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Failure to Inform Worker With Cancer About Jobs May Breach ADA Duty, Judge Decides

Wednesday, September 18, 2013
By Jay-Anne B. Casuga

Sept. 17 --A production clerk in Illinois who resigned the same day she told her supervisor she had been diagnosed with cancer and asked about the availability of “easier jobs” can proceed to trial on claims that the employer failed to reasonably accommodate her disability and constructively discharged her, a federal judge in the state ruled Sept. 13 (Suvada v. Gordon Flesch Co., N.D. Ill., No. 11-07892, 9/13/13).

Denying summary judgment to Gordon Flesch Co., Judge Edmond E. Chang of the U.S. District Court for the Northern District of Illinois found that Michelle Suvada's conversation with her supervisor triggered the office services provider's duty under the Americans with Disabilities Act and the Illinois Human Rights Act to engage in an interactive process to identify potential reasonable accommodations.

The court found that material factual disputes exist regarding the supervisor's alleged failure to direct Suvada to consult Gordon Flesch's website or the human resources department for a list of available job openings, thereby causing a breakdown in the interactive process.

Furthermore, that purported failure--in addition to evidence that the supervisor allegedly pressed Suvada about her ability to perform her duties and asked Suvada if she was providing two weeks' notice of her resignation--allows the employee's ADA constructive discharge claim to survive summary judgment, the court decided.

Employee Had Stage Four Cervical Cancer
According to the court, Suvada joined Gordon Flesch in July 2009 and worked at a customer's facility in Chicago.

She received a copy of the company's employment manual, which included information on various employee benefits, and participated in an orientation program that provided instruction on how to file claims under Gordon Flesch's disability policies.

In October 2009, Suvada's doctor diagnosed her with stage four cervical cancer and referred her to an oncologist for a treatment plan. On Oct. 9, Suvada had a 10-minute telephone conversation with her supervisor, Victoria Slouka.

Suvada told Slouka about the cancer diagnosis and said she would need to take leave to attend medical appointments for treatment. She also expressed concerns about how her back pain and inability to lift heavy objects might impact her co-workers, the court recounted.

In response, Slouka allegedly emphasized the company's need to have a production clerk during the upcoming busy season, and pressed Suvada about her ability to perform her duties.

In addition, Slouka purportedly asked Suvada if she was giving a two weeks' resignation notice. Suvada replied that she wanted to keep working and asked Slouka if she knew about any available jobs that would be physically less demanding. Slouka said none existed in her division. The parties dispute whether Slouka then advised Suvada to consult Gordon Flesch's website and HR department about job openings.

About 20 minutes after the conversation ended, Suvada sent an e-mail to Slouka announcing her resignation.

Suvada in November 2011 brought failure-to-accommodate and constructive discharge claims against Gordon Flesch under the ADA and IHRA, and the company moved for summary judgment.

Phone Conversation Triggered Interactive Duty
The district court denied the company's motion, finding that a triable dispute existed about whether Gordon Flesch failed to engage Suvada in an interactive process to identify reasonable accommodations for her disability.

The court said the accommodation process begins when an employee notifies the employer about a disability. Such notice triggers an employer's affirmative duty to “to engage in a flexible, interactive process with the disabled employee needing accommodation so that, together, they can identify the employee's precise limitations and discuss accommodations that might enable the employee to continue working,” the court said.

Gordon Flesch argued that its accommodation duty was not triggered because Suvada told Slouka only about her diagnosis and did not provide information about the type of cancer she had, her treatment plan or her medical restrictions.

Rejecting this contention, the court pointed out that “the law requires very little of the employee to trigger the employer's duty to engage in the interactive process.” Indeed, it said, an employee need only provide notice of a disability.

Here, Suvada not only told Slouka about her disability, she also asked for an accommodation involving “easier jobs,” the court said.

“That Suvada did not specify what type of job she desired does not mean, however, that she failed to trigger the interactive process, and does not absolve [Gordon Flesch] of asking further questions to search for a reasonable accommodation,” the court held.

Potential Breakdown in Accommodation Process
Moreover, the court said, a trial is required to determine if Gordon Flesch was responsible for a breakdown in the interactive accommodation process.

A party may cause a breakdown by failing to provide or withholding information concerning potential accommodations, the court said.

In the current case, Suvada claims, and Gordon Flesch disputes, that Slouka failed to provide information about other job openings.

“[T]here is a genuine issue of material fact as to whether Slouka obstructed the interactive process by withholding information about alternative job openings, and a reasonable jury could conclude that [Gordon Flesch] was responsible for the breakdown in the interactive process,” the court said.

The court found no merit in Gordon Flesch's contention that it could not have caused the breakdown because Suvada should have been aware of her ability to view job postings based on her access to the company's employment manual and her orientation training.

“[W]hether Suvada knew about the resources available to her on [Gordon Flesch's] website does not absolve [the company] of its duty to engage in the interactive process,” the court said. “Thus, [Gordon Flesch] cannot simply rely on the employment manual or the employee's training, provided around four months before Suvada learned of her cancer and before the start of the interactive process, to satisfy its duty to provide a reasonable accommodation.”

The court noted that Suvada at trial will have to prove that a reasonable accommodation actually was available, as the parties did not address that issue in their summary judgment briefs.

Constructive Discharge Claim Also Goes to Trial
Additionally, the district court denied summary judgment to Gordon Flesch on Suvada's ADA and IHRA constructive discharge claims.

The court said a constructive discharge claim may lie where an employer “acts in a manner so as to have communicated to a reasonable employee that she will be terminated,” and the employee resigns in response.

Given Gordon Flesch's duty to accommodate Suvada's disability and the apparent interactive process breakdown concerning the availability of other jobs, the court said it was reasonable for Suvada to infer from her conversation with Slouka that “she had no future” at the company.

“Accordingly, there is a genuine issue of material fact as to whether Suvada was constructively discharged,” the court concluded.

Colleen M. McLaughlin, Elissa J. Hobfoll and Jacob M. Gilbert of the Law Offices of Colleen M. McLaughlin in Wheaton, Ill., represented Suvada. H. Robert Kilkelly and Paul M. Schwarzenbart of Lee, Kilkelly, Paulson & Kabaker in Madison, Wis., and Brian V. Alcala of Ungaretti & Harris in Chicago represented Gordon Flesch.


To contact the reporter on this story: Jay-Anne Casuga in Washington at

To contact the editor responsible for this story: Susan McGolrick at

Text of the opinion is available at

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