Apparently, in Cleveland, Ohio public schools, the ability to yell at the class - here, politely termed "verbally control[ling] resistive students" - is deemed an "essential function" of teaching. A teacher's medical restriction not to raise her voice, holds an unreported Sixth Circuit decision today, means that she is not a "qualified individual" under the ADA.
Johnson v. Cleveland City school Dist., No. 10-3267 (6th Cir. Nov. 15, 2011): The panel summarized the medical situation as follows:
"Plaintiff Sharon Johnson ('Johnson') began working for Defendant Cleveland City school District ('the District' or 'Defendant') in 1989. She was well qualified and received positive work evaluations since that time. In November 1988, she was involved in a serious car accident that damaged her spinal cord. Further negligence during medical testing resulted in permanent damage to her spinal cord, causing Cervical Myelopathy. Cervical Myelopathy has symptoms similar to a stroke: her body weakens over time and is aggravated by stress, and acute symptoms can occur if she over-exerts herself."
A job was developed for her ("academic interventionist") that involved "working with students in small groups, as well as doing programming, professional development, and writing grants."
But, as is often the case, a new supervisor entered the scene and disapproved the accommodation. "In 2006, a new deputy chief in the District, Sharon McDonald" paid a visit to the plaintiff's workplace, and decided that Johnson needed to be in the classroom teaching. She was placed in a second-floor classroom (with a broken elevator in the building) that suffered poor climate control. The following week, the plaintiff went on medical leave.
In an effort to recertify her medical accommodations, Johnson in 2007 submitted to a fit-for-duty exam. This led to a recommendation, among others, that Johnson be accommodated by "not be[ing] required to verbally control resistant behavior in students that persists after initial warning." The District balked, noting "concern with the restriction on disciplining students, and [they] told Johnson that teachers and counselors have to be able knew how to control students without violating her restrictions. . . . one District official testified that Johnson also stated at the meeting that she had problems with resistive students in the past, because in large groups of older students, some get out of hand-she also stated that having to correct them makes her condition worse."
Johnson was eventually offered (in the summer of 2007) a full elementary school classroom, but she expressed concern that it would not meet her medical restrictions and requested a counselling job instead. After some days of wrangling, the District terminated Johnson, writing that it was "unable to accommodate the restriction" regarding her "inability to discipline students, which is an essential function of positions that involve working with students in a teaching, counseling, or administrative capacity."
The Sixth Circuit affirms summary judgment for the school district. The panel notes that Johnson did not challenge that classroom control was an "essential function," an issue on which the employer bears the burden of proof, but merely argued that she was capable of controlling students with accommodations.
The medical restrictions, the panel holds, were simply broader than the plaintiff let on: "Johnson argues that the doctors simply meant she should not be in a position where she has to 'yell' at the children; she responded to the District's letter by stating that her extensive training enabled her to control students without having to resort to such yelling. However, neither of the doctors' letters narrows the restriction so extensively; instead they state that she cannot be required to verbally control students. Whether Johnson feels that her limitations are less than that-either because she believes she can control students completely, or because she believes she can prevent the need for yelling-is immaterial."
Thus, because no accommodation was possible that would satisfy this "essential function," the panel holds that summary judgment was appropriate.
In a footnote, the panel observes that Johnson's parallel Ohio state-law disability discrimination case in Ohio state court reached a different outcome.
"In October 2009, the Cuyahoga County Court of Common Pleas granted Defendants' Motion for Summary Judgment in Johnson's state cause of action, dismissing all of Johnson's claims under state law. However, the Eighth District Court of Appeals of Ohio reversed and remanded for trial, finding that there was a question of fact as to whether Johnson was 'otherwise qualified' for the District positions, and thus stated a claim under Ohio's discrimination law. Johnson v. Cleveland City Sch. Dist, No. 94214, 2011 WL 2409901 (Ohio App. 8 Dist. 2011)."
Nonetheless, the panel also found that the reversal of summary judgment was not a final decision on the merits that warranted res judicata effect. "A state court's decision on such matters may be persuasive, but in this case, the state court's reasoning is not persuasive and therefore we decline to follow it."