Opposition Brief — Hammel v. Eau Galle Cheese Factory

7

asserted error ccnsists of erroneous factual findings or the

misapplication of a properly stated rule of law.” Jd.

Petitioner asserts a federal question has been pre-

sented via the Appellate Court’s use of attitudinal factors

in determining whether an individual is “qualified” as that

term is used and defined under the applicable ADA regula-

tions. However, the lower court’s analysis is consistent

with the definition of a disabled individual under the

applicable ADA regulations and as such presents no

conflict with the relevant decisions of this Court. Wh 2n

petitioner’s argument is “defrocked” of its purported

federal question allegations, all that has been argued is

error in the lower court’s receipt of additional evidence in

light of a joint pre-trial statement of undisputed facts.

This type of asserted error hardly presents a federal

question reviewable by this Court. Nonetheless, respon-

dent will address the petitioner’s alleged instances of

error.

Petitioner correctly cites the definition of a qualified

individual under the ADA but then proceeds to ignore it in

his argument for review.

The ADA defines a “qualified individual” as:

An individual with a disability who satisfies the

requisite skill, experience, education and other

job-related requirements of the employment posi-

tion such individual holds or desires, and who,

with or without reasonable accommodation, can

perform the essential functions of the position.

29 C.F.R. Sec. 1630.2(m); see also 42 U.S.C. Sec. 12111(8).

As held by the lower courts in this case it is axiomatic

that a good attitude is a requirement of any job, together

with the acceptance of supervision, the ability to refrain

from defying and mocking one’s supervisors and the ability

to get along with fellow workers. (All of which are argua-

bly subsumed within the “good attitude” characteristic.)

The court observed in Hunt-Golliday v. Metropolitan

Water Reclamation Dist. of Greater Chicago, 14 A.D.D.

100, (N.D. Tl. 1996), judgment aff’d in part on other

grounds, rev'd in part on other grounds, 104 F.3d 1004,

(7th Cir. 1997), that acceptance of supervision is an essen-

tial job functior and that the employee’s inability to do so

prevented her qualified individual status under the ADA.

In addition, several Courts have espoused the view

that the ability to get along with others in the workplace

constitutes an essential job function, and that an employee

who cannot do so is not a qualified individual with a

disability under ADA Title I. The court in Palmer v. Circuit

Court of Cook County, Social Service Dept., 905 F. Supp.

499 (N.D. Ill. 1995), aff’d, 117 F.3d 351 (7th Cir. 1997),

observed that a person who displays abusive and threaten-

ing conduct toward co-workers is not a quaiified individual

with disability within the meaning of 42 U.S.C.A.

§ 12111(8), since the essential functions of any job include

the avoidance of such behavior. Acknowledging that the

ability to maintain a non-combative atmosphere in the

workplace, that is, to interact peacefully with supervisors,

other employees and customers, is an essential job function,

the court in Hardy v. ‘ urs, Roebuck and Co., 23 A.D.D. 1208

(N.D. Ga. 1996), said that abusive and threatening behavior

directed by an employee toward co-workers and customers

may dictate that the employee cannot perform the essential

functions of a given job, and thus is not a qualified indi-

vidual with a disability within the meaning of

42 U.S.C.A. § 12111(8), if the disruption caused by such

9

behavior is substantial. And in Weigert v. Georgetown

University, 120 F. Supp. 2d 1 (D.D.C. 2000), a university

research assistant failed to establish that she was a

“qualified individual with a disability” within the meaning

of Americans with Disabilities Act (ADA) since there was

no accommodation that the university or its employees

could have instituted to control research assistant’s

consumption of medication that would have permitted her

to perform the essential function of compatibly interacting

with her co-workers and supervisors. Americans with

Disabilities Act of 1990, § 101(8), 42 U.S.C. § 12111(8).

Petitioner does not go so far as to state that an em-

ployer could not require a good attitude as an essential job

function but states that because the parties entered into a

joint pre-trial statement setting forth various uncontested

facts including the uncontested essential functions of

Petitioner’s employment position and, firther, as “good

attitude” was not specifically listed as an essential func-

tion, the court erred in considering Petitioner’s attitude in

determining whether he was a qualified individual. This is

an untenable argument.

First, there is absolutely nothing in the Joint Pre-

Trial Statement which indicates that it was ever meant to

be exclusive of any other evidence. (App. 134-141) Sec-

ondly, pursuant to Petitioner’s argument, Respondent

could have proven at trial that Petitioner showed up

drunk every day and assaulted his co-workers but this

evidence should have been inadmissible because showing

up sober and not assaulting one’s co-workers was not

listed as an essential function. As earlier stated this

position defies common sense and exemplifies the argu-

ment’s failure.

10

An essential function of a job may be established, for

purposes of ADA claim, by evidence that includes: (1) the

employer's judgment as to which functions are essential,

(2) written job descriptions prepared before advertising or

interviewing applicants for the job, (3) the amount of time

spent on the job performing the function, (4) the conse-

quences of not requiring the incumbent to perform the

function, and (5) the current work experience of incum-

bents in similar jobs. Americans with Disabilities A of

1990, §§ 2 et seq., 42 U.S.C. §§ 12101 et seq. Meyer v. ‘wa

Mold Tooling Co., Inc., 141 F. Supp. 2d 973 (N.D. Iowa

2001). Likewise, citing 29 C.F.R. § 1630.2(n\3), the court

observed in Harden v. Delta Air Lines, Inc., 900 F. Supp.

493 (S.D. Ga. 1995), that evidence whether a particular job

function is essential includes the consequences of not

requiring the incumbent to perform the function. The

court noted in Kalekiristos v. CTF Hotel Management

Corp., 958 F. Supp. 641 (D.D.C. 1997), aff’d without op,

1382 F.3d 1481 (D.C. Cir. 1997), that relevant evidence

whether a particular job function is essential, and there-

fore must be performable in order for an individual te be a

qualified individual with a disability under ADA Title I,

includes the consequences of not requiring that the func-

tion be performed. The consequences of any non-disabled

individual displaying the attitude which Petitioner em-

ployed would have been termination.

In sum, Petitioner’s allegations of federal question

issues are really nothing other than allegations of eviden-

tiary error and those arguments fail as well. There is

simply nothing which would warrant this Court’s review

under federal question jurisdiction.

ll

II. There Is No Substantive Conflict Among The

Circuits Regarding An Employer’s Obligation

To Engage In An Interactive Process.

“[Tihe ‘single most important’ factor for granting

certiorari petitions ... is a split within the circuits that

have considered the issue below.” Sanford Levinson, Book

Review: Strategy, Jurisprudence, and Certiorari. Deciding

to Decide: Agenda Setting in the United States Supreme

Court, 79 Va. L.Rev. 717, 726 (1993) (quoting H.W. Perry,

Jr., Deciding to Decide: Agenda Setting in the United

States Supreme Court 251 (1991)). However, while the

Circuits may appear to be semantically split on the issue

of when the interactive process is triggered when a dis-

abled individual requests or needs accommodation, upon a

substantive review of these decisions no actual! conflict has

been presented.’

A. The Circuits Are Not Split In Finding No

Independent Liability For An Employer’s

Failure To Engage An Interactive Process.

First, if this Court agrees that Petitioner was not a

qualified individual for purposes of the ADA there is no

need to address an employer’s obligation to engage in the

interactive process as held by the Appellate Court (App.

27, fn. 10.).

’ A thorough and invaluable analysis of circuit rulings relative to

the issue of a required interactive process is found in John R. Autry,

Note, Reasonable Accommodation Under The ADA: Are Employers

Required to Participate in the Interactive Process? The Courts Say “Yes”

But the Law Says “No", 79 Chi-Kent L.Rev. 665 (2004). The author

states Supreme Court review would be helpful due to the purported

split among the circuits but goes on to assert his hypothesis that the

Court may be refusing to take these cases as in reality there is no split.

12

Even assuming an interactive process is required

under the ADA and further assuming an employer fails to

engage in such a process, no Circuit has found independ-

ent liability for the employer’s failure to do so when

presented with an unqualified individual. In other words,

if an employee i. ...t a qualified individual under the ADA

it is of no consequence whether the interactive process was

employed or not. There is no split among the Circuits on

this issue. See Kvorjak v. Maine, 259 F.3d 48, 53 (1st Cir.

2001) quoting Soto-Ocasio v. Fed. Exp. Corp., 150 F.3d 14,

19 (ist Cir. 1998) (where the employer failed to engage in

the interactive process such an omission is of no moment if

the record forecloses a finding that the plaintiff could

perform the duties of the job, with or without a reasonable

accommodat’on); Barnett v. U.S. Air, Inc., 228 F.3d 1005,

1136 (9th Cir. 2000) (employers who fail to engage in the

interactive process in good faith, face liability for the

remedies imposed by the statute [only] if a reasonable

accommodation would have been possible); Rehling v. City

of Chicago, 207 F.3d 1009, 1015-16 (7th Cir. 2000) citing

Beck v. Univ. of Wis., 75 F.3d 1130, 1135 (7th Cir. 1996)

(when assigning ADA liability to employers it is insuffi-

cient for plaintiffs to show that the employer simply failed

to engage in the interactive process). An employer is not

liable under the Act even where it refuses to interact

unless its refusal also leads to a failure to accommodate

and a reasonable accommodation was available to render

the plaintiff statutorily qualified Autry, supra at 689.

13

B. There Is No Substantive Circuit Split

Even In Cases Dealing With The Interac-

tive Process And Qualified Individuals.

In addition, and despite Petitioner’s assertions,

Respondent respectfully submits that no actual split

among the circuits exist when dealing with the interactive

process and qualified individuals. Although many Courts

and commentaries have stated a split exists, upon review

and actual application, the split is only semantic and not

operational in nature.

For example, most Circuits profess to “require” em-

ployers to engage in the interactive process when pre-

sented with qualified individuals. Barnett v. U.S. Air, Inc.,

228 F.3d 1105 (9th Cir. 2000), Taylor v. Phoenixville School

District, 184 F.3d 296 (3rd Cir. 1999), Taylor v. Principal

Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996). Two

hold that employers are not required to do so, White v.

York International Corp., 45 F.3d 357 (10th Cir. 1995),

Moses v. American Nonwovens, Inc., 97 F.3d 446 (11th Cir.

1996), and two others evaluate interactive process liability

on the facts of each case, Jacques v. Clean-up Group., Inc.,

96 F.3d 506 (1st Cir. 1996), Fjellstad v. Pizza Hut of

America, Inc., 188 F.3d 944 (8th Cir. 1999), Autry, supra at

677-84. However,

Courts that require employers to interact contend

that they are assigning ADA liability for a failure

to engage in the [interactive] process. On closer in-

spection, however this contention is manifestly

false .. . the court looks for evidence of appropriate

accommodations that the defendant failed to dis-

cover when it did not interact. The key to liability,

then, is the defendant’s failure to implement one

of the available appropriate accommodations, not

the failure to interact with the plaintiff... .

14

There is, then, no situation (and no Circuit) in

which an employer is required by law to engage

in the interactive process. Liability only attaches

under the ADA if the employer fails to reasonably

accommodate the limitations of an employee's

disability ... If the employee has been reasona-

bly accommodated, ADA liability cannot attach,

regardless of whether the accommodation was

produced without employee input. Thus, those

Courts that recognize an interactive process par-

ticipation requirement are fooling themselves

and their litigants, the ADA, as currently

drafted, permits no such requirement.

Autry, Jd. at 690-91 (cites omitted).

In this case, Petitioner presented no evidence of any

reasonable accommodation Respondent could have imple-

mented which would have allowed him to do the essential

functions of his job. As such Respondent has no ADA

liability regardless of whether an interactive process was

employed or not.

+

CONCLUSION

Petitioner’s claims of potential damage to the spirit,

intent and plain language of the ADA as a result of the

lower courts’ rulings are unfounded. It was never the

intent of the ADA to guaranty the employment of disabled

individuals regardless of their attitude and work ethic.

Disabled individuals must still be able to perform the

essential functions of a job and it is axiomatic that an

acceptable, if not good, work attitude and ethic is an

essential function of any job, whether the employee be

15

disabled or not. These matters hardly present issues of

federal question jurisdiction.

Secondly, there is no split of authority in the Circuits

regarding an employer’s interactive process duties and

non-qualified individuals — the only issue presented by

this case. However, even if the Court expands its review to

those cases involving qualified individuals there is no

substantive conflict in the Circuits below.

As such, Respondent respectfully requests the Petition

For A Writ Of Certiorari be denied.

Dated this 24th day of October, 2005.

Respectfully submitted,

CAROL DrrrMaR LAW OFFICE, LLC

CAROL S. DITTMAR

24 West Cedar Street

Chippewa Falls, WI 54729

Phone: (715) 720-1889

Facsimile: (715) 723-3056

Email: dittmarc@sbeglobal.net

Attorney for Respondent