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Wednesday, October 24, 2002


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Park Laborer Fails to State ADA Claim


In DeVito v. Chicago Park District, 270 F.3d 532 (7th Cir. Nov. 2, 2001), a park laborer on light duty for four years due to a back injury was caught on videotape while off-duty twisting, bending and climbing in and out of trucks while removing snow from his car and carrying dry cleaning.  The light duty job he was performing involved answering phones at a park district office near his home.  He had been told that he could leave work whenever he felt pain or stress, which was typically after two or three hours, although he was paid the full wages of a laborer who works eight hours a day.


After being caught on tape, the plaintiff was fired.  He sued, claiming his employer failed to accommodate his disability in violation of the Americans with Disabilities Act.  At trial, he professed that he was ready, willing and able to work full time in a light duty assignment, but the courts found that the evidence suggested otherwise.  The plaintiff had not worked full time for 13 years at the time of his appeal hearing, ostensibly because of his disability, and testified that he felt no better than he had felt when he first injured his back.  These two factors justified a finding that the plaintiff was unable to work full time and therefore was not qualified to work a full time job. 

The Seventh Circuit in this case also took aim at the plaintiff's attempt to “whipsaw” his employer by first obtaining benefits and job concessions upon his representation of total disability to work full time, and then seeking damages for the employer’s failure to accommodate the disability, which the employee later claimed was not total after all.



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