REEDER v. INDIANA STATE POLICE, et al.
Filing
52
ORDER granting 37 Defendant's Motion for Summary Judgment and denying 40 Plaintiff's Motion for Summary Judgment. ***SEE ORDER FOR DETAILS*** Signed by Judge Sarah Evans Barker on 9/21/2018. (LDH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DILLON B. REEDER,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
DOUGLAS G. CARTER, in his official
capacity as Superintendent of the Indiana
State Police,
No. 1:16-cv-02164-SEB-TAB
Defendant.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This matter comes before us on Cross-Motions for Summary Judgment filed by
Plaintiff Dillon B. Reeder (“Mr. Reeder”) [Dkt. No. 40] and by Defendant Douglas G.
Carter, Superintendent of the Indiana State Police (“ISP”) (“Superintendent Carter”) in
his official capacity [Dkt. No. 37]. The motions relate to Mr. Reeder’s claims under the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101, et seq., and are
ripe for ruling. For the reasons detailed below, we GRANT Defendant’s Motion for
Summary Judgment and DENY the Motion for Summary Judgment filed by Plaintiff.
Factual and Procedural Background
The ISP Recruit Academy located in Plainfield, Indiana conducts an annual,
limited duration program to train recruits who aspire to become State Troopers. Mr.
Reeder, as part of his effort to become a State Trooper, enrolled in ISP’s 74th class,
which ran from July 21, 2014 to December 23, 2014. Deposition of Zachary Parker, Dkt.
No. 37-1 (“Parker Dep.”) at 2.
1
Academy curriculum consists of 929 hours of required training, which includes
physical training and classroom-based training in criminal justice, administrative, and
police-related subjects. Deposition of Superintendent Carter, Dkt. Nos. 37-2 and 44
(“Carter Dep.”) at 99; Deposition of Sargent Russell Garrison, Dkt. Nos. 37-4 and 44
(“Garrison Dep.”) Ex. 3. The ISP regards the physical training component as “not
something that [one] can simply observe”; rather, active participation is required. Id. In
that vein, the ISP retains authority to dismiss from the Academy recruits who fail to
satisfy the minimum physical standards set forth by the Indiana Law Enforcement
Training Academy (“ILEA”). 1 Carter Dep. at 90; Garrison Dep. Ex. 3. Certain aspects of
Academy training require recruits to wear Tactical Defense Uniforms (“TDUs”)
comprised of a duty belt and a bulletproof vest. Garrison Dep. Ex. 11.
The essential skills required of a State Trooper trainee are set forth by statute and
by the 74th Recruit Academy Policy and Procedures Manual. Garrison Dep. Ex. 11. A
recruit must complete rigorous physical training and pass substantive coursework
selected by the Superintendent. Ind. Code § 10-11-2-14(b); see also 240 IAC 1-44-4 and
5 (providing that ISP requires that recruits “conform to the physical standards prescribed
by the Superintendent and the State Police Board,” specifying that recruits must “be able
to successfully pass any physical agility tests as may be prescribed by the department.”).
1
ILEA certification is awarded to Indiana’s cadre of law enforcement officers who
successfully complete the training program by the Indiana Law Enforcement Training
Board, which is not a party to this lawsuit. Ind. Code § 5-2-1 et seq. ISP Academy
training is recognized for purposes of obtaining ILEA certification. Garrison Dep. Ex. 9.
2
On weekdays during the training sessions recruits remain on Academy grounds
with permission to leave only when released by their instructors. The ISP contracts with a
third party provider to supply recruits with all meals, and the menus reflect a limited
choice of options. Deposition of Major Charles Sorrells, Dkt. Nos. 37-2 and 44 (“Sorrells
Dep.”) at 39.
Superintendent Carter is vested with sole authority to determine recruits’
eligibility to graduate from the Academy. Carter Dep. at 101. Upon successful
completion of the ISP Academy course, recruits are eligible to apply for State Trooper
positions located in various Indiana counties. Recruits are also required to participate in
post-graduation training under the instruction of a Field Training Officer (“FTO”).
Garrison Dep. at 105. The duration of this final stage of training is fourteen weeks, which
allows a recruit to obtain capstone training and experience from a veteran trooper.
Sorrells Dep. at 117.
Plaintiff’s Attendance at the Academy
Mr. Reeder enrolled in and began attending the ISP Academy in July 2014.
Within a few months, during his fifteenth and sixteenth weeks, he began experiencing
significant back pain. Deposition of Dillon Reeder, Dkt. No. 37-3 and 44 (“Reeder Dep.”)
at 26, 28, 30. A few weeks following the onset of his back pain during the Academy’s
eighteenth week, he sought medical treatment on November 7, 2014 at Indiana University
Hospital in Martinsville, Indiana, and was diagnosed with having uncontrolled Type 1
diabetes. Dr. Thomas Lahr, M.D. admitted him to St. Francis Hospital to undergo glucose
reduction and insulin treatment in an effort to stabilize his condition. As a result, he
3
missed four days of classroom-based training offered that week. Reeder Dep. at 24. Mr.
Reeder testified that at the time of his diagnosis he had lost over fifty pounds from the
first day he enrolled in the Academy. Reeder Dep. at 28.
According to Mr. Reeder, Major Sorrells, the Academy’s Human Resources
officer, visited him at Indiana University Hospital in Martinsville on November 9, 2014,
and again at St. Francis Hospital on November 10 and 12, 2014. Reeder Dep. at 29-30.
Mr. Reeder testified that Major Sorrells informed him that a recording was being made of
the classroom sessions during his hospitalization which would allow him to catch up with
the missed presentations upon his return. Id. at 32.
Prior to his release from St. Francis Hospital on November 10, 2014, Mr. Reeder’s
physician provided him with guidelines and recommendations for meals and warned him
against engaging in strenuous exercise which could negatively affect his blood sugar
levels. Reeder Dep. at 38. Mr. Reeder was advised to request that the Academy make
available to him an appropriate meal plan. Id. Mr. Reeder testified that Major Sorrells
was present during this discussion with the discharging physician. Id. at 39.
Mr. Reeder maintains that Major Sorrells informed him that he had satisfied most
of the requirements for becoming a State Trooper, needing only at that point to “log
classroom hours” following his return to the Academy. Id. He recalls that Major Sorrells
promised to arrange for an appropriate meal plan for him at the Academy and to assist
him in securing a post-graduation job in the county closest to Mr. Reeder’s hometown to
allow him to continue his medical appointments. Id. at 33. Major Sorrells, however,
denies having had any specific discussions with Mr. Reeder regarding accommodations
4
following his return to the Academy. Sorrells Dep. at 115-16. In any event, the ISP
stresses that only the Superintendent, not Major Sorrells or anyone else, has the authority
to determine whether and when a recruit has satisfied the Academy’s graduation
requirements. Carter Dep. at 101.
On November 16, 2014, one day prior to Mr. Reeder’s return to the Academy,
Gary Midla, D.O., Mr. Reeder’s family physician, cleared Mr. Reeder to return to the
classroom but issued a written report to the ISP notifying ISP that Mr. Reeder was “not
yet able to tolerate the rigors of the physical part of his training.” Garrison Dep. Ex. 9.
When Mr. Reeder returned to the Academy on November 17, 2014, he did so with the
expectation that he would receive any and all required accommodations necessitated by
his medical condition. Reeder Dep. at 96, 136.
Mr. Reeder asserts that for the most part his dietary needs were not met; only on a
handful of occasions during the first few days after his return to the Academy were his
meals properly adjusted. Reeder Dep. at 41-43, 61. The ISP explains that it did its best to
accommodate Mr. Reeder’s dietary needs, given its contractual relationship with the third
party food service provider. Defendant’s Answers to Plaintiff’s Interrogatories, Dkt. 37-7
(“Defendant’s Answers”) at 3. During mealtimes, Mr. Reeder reported that he personally
assumed responsibility for his meals by limiting his intake to foods lower in
carbohydrates and substituting other fare with specially made turkey sandwiches. Reeder
Dep. at 36, 38-39. On his first day back at the Academy, the ISP permitted Mr. Reeder to
access snacks between meals, which had been delivered by his mother. ISP also allowed
Mr. Reeder unrestricted access to refrigerated beverages. Defendant’s Answers at 2.
5
Mr. Reeder sought to be excused from his physical training courses (Reeder Dep.
at 96) but his instructors were unable to accommodate this request. He engaged as much
as he could, even while wearing his TDU. Reeder Dep. at 39. However, Mr. Reeder
found this activity to be too rigorous for him. Reeder Dep. at 45. On November 21, 2014,
Dr. Lahr, Mr. Reeder’s family physician, sent a letter to the ISP similar to the one
provided by Dr. Midla advising that Mr. Reeder still “should not be involved in any
physical activity.” Garrison Dep. Ex. 10. This letter was received and read by Major
Sorrells. Sorrells Dep. at 32. Nonetheless, Mr. Reeder was required to continue strenuous
training, which produced episodes of significant exhaustion for him. Reeder Dep. at 60.
There is no dispute between the parties regarding the fact that any required
accommodations to training procedures by the Academy are made on a case-by-case
basis. Sorrells Dep. at 94. However, there is a dispute as to whether recruits were on
occasion permitted to observe, as opposed to directly participate in, a training activity, a
practice Mr. Reeder refers to as “red-tagging.” Reeder Dep. at 39. Mr. Reeder maintains
that the practice of “red-tagging” occurred from time to time, though ISP staff apparently
remained unaware of its use. Sorrells Dep. at 110-11. To make this point, Mr. Reeder
identified certain other recruits who had suffered injuries and were excused from physical
training for short periods of time (i.e., one week). In such cases, the recruits were given a
“red tag” to show they were under restrictions until they were physically able to return to
training. 2 Reeder Dep. at 61-62. One recruit who had suffered a broken shoulder and was
2
Mr. Reeder identified these other recruits who allegedly were “reg-tagged” for, for
example, a knee injury (recruit Glaze) or a spider bite (recruit Henson). They were each
6
excused from training during the final two or three weeks of Academy training was still
permitted to graduate subject to his completion of the missed training. Garrison Dep. at
43; Defendant’s Supplemental Answers, Dkt. No. 44 at 106.
The ISP made various accommodations for Mr. Reeder following his diabetes
diagnosis. He was allowed to carry equipment with him for monitoring his blood sugar
levels and to notify his instructors if he needed modifications of the physical training. He
was allowed to return to his dorm to rest as needed, at his discretion. Defendant’s
Answers at 3. On certain occasions, he was excused altogether from engaging in training
exercises when he was unable to complete them. He was also excused from Evasive
Vehicle Operations (“EVO”) training on an occasion when he did not feel well (Reeder
Dep. at 49). Another time, Mr. Reeder was escorted back to his dorm without having
completed an exercise called “night fire.” 3 Reeder Dep. at 53-55. Once, his instructor
exempted him from an exercise called “one on one hitman” since he had previously
completed “two on one hitman.” Id. at 47.
excused from physical training for approximately one week. Reeder Dep. at 45. Glaze
was permitted to reschedule the defensive tactics training he had missed, and ISP
reschedule the Evasive Vehicle Operations (“EVO”) training for recruit Posey.
Defendant’s Supplemental Answers to Plaintiff’s Interrogatories, Dkt. No. 44
(“Defendant’s Supplemental Answers”) at 106. Another recruit in Mr. Reeder’s class
allegedly sustained a knee injury and was excused from training for two or three weeks.
Parker Dep. at 22.
3
Mr. Reeder testified that his instructors had told him that EVO and “night fire” were not
graduation requirements. Reeder Dep. at 53-55, 60.
7
At some point, it became clear that Mr. Reeder would be unable to complete all
the requirements necessary in order to graduate as a member of the 74th Academy. This
determination was reflected in ISP records. Carter Dep. at 101. In December 2014, prior
to the recruits’ participation in the Quickening Field Scenarios, a strenuous, three-day
off-site training exercise in Jennings County referred to as “the Quickening,” Mr. Reeder
was deemed unqualified to participate. Carter Dep. at 102-03, 122.
Mr. Reeder’s Fitness-for-Duty Report and Removal from the Academy
Prior to the Quickening, Mr. Reeder was ordered by the ISP to undergo a Fitnessfor-Duty evaluation, which examination and report were completed by Dr. Steven
Moffatt, M.D. on December 9, 2014. 4 Reeder Dep. at 63. This evaluation was to
In his briefing, Mr. Reeder relies on the deposition testimony of Dr. Moffatt, whose
services the ISP solicited in conjunction with Mr. Reeder’s fitness-for-duty opinion.
Deposition of Dr. Steven Moffatt, Dkt. No. 44 at 4-15 (“Moffatt Dep.”); Dkt. No. 41
Plaintiff’s Brief in Support of Summary Judgment, Dkt. No. 41 (“Pl.’s Br.”) at 16-19. Dr.
Moffatt, Medical Director of Public Safety Medical in Indianapolis, Indiana, is a
practicing physician who sees patients and provides consultation for municipalities and
agencies throughout Indiana. Moffatt Dep. at 7. Mr. Reeder deposed Dr. Moffatt, whom
Mr. Reeder identified as an expert witness, on August 29, 2017. The ISP argues that Dr.
Moffat is actually a fact witness because his testimony concerns his interactions with and
observations of Mr. Reeder gleaned in the course of treating him. Defendant’s Response
Brief, Dkt. No. 45 (“Def.’s Resp.”) at 3. According to the amended Case Management
Plan, depositions of fact witnesses and testimony concerning issues of liability were to
have been finalized by August 14, 2017. See Dkt. No. 31; Moffatt Dep. at 4-5. Because
Dr. Moffatt’s deposition was taken after the deadline for fact witnesses set by the
amended Case Management Plan for fact witnesses, the ISP moves to exclude Dr.
Moffatt’s testimony. See Dkt. No. 31; Moffatt Dep. at 4-5; Def.’s Resp. at 3 (citing Cripe
v. Henkle Corp., 858 F.3d 1110, 1112 (7th Cir. 2017) (“Attaching the report of a fact
witness, such as a treating physician, to an expert’s report does not turn the fact witness
into an expert witness.”)). Dr. Moffatt’s deposition was taken fifteen days after the
deadline and thus violated schedule set out in the the Case Management Plan. We regard
this as a technical violation: the period of delay was not substantial, no prejudice has
4
8
determine whether Mr. Reeder’s medical condition might prevent him from performing
the essential functions of a State Trooper position. Moffatt Dep. at 10. Based on the
examination, the evaluations by Doctors Midla and Lahr, Dr. Moffatt prepared the
following report:
Dillion Reeder is a 23 year old Trooper cadet currently in the Academy
who presented with substantial weight loss in November 2014 of
approximately 42 pounds during the Academy. He was noted to have
severe exhaustion and was taken to the emergency room and found to
have a blood sugar of over 1200. . . He was hospitalized for 4 days
undergoing glucose reduction and the institution of insulin to control his
diabetes Type 1.
Additionally, while hospitalized he was found to have renal insufficiency
secondary to his diabetes crisis . . . His renal functions have returned to
their normal measurements without any significant proteinuria. He has done
well with regard to monitoring his blood sugars every 2 hours and providing
those to his endocrinologist, Dr. Waddle, who has provided him adjustments
in his insulin. He is additionally on a sliding scale regular insulin adjustment.
He has no other complications associated with his diabetes.
Mr. Reeder understands that this disease is his responsibility with regard to
his treatment and that he is to be compliant with regard to his insulin
dosage. It is also anticipated that in the near term approximately 4-8
weeks he will undergo an insulin pump placement for greater, more
accurate control of his diabetes with an anticipation to be released to
unrestricted activity. However at this point in time due to his continued
episodes of exhaustion, it is recommended that he not be placed in any
strenuous physical activity until further insulin adjustment is provided
regulating his glucose.
It should also be mentioned that the potential for death due to his initial
diagnosis of diabetes with a blood sugar of over 1200 was a significant
potential at presentation; however he at this point in time has returned back
to normal functioning.
flowed from it and there is no evidence of intentionality or bad faith on the part of Mr.
Reeder. Dr. Moffatt’s deposition testimony may remain as part of the record.
9
....
In conclusion, Dillon is status post new diagnosis of Type 1 insulin
diabetes currently being regulated with insulin and is anticipated to have
an insulin pump within the next 4-8 weeks. He has done well with regard to
compliance and has undergone nutrition counseling. Prognosis is reasonably
good for a return to unrestricted activity in approximately 4-8 weeks after
implementation of the insulin pump. It should be noted that I should review his
medical condition prior to return to unrestricted duty as a Trooper in
approximately 4-8 weeks.
Carter Dep. Ex. 9. Superintendent Carter received this report on December 10, 2014.
On that same day, December 10, 2014, Mr. Reeder was summoned to
Superintendent Carter’s office (Carter Dep. at 108) where he was informed by
Superintendent Carter as follows: “I regret to inform you that you will not graduate with
your class. We realize that you are just too sick to continue.” Reeder Dep. at 67.
Although Superintendent Carter testified that he thought highly of Mr. Reeder, he
believed that Mr. Reeder posed a risk of harm to himself. Carter Dep. at 76, 84, 104
(Reeder was “exactly the kind of guy [the ISP] would want”), 105 (Mr. Reeder had “a
tremendous amount of character” and “a tremendous amount of drive”). Superintendent
Carter’s judgment was based on “the totality of over 20 weeks of training” and the total
picture of [Mr. Reeder’s training status]” (i.e., he had not been able to fully participate in
training). Superintendent Carter told Mr. Reeder that he did not think Reeder could
perform the Quickening exercise nor did he believe that due to the restrictions on Mr.
Reeder’s physical activity throughout the remaining duration of the Academy, any
accommodation(s) could have been made that would allow Mr. Reeder to continue on as
a recruit to a successful completion of the program. Id. at 102, 105, 123.
10
Mr. Reeder insisted to Superintendent Carter that he believed he could complete
the Quickening and begged to be allowed to finish, offering to “sign anything saying if
anything happens to [him], it’s [Reeder’s] fault.” Reeder Dep. at 68. Superintendent
Carter responded that he thought it unwise and could not bear to have “on his
conscience” some worse problems befalling Mr. Reeder. Id. As a result, Superintendent
Carter felt compelled to order the removal of Mr. Reeder from the Academy. Carter Dep.
at 102.
Mr. Reeder understood that if he refused to resign from the Academy, he would be
terminated (Reeder Dep. at 68), which is exactly what happened: Mr. Reeder refused to
resign and was removed from the 74th ISP Academy on December 10, 2014.
Defendant’s Offer of an Alternative Post and a Position in the 75th Academy
Following Mr. Reeder’s departure from the Academy, the ISP offered to employ
him as a dispatcher, which offer Mr. Reeder declined. Reeder Dep. at 76-77. Thereafter,
the ISP offered to hold a spot for Mr. Reeder in the Academy the following year, in the
75th Academy. Reeder Dep. at 76-77. Mr. Reeder initially accepted this offer, apparently
after having spoken with Major Sorrells who recommended that Mr. Reeder focus on
getting healthy and return to the 75th Academy class. Reeder Dep. at 75-77. Though Mr.
Reeder satisfied all the entry requirements for the 75th Academy class and did not believe
he would require any restrictions on his physical activity in order to participate (id. at 7778), he did believe that he would require a special dietary plan (id. at 106), and ISP made
those arrangements. Deposition of Troy Torrence, Dkt. No. 37-6 (“Torrence Dep.”) at 2.
On the date of his check-in when Mr. Reeder arrived at the Academy, he inquired about
11
the possibility of his taking a “refresher course” in lieu of repeating the Academy
curriculum. The ISP informed him that such a “refresher course” was not an available
option.
At some point Mr. Reeder apparently learned that Major Sorrells once referred to
him as an “unlucky cocksucker.” Garrison Dep. at 104-06. Major Sorrells denies making
this comment. Sorrells Dep. at 29. Additionally, Mr. Reeder reports that he learned that
Major Sorrells and others had expressed concerns that, if he became a State Trooper, the
ISP would have “somebody else on the department that they were paying for the next 25
years that couldn’t do the job.” Garrison Dep. at 85. This was an uncomplimentary
reference to a former recruit and current ISP employee, Rex Caldwell. 5 Id. at 86.
Whether anyone with the ISP admits to actually making this statement, we have not been
told. This prompted Mr. Reeder to notify Major Sorrells later that day that he no longer
wished to attend the Academy. Reeder Dep. at 79, 86, 88.
This Litigation
Mr. Reeder filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) against the ISP on September 11, 2015. On August
12, 2016, after receiving a right to sue notice from the EEOC, Mr. Reeder filed his
Complaint (Dkt. No. 1) in this court against Superintendent Carter in his official capacity,
which complaint he amended on November 21, 2016. Dkt. No. 14. The Amended
5
Rex Caldwell was a State Trooper trainee who was diagnosed with a brain tumor while
enrolled in the Academy; he was unable to work as a Trooper but was given a job in the
quartermaster charged with distributing ISP gear. Garrison Dep. at 86.
12
Complaint alleges that the ISP violated the ADA by terminating Mr. Reeder’s employment
relationship and failing to accommodate his disability. Id. at 1, 13-16. Mr. Reeder requests
that the court: (1) order the ISP to employ and reinstate him as an Indiana State Trooper
and provide him with seniority equal to all other troopers in the 74th ISP Academy class,
including crediting him with all training and education he had completed as of the time of
his termination; (2) order the ISP to certify Mr. Reeder as a law enforcement officer and
reinstate him as an Indiana State Trooper without requiring him to return to the Academy
to undergo further training; and (3) award him the costs of this action, including reasonable
attorney’s fees incurred in prosecuting this lawsuit. Id. at 17.
Legal Analysis
I.
Standards of Review
A. Summary Judgment
Summary judgment is appropriate where there are no genuine disputes of material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Hoffman-Dombrowski v. Arlington Intern.
Racecourse, Inc., 254 F.3d 644, 650 (7th Cir. 2001). Disputes concerning material facts
are genuine where the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
whether genuine issues of material fact exist, the court construes all facts in a light most
favorable to the non-moving party and draws all reasonable inferences in favor of the nonmoving party. See id. at 255. However, neither the mere existence of some alleged factual
dispute between the parties, id. at 247, nor the existence of some metaphysical doubt as to
13
the material facts, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of
Illinois, Inc., 209 F.3d 687, 692 (7th Cir. 2000).
Courts often confront cross-motions for summary judgment as have been filed
here because Rules 56(a) and (b) allow both plaintiffs and defendants to move for such
relief. In such situations, courts consider each party’s motion individually to determine if
that party has satisfied the summary judgment standard. Blow v. Bijora, Inc., 855 F.3d
793, 797 (7th Cir. 2017) (citing Celotex, 477 U.S. at 324). Accordingly, we have
considered the parties’ respective memoranda and the exhibits attached thereto, and have
construed all facts and drawn all reasonable inferences therefrom in the light most
favorable to the respective nonmovant. Id.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for
resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.
1994). Thus, after drawing all reasonable inferences from the facts in favor of the nonmovant, if genuine doubts remain and a reasonable fact finder could find for the party
opposing the motion, summary judgment is inappropriate. See Shields Enter., Inc. v. First
Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d
1327, 1330 (7th Cir. 1989). If it is clear that a plaintiff will be unable to satisfy the legal
requirements necessary to establish his case, summary judgment is not only appropriate,
but mandated. See Celotex, 477 U.S. at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520
(7th Cir. 2003). Further, a failure to prove one essential element necessarily renders all
other facts immaterial. Celotex, 477 U.S. at 323.
14
B. ADA Claims
Mr. Reeder’s claims against the ISP arise under the ADA, 42 U.S.C. § 12101 et seq.,
which safeguards disabled individuals against workplace discrimination and ensures access
to public facilities, commercial establishments, and telecommunications services. In the
area of employment, the ADA provides that no employer subject to the Act shall
“discriminate against a qualified individual with a disability because of the disability of
such individual in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms, conditions,
and privileges of employment.” 42 U.S.C. § 12112(a) (emphasis added). The statute further
defines a “qualified individual with a disability” as “an individual with a disability who,
with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” Id. at § 12111(8).
To establish a prima facie claim under the ADA, a plaintiff must show that: “(1) he
is disabled within the meaning of the ADA; (2) he is qualified to perform the essential
functions of his job either with or without reasonable accommodation; and (3) he has
suffered from an adverse employment decision because of his disability.” Spurling v. C&M
Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014); Dvorak v. Mostardi Platt Assoc., 289
F.3d 479, 483 (7th Cir. 2002). An employee may state a claim for discrimination under this
portion of the ADA in one of two ways. See Basith v. Cook County, 241 F.3d 919, 926–
927 (7th Cir. 2001). First, he can claim that he suffered disparate treatment—in other
words, that the employer treated him differently because of his disability. See Sieberns v.
Wal-Mart Stores, Inc., 125 F.3d 1019, 1021–1022 (7th Cir. 1997). Second, an employee
15
may claim that his employer violated the ADA by failing to provide a reasonable
accommodation for his known disability. Spurling, 739 F.3d at 1061. This “failure to
accommodate” cause of action derives from the statute’s provision that the definition of
discrimination includes: “not making reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a disability who is an
applicant or employee, unless [the employer] can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of the [employer].” 42
U.S.C. § 12112(b)(5)(A); see also Bultemeyer v. Fort Wayne Community Schools, 100 F.3d
1281, 1283 (7th Cir. 1996). Mr. Reeder’s disability-based discrimination claim must satisfy
the pleading requirements enunciated by the Seventh Circuit in Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016) (holding that the “the ultimate legal
question ‘is simply whether the evidence would permit a reasonable factfinder to conclude
that the plaintiff’s (age) caused the discharge or other adverse employment action.’”).
II.
Plaintiff’s Legal Claims
As a threshold matter, to the extent there are factual disputes underlying the
pending motions, we hold that they are not material to our analysis of any of the issues
raised here. The parties have varying versions of certain conversations that allegedly
occurred during Mr. Reeder’s participation in the ISP’s 74th Academy, but what is not
disputed between them is that due to his physical limitations related to his diabetes Mr.
Reeder was unable to fulfill his training obligation prior to the conclusion of the
Academy session. Nor is it disputed that the ISP offered him two separate forms of
employment-related accommodations, both of which Mr. Reeder rejected. The minor
16
factual differences are not material and do not foreclose summary judgment. See
Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009) (explaining that a
disputed fact is material only if it could affect the outcome of the lawsuit).
Mr. Reeder advances two specific claims under the ADA, both against
Superintendent Carter in his official capacity. 6 According to Mr. Reeder, the ISP failed to
provide a reasonable accommodation for the effects of his Type I insulin-dependent
diabetes while he was attending the 74th ISP Academy (Pl.’s Br. at 22-30); and it
discriminated against him when it terminated him from his position as a recruit and State
Trooper trainee following his diagnosis. Pl.’s Br. at 30-33. We address these issues and
counterarguments in turn below.
A. Failure-to-accommodate Claim
In order to prevail on a “failure to accommodate” claim under the ADA, a plaintiff
must set forth evidence establishing that: “(1) he is a qualified individual with a
disability; (2) the employer was aware of his disability; and (3) the employer failed to
reasonably accommodate the disability.” E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d
789, 797 (7th Cir. 2005) (citing Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir.
2001)); Curtis v. Costco Wholesale Corp., 807 F.3d 215, 224 (7th Cir. 2015). Here, the
6
A suit against a governing official in his official capacity is, of course, treated as a suit
against the entity by which the official is employed, Kentucky v. Graham, 473 U.S. 159,
163 (1985), which in this case is the ISP. State officials may not be personally sued for
violations of the ADA. Walker v. Snyder, 213 F.3d 344, 347 (7th Cir. 2000).
17
ISP does not dispute that Mr. Reeder’s Type 1 diabetes constitutes a “disability” within
the meaning of the ADA. 7 Def.’s Br. at 6, n.1.
Neither does the ISP dispute that it was aware of Mr. Reeder’s diabetes at the time
it removed him from participation in the Academy classes without making a specific
effort to accommodate his disability so that he could continue. Thus, remaining for
decision are two issues: whether Mr. Reeder was a qualified individual with a disability
when he was enrolled in the Academy, and, if so, whether the ISP failed to reasonably
accommodate his disability.
The protections of the ADA extend only to “qualified individuals” with a
disability. Basith, 241 F.3d at 927. A plaintiff is qualified under the ADA if he is able to
perform the essential functions of his position with or without a reasonable
accommodation. 42 U.S.C. § 12111(8).
In determining whether a plaintiff is a “qualified individual,” we first consider the
prerequisites of the specific employment position and then turn to whether the individual
can perform the essential functions of that position with or without a reasonable
accommodation. Stern v. St. Anthony’s Health Center, 788 F.3d 276, 285 (7th Cir. 2015).
Prerequisites typically include factors such as an appropriate educational background or
certain levels of experience and skills. Id. at 285. Unless evidence reveals that such
The ADA Amendments Act of 2008 (ADAAA), 42 U.S.C. § 12102 (Supp. 2009),
broadened the definition of disability and overturned the Supreme Court’s decisions in
Sutton v. United Airlines, 527 U.S. 471 (1999), and other related cases. The 2008
Amendments are not germane to this case given that neither party contends that Plaintiff
is not disabled.
7
18
factors are ignored in practice, we grant substantial deference to an employer’s statement
of its own job requirements. See DePaoli v. Abbott Labs., 140 F.3d 668, 674 (7th Cir.
1998) (“Although we look to see if the employer actually requires all employees in a
particular position to perform the allegedly essential functions, we do not otherwise
second-guess the employer’s judgment in describing the essential requirements for the
job.”) (citations omitted).
A plaintiff bears the burden of showing that he can perform the essential functions
of his job with or without reasonable accommodation. Gratzl v. Office of the Chief Judges
of the 12th, 18th, 19th, and 22nd Judicial Circuits, 601 F.3d 674, 680 (7th Cir. 2010). With
respect to the existence of reasonable accommodations, a plaintiff need only make the
initial showing “that an ‘accommodation’ seems reasonable on its face, i.e., ordinarily or
in the run of cases.” E.E.O.C. v. United Airlines, Inc., 693 F.3d 760, 762 (7th Cir. 2012)
(citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 398 (2002)). The burden then shifts to
the defendant to “show special (typically case-specific) circumstances that demonstrate
undue hardship in the particular circumstances,” rendering the proposed accommodation
unreasonable in fact. Barnett, 535 U.S. at 402; E.E.O.C. v. United Airlines, 693 F.3d at
762.
With this framework in mind, we turn to determine whether a reasonable jury could
conclude on the basis of the uncontroverted facts before us that Mr. Reeder was capable of
performing the essential functions of an Indiana State Trooper trainee with or without any
accommodation for his diabetic condition. The ISP says he was not. Mr. Reeder says he
was.
19
The purpose and goal of the Academy is to train recruits to serve in law enforcement
positions including in the Indiana State Police. Indiana State Troopers are required to
perform physically demanding, even rigorous tasks in connection with the prevention and
detection of criminal activity. Trooper trainees must also show a capacity to perform tasks
involving the same level of rigor as a full-fledged Trooper. Recruits are required to
complete a course of study and training selected by the ISP Superintendent. These
requirements are consistent with similar standards recognized and approved by the Seventh
Circuit in other cases. See Rodrigo v. Carle Foundation Hosptial, 879 F.3d 236, 242 (7th
Cir. 2018) (hospital was entitled to require resident to pass an exam that was a prerequisite
for obtaining a license to practice medicine); Leisen v. City of Shelbyville, 153 F.3d 805,
808 (7th Cir. 1998) (fire department was entitled to require paramedic certification for a
fire-fighter job), and an employee who failed to obtain certification within the allotted time
was not a “qualified individual” for ADA purposes).
Mr. Reeder’s Type 1 diabetes presented during the final weeks of the 74th Academy
training session. Ultimately, despite treatment, his diabetes impeded his ability to complete
the required training in the following categories:
Firearms, Emergency Vehicle
Operations, Defensive Tactics, Physical Training, Quickening Field Scenarios, Spanish for
Law Enforcement, Burglary, ARIDE, Field Command, Field Training Program, Crash
Investigations, Writing Police Reports, Situational Awareness; Mechanics of Arrest, and
Point Control. Garrison Dep.at Ex. 3.
Mr. Reeder contends that despite his failure to accomplish the required training in
these areas, he was able to perform all of the essential functions of a State Trooper trainee
20
in accordance with the assessments of certain ISP instructors and officials, other than
Superintendent Carter. He argues that having successfully passed all Academy courses and
conformed to ISP’s physical standard for a successful trainee, he was eligible for
graduation. Plaintiff’s Response Brief, Dkt. No. 46 (“Pl.’s Resp.”) at 17, 22. Mr. Reeder
cites the statements and experiences of other recruits to the effect that that certain elements
of the training which he admittedly did not complete were not required as prerequisites for
graduation. Id. at 17-18, 22, 24-28. Mr. Reeder maintains that if further training were
required in order for him to graduate, the ISP had a duty to undertake reasonable
accommodations, such as a tailored meal plan appropriate for a diabetic, the suspension of
strenuous physical training, and the installation of an insulin pump. These steps, he
maintains, would have allowed him to finish the course at the Academy.
The ISP rejoins that the uncontroverted evidence makes clear that Mr. Reeder was
not a qualified individual entitled to ADA protections, that no reasonable accommodation
would have permitted him to continue as part of the 74th Academy class and complete the
program, and that the two employment-related options ISP offered to him to continue his
relationship with the ISP were reasonable accommodations, which in both circumstances
he chose to reject. Def.’s Resp. at 11-16; Defendant’s Reply Br., Dkt. No. 50 at 1-7.
Our review of the record discloses no evidence to support a finding that Mr. Reeder
was a qualified individual within the meaning of the ADA. He was permitted by his
physicians to return to the Academy following his release from the hospital, but it soon
became readily apparent that he was “not able to tolerate the rigors of the physical part of
his training” (Pl.’s Resp. at 5), with or without accommodations. Following Mr. Reeder’s
21
return to the Academy, ISP was advised that Mr. Reeder’s doctor’s restriction on physical
activity must extend through the remainder of the Academy training term and, though his
prognosis was “reasonably good,” meaning he would likely respond to appropriate
treatment and behavior modifications, there was no guarantee that he would ever be able
to return to unrestricted activity (Carter Dep. Ex. 9). Mr. Reeder concedes this fact. Pl.’s
Br. at 26.
Moreover, Mr. Reeder fully admits that he failed to complete the entirety of the
educational program necessary to become a State Trooper. Mr. Reeder, relying on Major
Sorrells’ and Commander Garrison’s opinions, maintains that he had demonstrated
sufficient physical proficiency to graduate. These opinions do not carry the day here,
because, as all agree, only the Superintendent has the authority to determine whether and
when a recruit had or would be able to satisfy the Academy’s standards and graduation
requirements, and he did not share the view of Sorrells and Garrison with regard to Mr.
Reeder’s eligibility to graduate. Carter Dep. at 101; Garrison Dep. at 50-51 (explaining that
he (Garrison) did not have the authority to waive training for individual recruits); Sorrells
Dep. at 8 (explaining that he (Sorrells), who works in Human Resources, does not oversee
Academy training matters).
The ISP asserts that it was unaware of any accommodation that would have allowed
Mr. Reeder to continue to train and complete the course during the 74th Academy, given
the seriousness of his condition that was newly-diagnosed at the time. Defendant’s Brief
in Support of Summary Judgment, Dkt. No. 38 at 9; Def.’s Resp. at 15. In fact, Mr. Reeder
has been unable to demonstrate that any reasonable accommodation would have enabled
22
him to perform the essential functions of a State Trooper trainee. He points to his
encouraging, positive discussions with Major Sorrells during his hospitalization (Pl.’s
Resp. at 20), but complains that the ISP shirked its obligation under the ADA when, upon
his return to the Academy, it “immediately breached its agreement of accommodation by
refusing to provide the appropriate diabetic meals and continued to require Reeder to
strenuously train.” Id. at 26. It is not clear that proving “appropriate diabetic meals” would
have been enough to overcome his physical limitations relating to exertion levels. Nor is it
clear that the dietary adjustments that were made were inadequate.
The ISP persuasively argues that Major Sorrells and Academy instructors were
attempting in good faith to find workable accommodations to deal with Mr. Reeder’s
restrictions from all strenuous physical activity. As Major Sorrells explained, Mr. Reeder’s
restrictions from strenuous physical activity was for “a period of time to see if he was going
to heal or not, sufficiently, to continue on.” Sorrells Dep. at 66. The ISP’s efforts to work
with Mr. Reeder to accommodate his physical restrictions prior to determining that no
accommodation proved workable did not foreclose or preempt a final decision by
Superintendent Carter or otherwise undermine the legitimacy of its final conclusion that
Mr. Reeder was not a qualified individual under the ADA. Sieberns, 125 F.3d at 1023
(“[e]mployers should not be discouraged from doing more than the ADA requires even if
the extra effort that perhaps raises an applicant’s expectations does not work out.”); see
also Vande Zande v. State of Wis. Dept. of Admin, 44 F.3d 538, 545 (7th Cir. 1995) (“And
if the employer…bends over backwards to accommodate a disabled worker—goes further
23
than the law requires— . . . it must not be punished for its generosity by being deemed to
have conceded the reasonableness of so far-reaching an accommodation.”).
The ISP was entitled to reject as unreasonable Mr. Reeder’s request for restrictions
on strenuous physical activity through the end of the Academy while still allowing him to
graduate, which would have been the equivalent of an exemption from his training
requirements. Gile v. United Airlines, Inc., 95 F.3d 492, 799 (7th Cir. 1996) (“An employer
is not obligated to provide an employee the accommodation he requests or prefers, the
employer need only provide some reasonable accommodation.”). To the extent Mr.
Reeder’s request for a diet that was appropriate for a diabetic and that would have allowed
him to complete the Academy would have been a reasonable accommodation but was
withheld from him, the ISP’s actions do not demonstrate such a failure. In fact, the evidence
discloses dietary modifications for an initial period of time after Mr. Reeder’s return to the
Academy. Thereafter, Mr. Reeder apparently was able to self-regulate his diet on his own
by arranging to receive turkey sandwiches from the food service providers, snacks as he
personally arranged for, and unlimited access to supplies of water. Dr. Moffatt’s or Dr.
Lahr’s opinions that the provision of such a diet would likely ameliorate Mr. Reeder’s
circumstances in the short term did not address the restrictions they recommended on his
strenuous physical activity for long enough to allow his body begin to recover and his
systems normalize.
Mr. Reeder’s request that the ISP provide him with an insulin pump was also not a
reasonable accommodation. Had Mr. Reeder arranged for the installation of an insulin
pump, the procedure apparently would have required a waiting period of several weeks,
24
which time would have extended past the Academy term. Any demand by him that the ISP
either acquire this medical device for him or wait until it could be installed before he
returned to the Academy and could graduate from that program was not a reasonable
request for accommodation.
We conclude that the ISP met its obligations under the ADA to engage with Mr.
Reeder in an attempt to identify and implement a reasonable accommodation. E.E.O.C. v.
Sears, Roebuck & Co., 417 F.3d at 797. Under the ADA, an employee begins the
accommodation “process” by informing his employer of his disability; at that point, an
employer's “liability is triggered for failure to provide accommodations.” Spurling, 739
F.3d at 1060 (citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir.
1998)). Once an employer’s responsibility to provide a reasonable accommodation is
triggered, the employer must engage with the employee in an “interactive process” to
determine the appropriate accommodation under the circumstances. Id. (quoting E.E.O.C.
v. Sears, Roebuck, 417 F.3d at 797). This “interactive process” occurred here.
An employer can satisfy its accommodation obligation by “reassign[ing] a disabled
employee to a different position.” Gile, 95 F.3d at 799. Following Mr. Reeder’s removal
from the Academy’s 74th class due to his inability to complete the required training, ISP
offered Mr. Reeder a desk job as a civilian dispatcher and, when Mr. Reeder rejected the
offer, the ISP offered Mr. Reeder a position in the Academy class scheduled to commence
the following year. Though Mr. Reeder initially accepted the ISP’s offer to participate in
the 75th Academy class, he ultimately rejected that as well. Significantly, Mr. Reeder
indicates that he did not believe he needed any physical accommodations for the 75th
25
Academy, though he did request dietary accommodations, which ISP agreed to do.
Torrence Dep. at 2.
The ISP describes both offers extended to Mr. Reeder as reasonable
accommodations: the dispatch position was consistent with Mr. Reeder’s immediate
restriction on strenuous physical activity and allowed him to remain within ISP’s employ
(this is noteworthy because the Academy sessions extended over only a limited period of
time annually). Similarly, his inclusion in the 75th Academy was also a reasonable
accommodation because it allowed Mr. Reeder another opportunity to become an Indiana
State Trooper, following his recovery from the physical activity restriction. These options
remained on the table until Mr. Reeder rejected them. Gile, 312 F.3d at 374.
Mr. Reeder views these options as unreasonable. Pl.’s Resp. at 31. The dispatcher
job was neither a “transfer” nor a “reassignment” as required by the ADA because it is a
civilian position, rather than a law enforcement position. Inclusion in the ensuing year’s
Academy was not a reasonable accommodation because the course would not begin until
six months later, following his departure. Id. Mr. Reeder’s decision not to engage further
in the interactive process does not leave the ISP liable under the ADA. Gile, 312 F.3d at
374 (holding that if an employer “takes an active, good-faith role in the interactive process,
it will not be liable if the employee refuses to participate. . .”). Mr. Reeder’s refusals of
the ISP’s reasonable accommodations defeat his claim for relief on this basis.
B.
Discriminatory Removal Claim
Mr. Reeder asserts as a secondary claim that his removal from the 74th Academy
class amounted to disability-based discrimination. In order to prove a case of
26
discrimination under the ADA, a plaintiff must show the following elements: that he
suffers from a disability as defined by law; that he is qualified to perform the essential
functions of the job in question, with or without a reasonable accommodation; that he has
suffered an adverse employment action as a result of his disability; and that similarly
situated employees without a disability were treated more favorably. Jackson v. City of
Chicago, 414 F.3d 806, 810 (7th Cir. 2005). If the plaintiff establishes a prima facie case
of discrimination, the burden shifts to the employer to show a legitimate,
nondiscriminatory reason for the termination. Hooper v. Proctor Health Care, Inc., 804
F.3d 846, 853 (7th Cir. 2015). If the employer succeeds with that showing, the plaintiff
must then present evidence demonstrating that the employer’s nondiscriminatory reason
is pretextual. Id.
The ISP does not dispute that Mr. Reeder suffered an adverse employment action
when it removed him from the 74th Academy class, but it contends that Mr. Reeder had
not and would not have been able to meet the ISP’s legitimate employment expectations
because he was unable to complete the requisite training within the time frame of the 74th
Academy course. Def.’s Resp. at 16. Even if Mr. Reeder were able to establish that he was
a qualified individual, which claim we have rejected, supra, his discrimination claim would
fail for lack of any comparators who are factually similar to Mr. Reeder.
Mr. Reeder represents that ISP “has consistently made significant accommodations”
for other recruits who fell ill or who were injured in a way that precluded participation in
physical activity. Pl.’s Resp. at 27. He points to circumstances of some of those recruits
with whom he became familiar in his class at the Academy. According to Mr. Reeder, “ISP
27
had the ability and the capacity” to make physical training–related accommodations as
shown with other recruits, and its failure to do so in his case was an act of discrimination.
Id. at 26-29. Mr. Reeder cites the “red-tagging” procedure as proof that other recruits who
fell ill or became injured were accommodated in that way, but the ISP refused to do so in
his case. Id. at 32. In contrast to others, he was not permitted to reschedule his physically
strenuous training, even after presenting a doctor’s note restricting such activity. Id. at 3132. Some recruits, such as Katayama of the 73rd Academy, who had missed training due
to an orthopedic injury, was allowed to return to the Academy after graduation to complete
the training, says Mr. Reeder. Id. at 32.
“A similarly situated employee must be directly comparable to [Mr. Reeder] in all
material respects, which is a common-sense, flexible analysis of relevant factors.” Cung
Hnin v. TOA (USA), LLC, 751 F.3d 499, 504 (7th Cir. 2014) (quoting Majors v. General
Elec. Co., 714 F.3d 527, 738 (7th Cir. 2013)). Mr. Reeder has failed to identify any other
recruit who had received a total physical restriction from all strenuous physical activity
beginning several weeks prior to graduation and was still permitted to graduate from the
Academy. The four individuals identified by Mr. Reeder who had experienced discrete,
time-limited injuries do not satisfy the “similarly situated” element. The other injured
recruits identified by Mr. Reeder who had missed training—in every instance but one, the
absence was no more than one week—were allowed to later complete their course
requirements while the Academy was still in session. Mr. Reeder’s physical activity
restriction prevented him from being able to complete his training prior to the end of the
74th Academy.
28
Mr. Reeder’s allegation that Major Sorrells “disparaged [him] and referred to him
using profane language” (Pl.’s Resp. at 33) thus evidencing an intent to discriminate against
him on Mr. Reeder’s diabetic condition is hard to understand. The offending language
consisted of a single comment, a comparison of Mr. Reeder to a then-current ISP employee
who had become incapacitated while a recruit at the Academy. The statement, which was
made more than a week after Mr. Reeder had left the Academy, does not constitute
evidence of disability discrimination against him; remarks of such a limited and temporally
remote nature are clearly unavailing as relevant evidence. See Basith, 241 F.3d at 926 (a
party is required to “supply evidence sufficient to allow a jury to render a verdict in [his]
favor.”); see also Jasmantas v. Subaru-Isuzu Automotive, Inc., 139 F.3d 1155, 1157 (7th
Cir. 1998). Accordingly, summary judgment on Mr. Reeder’s discrimination claim is also
warranted.
Conclusion
For all the foregoing reasons, summary judgment shall be entered in favor of the
ISP on all of Mr. Reeder’s claims. Defendant’s Motion for Summary Judgment is
GRANTED, and Plaintiff’s Motion is DENIED. Final Judgment shall enter accordingly. 8
IT IS SO ORDERED.
Date: _____________
9/21/2018
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Having denied Mr. Reeder’s Motion for Summary Judgment, we need not address his
requested remedies, injunctive relief in the form of reinstatement and/or front pay, based
on the alleged violations of the ADA.
8
29
Distribution:
Benjamin M. L. Jones
Office of the Indiana Attorney General
Benjamin.Jones@atg.in.gov
Michael E. Morken
mmorken@hotmail.com
30
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