Litigation Update

Legal Advocacy Highlights

Employment Accommodations: Kielbasa v. Illinois Environmental Protection Agency and Renee Cipriano

By Laura J. Miller, Managing Attorney

In 1998, Richard Kielbasa lost almost all of his eyesight after surgery to remove a tumor located around his optic nerves. He was 36 years old. His great zest for life was not at all diminished by that event. He continues to fish, collect model trains, and coach football and basketball. He no longer drag races but is looking for a driver to race his much-loved racecar. He does repair projects in his Southwest Side home, which he shares with his wife and two sons, ages 7 and 12. His friendliness and sense of humor make him a fine storyteller.

But one thing did change for Kielbasa - his job. In 1986, at age 24, he became a state inspector for the Illinois Environmental Protection Agency's (IEPA) vehicle emissions program. The work was a good fit and he enjoyed the job, since he was very knowledgeable about cars and liked dealing with the public. He received excellent performance reviews.

In 1992, he was promoted from Vehicle Emissions Compliance Inspector to Vehicle Emissions Compliance Supervisor. Part of his job as a supervisor was to visit various test stations to ensure that work was being done properly. Like all supervisors, he was given a state car to perform his duties.

In 1998, due to his loss of vision following surgery, Kielbasa could no longer drive. IEPA accommodated him by allowing other employees, who had to drive to the various test stations as part of their own duties, to transport him. He continued to receive excellent performance reviews, and the employees who drove him to work continued to fulfill their own job responsibilities.

In April 2000, the IEPA informed Kielbasa that other employees would no longer be allowed to drive him to test stations, and consequently, he would no longer be able to work as a supervisor. IEPA claimed that the employees driving him did not have duties at the test stations to which they were driving him and that driving him was interfering with their productivity. At no time prior to this claim by the IEPA had Kielbasa's performance reviews ever reflected problems with the productivity of any of the employees who were helping him out.

The IEPA gave Kielbasa three options: a demotion back to an inspector, which meant a pay reduction and loss of supervisory responsibilities; a transfer to an Executive I position with comparable pay but with no supervisory responsibilities and a 51/2-hour round-trip commute; or a leave of absence. He elected to keep his same pay and relinquish his supervisor status (Executive I). Ultimately, however, he found the long commute on public transportation too difficult and opted for the demotion.

On June 13, 2002, Equip for Equality filed a complaint on Kielbasa's behalf with the U.S. District Court for the Northern District of Illinois. The complaint alleges violations of the Americans with Disabilities Act and the Rehabilitation Act of 1973. Richard hopes to return to his supervisory position, with accommodations, and to help make the IEPA more responsive to the needs of employees with visual impairments. IEPA has filed an Answer and a Motion to Dismiss. EFE is in the process of responding to the IEPA's Motion to Dismiss. EFE Senior Attorney Howard Rosenblum is handling the matter.

Employment Discrimination

Oberg v. Home Depot

Equip for Equality has recently undertaken the federal court representation of Richard Oberg, a 57-year-old Home Depot employee with diabetic retinopathy, a condition that impairs his vision. He also is limited in the amount of weight he can carry due to a hip fracture. Oberg says he has been denied promotions repeatedly due to his disabilities and his age. With 20 years of experience in flooring, sales and management, he had been hired by Home Depot in 1997 as a sales associate in the flooring department.

Home Depot has an internal database into which any employee may submit information about himself or herself, including a declaration of desired promotions and qualifications for these positions. This job preference program (JPP) was established in the Midwest in 1999 pursuant to a consent decree, to ensure equal employment opportunities for women (Butler v. Home Depot). That year, Oberg entered his qualifications and interest in promotions into the database. That application has been pending for several years.

Since 1999, Oberg has been passed over numerous times for promotions, and Home Depot has denied his request for assistive technology to address his vision impairment. Moreover, while denying his advancement, the company has promoted employees who are much younger, have less experience and are without disabilities that pose restrictions. Home Depot has also failed to provide Oberg with advanced training, which has been accorded to nondisabled employees, further impairing his opportunities for promotion.

On Oberg's behalf, EFE Senior Counsel Karen I. Ward and Staff Attorney Molly Paris are seeking a retroactive promotion, back pay and damages. Of equal importance, EFE is hoping to bring about change in a policy that has resulted in an employee with a disability associated with aging (decreased vision due to diabetes) repeatedly being denied advancement, despite his superior credentials and experience.

Currently, the case is in the discovery stage and pending in the U.S. District Court for the Northern District of Illinois.

EFE Supports Close-to-Home Residential

Placements for Adults with Disabilities

Amicus Brief Pending

Equip for Equality, along with Access Living, the Illinois Network of Centers for Independent Living and the American Civil Liberties Union of Illinois, filed an amicus ("friend of the court") brief in the 7th Circuit U.S. Court of Appeals in the case of Boudreau v. Ryan.

In Boudreau, families of adults with disabilities sued Governor Ryan and several other state officials under the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 and sections of the Medicaid Act. They argued that the residential placements offered by the Illinois Department of Human Services (DHS) to their adult children were not in enough proximity to the residences of close relatives, making visits more difficult and less frequent.

In two different decisions, the federal district court dismissed all the claims filed by plaintiffs. Relying on Walker v. Snyder, a 2000 decision by the 7th Circuit that held state officials are immune from ADA lawsuits, the district court dismissed the families' ADA claims. The court also dismissed the families' Medicaid claims, finding that there is no entitlement under the Medicaid Act to a residential placement close to the family home.

Our amicus brief argues that Walker v. Snyder has been effectively overruled by recent U.S. Supreme Court decisions upholding the enforceability of federal laws against state officials and that the case should therefore not have been dismissed on immunity grounds. The brief also argues that the federal district court overstated the degree to which geography would be irrelevant to placement.

Under the Medicaid Act and the statutory and regulatory scheme established in Illinois allowing individuals to participate in their own treatment and care, the state must consider the individual's needs and preferences in placement decisions. Moreover, under the Supreme Court's decision in Olmstead v. L.C., the state must provide community- based services to individuals who want and can benefit from such services, and the success of community-based placements may depend on proximity to family, friends and familiar locations.

Managing Attorney Laura Miller and Senior Attorney John Whitcomb wrote EFE's contribution to the brief. The appeal is still pending before the 7th Circuit.

CTA One Year Later

Independent Monitor Tracks Progress on Settlement Agreement

Charged with the responsibility of overseeing compliance of the CTA with the terms of the $15 million class action settlement (finalized Sept. 24, 2001, in U.S. District Court) for its failure to provide equal access to its public buses and trains for riders with disabilities under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, court-appointed Independent Monitor Shelley Sandow shows in the first two quarterly reports since her appointment last January that CTA is in compliance or on track in some areas, while falling short in others.

One example of the CTA's progress is in the area of elevator rehabilitation. Regular riders of the CTA rail system may notice that some elevators have been out of service for periods ranging from four to seven weeks. These elevators are being given a "comprehensive mid-life rehabilitation," which basically involves replacing nearly every component of the elevator, from the doors to the electrical traveling cables. The Settlement Agreement requires this rehabilitation of passenger elevators that have been in service for 10 or more years be completed by March 31, 2003. Under the schedule of CTA's contract with the elevator rehab company, the CTA should meet this deadline.

However, the Settlement Agreement also requires that the CTA accommodate riders with disabilities who continue to rely on these elevators during the extensive rehab project. This is supposed to include assisting customers who are stranded at stations with inoperable elevators get to their destination by directing them to a nearby accessible bus route, by helping them with using another accessible rail station, or by providing alternate transportation within 60 minutes.

According to Sandow's second report, she is unable to determine CTA's compliance with this requirement, although she has heard from riders with disabilities that the service is not yet operating correctly. Equip for Equality has a responsibility as "Class Counsel" to monitor CTA's compliance with and implementation of the Settlement Agreement. To ensure that information is shared with all interested parties, information about the Settlement and updates are posted on a section of Equip for Equality's Web site. In addition, an e-mail group has been started for anyone who wants to receive updates from EFE regarding the CTA's efforts to comply with the Settlement Agreement. To join this e-mail group, go to: http://groups.yahoo.com/group/EFE_CTAaccess/.

For more information about the Settlement Agreement and other matters related to the CTA, please contact Kevin Irvine, EFE Senior Advocate, at 800-537-2632 (Voice), 800-610-2779 (TTY) or kevin@equipforequality.org.

Self-Determination

EFE Represents Veteran in Eviction Case

Thomas Bigley was a talented computer programmer in his mid-50s who was working in a very responsible position when he suffered a severe heart attack. After being hospitalized, he found himself homeless until he was subsequently admitted to the nursing home section of the Illinois Veterans Home in Quincy, Ill., which is run by the Illinois Department of Veterans' Affairs. Bigley had served in the Navy and was a veteran of the Vietnam War.

His condition improved to the point where he was transferred from the nursing home section to the domiciliary section of the Veterans Home, which is a dormlike setting and a less restrictive living environment than the nursing home. Like all residents, he entered into a lease agreement with the Home.

While living in the domiciliary, Bigley chose to use doctors unaffiliated with the Veterans Home, a right afforded to him by his lease agreement. But the Home attempted to evict him based on his decision to refuse services from their medical staff. Barry Lowy, Senior Attorney in EFE's Springfield office, represented him in the eviction proceeding. The court entered a decision permanently enjoining the Veterans Home from evicting him and upheld his right to refuse its medical treatment, based upon constitutional and statutory legal principles of self- determination.

Bigley still lives in the Veterans Home and is now a volunteer advocate for the West Central Illinois Center for Independent Living.

Special Education

S.B. v. School District

In a September 10 ruling, an Illinois State Board of Education hearing officer found that a school district had failed to provide a free and appropriate public education during third and fourth grades for a child with severe and unique learning disabilities by refusing to alter its one-size-fits-all policy toward educating students. The district was ordered to reimburse the parents for two years of tuition and related services at the private school that the child has attended since fifth grade.

S. has a significant discrepancy between her verbal and performance IQ that occurs in only about 0.2 percent of the population. Because of the unusual and complex nature of her disabilities, she needed highly specialized services. With Equip for Equality's help, the parents tried repeatedly to work with the district to enable their daughter to receive the specialized services she required in her neighborhood school.

When the learning disability teacher repeatedly refused to meet with the parents, the parents requested quarterly meetings to review progress. When S. was not making progress, her parents sought independent evaluations and produced reports for the district to consider. Three separate evaluators recommended either Orton-Gillingham or Wilson reading programs. The district's only response was that it could choose methodology without any input from parents.

Because the district would not deliver the services S. required, her parents observed that she was falling further and further behind her peers both academically and socially. Finally, they unilaterally placed her in a private school that specialized in educating children with learning disabilities. Since transferring to the new school, S. has been making steady social and academic progress.

EFE Attorneys Amy Fitzsimmons Peterson and Debra J. Wysong represented S. and her parents at an eight-day hearing, in which they presented extensive expert testimony regarding the district's failure to provide the services that the child needed to succeed in her neighborhood school. The hearing officer concluded that the district's rigid insistence on a methodology that clearly did not work for S. denied her right to a free and appropriate public education.

Under 34 CFR Part 300.326(b)(3), educational methodology must address the unique needs of the child that result from the child's disability and ensure access to the general curriculum. =

Visual Signal Fire-Alert Alarms

The benefits of implementation for additional security are obvious and monumental for staff and clients. =

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