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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1177

## Text

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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Appendix A

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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Appendix A

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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Appendix A

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1494%3A3. Public record. Not legal advice.