Filed: May 24, 2012
Latest Update: Mar. 26, 2017
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 23, 2012* Decided May 24, 2012 Before FRANK H. EASTERBROOK, Chief Judge KENNETH F. RIPPLE, Circuit Judge DIANE P. WOOD, Circuit Judge No. 11-3016 WADE HARRISON PAMON, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 09 C 5034 BOARD OF TRUSTE
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 23, 2012* Decided May 24, 2012 Before FRANK H. EASTERBROOK, Chief Judge KENNETH F. RIPPLE, Circuit Judge DIANE P. WOOD, Circuit Judge No. 11-3016 WADE HARRISON PAMON, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 09 C 5034 BOARD OF TRUSTEE..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 23, 2012*
Decided May 24, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11‐3016
WADE HARRISON PAMON, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 C 5034
BOARD OF TRUSTEES OF
THE UNIVERSITY OF ILLINOIS, Joan B. Gottschall,
Defendant‐Appellee. Judge.
O R D E R
*
After examining the appellant’s brief and the record, we have concluded that oral
argument is unnecessary. Therefore the appeal is submitted on the appellant’s brief and the
record. See FED. R. APP. P. 34(a)(2)(C).
No. 11‐3016 Page 2
Wade Pamon, a former campus police officer at the University of Illinois at Chicago,
appeals from a grant of summary judgment for the UIC Board of Trustees in his action
under the Americans with Disabilities Act, 42 U.S.C. §§ 12111–17. Pamon had sued the
board after the university did not reinstate him to his police job upon his recovery from a
stroke. We affirm.
The following facts, drawn from the record in the district court (taking into account
those facts “admitted” due to Pamon’s noncompliance with local rules), are not in dispute.
In 2001, thirteen years after becoming a campus police officer, Pamon suffered a stroke
(cerebral hemorrhage) while off‐duty; he was diagnosed as having an arteriovenous
malformation (an abnormal tangle of blood vessels in the brain). The stroke left him unable
to walk or take care of himself, but his condition improved and six months later he could
drive and walk without assistance. By 2004 he could lift weights and use a treadmill, and
the following year he could run.
In 2005 Pamon wrote UIC’s Vice Chancellor of Administration that he wanted to
return to his former police job. When Pamon received no response, he hired an attorney
because, he testified at his deposition, he had “the distinct impression that [the university]
didn’t want to be bothered with me.” Pamon’s attorney contacted a human resources
specialist at UIC’s police department, who explained that Pamon needed to obtain medical
clearance from University Health Services (UHS) before he could return to his former
position. At Pamon’s UHS appointment doctors in turn asked about the stroke and told him
that he needed to obtain clearance from his neurologist. A medical clearance, in some
circumstances, might also be contingent on an employee’s undergoing a functional capacity
examination (FCE) before reinstatement to ensure that he can perform the job duties in a
manner safe for him, his fellow officers, and the public. A written progress note from
Pamon’s UHS visit stated that he might need an FCE before he could be reinstated. In the
past ten years four campus police officers have been required to undergo FCEs before
reinstatement.
Pamon subsequently underwent a cerebral angiogram, which verified that his
arteriovenous malformation was healed. His neurologist reported that Pamon showed
“complete healing” and “may return to work.” Based on this report, a newly hired UHS
nurse practitioner prematurely issued Pamon a return‐to‐work order—premature because
Pamon should have been required to undergo an FCE, as the UHS and UIC police
department promptly advised him. The university later scheduled three FCE appointments
for Pamon, but each time he refused to attend because, he testified, he believed that the
exam was required only for on‐the‐job injuries. After he refused to take the FCE, the police
department neither called him back to work nor offered him any alternative employment.
No. 11‐3016 Page 3
In 2007 Pamon accepted a new job with the Illinois Department of Human Services
and resigned from UIC in writing. At that time Pamon also ended the disability benefits he
had been receiving since 2001 from the State Universities Retirement System. According to
his deposition testimony, his new employer had ordered him to resign from UIC and
terminate his benefits, lest he be fired from the new job due to “double‐dipping.” In 2008 he
again switched jobs and began working for his current employer, the Illinois Department of
Financial and Professional Regulation.
After receiving a right‐to‐sue letter from the Equal Employment Opportunity
Commission, Pamon filed this federal suit in 2009 against UIC. (He later amended the
complaint to name the board as the defendant.) He claimed that UIC violated the ADA by
(1) failing to reasonably accommodate his disability and engage in the interactive process,
42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.2(o); (2) impermissibly inquiring about his
arteriovenous malformation and requiring an FCE, 42 U.S.C. § 12112(d)(4)(A), and (3)
terminating his employment due to his disability, id. § 12112(a).
The district court granted summary judgment for the board. The court found, first,
that Pamon could not establish a prima facie case under the ADA for failure to
accommodate. The court assumed that Pamon was a qualified individual with a disability,
see 42 U.S.C. §§ 12111(8), 12112(a), but found that he presented no evidence that the board
failed to reasonably accommodate him, see id. §§ 12111(9), 12112(b)(5)(A). In the court’s
view, the record did not reflect that he ever sought an accommodation or any change in his
job duties. Next, the court found no fact question as to whether the board impermissibly
inquired into the nature or severity of Pamon’s disability, see id. § 12112(d)(4)(A); all
inquiries made by UHS doctors about his health condition and by the university about an
FCE were job‐related and consistent with business necessity. Finally, the court found that
Pamon could not establish disability discrimination because he did not suffer an adverse
employment action on account of his disability, see id. § 12112(a). He was the one who
decided to resign; the board did not terminate or refuse to reinstate him.
On appeal Pamon contends that the district court erred in concluding that the board
did not fail to reasonably accommodate him. He insists that it was the board’s
responsibility, not his, to propose a reasonable accommodation once it knew that he wanted
to return to work. But the ADA imposes on an employee the “initial duty to inform the
employer of a disability.” Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th
Cir. 1996). As the district court noted, Pamon insisted throughout the time he sought
reinstatement that he had no physical limitations and could perform all the duties required
of his former position. Moreover, the court determined, his neurologist’s letter stated that
Pamon showed “complete healing” and therefore did not put the board on notice that he
had a disability. Additionally, an ADA plaintiff must indicate to the employer that he
desires an accommodation, see id.; see also Jovanovic v. In‐Sink‐Erator Div. of Emerson Elec.
No. 11‐3016 Page 4
Co., 201 F.3d 894, 899 (7th Cir. 2000), but here, the court observed, nothing in the record
suggests that Pamon ever sought from the board anything other than being returned to his
previous job as a campus police officer.
Pamon also contends that the district court wrongly concluded that the board did
not impermissibly inquire into the nature of his disability. He argues that it was improper
for UHS doctors to ask about his stroke and for the university to subject him to an FCE
because he had already obtained clearance from his neurologist and the nurse practitioner.
But the ADA permits an employer to inquire into the nature or severity of an employee’s
disability if “such examination or inquiry is shown to be job‐related and consistent with
business necessity.” 42 U.S.C. § 2112(d)(4)(A); see Coffman v. Indianapolis Fire Dep’t, 578 F.3d
559, 565 (7th Cir. 2009). Here the district court found no fact question as to whether the
inquiries into Pamon’s stroke and an FCE were job‐related and consistent with business
necessity. As the court explained, Pamon’s condition required that he obtain an FCE before
reinstatement—his stroke‐related injury was serious; his disability leave was extensive,
lasting several years; and his desired job—his prior position as a campus officer—entailed
strenuous physical demands. Not only had the university required several other officers to
take an FCE before reinstatement, but the university’s insistence upon Pamon’s taking an
FCE was consistent with its policy of requiring the exam so that the employee’s safety as
well as that of others would be ensured. See generally Coffman, 578 F.3d at 566. The FCE
requirement was reasonable because the exam would help the employer to make an
individualized assessment of Pamon’s condition and his ability to do the job.
Finally, Pamon argues that the district court erred in finding that he did not suffer an
adverse employment action because, he insists, the university “forced” him to resign and
seek other employment after refusing to reinstate him. But we agree with the court that the
record is devoid of evidence that Pamon suffered an adverse employment action. As he
explained at his deposition, it was the Illinois Department of Human Services, not UIC, that
ordered him to resign from UIC and end his disability benefits. Pamon followed that order
and unilaterally resigned in writing from UIC. He cannot identify any fact issue concerning
the adverse nature of the employment action.
AFFIRMED.