.............. 13

Other Authorities:

EEOC Enforcement Guidance on the Effect of

Representations Made in Applications for Benefits On

the Determination of Whether a Person is a Qualified

Individual With a Disability Under the Americans With

Disabilities Act of 1990, EEOC Notice 915.002, Feb.

ER, SOORE Haro de a dd eres sacs 14

Robert L. Stern et al., Supreme Court Practice, § 6.37

Ei ke | ee Pe ere Par Ogg er re 16

APPENDIX

Page

Appendix A — Order Of The United States District Court

For The Northern District Of Indiana, Fort Wayne

Division Dated September 24, 1997 ............. la

|

STATEMENT OF THE CASE

A. Nature of the Case

This petition seeks this Court’s review of the Seventh

Circuit’s opinion in favor of the two Respondents, the Indiana

State Teachers Association (“ISTA”) and the Indiana State

Teachers Association Trust (“ISTA Trust”). Petitioner asks this

Court to consider two separate questions, one directed toward

each Respondent. First, Petitioner asks this Court to reverse

the Seventh Circuit’s decision affirming summary judgment

on Petitioner’s claim against ISTA, his former employer, under

the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 et seq. Second, Petitioner asks this Court to overturn

the Seventh Circuit’s ruling in favor of the ISTA Trust on his

claim under the Employee Retirement Income Security Act of

1974 (“ERISA”), 29 U.S.C. § 1001 et seq.

Respondents ISTA and the ISTA Trust are separate legal

entities and are represented by separate counsel. Therefore,

ISTA will respond only to the first question presented by

Petitioner:

What weight, if any, should be given to a

person’s actions or statements in seeking or

receiving disability insurance benefits when that

person asserts that he is a “qualified individual with

a disability” under the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12101, ef seq.

ISTA objects to this question, as it is not presented by the facts

of this lawsuit.

Moreover, the Petition itself does not truly address this

question. Instead, it falsely portrays this matter as one that turns

2

on the issue of judicial estoppel. In a strained attempt to make

this case appear similar to one in which certiorari already has

been granted, Petitioner has mischaracterized the nature of the

Seventh Circuit’s decision and has omitted highly relevant

information from his description of the course of proceedings.

Quite simply, neither the District Court nor the Court of Appeals

relied upon the doctrine of judicial estoppel in reaching the

non-controversial conclusion that Petitioner had failed to create

a genuine issue of material fact that would allow him to pursue

an ADA claim against ISTA. Furthermore, the issue of judicial

estoppel previously was raised by Petitioner in a Motion to

Amend Judgment. In response to that Motion, the District Court

expressly stated that its summary judgment decision was based

on an analysis of the evidence, not on the doctrine of judicial

estoppel. Similarly, the Seventh Circuit affirmed summary

judgment on multiple grounds, none of which included judicial

estoppel.

Far from constituting a travesty of justice, this is a case

about a disabled employee who was accommodated by ISTA

long before the ADA became effective; who continued to be

accommodated by ISTA after the ADA went into effect; who

consistently has admitted that he was unable to perform one of

the essential functions of his job; who refused to accept a

package of accommodations offered to him because it did not

include the elimination of an essential job function; and whose

employment was terminated after he would not and could not

provide a medical release that would allow him to return to

work. In addition to being correctly decided, this case presents

no compelling reasons for granting certiorari.

B. Course of Proceedings

Petitioner filed his Complaint against ISTA and the ISTA

Trust on July 27, 1995. On February 7, 1997, the District Court

3

issued a Memorandum and Order granting ISTA’s Motion for

Summary Judgment on Petitioner’s ADA claim. Six months

later, on August 14, 1997, Petitioner filed a Motion to Amend

Judgment. Therein, Petitioner argued that the District Court

should reinstate Petitioner’s claim because another judge in

the Northern District of Indiana had overruled a prior holding

that a claim of disability for benefit purposes was an absolute

bar to a subsequent ADA claim.

On September 24, 1997, the District Court issued its Order

denying Petitioner’s Motion to Amend Judgment. Remarkably,

no mention of this Order is made in the Petition, even though

the District Court clearly stated in this Order that it had not

relied on the doctrine of judicial estoppel when it granted

summary judgment.

This court did not find that Ross was estopped from

making such an argument because of his receipt of

Social Security benefits; rather, it determined that

Ross’ actions in obtaining Social Security and long

term disability benefits were evidence that he was

not a qualified individual with a disability, and thus

not entitled to the protection of the ADA.

(Respondent’s Appendix, 3a.)

In April 1997, the District Court conducted a bench trial

on Petitioner’s ERISA claim against the ISTA Trust. The

District Court ruled in favor of Petitioner on the ERISA claim,

and the ISTA Trust appealed that decision to the Seventh

Circuit. Petitioner then filed a cross-appeal of the District

Court’s decision granting summary judgment to ISTA.

On September 3, 1998, the Seventh Circuit affirmed, on

multiple grounds, the District Court’s grant of summary

4

judgment in favor of ISTA. Ross v. Indiana State Teachers

Association and Indiana State Teachers Association Insurance

Trust, 159 F.3d 1001 (7th Cir. 1998). The Seventh Circuit held

that ISTA engaged in an interactive process with Petitioner,

and that Petitioner caused the process to break down. The

Seventh Circuit also found that Petitioner was not a qualified

individual with a disability because he and his physician

consistently maintained that he could not perform one of the

essential functions of his job, which was to attend meetings at

the school buildings in the geographical area Petitioner serviced.

Furthermore, the Seventh Circuit found that ISTA had attempted

to reasonably accommodate Petitioner by agreeing to most of

the accommodations that Petitioner had requested. However,

Petitioner refused to return to work because ISTA would not

agree to his unreasonable request that one of his essential job

functions be eliminated. Finally, the Seventh Circuit found that

Petitioner refused to satisfy ISTA’s reasonable request that

Petitioner provide a medical release indicating his ability to

return to work.

C. Statement of Relevant Facts

ISTA is a iabor organization representing teachers in the

State of Indiana. ISTA employs full-time professional staff,

known as UniServ Directors, to provide guidance and assistance

to the officers and members of the local bargaining units. From

the time he joined ISTA in 1972, Petitioner worked as a UniServ

Director for ISTA’s Fort Wayne, Indiana office. In this position,

Petitioner was responsible for representing the Fort Wayne

Education Association (FWEA) and its teacher members.

Petitioner’s job description and performance expectations

required him to establish a program to visit the 54 schools in

his service area, to meet with teachers at their respective

schools, and to attend a wide range of events at the schools and

at other facilities throughout the community.

5

Petitioner suffers from a degenerative hip condition which

has caused him orthopedic problems since 1958. At the time

Petitioner became employed by ISTA in 1972, several ISTA

managers were aware of Petitioner’s orthopedic problems, but

none ever expressed any doubts or reservations about his ability

to perform his job.

Over the next two decades, ISTA continuously employed

Petitioner in the Fort Wayne UniServ Director position. During

this period, ISTA allowed Petitioner time off for numerous

surgeries and therapy sessions and also provided him with

various other accommodations. However, on September 29,

1992, Petitioner’s physician, Dr. M.E. Cabanela, wrote the

following report regarding Petitioner:

I believe he is having significant enough symptoms

so that he cannot function effectively at work and,

therefore, he should be taken off work on an

indefinite basis. I think that his condition is such so

that it is permanent.

_ On October 2, 1992, Petitioner informed his immediate

supervisor that his physician had directed him to take an

indefinite sick leave. Petitioner quoted his doctor’s

recommendation that he should immediately stop working on

a “permanent basis.” Petitioner underscored these quoted words,

attached a copy of Dr. Cabanela’s letter, and stated that he

intended to adhere to this medical directive. Petitioner also

applied for disability benefits from the Social Security

Administration. On his benefits application, Petitioner

emphasized that his job required him to conduct daily meetings

outside his office and that he could not fulfill this job

requirement.

6

Soon after Petitioner announced that he intended to stop

working on a permanent basis, ISTA posted a vacancy for the

UniServ Director position in Fort Wayne. However, Petitioner

then expressed his hope of returning to this position after he

underwent surgery, and ISTA agreed to delay filling this

position until Petitioner received a post-operative prognosis

from his doctor. On September 1, 1993, when Petitioner still

could not tell ISTA if he would be able to return to his position,

ISTA hired another UniServ Director to fill the vacancy.

On October 11, 1994, the third party administrator for

Petitioner’s long term disability policy informed Petitioner that

an independent medical examination revealed he was not totally

disabled from his occupation and was no longer eligible for

benefits based on his ability to return to work with

accommodations. Faced with the termination of these benefits,

Petitioner’s union representative telephoned ISTA and stated

that Petitioner was ready to return to work. ISTA responded

that it had a vacant UniServ Director position in its Shelbyville,

Indiana office, and inquired as to what accommodations

Petitioner would require in order to return to work.

On October 28, 1994, the union representative forwarded

a list of 16 proposed accommodations to ISTA. These proposals

included a demand that all meetings with teachers be conducted

at Petitioner’s UniServ office, rather than at the schools or at

other locations in the community. On November 10, 1994,

Petitioner’s family physician, Dr. Phillip J. Johnson, sent a letter

to ISTA expressing serious reservations about Petitioner’s

ability to return to work. Dr. Johnson stated that in his opinion,

Petitioner should not return to work, and he emphasized that

all 16 of the accommodations proposed by Petitioner would be

required if he were to return. Dr. Johnson concluded: “Forcing

7

him to work with less than all the above accommodations would

place Mr. Ross at risk for incurring severe injury.”

On November 18, 1994, ISTA agreed to most of the 16

requested accommodations, informed Petitioner that some of

the requested accommodations were out of its control, and

refused to provide the requested accommodation that all

meetings with teachers be held at the UniServ office. Petitioner

had mailed a letter to ISTA dated November 16, 1994, which

ISTA received on November 21, 1994, stating that Petitioner

would report to work, as he had “no intention of being

insubordinate.” However, Petitioner also stated in the letter that

he had never suggested that he was physically able to return to

work, and that his doctor had not released him to return to work.

Based on this letter, it was clear that Petitioner had not been

released to return to work as had been represented to ISTA. On

November 23, 1994, ISTA instructed Petitioner not to report

to work until such time as he could provide a written release

from his physician stating that he was able to return and could

perform the essential functions of his position without posing

a threat of harm to himself or others. Petitioner was informed

that his employment would be terminated if such a release were

not provided to ISTA by December 2, 1994.

On November 29, 1994, Petitioner’s attorney wrote a letter

to ISTA emphasizing that Petitioner’s physicians had not

released him to return to work except under the “very restricted

circumstances” outlined by Petitioner. Petitioner’s attorney also

opined that Petitioner was “incapable of safely performing the

ordinary duties of his job.”

Petitioner failed to provide a release from his physician

and did not even attempt to obtain such a release until after

December 3, 1994. Dr. Johnson later reviewed ISTA’s request

for the release and signed a statement which concluded, “[t}he

above request made by Mr. Ross’s employer is something |

could not and would not agree to sign.” Petitioner admits that

it was impossible for him to obtain such a release to return to

work. On December 4, 1994, ISTA informed Petitioner that

his employment had been terminated.

REASONS FOR DENYING THE WRIT

Petitioner’s request for a writ of certiorari should be denied

for two overriding reasons and several related reasons. First,

the question presented in the Petition is not a question that is

raised by the facts of Petitioner’s case. Petitioner obviously is

attempting to portray the instant matter as a judicial estoppel

case because this Court recently granted certiorari in an ADA

suit that does raise judicial estoppel questions. However,

contrary to Petitioner’s assertions, the instant matter does not

involve the doctrine of judicial estoppel, as neither the District

Court nor the Seventh Circuit gave preclusive effect to the fact

that Petitioner sought disability benefits.

At its essence, this is a run-of-the-mill ADA case in which

Petitioner, his doctors, and his lawyer all admitted that

Petitioner could not perform an essential function of his job.

Petitioner consistently took the position prior to and during

this litigation that he could not and would not return to work

unless that essential job function was eliminated, which clearly

means he 1s not entitled to ADA protection because he is not a

qualified individual with a disability. Petitioner’s obvious desire

to overturn a factual finding in his own case clearly does not

warrant a grant of certiorari by this Court. Petitioner does not

present any cases that directly conflict with the Seventh

Circuit's ruling on his ADA claim. There is no circuit split

applicable to the facts of this case, and there is nothing unique

or unusual about the application of the law to the facts.

9

Second, the question presented by Petitioner is not

outcome-determinative. Notably, Petitioner and his

representatives made statements outside the context of his

disability benefits applications which showed he could not

perform at least one essential function of his job. Furthermore,

the Seventh Circuit made multiple findings affirming summary

judgment which would preclude Petitioner from recovering

under the ADA even if certiorari were granted on the question

presented. In addition to determining that Petitioner was not a

qualified individual with a disability, the Seventh Circuit also

held that Petitioner caused the interactive process to break down

and that ISTA did not fail to reasonably accommodate

Petitioner.

I.

THIS CASE BEARS NO RESEMBLANCE TO CLEVELAND

v. POLICY MANAGEMENT SYSTEMS CORPORATION.

Petitioner places great emphasis on the fact that the

Supreme Court recently granted certiorari in Cleveland v. Policy

Management Systems Corporation, 120 F.3d 513 (Sth Cir.

1997), cert. granted, 119 S. Ct. 39 (1998). In that case, the

Fifth Circuit held that the mere application for or receipt of

Social Security disability benefits creates a rebuttable

presumption that the claimant or recipient of such benefits is

judicially estopped from asserting that he is a qualified

individual with a disability under the ADA. This Court granted

certi*rari to address the following two questions:

1. Whether the application for, or receipt of,

disability insurance benefits under the Social

Security Act, 42 U.S.C. § 423, creates a

rebuttable presumption that the applicant or

recipient is judicially estopped from asserting

10

that she is a “qualified individual with a

disability” under the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12101 et

seq.

2. If it does not create such a presumption, what

weight, if any, should be given to the application

for, or receipt of, disability insurance benefits

when a person asserts she is a “qualified

individual with a disability” under the ADA.

Cleveland, 119 S. Ct. 39 (1998). Petitioner contends that

certiorari also should be granted in his case — or that a decision

in his case should be held in abeyance pending a ruling in

Cleveland — based upon Petitioner’s representation that the

two cases present similar issues.

Petitioner’s attempt to piggyback on Cleveland is

completely misguided. At no time did the Seventh Circuit state

or imply that Petitioner’s application for Social Security or long-

term disability benefits was outcome-determinative. Unlike the

Fifth Circuit in Cleveland, the Seventh Circuit made no mention

of a rebuttable presumption or the doctrine of judicial estoppel.

Rather, the Seventh Circuit simply found that Petitioner’s own

statements and representations “throughout this litigation”

established that he could not perform the essential functions of

his position and therefore could not be considered a qualified

individual with a disability. (Petitioner's Appendix, hereafter

“Pet. App.,” A-36.)

Far from relying on the doctrine of judicial estoppel, the

Seventh Circuit engaged in a detailed examination of

Petitioner’s job duties, and determined that Petitioner was not

a qualified individual with a disability under the ADA.

1]

The essential job duties of a UniServ Director

clearly involve meetings outside of the Director’s

office. Moreover, ISTA had established a school

visitation program that was part of the Director’s

job function. There would be little point in having

such a school visitation program for UniServ

Directors if all of the teachers were required instead

to meet the Director at his office. Given Mr. Ross’

position that all of his requested accommodations

were medically necessary and that at least one of

those requests — that all meetings be held at his

office — was clearly unreasonable, he has not

demonstrated that he was willing or able to perform

the essential functions of his job with reasonable

accommodation. Accordingly, we conclude that the

district court properly determined that Mr. Ross is

not a “qualified individual with a disability.”

Id. at A-36.

In arriving at this conclusion, the Seventh Circuit found

that Petitioner, his physicians, and his lawyer consistently

informed ISTA that Petitioner could only return to work if all

of his requested accommodations were granted. (/d. at A-35.)

One of those accommodations was Petitioner’s demand that

all meetings with teachers be held in his UniServ office. The

Seventh Circuit noted that Petitioner “has acknowledged that a

substantial portion of the essential job duties of a UniServ

Director involves time spent outside of the office in meetings

at various locations.” Jd. To illustrate Petitioner’s

acknowledgment that this was an essential job function, the

Seventh Circuit, in a footnote, made the following reference to

a factual statement made by Petitioner in his application for

Social Security benefits.

12

In his application for Social Security benefits, Mr.

Ross explained that he averaged three meetings per

day outside of the UniServ Director office in “Ft.

Wayne schools (54 total in FW), the FWES

administrative center, or other community facilities

such as the Chamber of Commerce.” R.87, Ex. 51.

Moreover, Dr. Keating, the physician who

conducted the IME, wrote in his report that Mr. Ross

described his job as requiring him “to visit 55

schools within the Fort Wayne Community School

District and that he only spends 35-40% of his time

in his office.” R.87, Ex. 72.

Id., n.17. This footnote contains the Seventh Circuit’s only

reference to Petitioner’s application for Social Security benefits.

As this footnote clearly demonstrates, the fact that Petitioner

applied for such benefits was not the issue. Rather, the

application contained admissible statements by Plaintiff

regarding the essential functions of his job.'

Petitioner overlooks the fact that both the trial court and

the Seventh Circuit stated that Petitioner had consistently

represented “throughout the course of this litigation” that he

was totally disabled. Jd. Thus, unlike the cases in which the

question of judicial estoppel is raised based upon sworn

statements that are provided to the Social Security

Administration to obtain disability benefits, both the District

Court and the Seventh Circuit looked at the position the

Petitioner actually was taking in the instant litigation. This 1s a

significant distinction, and is wholly consistent with established

federal case law.

1. To further illustrate that this case does not involve the doctrine

of judicial estoppel, it should be noted that the Seventh Circuit's opinion

did not even cite Weigel v. Target Stores, 122 F.3d 461 (7th Cir. 1997)

or Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th

Cir. 1998), the two leading Seventh Circuit decisions which have

addressed this issue.

eS ee

13

Petitioner’s inappropriate comparison to Cleveland is an

obvious attempt to divert this Court’s attention from his real

reason for seeking certiorari, i.e., his frustration with the District

Court’s and the Seventh Circuit’s factual findings. As is stated

in Rule 10 of the Rules of the Supreme Court, a petition for a

writ of certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the misapplication of

a properly stated rule of law. Here, the district and appellate

courts both found that Petitioner failed to create a genuine issue

of material fact when he consistently maintained that there was

an essential function of his position that he could not perform

and that he refused to return to work unless that essential

function was eliminated. Petitioner’s unwillingness to accept

this determination clearly does not warrant a grant of certiorari.

Furthermore, under the Federal Rules of Evidence, relevant

factual assertions constitute admissible evidence. Fed. R. Evid.

402. Petitioner and his representatives informed ISTA that

Petitioner could not hold meetings with teachers outside of his

office. Those statements are relevant, see Fed. R. Evid. 401,

and the Seventh Circuit properly considered them. Logically,

these consistent statements in multiple contexts should support

affirmance of summary judgment, not reversal. Yet Petitioner

apparently believes that this Court should take the extraordinary

and illogical step of granting certiorari so it can create a special

exception to the evidentiary rules that would bar the

admissibility of relevant factual statements contained in any

type of disability application, and would make the admission

of such evidence per se reversible error. Such an approach is

completely contrary to the position taken by the Equal

Employment Opportunity Commission and the federal courts.

In fact, the EEOC has expressly recognized that factual

statements made on Social Security disability applications are

properly considered in determining whether someone is a

qualified individual with a disability.

14

Although representations made in connection with

an application for disability benefits may be relevant

to [a determination of whether a person is a

“qualified individual with a disability”), they are

never an absolute bar to a finding that a person is a

“qualified individual with a disability” for purposes

of the ADA.

See EEOC Enforcement Guidance on the Effect of

Representations Made in Applications for Benefits On the

Determination of Whether a Person is a Qualified Individual

With a Disability Under the Americans With Disabilities Act

of 1990, EEOC Notice 915.002, Feb. 12, 1997, p. 3.

Similarly, several Courts of Appeal that have rejected the

doctrine of judicial estoppel in ADA cases have nevertheless

held that statements made by a claimant in support of an

application for Social Security or other disability benefits may

properly be considered as evidence in the determination of

whether the claimant is a qualified individual with a disability.

See Swanks v. Washington Metropolitan Area Transit Authority,

116 F.3d 582, 587 (D.C. Cir. 1997); Blanton v. Inco Alloys

International, Inc., 123 F.3d 916, 917 (6th Cir. 1997); Weigel

v. Target Stores, 122 F.3d 461, 467 (7th Cir. 1997); Talavera

v. School Board of Palm County, 129 F.3d 1214, 1220 (11th

Cir. 1997); Johnson v. Oregon Department of Human Resources

Rehabilitation, 141 F.3d 1361, 1368 (9th Cir. 1998); Rascon v.

U.S. West Communications, Inc., 143 F.3d 1324, 1332 (10th

Cir. 1998).

In summary, the decision in the instant situation bears no

similarity to the decision in Cleveland, and it would not make

any sense to view the instant case as a companion case to

Cleveland. The facts of the instant case are inapplicable not

only to the question presented in Cleveland, but also to the

15

question that Petitioner seeks to present. The instant case does

not present any compelling legal conflicts or issues that would

merit this Court’s granting certiorari. For these reasons,

Petitioner's request for a writ of certiorari should be denied.

THE ISSUE PRESENTED BY PETITIONER IS

NOT OUTCOME-DETERMINATIVE.

Clearly, Petitioner would have this Court believe that if it

modifies the rebuttable presumption approach taken by the Fifth

Circuit in Cleveland, then perhaps a different decision would

be reached in Petitioner’s case. As has been discussed

previously, Cleveland is inapplicable to the instant case. Thus,

placing Petitioner’s case in abeyance pending a decision in

Cleveland would serve no useful purpose. In addition, Petitioner

refuses to acknowledge that the Seventh Circuit affirmed

summary judgment in favor of ISTA on multiple grounds, which

further demonstrates that rulings on the questions presented in

Cleveland and proposed by Petitioner will not change the result

in Petitioner’s case.

Significantly, the Seventh Circuit held that ISTA was not

liable to Petitioner under the ADA because ISTA had not failed

to reasonably accommodate him. The Seventh Circuit held that

ISTA had offered Petitioner a package of reasonable

accommodations, yet Petitioner refused to return to work unless

additional accommodations were made. Moreover, the Seventh

Circuit held that at least one of the accommodations demanded

by Petitioner, i.e., holding all meetings at the ISTA UniServ

office, was unreasonable as a matter of law, because it would

not have allowed Petitioner to perform an essential function of

his job. The Seventh Circuit also held that Petitioner failed to

comply with ISTA’s reasonable request that Petitioner obtain

16

a release to return to work from his doctor after Petitioner

informed ISTA, in writing, that his doctor had not yet released

him to return to work. Because of this, the Seventh Circuit

concluded that Petitioner was responsible for the breakdown

in the interactive process. (Pet. App. A-37.) Thus, regardless

of whether Petitioner was a qualified individual with a

disability, ISTA was entitled to summary judgment because

ISTA did not fail to reasonably accommodate Petitioner. This

means that even if the question presented were resolved in

Petitioner’s favor, his lawsuit against ISTA still would fail.

Significantly, where the lower court’s decision is correct

without regard to the question raised in a petition, the question

raised by the petition generally does not rise to the level of

importance sufficient to warrant a grant of certiorari. Robert

L. Stern et al., Supreme Court Practice, § 6.37, p. 373 (7th ed.

1993).

Summary judgment ts not a procedural shortcut, but rather

is an important mechanism for promoting justice by terminating

litigation where there is no genuine issue of material fact, and

one party is entitled to judgment as a matter of law. In the instant

case, summary judgment was granted in favor of ISTA.

Therefore, consistent with the letter and the spirit of the Federal

Rules of Civil Procedure, ISTA should not be required to expend

additional time and resources addressing a question that is not

outcome-determinative.

17

CONCLUSION

For the foregoing reasons, the Petition should be denied.

Respectfully submitted,

WAYNE O ADAMS III

Counsel of Record

DAVID D. ROBINSON

STEVEN F. POCKRASS

MARK W. FORD

JANE ANN HIMSEL

JULIE M. CONRAD

JOHNSON SMITH PENCE DENSBORN

WRIGHT & HEATH LLP

Attorneys for Respondent Indiana

State Teachers Association

1800 One Indiana Square

Indianapolis, Indiana 46204

(317) 634-9777

APPENDIX

la

APPENDIX A — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF INDIANA, FORT WAYNE DIVISION

DATED SEPTEMBER 24, 1997

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

No 1:95 cv 245 AS

MARVIN O. ROSS, 3

Plaintiff,

v.

INDIANA STATE TEACHER’S ASSOCIATION and

INDIANA STATE TEACHER’S ASSOCIATION

INSURANCE TRUST,

Defendants.

ORDER

This cause is before this court on Plaintiff Marvin Ross’

Motion to Amend the Judgment under Rule 59(e)., Fep.R.Civ.P.

and Ross’ Motion to Correct the Record pursuant to Rule 60(a),

Fep.R.Civ.P. The Indiana State Teachers Association (ISTA)

has responded to the motions, and this court is now ready to

rule.

A. Motion to Correct the Record

This court entered a final judgment in this cause on July

30, 1997. Pursuant to Rule 59(b), Fep.R.Civ.P., motions to

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amend judgments must be filed within ten (10) days of the entry

of judgment. The computation of time under Rule 6(a),

Fep.R.Civ.P. thus required such a motion to be filed on August

13, 1997. Ross’ counsel filed said motion in the Fort Wayne

Filing Depository at approximately 7:30 p.m. on August 13,

1997. While this court had ordered filings in this cause to be

made in the South Bend clerk’s office, because the file had

been reassigned to a South Bend judge, thus filing falls within

the “time-sensitive” exception found in Local Rule 5.1(d),

allowing filings to be made in any office of the clerk. The Fort

Wayne Filing Depository qualifies as an office for this purpose,

and thus the clerk is now ordered to correct the record to reflect

a filing date of August 13, 1997 for plaintiff's Motion to Amend

Judgment, Bill of Costs, and Motion for Attorneys Fees, all of

which were filed in the Ft. Wayne Filing Depository on the

night of August 13, 1997.

B. Motion to Amend Judgment

On February 11, 1997, this court entered judgment in favor

of the ISTA and against Ross on Ross’ Americans with

Disabilities Act (“ADA”) claim against the ISTA. On August

13, 1997, after the entry of a final judgment in the case, Ross

filed a motion to amend the judgment against him on the ADA

claim. The ISTA argues that the motion is untimely in that it

should have been filed within ten days of the entry of judgment

against Ross on that claim in February. While that argument

has some appeal, this court will assume that the motion has

been timely filed and address it on the merits.

Plaintiff asserts that this court based its decision in February

on a decision of Judge Lee’s in Bollenbacher v. Helena

Chemical Co., 934 F.Supp. 1015 (N.D.Ind. 1996), which Judge

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Lee has revisited in Moffitt v. Fibre Form Corp., No. 1:96cv310

(N.D.Ind. June 5, 1997). While Judge Lee’s analysis of the

interplay between the ADA and disability under the Social

Security Act was helpful, this court’s decision was based on

the fact that Ross has consistently stated that he is toally

disabled and entitled to long-term disability benefits, as well

as Social Security benefits, except when he has argued for his

rights under the ADA. This court did not find that Ross was

estopped from making such an argument because of his receipt

of Social Security benefits; rather, it determined that Ross’

actions in obtaining Social Security and long term disability

benefits were evidence that-he was not a qualified individual

with a disability, and thus not entitled to the protection of the

ADA. Judge Lee’s subsequent ruling in Moffitt and the EEOC

Guideline which Ross has presented do not conflict with this

court’s prior holding and do not persuade it to amend the same.

The litigation has been in the hands of first-rate lawyers,

for which this court is exceedingly grateful. It has likewise been

given careful and thorough consideration by this court at every

stage. This court has now made its various decisions on the

basis of an extensive record and has fully explained its reasoning

in detail and in writing. This court is now asked to revisit

critical and important decisions made at various stages in this

case. Such is now denied. All concerned here are now entitled

to a final appealable judgment which shall be entered instanter

in accord with the various rulings made by this court. This court

has given this case its best shot and will most ROSpOCHEEny

decline to revisit the various bases for its decision.

C. Conclusion

The clerk of this court is now ORDERED to correct the

record to reflect an August 13, 1997 filing date for plaintiff's

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Motion to Amend Judgment and brief in support thereof, Bill

of Costs, and Motion for Attorney’s Fees, docket numbers 92,

93, 94 and 95. Ross’ Motion to Amend Judgment is now

DENIED.

IT IS SO ORDERED.

Dated: September 24, 1997

s/ Allen Sharp

ALLEN SHARP, JUDGE

NORTHERN DISTRICT OF INDIANA