BY ANDREW MALONEY
LAW BULLETIN STAFF WRITER

A visually impaired former bus driver can continue her discrimination claims against the Chicago Transit Authority, a federal appeals panel has ruled.

The 7th U.S. Circuit Court of Appeals this week determined that Bonjour Mack, deemed unfit to drive due to low blood pressure and progressive dystrophy in her left eye, should be given a chance to work in a different position.

In a nonbinding decision Monday, Chief Judge Diane P. Wood wrote that the U.S. District Court judge misstated the applicable case law on the requirements for transferring employees under the Americans with Disabilities Act.

U.S. Judge John J. Tharp Jr. had dismissed Mack’s case, stating that a 2010 7th Circuit decision deemed there was no requirement to look for new jobs for employees who could no longer physically perform in their current roles. That case was Gratzl v. Office of Chief Judges of 12th, 18th, 19th and 22nd Judicial Circuits.

“But our holding in Gratzl was narrower,” Wood wrote in the three-page order. “We held that an employer ‘need not create a new job or strip a current job of its principal duties to accommodate a disabled employee.’ The [a]ct does require employers to appoint disabled employees to vacant positions for which they are qualified if doing so is reasonable and ‘would not present an undue hardship’ to the employer.”

Mack worked as a CTA bus driver for six years before taking a leave of absence due to an “emotional breakdown,” according to her complaint. She tried to return a year later, but was instead placed on inactive status. She was told she was unfit to drive due to her low blood pressure and “several visual impairments.”

The agency gave her a chance to stay on inactive status for another year — if she could prove that her medical situation would eventually allow her to return to her previous job full time. She responded with her doctor’s diagnosis of progressive dystrophy of the left retina and an opinion that she “should not be a professional driver.”

But the doctor also stated that Mack “may be able to work in another capacity” because her right eye was still functional. However, the agency rejected that option and ended her employment.

She filed a pro se complaint in federal court in September, arguing that the CTA discriminated against her due to her disability. Tharp dismissed the complaint with prejudice in November.

In Monday’s opinion, the panel noted that the CTA was not served in the district court and did not participate in the appeal. Wood, joined by Judges Ilana Diamond Rovner and Diane S. Sykes, also noted that Mack was joined in the case on appeal by Equip for Equality, a civil rights group, through a friend-of-the-court brief.

The group, the panel wrote, “correctly points out — contrary to what the judge said — the Americans with Disabilities Act sometimes requires an employer to accommodate an employee’s disability by reassigning them to a different position.”

Such stipulations are in Section 12112(b)(5)(A) of 42 U.S.C., which requires employers provide “reasonable accommodations” for applicants or employees with disabilities and Section 12111(9)(B), which defines such accommodations as, among other things, “reassignment to a vacant position.”

“With the benefit of liberal construction, Mack’s complaint seems to allege that the CTA could have accommodated her disability by transferring her to a vacant position,” the panel concluded. “Although she will eventually face the burden of proving that the CTA had such positions available when it fired her, she has alleged enough to survive screening. That is especially true in light of her doctor’s opinion that she ‘may be able to work’ in a nondriving capacity.”

The decision was also made without oral arguments, as “the appellant’s brief, an amicus brief and the record adequately present the facts and legal arguments,” the panel wrote.

A spokesperson for the CTA said the agency does not comment on pending litigation.

Barry C. Taylor, vice president of Equip for Equality, said the group does assist a limited number of individuals in federal courts, but decided to file an amicus brief in this case because, he said, it was “sort of a one-shot deal.”

“This was really the best way for us to assist her as well as make sure there was still positive law for people with disabilities in Illinois,” Taylor said today.

He said the decision affirms what his group believed was clear precedent on the rights of people with disabilities to have a chance for reassignments at their workplace.

“We wanted to make sure there wasn’t any kind of decision to undercut what we thought was clear precedent,” he said.

The court vacated the trial court’s judgment and remanded for further proceedings.

The case is Mack v. Chicago Transit Authority, No. 17 C 6908.