Seyfarth Synopsis: The Seventh Circuit's recent decision – holding that an employee's request for a second chance that allows them to change their behavior to meet employer expectations is not a "reasonable accommodation" under the ADA – clarifies the standard for employers.
The Seventh Circuit Court of Appeals released a decision on October 17, 2024, clarifying that an employee's request for a second chance at meeting job performance standards is not a "reasonable accommodation" under the ADA. Schoper v. Board of Trustees of W. Ill. Univ., 2024 WL 4508970 (7th Cir. 2024).
Professor Sarah Schoper was a tenure-track professor at the Western Illinois University when she suffered a pulmonary embolism that caused a traumatic brain injury. Schoper developed physical disabilities and high-functioning mild aphasia – a condition that causes difficulty retrieving words. Following her neurologist's advice that intellectual activity would speed her recovery, Schoper returned to teaching as quickly as possible. The University provided physical accommodations and allowed her to return to teaching her previous courses without serving on any University committees.
Under the University and faculty union's collective bargaining agreement, tenure-track faculty received retention evaluations within five years of joining the University. In their sixth year at the University, faculty could apply for tenure. Applicants not recommended for tenure would receive a terminal contract for the following year. The agreement provided for a "stop-the-clock" provision, allowing faculty to request an additional year to apply for tenure in the case of significant illness. To utilize this provision, faculty had to request the extension by the year six application due date. In this case, Schoper did not request to "stop-the-clock" but instead applied for tenure in the time provided. Only after Schoper received negative recommendations from the Department committee and Department chair did she request more time to achieve tenure. By this time, however, the due date to "stop-the-clock" already had passed, and the Department chair concluded that he could not grant that request under the collective bargaining agreement.
After an extensive review process involving five university officials, three separate committees, and several requests for reconsideration, Schoper was denied tenure and issued a terminal contract. Of particular concern to the University was Schoper's student evaluations, which consisted of both qualitative feedback and numerical ratings on a five-point scale.
Before her injury, Schoper's average numerical student evaluation score was over 4.0. After her injury, however, Schoper could no longer see the left side of her classroom and struggled to read non-verbal cues and track discussions. Schoper slowed her teaching pace and wrote out agendas on the white board to stay on track. After her first semester back, students began to leave negative comments on her evaluations and her average teaching score dipped from 4.6 to 3.8. By the time her tenure application was under review, Schoper's average teaching scores in seven of her ten most recent classes ranged from 3.14 to 3.78, well below the University's standard. Additionally, students had complained that Schoper had class favorites, graded based on personal preference, did not take feedback well, wasted class time, and regularly complained in class about other faculty and not having tenure.
After receiving her terminal contract, Schoper sued the University, alleging that it discriminated against her on the basis of her disability and refused to offer reasonable accommodations in violation of the Americans with Disabilities Act ("ADA"). The District Court granted the University summary judgement, finding that Schoper could not establish a genuine dispute of material fact as to whether her disability was the but-for cause of her termination. Schoper appealed to the Seventh Circuit.
To provide a failure to accommodate claim, a plaintiff must show: (1) she is a qualified individual with a disability; (2) the employer knew of her disability; and (3) the employer failed to reasonably accommodate her disability. Schoper's claim failed the first and third of these elements.
Schoper failed to meet the first element of this claim because the ADA does not protect individuals who do not meet the position's requirements. Although Schoper had previously been recognized as a "superior teacher," after her injury she no longer met the "necessary prerequisites" for the tenured position. Tenured positions at the University required a certain level of teaching ability—measured by average student evaluation score of at least 4.0—and Schoper no longer met that criterion. Because Schoper could not meet the position's minimum criteria, the Court concluded she was not a "qualified individual" under the ADA.
Schoper also did not show that the University failed to offer a reasonable accommodation. A reasonable accommodation is one that allows a disabled employee to perform the essential functions of the position. The belated time extension Schoper requested was, according to the court, not one for an accommodation, but for a "do-over." Schoper herself decided to return to teaching quickly to hasten recovery at the risk that her student evaluation scores would drop. The ADA does not require the University to insulate her from her chosen strategy. To the contrary, the court had previously decided in Siefken v. Village of Arlington Heights that an employee's request for a second chance to change their own behavior is not a reasonable accommodation.
Schoper was similarly unsuccessful in her disability discrimination because, the court concluded, the evidence would not allow a reasonable factfinder to conclude that her disability caused her termination. Even if Schoper were a qualified individual under the ADA, she would not be able to shoulder the burden of showing that her traumatic brain injury was the "determinative factor" in the University's decision to deny her tenure.
While the reviewers focused on Schoper's comparatively poor teaching scores, which were caused by her brain injury, they did not consider them in isolation. Rather, they looked at the scores in conjunction with students' written evaluations. None of the evaluations highlighted by the reviewers concerned Schoper's disability; they instead focused on other problems, such as Schoper's playing favorites with students, struggling to handle feedback, and complaining about other teachers in class. Even the most incendiary student comments looked at by the reviewers—one referring to Schoper as a weed that should be pulled from a garden and another comparing her to a preschooler—were not necessarily discriminatory as these comments could just as easily be directed to any teacher of questionable quality. According to the court, a reasonable juror could neither draw a discriminatory animus from those comments themselves, nor ascribe such an animus to all comments in general, let alone conclude that the reviewers relied on discriminatory comments.
Although results such as this one may often seem harsh, Courts interpreting the ADA have held that providing an employee with an accommodation does not require the employer to lower their expectations as to an employee's job performance. This case further confirms that when an employee fails to meet the expectations of a position, even if caused by a disability, an employer is not required to offer the employee another shot at meeting expectations. Such a request is not a "reasonable accommodation" required by the ADA.
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