Litigation Update

EFE Wins Important Mental Health Victory in Guardianship Case

Appellate Court Rules Nursing Home Falls Under Mental Health Code

In a far-reaching decision that broadly impacts the rights of people with mental illness under guardianship in Illinois, the Appellate Court, 4th District, held that any person, including the Office of State Guardian (OSG), must comply with the requirements of the Mental Health Code before placing a person in the behavioral unit of a skilled-care nursing facility, establishing that it qualifies as a mental health facility. Prior to this decision, the law was not clear that a nursing home could qualify as a mental health facility.

"The significance of this decision for people with mental illness who live in nursing homes with mental health units or nursing homes primarily serving the mentally ill is profound; it means that the added protections of the state's mental health law apply to them," says Zena Naiditch, President and CEO of Equip for Equality.

Equip for Equality (EFE), the federally mandated Protection and Advocacy System for people with physical and mental disabilities designated by the Governor, filed the appeal on behalf of Sandra Muellner (Sandra Muellner v. Blessing Hospital and Office of State Guardian), a 55-year-old woman diagnosed with mental illness who was involuntarily placed in the behavioral unit of Sycamore Health Care, a 24-hour skilled nursing facility, in Quincy, Ill., by the Office of State Guardian. Senior Attorney Barry Lowy from EFE's Springfield office represented Muellner.

"Our decision to pursue this issue was based on the potential systemic impact of the case for other people with mental illness, including those under guardianship, whose right of self-determination would be infringed upon in a similar situation," says Lowy. "By ruling that nursing homes are covered by the Mental Health Code, the Appellate Court has ensured new rights protection for people with mental illness whose guardian might attempt to place them in a segregated facility against their will."

Muellner's situation arose after the death of her husband, which caused her to become depressed and to develop other health problems. She was convinced to admit herself to the psychiatric unit of Blessing Hospital, where a social worker alleged that Muellner could not care for herself and filed petitions for guardianship and temporary guardianship.

The trial court appointed the Office of State Guardian as Muellner's temporary guardian and scheduled a hearing for a plenary guardianship for January 2002. In November 2001, the Office of State Guardian unilaterally placed Muellner against her will in New Horizons, which is the behavioral unit at Sycamore Health Care.

EFE represented Muellner at the hearing for plenary guardianship and filed a motion to limit the Office of State Guardian's power to place Muellner in a nursing home because OSG had not complied with the Mental Health Code's requirements for involuntary placements. Julie Irvine, program director for the West Central Illinois Center for Independent Living (WCI-CIL) testified on Muellner's behalf, stating that she was capable of living independently in the community with the aid of a personal assistant.

The trial court, however, denied EFE's motion and granted the Office of State Guardian the right to place Muellner in a nursing home if placement in a less restrictive environment was deemed harmful to her.

EFE appealed the decision in March 2002, even though Muellner had by then been permitted to return to independent living with assistance from a state grant designed to help persons move out of nursing homes and live independently in the community. With WCI-CIL's help, she is doing well under this arrangement.

"This case is an example of Equip for Equality's commitment to advocate that people with disabilities receive due process of law," says Barry Taylor, EFE Legal Advocacy Director. "Involuntary placement of people with disabilities in a segregated facility is a serious deprivation of individual liberty, and guardians must meet the standard under the Mental Health Code to justify such placements." =

EFE Files Lawsuit Against National Airport Food Service Provider for Employment Discrimination Under the ADA

Water Truck Driver is Dismissed by Gate Gourmet for Psychiatric Condition

Damien O'Neal, a 32-year-old water truck driver with mental illness, was fired by Gate Gourmet Inc. in March 2001 after seven years of service with the company. EFE Senior Attorney Karen I. Ward represented O'Neal in a lawsuit filed Jan. 28 in U.S. District Court, alleging that the termination of his employment was based on his psychiatric condition and in violation of his rights under the Americans with Disabilities Act (ADA).

The case was filed under the aegis of EFE's Protection and Advocacy for Beneficiaries of Social Security (PABSS) Project, which is funded by the Social Security Administration pursuant to the Ticket to Work and Work Incentives Improvement Act. Under the Project, staff provide advice, advocacy and legal representation for Social Security beneficiaries on their rights to secure, regain or retain employment. Training seminars on employment rights under the ADA and Ticket to Work are also offered for people with disabilities, their families, employers, and service providers and agencies.

Delaware-based Gate Gourmet Inc., which provides food service at O'Hare and other airports throughout the United States, was cited for discriminating against O'Neal by forcing him onto medical leave although he was able to do his job, refusing to reinstate him to his position despite his ability to work, refusing to discuss reasonable accommodations for his mental illness, discharging him for being on leave unlawfully caused by Gate Gourmet and, finally, applying an unlawful policy resulting in his termination.

"Our client's termination was a blatant violation of his rights," said Ward. "He was always able to perform the essential functions of his job, and it is clear that Gate Gourmet discriminated against him because of his psychiatric illness with its accompanying symptoms and medications." In 1995, O'Neal, who resides in Dolton, Ill., underwent surgery for a cyst on his brain, after which he was diagnosed with bipolar disorder, an impairment that substantially interferes with ability to sleep and which also requires medications to address other symptoms. However, his physician permitted him to return to work without any restrictions.

In 1999, he was diagnosed with a hernia - a condition totally unrelated to bipolar disorder - and was placed on a weight-lifting restriction by his doctor. This in no way affected his ability to drive a truck for Gate Gourmet, who nonetheless forced him onto medical leave for 15 months, claiming that his psychiatric illness now had restrictions that limited his ability to work, and then terminated his employment according to company policy.

On May 1, 2001, O'Neal filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC), which, after thorough investigation, determined that Gate Gourmet discriminated against him based on his disability and in violation of the ADA by terminating his employment. It also determined that Gate Gourmet's policy requiring that individuals be terminated after 15 months of not working was in violation of the ADA, based on discrimination against a class of individuals with disabilities. =

Kennedy-King College Denies Tenure to Teacher with Disability and Terminates Employment

EFE Steps Up for Outstanding Chemistry Professor Denied Reasonable Accommodations by City Colleges of Chicago

Representing Jacqueline Haas, a 62-year-old assistant chemistry professor employed by Kennedy-King College from Aug. 1996 until May 19, 2001, Equip for Equality (EFE) filed suit on Fri., Feb. 14, in U.S. District Court, Northern District of Illinois, alleging that City Colleges of Chicago discriminated against the plaintiff under Section 504 of the Rehabilitation Act of 1973 by failing to provide reasonable accommodations, denying tenure, terminating employment and refusing to hire her part time following termination because of her disability.

Haas, who received only the highest praise for her teaching from student evaluations and her department chairman, holds a doctorate in chemistry from Oregon State University, two master's degrees in teaching chemistry and biology from Universität Karlsruhe, Karlsruhe, Germany, and a bachelor of arts degree from the University of Chicago.

A ruptured brain aneurysm in 1989 left her substantially limited in the major life activities of walking, lifting and seeing - but never in her ability to fulfill all the requirements of her teaching responsibilities or the requirements for obtaining tenure, despite unfathomable obstacles and failure by Kennedy-King to provide the most minimal accommodations.

"The humiliation, degradation and frustration of our client's experience at Kennedy-King comprise nothing short of a horror story," says Karen I. Ward, EFE Senior Counsel and attorney representing Haas. "Her daily surmounting of obstacles just to do her job and her documented diligence in seeking reasonable accommodations to meet onerous tenure requirements should have won her accolades from Kennedy-King. Instead, a brilliant and popular professor was discarded because her disability was an inconvenience to the college."

Indignities suffered by Haas, who provided her own power wheelchair to be kept at Kennedy-King for ambulation that would otherwise be painful and extremely slow, included dragging herself up the stairs because of a frequently inoperative elevator and having to urinate in a basket in the chemistry storeroom because there was no restroom on the floor where she taught.

In addition to recommendations and evaluations from the department chair, three teaching peers and an administrator, candidates for tenure must submit a portfolio of teaching accomplishments and academic pursuits, as well as a tenure project. Haas worked for more than two years on a study and analysis to revitalize the school's organic chemistry curriculum to give Kennedy-King students the necessary skills to compete successfully in the 21st century.

Because her disability made word processing extremely slow, Haas had to work many additional hours to prepare for her classes and contract-renewal submissions, and to assemble the tenure project. She requested the reasonable accommodation of being allowed extended hours of access to her office and laboratory after the building was closed to the public.

Her first request was approved in 1998. But in October 1999, the director of security decreed that written authorization of Kennedy-King administrators was required for any person seeking access during restricted hours. So Haas sought and was granted a letter of access by the new president of the college, Wellington Wilson, and carried the letter with her at all times. Nonetheless, she was repeatedly harassed, denied access and evicted from the premises by security personnel.

On one occasion, security personnel called the Chicago Police Department, which dispatched five officers with guns drawn to evict her from the building. She then had to wait outside for several hours for her prescheduled paratransit ride to pick her up. Although she reported this and other incidents - including having her wheelchair blocked with janitorial equipment, rendering it inaccessible - no action was taken to stop the harassment or to provide accommodations.

Meantime, a new security director took over, and her previous approval was nullified without explanation. Haas continued to press for the accommodation throughout the summer and fall of 2000, and kept Luann King, administrator for the tenure process, apprised of her efforts. Dean King did nothing to help Haas but instead harassed Haas about deadlines and refused to accept a nearly complete portfolio while Haas awaited word on her accommodation.

Haas continued to press for an accommodation, calling on the president's staff and the president himself to help her. But her memorandum renewing her request for an accommodation delivered to the college president on Oct. 25 remained unanswered. On Dec. 4, 2000, President Wilson rejected the enthusiastic recommendation of Haas's department chair and recommended that she be denied tenure for not completing her portfolio on time and for not demonstrating "teaching excellence."

On Feb. 17, 2001, Haas was informed that her appointment to the faculty of Kennedy-King College would end, effective May 19, 2001. Although her department chair filed a grievance on her behalf, raising the issue of lack of accommodation, among others, President Wilson remained firm about denying her tenure, based on her failure to provide a complete portfolio, but he backed off from the lack of teaching excellence as a reason. Further appeal of the decision was also rejected.

Subsequently, when Haas was asked by her former supervisor if she would fill a temporary position as a part-time lecturer in the chemistry department, President Wilson refused to approve the hiring on the basis that teachers who were denied tenure were not permitted to work part time. No policy to this effect existed.

"This situation is particularly disheartening because Mayor Daley has a long-standing commitment to promoting employment of people with disabilities," says Zena Naiditch, President and CEO of Equip for Equality. "I am hopeful that he will intervene in this case to ensure that his priorities are reflected in the policies and practices of the City Colleges of Chicago."

In its complaint Jacqueline Haas v. Board of Trustees of Community College District No. 508, DBA City Colleges of Chicago, Equip for Equality is seeking a declaratory judgment by the Court that City Colleges of Chicago is in violation of Section 504 of the Rehabilitation Act of 1973 for termination, denial of tenure and refusal to provide reasonable accommodations; an injunction requiring reinstatement of Haas to her position at Kennedy-King retroactive to May 2001 and requiring her promotion to a tenured faculty position - or sufficient time to complete a new application with extended access free of harassment to her office - back pay and benefits; compensatory damages; and attorneys' fees. =

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