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Law360: “Can’t Duck Suit From Transportation Trainees With Autism”

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By Hannah Meisel

 

Law360 (April 11, 2018, 7:34 PM EDT) — Illinois’ Department of Transportation and its Central Management Services agency cannot escape a civil rights suit brought by two Illinois men with autism who had sought full-time jobs with IDOT after three years as job trainees at the agency, an Illinois federal judge ruled Tuesday.

 

U.S. District Judge Sue Myerscough declined to grant the bulk of IDOT and CMS’ motion to dismiss the suit brought by guardians for Nicholas Leskovisek and Chad Underwood, who sued IDOT and CMS in October for alleged violations of the Americans with Disabilities Act. Judge Myerscough found that Leskovisek and Underwood had, in fact, adequately stated claims in their case against the agencies.

 

“Plaintiffs allege that they suffered an injury because they were unable to access the state’s testing and interview process, lost their ability to compete for a full-time position, lost wages, and suffered emotional distress,” Judge Myerscough wrote. “Plaintiffs’ injuries are fairly traceable to defendants’ alleged actions of not reasonably accommodating plaintiffs, not engaging in the interactive process, not hiring plaintiffs, and retaliating against plaintiffs. Finally, it is likely that the alleged injuries can be redressed by the court.”

 

Leskovisek and Underwood had been IDOT “tech trainees” through a state-run Students with Disabilities Program beginning in 2008 and 2010, respectively. In early 2011, the pair were assigned to IDOT’s Traffic Safety Division, Statistical Coding Unit, doing data-entry work based on vehicle crash reports. Their suit alleges both were consistently top performers within the unit, but earned less than their co-workers and did not receive any employment benefits.

 

In 2014, both men began seeking full-time jobs with IDOT, but allege they were not successful because of the state requirements for civil service hiring. To combat political hiring, the state created a structured application and interview process for applicants for most state employee positions.CMS administers the hiring process for all agencies, including IDOT.

 

Leskovisek and Underwood allege that, due to the nature of their disabilities, they could not pass the test or participate in an interview without a reasonable accommodation, despite having already demonstrated their ability to perform the job. Leskovisek, 31, is unable to use speech to communicate, while Underwood, 27, has an impaired ability to communicate and interact with others, according to the suit.

 

The pair claim that attorneys from Illinois-based civil rights law firm Equip for Equality Inc. began to advocate on their behalf in 2014, requesting reasonable accommodations for the hiring process, asking for an alternate way to prove their abilities to IDOT without having to go through the traditional test-and-interview process.

 

But a couple of months after first reaching out to IDOT, the suit claims they were passed off to CMS, which never ended up responding to Equip for Equality’s request for accommodations on Leskovisek and Underwood’s behalf. In the summer of 2015, the pair filed a complaint with the Equal Employment Opportunity Commission, but shortly thereafter, they were informed they would be moved to a new workspace, isolated from everyone else. After their job coach contested the move, IDOT agreed not to move them.

 

In September of 2015, IDOT sent a letter to participants notifying them that IDOT was terminating the Students with Disabilities Program effective Dec. 31, 2015, all the while Leskovisek and Underwood continued to express their desire to remain employed by IDOT. The pair allege that IDOT did and still has data-entry positions available, comparable to the ones they had filled while Tech Trainees as part of the program.

 

In October they filed federal action against IDOT and CMS, claiming violations of the ADA, along with one claim of retaliation against them after they filed a complaint with the EEOC. IDOT and CMS argued that Leskovisek and Underwood had failed to state claims on each of their five complaints, but Judge Myerscough on Tuesday largely disagreed.

 

“In this case, plaintiffs have plausibly alleged that they were deterred from applying for a position due to the consistently enforced discriminatory policy of requiring all individuals to undergo the testing and interview requirements,” Judge Myerscough said. “Plaintiffs further allege that, due to their disabilities, they could not pass that test or participate in the interview without a reasonable accommodation. Plaintiffs allege that they attempted, without success, to obtain reasonable accommodations for the testing and interview requirements.”

 

Judge Myerscough refused to throw out four of the five ADA claims against CMS, but did dismiss Leskovisek and Underwood’s retaliation claim against CMS.

 

“Plaintiffs allege that IDOT attempted to transfer them, terminated the Students with Disabilities Program, which resulted in plaintiffs losing their positions, and continued to refuse to hire them or allow them to continue working in another employment capacity, all in retaliation for their requests for reasonable accommodations and for filing a charge of discrimination with the EEOC,” Judge Myerscough wrote. “Missing are any facts that plausibly suggest that CMS retaliated against plaintiffs.”

 

The men’s attorney, Rachel Weisberg of Equip for Equality Inc., told Law360 on Wednesday that Judge Myerscough’s order “proves employees don’t need to go through futile gestures,” and said that requiring her clients to go through traditional interviews would be a “humiliating exercise” that’s unnecessary, given the fact they both have already proven their proficiency in the job.

 

“One reason we found this case to be really compelling is that there are a lot of jobs that people with developmental disabilities can do and can do well,” Weisberg said. “But there are a lot of barriers to entry … Here our clients had a demonstrated work history doing data-entry work for IDOT. All they wanted was a fair chance.”

 

A spokesman for CMS declined to comment on Wednesday. A spokeswoman for IDOT could not be reached for comment.

 

Leskovisek and Underwood are represented by Rachel Weisberg of Equip for Equality Inc.

 

IDOT and CMS are represented by Assistant Attorney General Anupama Paruchuri.

 

The case is Leskovisek et al. v. Illinois Department of Transportation et al., case number 3:17-cv-03251, in the U.S. District Court for the Central District of Illinois.

 

–Editing by Jack Karp.

 

Read the Ruling on Motion to Dismiss here.

 

 

Last updated: April 13, 2018

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