Litigation Update

EFE Achieves Settlement in Wrongful Death Lawsuit

Young Woman Died in 1999 Tragedy at Community Developmental Disability Facility

Equip for Equality has achieved a confidential monetary settlement in a wrongful death lawsuit filed Oct. 24, 2000, in the Circuit Court of Cook County. The suit was brought on behalf of the estate of Jennifer Klimek, a 36-year-old woman with a severe developmental disability, by Byron Mason, EFE Senior Attorney, against Glenkirk, the Glenkirk Housing Association and five individual defendants. In addition to the monetary settlement, Glenkirk has agreed to revise existing staff training practices, as well as other policies and procedures.

Jennifer died on Dec. 26, 1999, during the Christmas holidays. At the time of her death, she had been a resident of Glenkirk community facilities for about 14 years. She enjoyed a full and active life in the community, including participation in a day work program and shopping. She also liked to sing and ride her bicycle.

Diagnosed with Prader-Willi Syndrome, her symptoms included early developmental delays, mental and functional retardation, short stature, and an insatiable and uncontrollable appetite that would result in serious health consequences if not carefully monitored. She had been transferred from a Glenkirk facility located in Niles, Ill., a northern Chicago suburb, to a facility in nearby Mount Prospect due to a staffing shortage. Because her activities were not properly monitored when she was transferred, she ingested some harmful materials, resulting in her death.

"The circumstances surrounding Jennifer's tragic and untimely death might have been averted, but now, with this settlement, the Klimek family at least has some resolution," said Mason.

"Since the filing of the lawsuit, we have been impressed with Glenkirk's commitment to improve the quality and safety of their vocational and residential services to individuals of all ages with developmental disabilities, and we are hopeful that these positive changes will make a significant impact on the lives of other people with disabilities."

The complaint alleged Glenkirk failed to: properly monitor and supervise her ingestion of food and drink, utilize locks on all doors and cabinets to ensure her safety, recognize the nature and severity of her medical condition on Dec. 26, 1999, and seek a timely medical consultation.

"Equip for Equality strongly supports the concept of integrated community living for people with disabilities. But to be successful, these programs must have adequate staffing, training and resources to meet the needs of each individual," said Zena Naiditch, EFE President and CEO.

"State funding for community programs and facilities for people with disabilities has been seriously inadequate for many years, and this lack of funding puts the safety and well-being of some individuals with disabilities at risk. This is a crisis situation, and we urge the Governor and the Legislature to find alternative solutions to the state's fiscal dilemma to avert additional tragedies."

Reasonable Accommodations

Matson Public Library Moves Toward Accessibility for Patrons with Disabilities

By Oct. 1, 2003, the Matson Public Library in Princeton, Ill., will ensure that each of its programs or activities is accessible to and usable by people with disabilities. The compliance with Title II of the Americans with Disabilities Act (ADA), which prohibits discrimination based upon disability in a public facility, stems from an agreement with the U.S. Department of Education, Office for Civil Rights (OCR), in response to a complaint filed in September 2002 on behalf of two mobility-impaired Princeton residents by EFE Senior Attorney Janet Cartwright.

"We are pleased that EFE was able to assist Princeton citizens who have mobility disabilities to gain equal access to the resources and programs at the public library," said Cartwright. "The ability of people with disabilities to participate fully in community life is a natural fulfillment of their basic civil rights as defined by the ADA."

When OCR conducted an on-site inspection in November 2002, it verified the inaccessibility of the main entryways, all of which had stairs, and the facility's washrooms on the upper and lower levels. Built in 1913, the 90-year-old building had not undergone any renovations, alterations or additions since the 1960s.

OCR also determined that the library's Homebound Program operated by volunteers failed to allow patrons to borrow reference materials, such as encyclopedias and bibliographies, to view the library's catalog to determine the availability of materials, or to use its computers, and thus did not comply with the ADA.

"It should be noted," said Cartwright, "that for many low-income people with disabilities, owning a personal computer is not an option, and, consequently, they are denied access to the educational opportunities of practicing computer skills and access to the Internet."

OCR ruled that because the Matson Public Library was an "existing" facility, the building itself was not required to be made accessible but still had to make its programs accessible by the reassignment of programs and activities to an accessible location, alteration or construction of facilities to provide accessibility, and other innovative methods to accommodate mobility-impaired patrons, such as assigning personal aides and providing home visits.

"The library experience is taken for granted by most of us," said Barry Taylor, EFE's Legal Advocacy Director, "and, before now, many individuals in Princeton with mobility and developmental disabilities have never been inside the library with the opportunity to examine the array of books, periodicals, audio tapes, books on tape, videotapes, CDs, reference materials and computers. Because of OCR's ruling, new doors are now open for people with disabilities."

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Reasonable Accommodations

Home Depot Settles in ADA Case

Ron Oberg has diabetic retinopathy and is thus vision impaired. He also had 30 years of flooring experience when he went to work for Home Depot, the world's largest home improvement retailer, with more than 1,500 stores in North America. He was a star performer in the flooring department of the Naperville, Ill., store, except for the part of his job involving computer entries, due to his poor vision.

For several years, he had requested computer software to assist him in entering information on the computer, but to no avail. He also applied for promotions to become a supervisor, which were also denied. The positions went to employees who were younger and who did not have impaired vision.

Oberg filed suit in U.S. District Court against the company, for its failure to provide reasonable accommodations, in violation of the Americans with Disabilities Act (ADA) and failure to promote him because of his disability (ADA) and his age under the Age Discrimination and Employment Act (ADEA). Equip for Equality took over the case on Oberg's behalf with Senior Counsel Karen I. Ward and attorney Molly Paris assigned to the case. After months of discovery, EFE recently entered into a settlement with Home Depot on behalf of Oberg.

"Ron agreed to keep the terms of the settlement confidential," said Ward, "but we are satisfied that it vindicated his rights and brought to attention a systemic problem in Home Depot regarding its handling of accommodations requests, a problem that the company is now taking steps to rectify."

Employment Discrimination

Trial Averted in Police Department Discrimination Case

Keith Emrikson, represented by Senior Attorney John Whitcomb, was employed by the Lake Villa Police Department as a patrolman. He was diagnosed with a mild form of multiple sclerosis (MS), a condition that manifested itself only in exacerbations that were controlled by steroid injection. He worked days and was able to manage his health. During his 51/2 years as a patrolman, he had earned excellent recommendations and was awarded Officer of the Year in 1997.

In March 1999, the Department was reorganized and Emrikson was assigned to the night shift. On May 6, 1999, he told his employer that he had MS and asked for a reasonable accommodation under the Americans with Disabilities Act (ADA) to remain working days and thus control his schedule and prevent exacerbations.

Subsequently, it was alleged that the new Chief of Police told another officer that he thought the "MS thing was a piece of crap" and that Emrikson was a "malingerer" who had gotten away with things with the former chief. The Chief was also reported to say that he did not want an officer who would not pull his weight, like working night shifts, and that he would take care of it. Afterwards, despite a request by Emrikson to keep his condition confidential, the Chief and the other officers referred to Keith as "MS" and not by his name.

Emrikson filed a complaint to the Illinois Department of Human Rights (DHR) on his employer's failure to provide reasonable accommodations for his disability, failure to promote him as the officer with most seniority, and subsequent suspensions that appeared to be retaliatory. DHR granted the accommodation in September 1999. Less than a week later, the Lake Villa Police Department terminated his employment. The complaint was then amended to add the wrongful termination claim to his complaint.

Ultimately, a settlement agreement was reached and trial was averted. While the case was pending, Emrikson's physical condition deteriorated to the point that he became concerned about being able to access the disability pension that is available for active police officers. Accordingly, the Village of Lake Villa and the Lake Villa Police Department agreed to pay Emrikson $66,000 in damages and to promote him to sergeant.

In addition, Emrikson will apply for a disability pension, which is 50 percent of a sergeant's full pay, and have three doctors determine whether he meets the eligibility requirements. As long as he is employed or on pension, he will be eligible to receive health insurance from the Village of Lake Villa.

Special Education

The Right to a Free, Appropriate Education

A favorable decision was obtained March 28, 2003, following a due process hearing before the Illinois State Board of Education on behalf of Tiffany Wintz, a high school special education junior, who was attending a cosmetology vocational course four days a week located 22 miles from her school and 16 miles from home.

Represented by Senior Attorney Janet Cartwright from EFE's Rock Island office, her parents had requested that Rochelle Township School District in Rochelle, Ill., transport Tiffany to and from the class, which the district refused.

Since the spring of 2002, Tiffany's mother had been driving a total of 85 miles daily to pick up her daughter from school in Rochelle, get her to Hair Professionals in Sycamore by 1 p.m. and then pick her up at 5 p.m. for the trip home.

The hearing officer found that the school district was in violation of the Individuals with Disabilities Education Act (IDEA) because transportation is a related special education service and, therefore, the district must transport the student to her cosmetology class and reimburse the parents for expenses already incurred. The ruling stated that the school district should have included the cosmetology course as part of Tiffany's transition plan, in her Individual Education Plan (IEP).

"This case is important because it defines the importance of a school district's responsibility to draft an IEP that is all-inclusive and responsive to the needs of the student," said Cartwright. "Transportation here was a basic service to which Tiffany was entitled under the IDEA, and the many hours the family sacrificed to prepare for and participate in the hearing could have been avoided."

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Special Education

OCR Finds Discrimination in Special Ed District Busing Plan

Ruling on a disability discrimination class complaint filed by EFE attorney Deborah Wysong against the Special Education District of McHenry County (SEDOM) in February 2003, the U.S. Department of Education, Office for Civil Rights (OCR), found that SEDOM had discriminated against 35 special education students attending North Middle School in Crystal Lake, Ill., during the 2000-2001 and 2001-2002 school years. SEDOM serves 18 school districts in McHenry County.

Specifically, SEDOM, which provides transportation for special-needs students, scheduled afternoon bus pickup after eighth period, thus denying them the full benefit of available school services, programs and activities enjoyed by the other students during the ninth period, in violation of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973.

In a Chicago Tribune article ("Disabled pupils may get tutoring," March 24, 2003), SEDOM's director of programs and services Kathy Wilhoit described the loss of instructional time as "of little consequence for most or all of the pupils." One of the parents who brought the situation to EFE's attention, and prefers to remain anonymous, took exception with the comment, stating that "even 15 minutes per day for two years is equivalent to about 15 full days of lost education" - and that these children are entitled to compensation.

The settlement calls for teams composed of parents, teachers and district officials to review the Individualized Education Plans (IEP) of pupils to determine if they were hurt by the shortened school day and whether they need extra tutoring or other compensatory services as a result.

"OCR has made it clear that a shortened school day is discriminatory and that remedy is in order so that these students will have the same access to a public education as everyone else," says President and CEO Zena Naiditch.

Special Education

Breaking Barriers for Students with Special Needs

EFE attorneys Molly Paris and Shenetta Webster began working with Christopher Brown, a 21-year-old man with cerebral palsy, at the end of December 2001. Christopher's uncle and legal guardian, Victor Harris, contacted EFE and requested assistance in securing an inclusive environment for his nephew in the Chicago Public School (CPS) system.

For Christopher's entire educational experience, he had been placed in segregated settings. For many years, Harris had been advocating strongly for his nephew. He had attended Christopher's Individualized Education Plan (IEP) meetings and expressed dissenting opinions regarding his segregated placement and nonindividualized services. Despite continuous assurances that the issue would be addressed, Christopher continued to be segregated.

The options presented by CPS for Christopher to pursue as a career path were directed toward janitorial work, a field for which he was neither inclined nor suited, considering his physical weaknesses (mobility and balance issues). They did not reflect his strengths either - namely, his enthusiasm for auto mechanics. After Harris wrote a letter to the Illinois State Board of Education's (ISBE) Compliance Division, ISBE suggested mediation.

Equip for Equality represented Christopher at the mediation in February 2002. Christopher, who has a speech impairment, made clear that he would like to explore other career paths, including his lifelong interest, auto mechanics, to learn more about computers and, most importantly, to be in classes with his peers. The mediation agreement directed CPS to complete a comprehensive vocational evaluation, which had not previously been done, and to provide Christopher with a list of high schools for his consideration.

After ongoing negotiations between EFE and CPS, Christopher enrolled in his neighborhood high school for his senior year. He was accompanied by an individual aide and received a modified curriculum but was continuously with his peers. He switched classes between periods, took a quiz on The Odyssey, and took courses in economics and his favorite, auto mechanics.

On June 14, 2003, Christopher graduated from Morgan Park High School with his classmates. His uncle reported to EFE that at the ceremony, "They [his class and the audience] gave Christopher a standing ovation. It was as if he were a superstar. I was very proud." This statement, in essence, speaks very clearly to this case. Christopher's determination to break down these barriers of segregation, along with support from his uncle and EFE, has helped pave the way for other students with disabilities in Chicago. =

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