1 1 BEFORE THE STATE OF INDIANA 2 CIVIL RIGHTS COMMISSION 3 - - - 4 5 PUBLIC MEETING OF AUGUST 26, 2016 6 7 8 - - - 9 PROCEEDINGS 10 in the above-captioned matter, before the Indiana 11 Civil Rights Commission, Alpha Blackburn, 12 Chairperson, taken before me, Lindy L. Meyer, 13 Jr., a Notary Public in and for the State of 14 Indiana, County of Shelby, at the Indiana 15 Government Center South, Conference Center, 16 Rooms 1 & 2, 402 West Washington Street, 17 Indianapolis, Indiana, on Friday, August 26, 2016 18 at 1:12 o'clock p.m. 19 - - - 20 21 William F. Daniels, RPR/CP CM d/b/a ACCURATE REPORTING OF INDIANA 22 12922 Brighton Avenue Carmel, Indiana 46032 23 (317) 848-0088 2 1 APPEARANCES: 2 COMMISSION MEMBERS: 3 Alpha Blackburn, Chairperson Sheryl Edwards 4 Steven A. Ramos Ahmed Young 5 6 INDIANA CIVIL RIGHTS COMMISSION By Barbara Malone, Deputy Director 7 Indiana Government Center North 100 North Senate Avenue, Room N300 8 Indianapolis, Indiana 46204 On behalf of the Commission. 9 10 OTHER COMMISSION STAFF PRESENT: 11 Shumura Trammell Gretchen White 12 13 ALSO PRESENT: 14 Michael C. Healy Katie Kotter 15 Mellissa Davis Michael Carney 16 - - - 17 18 19 20 21 22 23 3 1 1:12 o'clock a.m. August 26, 2016 2 - - - 3 CHAIRPERSON BLACKBURN: Good 4 afternoon. The Indiana Civil Rights Commission 5 is now in public meeting. You have an agenda in 6 front of you, and we will hold to that unless 7 there's some objections or requests otherwise. 8 We do indeed now have a quorum, and I would ask 9 for approval of and adoption of the minutes. 10 COMM. YOUNG: So moved. 11 CHAIRPERSON BLACKBURN: And a second? 12 COMM. RAMOS: Second. 13 CHAIRPERSON BLACKBURN: And all in 14 favor? 15 COMM. EDWARDS: Aye. 16 COMM. YOUNG: Aye. 17 COMM. RAMOS: Aye. 18 CHAIRPERSON BLACKBURN: Aye. 19 Anyone opposed? 20 (No response.) 21 CHAIRPERSON BLACKBURN: I thank you 22 very much. 23 Next, the Executive Director's Report. 4 1 MS. MALONE: The Executive Director 2 is currently engaging in a fairly significant 3 conference call in the office, and the report is 4 there as well with him. 5 CHAIRPERSON BLACKBURN: I'm sorry; I 6 lost you after "report." 7 MS. MALONE: I said the report, his 8 report, is there as well. 9 CHAIRPERSON BLACKBURN: Oh, okay. 10 Thank you. If we're lucky enough -- 11 MS. MALONE: Could we -- 12 CHAIRPERSON BLACKBURN: -- that we 13 can come to the meeting later, we will revisit 14 Item B. 15 MS. MALONE: I appreciate it. Thank 16 you. I apologize for -- 17 CHAIRPERSON BLACKBURN: That's okay. 18 Financial Report. You have one in your 19 packet. Are there any questions regarding the 20 Financial Report? 21 COMM. YOUNG: No, ma'am. 22 CHAIRPERSON BLACKBURN: Hearing none, 23 I would ask for an approval of the Financial 5 1 Report. 2 COMM. EDWARDS: So moved. 3 COMM. RAMOS: Second. 4 CHAIRPERSON BLACKBURN: All in favor? 5 COMM. EDWARDS: Aye. 6 COMM. YOUNG: Aye. 7 COMM. RAMOS: Aye. 8 CHAIRPERSON BLACKBURN: Aye. 9 Anyone opposed? 10 (No response.) 11 CHAIRPERSON BLACKBURN: Thank you. 12 Old Business. We have a decision 13 regarding a prior oral argument in May. It is 14 Reginald Baker versus Roman Marblene. Do you 15 wish to make any comments regarding that before I 16 ask for a motion regarding it? 17 MR. HEALY: Me? 18 CHAIRPERSON BLACKBURN: Anyone. 19 MR. HEALY: Oh, I cannot. 20 CHAIRPERSON BLACKBURN: I know you 21 can't. 22 MR. HEALY: It would be ex parte. 23 The opposing counsel is not present. Thank you 6 1 for asking. Unless someone else has a comment -- 2 MS. MALONE: No, I am also avoiding 3 it. 4 CHAIRPERSON BLACKBURN: I would ask, 5 then, for a motion regarding the oral argument 6 which you heard in May. Who's here who was here? 7 You and I -- 8 COMM. EDWARDS: Uh-huh. 9 CHAIRPERSON BLACKBURN: -- are the 10 only two here. I think, in that case, not having 11 a quorum of members who can actually present or 12 pose an expression of their wishes regarding this 13 case, that the decision be announced when we have 14 complete representation of those who heard the 15 oral argument. 16 MS. MALONE: All right. 17 CHAIRPERSON BLACKBURN: The Report by 18 Commissioners on Complaint Appeals. In the case 19 of Tom Pietrzak versus First Financial Bank, I 20 wish to uphold the decision -- the recommendation 21 of no probable cause and ask for a motion to 22 accept that recommendation. 23 COMM. RAMOS: So moved. 7 1 COMM. EDWARDS: Second. 2 CHAIRPERSON BLACKBURN: And all in 3 favor? 4 COMM. EDWARDS: Aye. 5 COMM. YOUNG: Aye. 6 COMM. RAMOS: Aye. 7 CHAIRPERSON BLACKBURN: Aye. 8 Anyone opposed? 9 (No response.) 10 CHAIRPERSON BLACKBURN: Thank you. 11 In the case of Rashan N. Jones versus 12 Indiana Marion County Building Authority, and 13 concurrent with that, Terrence Rozzell versus 14 Indiana Marion County Building Authority, I also 15 recommend that we uphold the recommendation of no 16 probable cause. May I have a motion to accept 17 that recommendation? 18 COMM. EDWARDS: So moved. 19 CHAIRPERSON BLACKBURN: And a second? 20 COMM. YOUNG: Second. 21 CHAIRPERSON BLACKBURN: All in favor? 22 COMM. EDWARDS: Aye. 23 COMM. YOUNG: Aye. 8 1 COMM. RAMOS: Aye. 2 CHAIRPERSON BLACKBURN: Aye. 3 No one opposed. Thank you. 4 Comm. Ramos, would you like to report on 5 the cases you have reviewed? 6 COMM. RAMOS: In the case of Crystal 7 Jones versus Marion County Superior Court, I 8 recommend to uphold the Director's finding of no 9 probable cause. 10 CHAIRPERSON BLACKBURN: May I have a 11 motion to accept that recommendation? 12 COMM. EDWARDS: So moved. 13 COMM. YOUNG: Second. 14 CHAIRPERSON BLACKBURN: I need a 15 second, please. Thank you. 16 All in favor? 17 COMM. EDWARDS: Aye. 18 COMM. YOUNG: Aye. 19 COMM. RAMOS: Aye. 20 CHAIRPERSON BLACKBURN: Aye. 21 Anyone opposed? 22 (No response.) 23 CHAIRPERSON BLACKBURN: Thank you. 9 1 COMM. RAMOS: In the case of Misty 2 Austin versus Stride Rite, I would request some 3 additional time to continue my reading of that 4 report. 5 CHAIRPERSON BLACKBURN: Any 6 objection? 7 (No response.) 8 CHAIRPERSON BLACKBURN: Thank you 9 very much. 10 Comm. Edwards. 11 COMM. EDWARDS: In the case of 12 Jessica Rainey versus Developmental Service 13 Alternatives, Inc., I recommend no cause -- I 14 recommend accepting the finding of no cause. 15 CHAIRPERSON BLACKBURN: And may I 16 have a motion to accept that recommendation? 17 COMM. YOUNG: So moved. 18 COMM. RAMOS: Second. 19 CHAIRPERSON BLACKBURN: And all in 20 favor? 21 COMM. EDWARDS: Aye. 22 COMM. YOUNG: Aye. 23 COMM. RAMOS: Aye. 10 1 CHAIRPERSON BLACKBURN: Aye. 2 Anyone opposed? 3 (No response.) 4 CHAIRPERSON BLACKBURN: Thank you. 5 COMM. EDWARDS: In the case of Dana 6 Alfreds versus Jason D. Burks and Shadeland 7 Burks, I recommend upholding the recommendation 8 of no cause. 9 CHAIRPERSON BLACKBURN: Thank you. 10 May I have a motion to accept the 11 recommendation? 12 COMM. RAMOS: So moved. 13 CHAIRPERSON BLACKBURN: I do need a 14 second. 15 COMM. YOUNG: Second. 16 CHAIRPERSON BLACKBURN: And all in 17 favor? 18 COMM. EDWARDS: Aye. 19 COMM. YOUNG: Aye. 20 COMM. RAMOS: Aye. 21 CHAIRPERSON BLACKBURN: Aye. 22 Anyone opposed? 23 (No response.) 11 1 CHAIRPERSON BLACKBURN: Thank you. 2 Comm. Young, you have a number of cases, 3 and I understand you do want to continue those. 4 COMM. YOUNG: That's correct. 5 CHAIRPERSON BLACKBURN: And 6 Comm. Hull is not in attendance. Do we know if 7 he has reported on his cases? 8 MS. MALONE: No, he hasn't. Could 9 you give the -- for the record -- the cases that 10 Comm. Young is requesting to continue? 11 COMM. YOUNG: In the matter of Jerry 12 Taylor versus Benjamin Court Apartments, two 13 respective matters, as well as the matters of 14 Angelia Russ versus -- 15 MS. MALONE: Okay. 16 COMM. YOUNG: -- Indianapolis Housing 17 Agency -- 18 MS. MALONE: Okay. 19 COMM. YOUNG: -- will be continued 20 until the next hearing. 21 MS. MALONE: Thank you. 22 COMM. YOUNG: Thank you. 23 CHAIRPERSON BLACKBURN: We do have a 12 1 Final Order in the case of Casey Stouder versus 2 B & K Automotive doing business as NAPA, and that 3 Final Order is -- I'm looking for a copy of the 4 Final Order. 5 MS. TRAMMELL: Done -- it's done. 6 It's already signed. It's already signed. 7 CHAIRPERSON BLACKBURN: If it's 8 already been signed, then may I have a motion to 9 adopt? 10 COMM. RAMOS: So moved. 11 COMM. EDWARDS: Second. 12 CHAIRPERSON BLACKBURN: All in favor? 13 COMM. EDWARDS: Aye. 14 COMM. YOUNG: Aye. 15 COMM. RAMOS: Aye. 16 CHAIRPERSON BLACKBURN: Aye. 17 Anyone opposed? 18 (No response.) 19 CHAIRPERSON BLACKBURN: Thank you. 20 MS. MALONE: Madam Chair, in 21 reference to Baker versus Marblene, I think all 22 four Commissioners that are here now were there 23 at that presentation, the arguments -- 13 1 MR. HEALY: In May? 2 MS. MALONE: -- in May. Is that a 3 possibility that you can still vote on that? 4 CHAIRPERSON BLACKBURN: We can if 5 there -- if we all were here. 6 MS. MALONE: If you look at the 7 transcript -- 8 CHAIRPERSON BLACKBURN: There are 9 only four of us here now, and we all were here? 10 MS. MALONE: Yes. 11 CHAIRPERSON BLACKBURN: In that case, 12 I would ask let's revisit that, Item B, I think 13 it is. 14 MS. MALONE: The transcript's in your 15 packet. 16 (Discussion off the record.) 17 CHAIRPERSON BLACKBURN: I will 18 entertain a motion regarding that case. 19 COMM. RAMOS: Madam Chair, I need a 20 minute to refresh my memory on that. That was 21 three months ago. I don't find that. 22 COMM. EDWARDS: It's on page 13. 23 COMM. RAMOS: 13? 14 1 MS. MALONE: That's the second tab, 2 page 13. 3 (Pause in proceedings.) 4 CHAIRPERSON BLACKBURN: Let me know. 5 COMM. RAMOS: I remember now. 6 CHAIRPERSON BLACKBURN: Okay. 7 Commissioner, would you make a recommendation? 8 COMM. RAMOS: From my recollection -- 9 and I didn't receive these minutes until I was 10 here today, but I do remember the case, and from 11 my recollection, I felt that -- and my 12 recommendation would be to -- would be to support 13 the position of Mr. Baker, and so I need 14 assistance on how to phrase that, from a legal 15 standpoint -- I'm sorry -- so that Mr. Baker -- 16 the concerns of Mr. Baker, and to my 17 recollection, and if you vote accordingly, is 18 that -- in support of Mr. Baker's position. I 19 don't know how you want me to formally present 20 that, but that would be my recommendation. 21 COMM. YOUNG: In light of this 22 discussion, I think it's appropriate to honestly 23 table it and give all Commissioners appropriate 15 1 time to review it in greater detail. I don't 2 think it would be appropriate to encourage 3 Commissioners to take a vote on a matter in which 4 they haven't had ample opportunity to review and 5 give it the diligence that's required in order to 6 make a final vote on this matter. So, my 7 recommendation is to table it until the 8 subsequent September meeting. 9 CHAIRPERSON BLACKBURN: I will ask 10 first if there is a second to the motion which 11 was proposed before -- 12 COMM. YOUNG: Fair enough. 13 CHAIRPERSON BLACKBURN: -- that; 14 okay? Is there a second? 15 COMM. EDWARDS: No, I'm not -- 16 CHAIRPERSON BLACKBURN: You're not 17 ready? 18 COMM. EDWARDS: No. 19 CHAIRPERSON BLACKBURN: Then it fails 20 to have a second, and we will entertain a motion 21 now to table the matter until the next meeting. 22 COMM. YOUNG: So moved. 23 COMM. EDWARDS: Second. 16 1 CHAIRPERSON BLACKBURN: And all in 2 favor? 3 COMM. EDWARDS: Aye. 4 COMM. YOUNG: Aye. 5 COMM. RAMOS: Aye. 6 CHAIRPERSON BLACKBURN: Aye. 7 Thank you. No one objects. Thank you. 8 Next on our agenda, New Business, and we 9 have reports, or we don't have reports, from the 10 Commissioners no longer on the Board? That's a 11 question. 12 MS. MALONE: No. 13 CHAIRPERSON BLACKBURN: Then do these 14 cases need to be reassigned? 15 MS. MALONE: Yes, and it's my 16 understanding they have not been returned to our 17 office. We have the major file or the main file 18 within our office, but the file that was given to 19 the Commissioners, we don't have that. 20 CHAIRPERSON BLACKBURN: In that case, 21 I am assuming that those cases, once they are 22 received, will be reassigned for review if we 23 have not had a recommendation brought forward 17 1 during the time that those Commissioners were 2 still on the Board. 3 And we'll move now to Assignment of New 4 Cases for Appeal. There are two, and in light of 5 the load that you already have, Comm. Young, I 6 would ask that Comms. Edwards and -- do you want 7 to take the second one, Comm. Ramos? 8 COMM. RAMOS: Sure, I'm fine -- 9 CHAIRPERSON BLACKBURN: Okay. 10 COMM. RAMOS: -- with either one of 11 these. 12 CHAIRPERSON BLACKBURN: Would the two 13 of you please review those cases? 14 COMM. RAMOS: Sure. 15 CHAIRPERSON BLACKBURN: We do have 16 Findings in the case of Kristy Reisinger versus 17 J & J and Associates, Inc. I would ask for a 18 motion to accept. 19 COMM. RAMOS: So moved. 20 COMM. YOUNG: Second. 21 CHAIRPERSON BLACKBURN: All in favor? 22 COMM. EDWARDS: Aye. 23 COMM. YOUNG: Aye. 18 1 COMM. RAMOS: Aye. 2 CHAIRPERSON BLACKBURN: Aye. 3 Anyone opposed? 4 (No response.) 5 CHAIRPERSON BLACKBURN: Thank you. 6 COMM. RAMOS: Madam Chair? 7 CHAIRPERSON BLACKBURN: Yes. 8 COMM. RAMOS: Just for the sake of 9 the minutes, if Comm. Edwards could take Tony 10 Early versus Indiana Professional Management 11 Group -- 12 COMM. EDWARDS: That was not my 13 understanding. Those were -- we're holding for 14 case assignments. 15 Am I correct, Madam Chair? 16 COMM. RAMOS: She's going to reassign 17 them once the information would be received. 18 COMM. EDWARDS: Oh, okay. Okay. I 19 gotcha now. Okay. 20 COMM. RAMOS: As well as Patrick Lamb 21 versus American Building Maintenance. 22 COMM. EDWARDS: Okay. 23 COMM. RAMOS: And I'll take Susan E. 19 1 Israel -- 2 COMM. EDWARDS: Okay. 3 COMM. RAMOS: -- Ph.D. versus 4 Northwest Community High School. 5 COMM. EDWARDS: Okay. We're all on 6 the same sheet now. Thank you. 7 COMM. YOUNG: And Madam Chair, do we 8 have new assignments under Item 2 under New 9 Business? 10 CHAIRPERSON BLACKBURN: I'm sorry? 11 COMM. YOUNG: Tab 2 -- or Section 2 12 under New Business, New Assignments of Appeals. 13 On my agenda, I see Assignment of Appeal to 14 Commission, Tracy Jones versus Hook-Super X, LLC. 15 Would those be assigned to a Commissioner? 16 COMM. EDWARDS: Those are going to be 17 assigned. 18 CHAIRPERSON BLACKBURN: Those are the 19 ones I just assigned. 20 COMM. YOUNG: Okay. 21 COMM. RAMOS: Tracy -- 22 CHAIRPERSON BLACKBURN: Jones versus 23 Hook-Super X, Comm. Edwards, and Barry 20 1 Jennhattan -- 2 COMM. RAMOS: Right. 3 CHAIRPERSON BLACKBURN: -- versus 4 Rescare, Comm. Ramos. 5 COMM. YOUNG: All right. 6 CHAIRPERSON BLACKBURN: We have also 7 a Reversal of Appeal. May I have a motion to 8 accept it? 9 MS. MALONE: Madam Chair, that was 10 scheduled for the hearing on the objections as -- 11 by Respondent, and it's going to be rescheduled 12 to next month because the Respondent couldn't 13 attend. I put it on the agenda, and then they 14 informed me that they could not meet today's 15 date, so they are -- they will be notified, along 16 with the Complainant, that it will be on the 17 agenda next month. 18 CHAIRPERSON BLACKBURN: So, it's on 19 the agenda for next month is what you're telling 20 me? 21 MS. MALONE: Yes. 22 CHAIRPERSON BLACKBURN: All right. 23 Thank you. 21 1 And now, we are ready for oral argument in 2 the case -- just a second. 3 (Pause in proceedings.) 4 CHAIRPERSON BLACKBURN: As a result 5 of objections filed by the Complainant to the 6 proposed Findings of Fact, Conclusions of Law and 7 Order entered by the Administrative Law Judge, 8 Noell Allen, we are here to hold oral argument on 9 those objections. 10 The case is Melissa J. (Cope) Davis versus 11 Knox County Association for Retarded Citizens, 12 Inc. I ask that those participating in this oral 13 argument please introduce yourselves. 14 MR. HEALY: For the Complainant, 15 Melissa J. (Cope) Davis, Michael C. Healy, staff 16 counsel for the Indiana Civil Rights Commission 17 in the public interest. 18 MS. KOTTER: Katie Kotter, attorney 19 for the Respondent, KCARC. 20 CHAIRPERSON BLACKBURN: Kate, what is 21 your last name? 22 MS. KOTTER: Kotter, K o t t e r. 23 CHAIRPERSON BLACKBURN: Carter? 22 1 MS. KOTTER: Kotter, like in Welcome 2 Back, Kotter. 3 CHAIRPERSON BLACKBURN: Thank you. 4 If we can agree on the ground rules going 5 in, I'd like to allow for each of you to have a 6 15-minute presentation, if you require that much 7 time, and would allow some time at the conclusion 8 for questions from the Commissioners. Some part 9 of that time we'll allocate for rebuttal or 10 surrebuttal. 11 The case having been filed by the 12 Complainant, Mr. Healy, would you like to speak 13 first? 14 MR. HEALY: I have a preliminary 15 matter, Madam Chairman. You have received in 16 your packet the materials relating to this case. 17 However, I did not see in your packet the reply 18 brief filed by Complainant to the Respondent's 19 objections that were filed. 20 I'm told by staff that that brief was sent 21 to you by electronic mail. I wanted to be 22 certain that you have received that brief from 23 me, and that it's been reviewed. If it has been, 23 1 that's fine, we'll be ready to go. If not, then 2 I would like to make some recommendations 3 pursuant to my discussion with counsel. 4 CHAIRPERSON BLACKBURN: Has either of 5 you -- have any of you received -- 6 COMM. YOUNG: No. 7 CHAIRPERSON BLACKBURN: -- that 8 document? I have not. 9 MR. HEALY: Then I want to recommend 10 one of two things. I spoke with Ms. Kotter about 11 this. We can have our oral argument on 12 objections now, but I would ask that a decision 13 be -- on this be deferred until you actually have 14 in hand and have reviewed my brief, which was 15 timely filed, in response to her objections and 16 brief. Either that, or we'll just have to have 17 this hearing after you receive the brief. That 18 is my request, please. 19 CHAIRPERSON BLACKBURN: What's your 20 preference? 21 MR. HEALY: Well, we're here for the 22 hearing on objections. We can present our oral 23 arguments now, but I want very much to have the 24 1 Commissioners, in hand, that brief, and 2 Ms. Kotter agrees that that is appropriate, as I 3 went to great lengths to research it. 4 COMM. RAMOS: Can we receive that 5 information in a short period of time so that we 6 don't have a dearth of time against us? 7 MR. HEALY: Well, I have it here, and 8 I can make copies of it for you to look at today. 9 I know you're not -- I'm not expecting you to be 10 speed readers on it, it's about 30 pages, but -- 11 COMM. RAMOS: As long as you can do 12 it sometime today or over the weekend, that's 13 fine. I don't want to have a situation where we 14 have a three-month window again. It's just too 15 much time. 16 CHAIRPERSON BLACKBURN: Is that a 17 practical suggestion for you? 18 COMM. YOUNG: It is. 19 CHAIRPERSON BLACKBURN: It is? In 20 that case, we'll -- we will proceed with the 21 hearing, and anticipate that we would receive a 22 printed copy of the document. 23 MR. HEALY: I'll see that you get 25 1 this today before you leave. 2 CHAIRPERSON BLACKBURN: Today? 3 MR. HEALY: Yes. 4 CHAIRPERSON BLACKBURN: Thank you. 5 MR. HEALY: And may I say one other 6 thing? Since it is the Respondent who filed the 7 lion's share of the objections, not the 8 Complainant, because the decision was in favor of 9 Complainant, Respondent filed their objections, I 10 would defer to her making her statement first. 11 It wasn't the Complainant that made objections, 12 although it says so in the order. 13 MS. KOTTER: The Complainant did make 14 the first objection, but it is minor. 15 MR. HEALY: The only objection I made 16 was a technical objection as to the actual amount 17 of the damages based on the interest income. 18 That was the only objection I made, but the 19 substantive objections all came from Ms. Kotter. 20 So, I -- as a matter of jurisprudence, I think 21 she should speak first, unless she doesn't want 22 to. 23 MS. KOTTER: No, that's fine. 26 1 MR. HEALY: And I'll respond then. 2 CHAIRPERSON BLACKBURN: In that case, 3 Ms. Kotter. 4 MS. KOTTER: Hello, Commissioners. I 5 want to thank you for having us here today to 6 discuss this case. This is something really very 7 important to my client, KCARC, something we take 8 very seriously. KCARC is a nonprofit 9 organization whose mission the last 40 years has 10 been to provide opportunities and advocacy for 11 people with disabilities. 12 I didn't mention earlier, by I also have 13 Michael Carney here, who's the President of 14 KCARC, and that's been a lot of his life's work. 15 The dedication to helping the disabled and 16 fostering inclusion in our community through 17 numerous programs and services they provide is 18 something they're very proud of, so this 19 allegation is very troubling to them. 20 If anyone has respect for the ADA and 21 protecting disabled people, it is my client. 22 They employ over a hundred disabled persons in 23 their manufacturing plants and through their 27 1 employment training, I'd say probably half of 2 which require reasonable accommodation. So, it's 3 something they're very familiar with. 4 I don't know how familiar you are with the 5 case and the facts. I won't waste a lot of time 6 going back through them, but just to give a 7 framework, again, Ms. Cope was a direct support 8 professional in one of KCARC's group homes, the 9 group homes that have people with developmental 10 or physical disabilities. 11 Her role was to supervise and care for 12 those individuals in that group home. She was 13 there about four months, and she had an incident 14 at work. I think the staff who reported it said 15 that she was incoherent, she didn't know why she 16 was there, was acting very strange. She was 17 picked up and then taken to the emergency room. 18 At the time, I think the staff member 19 indicated that they thought that she was drug 20 affected and were going to go drug test her. 21 However, she went to the emergency room before 22 that. Later they found out that -- they 23 diagnosed her with a syncopal episode, which 28 1 basically means she lost consciousness or she 2 passed out, would be the medical term, syncope. 3 She did not have a seizure; that came back 4 negative. Her physician, Dr. Nibel, was never -- 5 in his deposition said he was never able to 6 determine what caused her to lose consciousness 7 that day or what -- or why that happened. She's 8 also testified it's never happened since. 9 However, at the time, she missed that day 10 of work. When she came back, the supervisor told 11 her that KCARC's policy is that you need to bring 12 in a doctor's note to be cleared back to work. 13 When she did, she brought in a note that said 14 that she was to be on light duty. HR inquired 15 what that meant. She want back and got a more 16 detailed letter from her doctor. 17 The letter she provided to HR reads as 18 follows: "Mellissa was seen by me on August 30th 19 due to various health issues. As a result of 20 that office visit, I've placed Mellissa on light 21 duty. She's asking me to verify in writing what 22 exactly is meant by 'light duty'. She's 23 currently suffering from a medical condition 29 1 that's causing some dizziness and headaches. 2 "The dizziness appears to be positional in 3 nature. Therefore, priority restrictions would 4 include minimizing any kind of bending, stooping, 5 rapid or repetitive rotational movements, such as 6 turning from side to side, et cetera. Similarly, 7 she should not lift anything greater than ten 8 pounds or so, predominantly because such lifting 9 would require positional changes that could 10 exacerbate her dizziness or headaches. 11 "Mellissa is taking medication to help 12 with her condition that has a side effect, 13 fatigue. As a result, she should not do anything 14 that requires a lot of energy expenditure, such 15 as walking long distances, using staircases, 16 et cetera. 17 "Also, she suffered from a syncopal 18 episode. She essentially lost consciousness. 19 So, it definitely would be to her benefit to have 20 a job that includes mostly sitting. In summary, 21 Mellissa should be limited to job functions that 22 involve simply sitting without a lot of 23 positional changes." 30 1 As a result of that letter, the HR rep 2 also talked to the vice-president of KCARC about 3 it, and they determined that -- that based on her 4 essential functions of her job -- I think there 5 are 26 listed that she signed in her job 6 application -- that this was so limiting that she 7 couldn't perform them. She was in an active 8 group home, and they didn't feel that, based on 9 these restrictions, that she would be able to do 10 her job by simply sitting, not being able to 11 move, supervise the residents who need care. 12 Because she did not have any paid time off 13 available or leave that she could take, they 14 advised her that they'd have to let her go, but 15 to reapply when these restrictions were lifted. 16 Approximately -- approximately a week and half 17 later she followed up with her doctor and 18 indicated that she was no longer having any 19 symptoms. He would not have required -- he 20 testified he would not have required any 21 additional restrictions. However, she did not 22 reapply to KCARC. 23 She later had, I think, five -- four or 31 1 five subsequent jobs. The first I think she had 2 was in six weeks; however, she was terminated. 3 It was a similar -- a similar job to KCARC. She 4 was terminated -- and you can see in the 5 record -- for taking a consumer to a bar. I 6 think she was working at a nursing home. 7 I think the next job was a couple of 8 months later. She was terminated for failing her 9 evaluation period. The next job, she received -- 10 she was terminated for walking out on her shift. 11 She now works at a place called Lewis Bakery, 12 where she packages and boxes snack foods. She 13 testified she's on her feet most of the time, is 14 very active. 15 So, that's kind of a summary of the facts. 16 My main basis for the objection to Judge Allen's 17 proposed order is that her conclusion that 18 Ms. Cope is disabled and the conclusion that 19 KCARC discriminated against her on that basis is 20 not supported by substantial evidence and is 21 contrary to law. 22 The issues in front of the Commission, and 23 still are in front of the Commission, are as 32 1 follows: Number one, whether Ms. Cope had 2 disabilities or was regarded as having a 3 disability; two, whether KCARC discriminated 4 against her because of a disability or a 5 perceived disability by denying a reasonable 6 accommodation, and if so, what remedies she may 7 be entitled to. 8 This matter has been in litigation several 9 years, and I still cannot answer the question as 10 to what her alleged disability is, how it 11 substantially affects her major life activities, 12 how KCARC discriminated against her, how she 13 could have performed the essential functions of 14 her job with the physician restrictions, and what 15 reasonable accommodation she was requesting. 16 And none of those answers are addressed in 17 Judge Allen's proposed order, either. For 18 instance, in my objection to her Conclusion of 19 Law Paragraph 6, in which she states -- in which 20 they state that Ms. Cope proved she meets the 21 definition of "disabled" under the law, it does 22 not specify whether she met the definition of an 23 actual disability or a perceived disability. 33 1 And again, that was the first issue in 2 front of the Commission, and it does make a 3 difference, because it affects the analysis and 4 what remedies she may be entitled to. You're 5 only entitled to reasonable accommodation under 6 the law if you have an actual disability, so that 7 is relevant. And again, it does not state how 8 she meets the definition. 9 In the finding, it says that she has a 10 history of cardiac problems and takes beta 11 blockers to control the medication. It also 12 refers to the fact that she suffered a syncopal 13 episode. It's not clear which condition they're 14 analyzing as the basis of the disability, whether 15 it's the heart issue or the loss of 16 consciousness. And, of course, Ms. Cope has 17 gone -- has not been clear on that herself. 18 While both constitute a physical 19 impairment, that by itself does not equate to a 20 disability without more. To establish an actual 21 disability, you have to show that you have -- 22 first, that you have an impairment, but that it 23 substantially limits a major life activity, 34 1 meaning something like walking, caring for 2 yourself, seeing, hearing, et cetera. 3 Also, Indiana law provides that when 4 determining whether someone is substantially 5 limited, you look to the nature and severity of 6 the impairment, the duration or expected duration 7 of the impairment, and the permanent or long-term 8 impact resulting from the impairment. Nowhere in 9 the order does it state what major life 10 activities are affected by her disability, again, 11 which is an essential element to establishing a 12 disability under the ADA. 13 As far as substantially limiting, 14 Conclusion of Law 11, the ALJ conceded that the 15 nature and severity of the impairment was 16 minimal, which would be against a finding that 17 she had a substantially limiting condition. It 18 states that the duration was unknown, but there's 19 no analysis as to the permanent impact resulting 20 from the impairment. 21 However, the record clearly shows that 22 this was a one-time incident. There's no 23 evidence that it affected her life in any way 35 1 after that. She has a job now that's more 2 vigorous than the one she started with. 3 Furthermore, her own physician testified 4 that he's been unable to determine the cause of 5 the incident. It's not tied to her heart issue, 6 and he said in his deposition that her medical 7 record does not indicate any kind of permanent 8 disability. And this is her own physician. 9 When asked at the hearing how her heart 10 condition -- at the hearing, she stated that her 11 disability was her heart and that she takes 12 medication for that. Substantially limiting, she 13 said sometimes it affects her sleep. When asked 14 how it affects her daily life, she said, "I don't 15 know how to answer that question. I really 16 don't." 17 And here, the burden is on the plaintiff 18 to establish that they have a disability, and "I 19 don't know" is not sufficient to meet that 20 burden. As a result, I would assert that the 21 conclusion that Ms. Cope is disabled is 22 unsupported by the evidence and contrary to law. 23 She does not meet the definition under the ADA. 36 1 Again, the framework to establish a 2 disability case is that you are disabled under 3 the ADA, that you're a qualified individual who 4 can do the essential functions of the job with or 5 without reasonable accommodation, and that you 6 suffered an adverse employment action because of 7 that disability. She has never met the first 8 prong, that she was disabled. Again, the order 9 does not specify whether it's basing that on an 10 actual or perceived disability. 11 As to a perceived disability, she would 12 have to show that her employer thought she had a 13 disability when in fact she did not, or that they 14 characterized a limiting condition as being 15 substantially limiting when it was not. For 16 instance, if someone is diagnosed with cancer and 17 the employer is saying, "Well, I think, based on 18 that, you can't do this and you can't do that," 19 based on their own mistaken beliefs or 20 assumptions. 21 That was not the case here. KCARC was 22 never told what condition she had. In fact, her 23 own doctor didn't know. All they knew were the 37 1 restrictions she brought in, so the 2 limitations -- they didn't have to invent what 3 they thought the limitations were; they were 4 written out by the doctor. The doctor provided 5 those, and they followed them. 6 Again, the order doesn't say that they're 7 basing this on perceived disability, but 8 Conclusion of Law 12 and 13 indicate that, in 9 which -- in which they discuss a case entitled 10 EEOC versus Snider, and they use that for the 11 proposition that syncope is a disability under 12 the ADA. 13 However, that's not what the case stands 14 for. It says the opposite. It does not say 15 that. In that case, the employee did have a 16 syncope-type disability in which they suffered 17 routine blackouts, so to speak. However, in that 18 case, the court actually found for the employer 19 and said that they're not in violation of the ADA 20 for terminating an employee based on a limiting 21 condition as long as they didn't view it as 22 substantially limiting. 23 And in the order, the ALJ says KCARC 38 1 essentially did same thing. Well, of course, in 2 that case they found for the employer, so I'm 3 uncertain as to why that's cited. Again, if 4 anything, it's in favor of KCARC, not that they 5 discriminated against her on a perceived 6 disability. 7 Again, there's no evidence to suggest that 8 they thought that she had a disability or assumed 9 that she would continue to experience these 10 losses of consciousness, and they've maintained 11 that since day one. All they've perceived was 12 that she could not do the job because of 13 restrictions. 14 And there is case law that states that -- 15 I cited the Seventh Circuit case in which they 16 felt that the plaintiff was not perceived as 17 disabled when the employer determined they could 18 no longer perform the position based on physician 19 restrictions. Terminating someone based on a 20 medical condition is not sufficient to prove 21 discrimination based on perceived disability. 22 Finally, you cannot make a perceived 23 disability claim if the impairment is transitory 39 1 and minor, which is defined as an impairment with 2 an actual or expected duration of six months. 3 Again, the evidence is clear she never had 4 another episode again, and her own doctor would 5 have released her back to work within 11 days. 6 That's the very definition of transitory and 7 minor. 8 Again, I find no evidence in the record 9 that KCARC discrim -- that she had a perceived 10 disability or that they discriminated against her 11 on that basis, and again, if you can't meet that 12 first hurdle, there's no sense in going through 13 the rest of the analysis. That burden is on the 14 plaintiff. 15 I will go on as to -- I will go on with 16 the next prong, though, briefly. Even if she was 17 found to be disabled, she had to prove that she 18 could do the essential functions of the job, and 19 while Conclusion of Law 15 concludes that she 20 could, there's no finding of fact on which that's 21 based. 22 In the same paragraph, the ALJ admits that 23 Ms. Cope presented no evidence to the answer of 40 1 the question as to how she could perform the 2 duties of her position with the restrictions 3 given. Again, this is her burden to prove, and 4 even the Judge admits that she provided no 5 evidence of it. 6 Furthermore, at the hearing, different 7 individuals in her group, her former group 8 supervisor, Whitney Shonk, the HR rep, Amy 9 O'Dell, and Mr. Carney, the president of KCARC, 10 all who are very familiar with the position and 11 the needs of the residents, said that based on 12 that letter, she could not perform the functions 13 of her job. 14 The doctor's note on its face says that 15 she could not, and Mellissa never explained how 16 she could be able to. Again, she did not meet 17 that burden, and as such, I find that the 18 conclusion is not supported by the evidence or 19 the law. 20 In conclusion, while it's unfortunate that 21 there was a parting of ways here, if Ms. Cope is 22 found to be disabled on these facts, I'm not sure 23 who wouldn't be found disabled. Most of the 41 1 population probably takes medication for an 2 impairment such as diabetes or high blood 3 pressure, but that does not mean that you are 4 disabled, one of substantially limiting a major 5 life activity, which was not shown here. 6 Again, there was an incident at work, she 7 brought in the doctor's note, and they followed 8 it. There's a difference between making an 9 unfounded assumption and recognizing a fact. I 10 don't think it takes a lot of common sense to see 11 that someone that can't make positional changes 12 and needs to be simply sitting can function in an 13 active group home, and she's responsible for the 14 safety and well being of these disabled 15 residents. It would be a risk to her safety and 16 to them. 17 Again, for those reasons, we ask that you 18 overrule the proposed order. 19 Thank you. 20 CHAIRPERSON BLACKBURN: Thank you, 21 Ms. Kotter. 22 COMM. RAMOS: Do you want us to ask 23 questions now, or after we've heard both sides? 42 1 CHAIRPERSON BLACKBURN: Would you 2 mind waiting, please? 3 COMM. RAMOS: Yes. 4 CHAIRPERSON BLACKBURN: Okay. 5 Mr. Healy. 6 MR. HEALY: Thank you, Madam 7 Chairman, and for the record, may I say that 8 the -- ordinarily you would have in front you 9 complete record submitted by the Administrative 10 Law Judge in front of you. I don't see that that 11 is here. 12 However, the staff did take the liberty of 13 providing the complete master file over here for 14 you to look at today if you wish to. It contains 15 the complete transcript of the hearing, which 16 went several days, as well as copies -- or the 17 original -- all of the exhibits that were 18 admitted into evidence. So, if you would like 19 to, they're in that cart right there. You can 20 look at them, as I said, at any time today. 21 There are a number of things that I wish 22 to disagree with from counsel. KCARC does 23 administer a number of group homes in Knox 43 1 County. Ms. Davis, who is sitting here, was 2 assigned to Group Home No. 11, one of several 3 group homes. She performed her duties there 4 exclusively, and those duties included cooking, 5 cleaning, grocery shopping and passing medicines. 6 Group Home 11 has only one floor. That's 7 significant. There are no stairs to climb there. 8 Group Home 11 residents were described as being 9 far different from the residents living in the 10 other group homes because they were higher 11 functioning individuals. They were -- they had 12 capabilities greater than those of other 13 residents living in the other group homes. 14 No residents in Group Home 11 used 15 wheelchairs, for example. All Group Home 16 residents -- 11 residents could bathe themselves. 17 Ordinarily, three persons would be assigned to 18 staff in Group Home 11, but the required number 19 was only two, meaning that she would have someone 20 there with her to work. 21 During Davis' time, she did not have to 22 lift anything heavier than a grocery bag. All of 23 this comes from the transcript. Although there 44 1 was a reported altercation between a group home 2 resident and a staff member, as I said, there 3 were always two staff members present. 4 Throughout her employment, Davis had no 5 difficulties performing any aspect of her job. 6 Whitney Shonk was the group home supervisor over 7 Group Home 11 during Davis' employment. She 8 supervised as many as ten professionals during 9 her tenure, including Davis. Shonk testified 10 that Amy O'Dell, who was the supervisor who 11 eventually terminated Mrs. Davis, never came to 12 visit Group Home 11. 13 Mrs. Dreiman, who was a co-worker, 14 testified that Ms. O'Dell came to visit Group 15 Home 11 only five times in seven years. That's 16 less than once a year. So, there was a great 17 deal of disconnect between the Respondent's 18 knowledge of what Ms. Davis did and what she 19 actually did do based upon her being there. 20 Ms. Davis, at the time that this took 21 place, was 32 years old. The medical records 22 state that she is five-foot-ten-inches tall and 23 177 pounds. She does have a history of cardiac 45 1 problems. For nine years she had been required 2 to take different medicines, including beta 3 blockers. 4 She suffers from sleeplessness and has 5 migraine headaches. She spoke of this condition 6 to KCARC through the Group Home Supervisor, 7 Charles Veale, and also to other staff members. 8 She also stated she is a borderline diabetic, so 9 it is not true that the Respondent was not on 10 notice that she had these disabling conditions. 11 She has also had cardiac arrhythmia. 12 Notice was given to them of heart issues and 13 medications. She had hyp -- metabolic conditions 14 of hypoglycemia and diabetes, and she's had at 15 least one episode of syncope, which we will get 16 into. 17 On that subject of syncope, there is a 18 distinct correlation in the medical records 19 between the syncope, which is the trigger event 20 causing Complainant's dismissal, and cardiac 21 arrhythmia, which Complainant complained of 22 having prior to the episode, as I've cited in my 23 brief. 46 1 The guidelines -- I cited guidelines for 2 diagnosis and management of syncope published by 3 task force for the diagnosis and management of 4 syncope, contributors for the survey came from 14 5 different nations. In that statement, in that 6 report, they state that arrhythmia is the most 7 common cardiac cause of syncope. Regardless of 8 contributing effects, when arrhythmia is the 9 primary cause of syn -- of syncope, it should be 10 speedily and specifically treated. 11 On or about August 26th, 2012, David did 12 suffer from a blackout or a syncopal episode, 13 which is a loss of consciousness. Now, the 14 Respondent is making short shrift of this, saying 15 somehow this was just a fainting spell; it 16 doesn't amount to a disability. 17 This is absolutely incorrect based upon 18 the medical evidence that we have submitted from 19 Dr. Nibel, as well as the statement of the 20 guidelines from diagnosis and management of 21 syncope, prepared by the European Society of 22 Cardiology. 23 Davis told Ms. Shonk what happened. Shonk 47 1 sent her home, told her she needed to have a 2 doctor's note releasing her to work. Dr. Nibel 3 wrote a note saying, "Return to work, light 4 duty." Davis showed the letter to Shonk. Davis 5 was then asked to have Nibel provide a more 6 specific letter. 7 Shonk sent an e-mail to Ms. O'Dell. This 8 is significant. The e-mail reads, to Ms. O'Dell, 9 "I hope you're talking reasonable accommodation, 10 but anything's better than nothing." Whitney 11 Shonk knew the importance of reasonable 12 accommodation. O'Dell, the supervisor, 13 unfortunately did not. 14 Dr. Nibel later testified at the time he 15 did not know and didn't ask Davis what kind of 16 work she performed. Dr. Nibel did not ask Davis. 17 Davis did not tell him that she didn't lift 18 anything greater than ten pounds at work. 19 He was asked in his deposition that if 20 Davis were not doing any rapid, repetitive 21 rotational movements, such as turning from side 22 to side, would it be all right for her to 23 continue to work there. Dr. Nibel said that 48 1 Davis did not have to be in a sitting position 2 during the entire eight-hour workday. Dr. Nibel 3 testified that he was aware that Davis had a 4 heart abnormality. 5 So, when Ms. Davis gave Dr. Nibel's letter 6 to O'Dell, when O'Dell read it, she immediately 7 terminated Davis. O'Dell did not mention to 8 Davis whether there were other positions she 9 could apply for, even though there were. 10 According to Plaintiff's Exhibit 7, there was a 11 list of other jobs that could be performed. 12 That -- she did not consult with Shonk, 13 Davis' supervisor, about whether Davis could be 14 accommodated, she did not make inquiries of Davis 15 concerning follow-up treatments, and she did not 16 arrange with Davis to contact Dr. Nibel for 17 clarification. 18 More evidence of this lack of inquiry came 19 from Jeff Darling, who was the Executive 20 Vice-President. He was interviewed by the ICRC 21 staff. The question was asked to him, "Question: 22 Was Complainant offered light duty work or 23 another position? 49 1 "Answer: We did not have any available 2 position which would require that she sit in one 3 spot constantly." That statement alone means 4 that they misread what the doctor's report said. 5 Here it completely misread the letter. He did 6 not say, "one spot constantly." 7 Mrs. Kotter also says that the Complainant 8 couldn't identify a disability that she had. In 9 fact, she certainly did in her complaint, and 10 it's documented in the transcript. 11 May I say, however, that according to case 12 law, it's not required that a complainant speak 13 magic words to provide some minimum level of 14 documentation of disability to avail himself of 15 the protection under the law. Schmidt versus 16 Safeway, 864 F.Supp 991. 17 Once informed of the possibility that 18 someone may need an accommodation, it is the 19 employer or landlord's responsibility to explore 20 that need and suggest accommodations. 21 Accommodation of individuals with disabilities is 22 an informal interactive process involving 23 cooperation in identifying causes of the 50 1 difficulty and exploring a possible 2 accommodation. 3 Knox County maintains its own reasonable 4 accommodation worksheet, believe it or not, for 5 use by employees who are in need of one. But at 6 the time of the termination, O'Dell did not show 7 this to Davis, nor did she offer any suggestions, 8 except to say she's terminated and could reapply 9 at a later time. 10 Knox County maintained its employee duties 11 regarding occupational injuries, given to Davis, 12 which said, "If modified duty restrictions are 13 given, contact your supervisor to coordinate your 14 return to work. During the time of recovery, you 15 will be assigned to alternate duties within the 16 restriction to perform." 17 May I say that despite Dr. Nibel's letter 18 and despite the syncope incident, Mellissa never 19 said that she needed any accommodation. She was 20 able to perform all of the duties of that job. 21 Respondent faults the Complainant for not asking 22 for a reasonable accommodation of some kind. In 23 fact, the shoe's really on the other foot. 51 1 A situation in which an employer perceives 2 an employee to be disabled but the employee does 3 not perceive it himself presents an even stronger 4 case for mitigating the requirement that an 5 employee seek accommodation. In such situations, 6 the disability is known to the employer, while 7 the employee, because he doesn't consider himself 8 to be disabled, is in no position to ask for an 9 accommodation. 10 A requirement that an employee ask for an 11 accommodation would be tantamount to nullifying 12 the statutory mandate of accommodation for one 13 entire class of disabled employees. Brady versus 14 Wal-Mart Stores, 531 F.2nd -- F.3rd, rather -- 15 127, and Beck versus University of Wisconsin, a 16 Seventh Circuit case, 75 F.3rd 1130. 17 O'Dell rarely visited the group home, she 18 didn't recognize the actual essential duties 19 being performed, she did not attempt to see 20 whether Davis could remain, she didn't attempt to 21 offer an available position. 22 Both Shonk and Dreiman, experienced 23 personnel, testified that many of the essential 52 1 functions listed in the job description were 2 really never performed there. One of the job 3 descriptions says that you have to be able to 4 lift 75 pounds. That is a general job 5 description for all of the direct service 6 personnel. 7 However, in Group Home 11, she never had 8 to do that even once, because the persons that 9 were there, the patients, the residents, were of 10 higher development. They did not need to be 11 carried, they did not need to be bathed, they 12 were not using wheelchairs, and, significantly, 13 they didn't live on any floor but the first 14 floor. 15 Did Ms. O'Dell know this? Maybe not. If 16 she did, she didn't consider it. It is stated 17 that the failure to even discuss a reasonable 18 accommodation in a meeting which an employer 19 takes an adverse employment action demonstrates a 20 lack of good faith. 21 On the subject of damages, Complainant has 22 proved that after her termination, she did first 23 seek other similar work in other places. She did 53 1 eventually find work at four places. Of the 2 three jobs, the three jobs, interim income was 3 properly deducted by the Administrative Law 4 Judge. The Administrative Law Judge did properly 5 say that the back pay is going to be reduced by 6 the amount of money she made at each of these 7 three post-Knox County jobs. 8 However, the fourth job, Lewis Bakery, 9 actually paid more money than Knox County, so it 10 was at that point that Complainant's back pay 11 period stopped. The Administrative Law Judge was 12 absolutely correct on that point. Interim income 13 was properly deducted, and the Administrative Law 14 Judge got it right. 15 She not only got it right with respect to 16 the damages, she got it right with respect to the 17 finding of liability. There is no question that 18 Complainant was a person with a disability. She 19 was and has an impairment that affects one or 20 more major life activities. Those activities do 21 include sleeping, they include bending, they 22 include even climbing stairs. 23 But those were the disabilities or the 54 1 impairments that she had. Respondent knew or 2 should have known about those, as she mentioned 3 her cardiac arrhythmia, she mentioned her being 4 borderline diabetic prior to the time of the 5 syncope. 6 But the important thing to note is that 7 the syncope is not an isolated incident. It is 8 connected with cardiac arrhythmia. It is part 9 and parcel of the same disability, and medical 10 evidence was presented in that regard. I have 11 that report here. This was cited in my brief, by 12 the way, which I'm going to be submitting to you 13 shortly. 14 For those reasons, the Complainant's 15 objections ought to be sustained. Merely because 16 the Administrative Law Judge neglected to include 17 the interest income, in all other respects, the 18 Administrative Law Judge's decision should be 19 affirmed. 20 Thank you. 21 CHAIRPERSON BLACKBURN: Ms. Kotter, 22 do you have any statement in rebuttal? 23 MS. KOTTER: Just briefly. 55 1 In our response to Mr. Healy's comments, 2 again, they want to gloss over the first prong of 3 the analysis, which is that you have a defined 4 disability under the ADA. They want to jump to 5 reasonable accommodation and talking about 6 essential functions of the job. They want to do 7 that because they are weak on that first point. 8 Again, I don't think he said what the 9 disability is or how it affects major life 10 activities. Sleeping, bending, I don't know 11 what's in the record that she can't bend. She 12 says she has a very active position, boxing, 13 packaging, on her feet all day, and she has done 14 it in the interim. And her testimony is that 15 she's not had any issue working since that 16 syncopal incident. 17 CHAIRPERSON BLACKBURN: May I 18 interrupt you, please -- 19 MS. KOTTER: Sure. 20 CHAIRPERSON BLACKBURN: -- just for a 21 moment? 22 MS. KOTTER: Uh-huh. 23 CHAIRPERSON BLACKBURN: Mr. Healy? 56 1 MR. HEALY: Yes. 2 CHAIRPERSON BLACKBURN: In response 3 to the question, "What's the disability?" your 4 answer is? 5 MR. HEALY: The disability is that 6 she has a history of syncope, she has also, it is 7 determined, cardiac problems, and she also, in 8 addition to that, has the perception -- there was 9 a perception of a disability. In other words, to 10 be considered disabled doesn't mean that you 11 are -- just have a disability, it can also mean 12 that you are perceived as having the disability. 13 CHAIRPERSON BLACKBURN: Okay. 14 MR. HEALY: I told you what they 15 were. I also want to point out that in a 16 perception case, and this is the one, it's 17 important to show that the Complainant was unable 18 to perform a number of jobs. According to the 19 Respondent, she couldn't perform any of the jobs. 20 There were jobs available, and they said that 21 Respond -- that Complainant could not perform any 22 of them. By their own admission, she could not 23 perform any of those other jobs because they 57 1 would not let her do so. 2 CHAIRPERSON BLACKBURN: Okay. 3 Would you like to continue, Ms. Kotter? 4 MS. KOTTER: Yes. 5 CHAIRPERSON BLACKBURN: Go ahead. 6 MS. KOTTER: Again, as to the cardiac 7 issue, she stated at the time of the hearing that 8 for her heart problems, she would take 9 medication. 10 As for the medical guidance, that was in 11 his brief. That was not in front of the ALJ, and 12 so she could not have based her order on it. 13 Therefore, I think it's irrelevant. She couldn't 14 have based her order on it because it's the first 15 time I'm seeing it. 16 Second, Mr. Healy is not a physician. 17 Dr. Nibel is. He is her attending physician, and 18 if you look at his deposition, he not once was 19 able to tie this loss of consciousness to her 20 heart issue. If he had, they would have cited 21 that. 22 And again, they want to jump to the 23 reasonable accommodations and the functions. 58 1 They want to go on with the analysis. As far as 2 the essential functions, there is an Indiana 3 statute that says evidence of whether a 4 particular function is essential include a 5 written job description, paid-for advertising, or 6 interviewing applicants for the job. 7 These essential functions were listed as 8 part of her job description, she signed them, 9 everyone knew what those were. In addition, the 10 work experience past and coming to the job, the 11 current work experience of coming to similar 12 jobs. 13 As far as how -- the actual disability, 14 KCARC can't discriminate if they don't know what 15 the disability is. She reported that she had 16 some issues to a fellow staff member, but there 17 is no evidence in the record that HR, who was in 18 charge of terminating her, had any knowledge of 19 that. And again, she testified that she did not. 20 So, there's no way they could have known about 21 that conversation. 22 As far as the other positions available, 23 the reason she was not offered them is because 59 1 she was not qualified for them, or they had the 2 exact same essential functions as the one -- as 3 the position she was in. So, therefore, she 4 didn't have the experience for them, or two, she 5 had the same issues. 6 And again, as far as the perceived 7 disability claim, this is not a case where she 8 came in and said, "I'm prone to blackouts," and 9 they said, "Okay. Well, that must mean you can't 10 do X, Y or Z." The opposite is true. They 11 didn't know what she was suffering from. 12 And she came in with a list of 13 instructions from her own doctor, in which they 14 followed when making these decisions. It wasn't 15 unfounded belief, it wasn't a miss, or what a 16 typical perceived disability case is. 17 And again, he says, well, she didn't ask 18 for a reasonable accommodation because she didn't 19 need one; she performed all of these things in 20 her job. However, if she could perform all of 21 the essential functions, I don't understand why 22 she couldn't answer that question in the hearing. 23 When the Judge asked, you know, "How could you 60 1 perform your job with these restrictions?" she 2 couldn't answer it. And so, that -- I'm still 3 confused about it. 4 So, I think that's all. 5 CHAIRPERSON BLACKBURN: Mr. Healy, 6 you get the microphone again, if you have 7 surrebuttal. 8 MR. HEALY: Yes. 9 Once again, the Complainant actually says 10 that she has a perceived disability, yet she 11 testified that although the disability was 12 perceived, she also had an actual disability. 13 There's nothing in the statute that says you can 14 only have one or the other. Mainly, they 15 perceived her as having a disability, and they 16 terminated her as a result. 17 More important than that is -- and what is 18 fatal to the Respondent -- is that they did not 19 follow their own guidelines. They did not give 20 an opportunity to even discuss with her any 21 accommodation that might be given. Let's look at 22 some of the things that they did do with respect 23 to other persons, and this is contained in the 61 1 proposed order. 2 There was at least one other similarly 3 situated employee named Curtis Akers, who was 4 unable to drive the group home van in order to 5 take residents to the emergency room, yet he 6 remained employed. That's one of the most 7 important functions. 8 Another DSP was unable to pass the test to 9 administer medication and was given the 10 accommodation of having a co-worker administer 11 the medicines. According to KCARC, the number 12 one qualification is to maintain reliable 13 transportation available for use during work 14 hours and a valid driver's license. 15 The number six essential duty is to 16 provide transportation to consumers for medical 17 appointments, the number 23 essential duty is to 18 administer medications appropriately. These had 19 to be performed on a regular basis. Mrs. Davis 20 did do this without any problem, yet two men, 21 Akers and Scott, having no known disabilities, 22 could not perform these tasks. 23 Davis was terminated abruptly for not 62 1 being able to perform certain duties, none of 2 which really had to be performed at any time, 3 including the lifting up to 75 pounds 4 independently, assisting and lifting, turning, 5 moving, transporting people out of bed. There 6 was a team working in the group home, and no 7 professional was left to work alone. 8 KCARC boasts education and/or experience, 9 high school diploma or GED equivalent, one year 10 of experience working with developmental 11 disability is preferred. Yet some of the people, 12 such as Dreiman, was hired without having any 13 experience whatsoever. 14 Davis could have performed a number of 15 other available positions, or she could have 16 performed the same position, but was not given 17 any opportunity. These so-called essential 18 functions deemed so important were in reality not 19 that important, so that's pretextual. 20 Once again, the Complainant, according to 21 the case law, is not required to speak magic 22 words regarding the technical/medical 23 disabilities to provide a minimum level, a 63 1 minimum level, of documentation to avail 2 themselves of the protections of the law. She 3 felt she was able to perform the work. She felt 4 that despite impairments, she could do the work, 5 and she could do the work, even with Dr. Nibel's 6 restriction. Yet the Respondent was not going to 7 give her any opportunity to do so. 8 Thank you. 9 CHAIRPERSON BLACKBURN: Thank you, 10 Mr. Healy. 11 Are there any questions now, Mr. Ramos? 12 COMM. RAMOS: Yes. 13 Just at a high level, Ms. Kotter, you 14 indicated that if there -- she was to be able to 15 address her concerns, she could come back and 16 reapply. 17 MS. KOTTER: Yes, and that is 18 actually a finding of fact, which Mr. Healy did 19 not object to, that she was advised to reply when 20 the restrictions were lifted. 21 COMM. RAMOS: Which she did. I 22 understand she came back within one week later 23 with -- 64 1 MS. KOTTER: No, she did not, no. 2 This was after she was terminated. She had 3 brought in the light-duty letter with 4 restrictions, and they told her, "I'm sorry; 5 based on these restrictions, you cannot perform 6 the job. However -- so, we're going to have to 7 let you go. However, once these restrictions are 8 lifted, please come reapply." 9 And that is in the ALJ's findings of fact, 10 and that is -- my basis for that is if we thought 11 she had a disability -- or a permanent disability 12 that substantially limited major life activities, 13 why would we ask her -- why would we assume that 14 they were going to be lifted and we ask her to 15 come back? 16 COMM. RAMOS: Can you confirm that, 17 Mr. Healy, that she did not return and request an 18 additional opportunity for employment? 19 MS. KOTTER: She didn't reapply. 20 MR. HEALY: I think what she did was 21 she filed a complaint of discrimination because 22 she was summarily terminated. 23 COMM. RAMOS: Okay. 65 1 MS. KOTTER: Is that right? 2 MS. DAVIS: Uh-huh. 3 COMM. RAMOS: Did she acknowledge 4 that she understood the information from the 5 KCARC that she could reapply? 6 MR. HEALY: I think there's some 7 dispute as to what the exact language was, but 8 she was given short shrift as saying, "When you 9 get better, you can reapply." Mrs. Davis didn't 10 think there was anything wrong with her that she 11 needed to lose her job to begin with. 12 COMM. RAMOS: I see. 13 COMM. EDWARDS: Do you have a policy 14 for saying how you actually deal with those 15 situations? 16 MS. KOTTER: KCARC? 17 COMM. EDWARDS: Yes. 18 MS. KOTTER: When someone comes and 19 asks for reasonable accom -- if someone comes and 20 asks -- 21 COMM. EDWARDS: Right. 22 MS. KOTTER: I think in the situation 23 if you have -- if you're out for a health reason, 66 1 they want you to bring in a note from the doctor 2 to release you back to work, for liability. If 3 someone comes in and they have a disability, and 4 they'd like a reasonable accommodation, there is 5 a worksheet that they fill out, and then they go 6 through this same analysis: What you can 7 perform, what you would need done, if you can do 8 other jobs. 9 And in this case, that was not done. 10 However, she didn't ask for a reasonable 11 accommodation, and Ms. O'Dell testified that 12 whether they filled out the form or not wouldn't 13 have changed the determination -- 14 COMM. EDWARDS: Uh-huh. 15 MS. KOTTER: -- because there were no 16 other jobs for which she was qualified or which 17 could have satisfied the -- 18 COMM. EDWARDS: But that's how you 19 deal with those situations? If a person can't 20 perform the essential functions, you just 21 terminate them, or do you have other avenues, 22 like put them on a leave of absence for a period 23 of time until you see if you can work it out, or 67 1 what? 2 MS. KOTTER: In this case, she didn't 3 have any -- she'd only been there a few months, 4 so she hadn't been there long enough to have any 5 leave available. 6 COMM. EDWARDS: Okay. 7 COMM. RAMOS: To Comm. Edwards' 8 point, from a performance standpoint, was her 9 performance satisfactory to that point in time? 10 MS. KOTTER: Yes. There was -- to my 11 knowledge, there was no issue with her 12 performance. 13 COMM. RAMOS: And Mr. Healy, in light 14 of the multiple positions that Ms. Davis, or 15 Ms. Cope, worked at, did she file any other 16 similar grievances with any of the other 17 employers? 18 MR. HEALY: Not that we're aware of. 19 I didn't see any in the record. Certainly no 20 civil rights complaints. 21 I want to also point out to the 22 Commissioners, there was, as a policy, a 23 reasonable accommodation policy and a worksheet 68 1 that was kept on file, and it's got Mellissa's 2 name on it, saying that all of the steps are for 3 giving a reasonable accommodation, including: 4 One, analyzing job functions; two, determining 5 precise limitations; three, identifying potential 6 accommodations; and four, selecting an effective 7 accommodation. None of these were, however, in 8 fact presented to Ms. Davis. She was just 9 summarily terminated. 10 And I want to say this is -- it put the 11 Complainant in a catch-22 situation of saying, 12 well, she didn't -- she didn't request an 13 accommodation, yet if she's perceived as being 14 disabled but can perform the duties, it's not up 15 to her. It's the Respondent's duty to initiate 16 the interaction between the two. She was still 17 at a loss to see -- to know why she was even let 18 go when she could perform all of these duties. 19 CHAIRPERSON BLACKBURN: Any other 20 questions? 21 (No response.) 22 CHAIRPERSON BLACKBURN: You're good? 23 COMM. YOUNG: (Nodded head yes.) 69 1 CHAIRPERSON BLACKBURN: Okay. 2 I want to thank you for your participation 3 in this hearing. Without discussion beyond this 4 room, Commissioners will arrive at a decision, 5 and you will be apprised of the decision. 6 MR. HEALY: And I will get this copy 7 of the brief to you momentarily. 8 CHAIRPERSON BLACKBURN: Yes. 9 MR. HEALY: Thank you. 10 CHAIRPERSON BLACKBURN: Thank you. 11 (Discussion off the record.) 12 MR. HEALY: I'm sorry. Shumura said 13 that you will get -- receive copies of the brief. 14 CHAIRPERSON BLACKBURN: Thank you. 15 We have two pending motions. If we can go 16 through these quickly, then we can dismiss. 17 Motion to Set Aside Final Order by Default, 18 Kristy Reisinger versus J & J and Associates, 19 Inc. May I have a motion to -- 20 COMM. RAMOS: So moved. 21 CHAIRPERSON BLACKBURN: -- set aside? 22 Thank you. 23 COMM. YOUNG: Second. 70 1 CHAIRPERSON BLACKBURN: All in favor? 2 COMM. EDWARDS: Aye. 3 COMM. YOUNG: Aye. 4 COMM. RAMOS: Aye. 5 CHAIRPERSON BLACKBURN: Aye. 6 Anyone opposed? 7 (No response.) 8 CHAIRPERSON BLACKBURN: And Motion to 9 Dismiss, Ted Czanderna versus Division of Aging. 10 May I have a motion to dismiss? 11 COMM. YOUNG: So moved. 12 COMM. RAMOS: Second. 13 CHAIRPERSON BLACKBURN: All in favor? 14 COMM. EDWARDS: Aye. 15 COMM. YOUNG: Aye. 16 COMM. RAMOS: Aye. 17 CHAIRPERSON BLACKBURN: Aye. 18 Anyone opposed? 19 (No response.) 20 CHAIRPERSON BLACKBURN: There being 21 no Consent Agreements and no Public Comments, do 22 you have any announcements? 23 (No response.) 71 1 CHAIRPERSON BLACKBURN: On your 2 agenda are the dates for the next meetings. Try, 3 if you will, to be here, and thank you for being 4 here today. 5 The meeting is adjourned. 6 - - - Thereupon, the proceedings of 7 August 26, 2016 were concluded at 2:27 o'clock p.m. 8 - - - 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 72 1 CERTIFICATE 2 I, Lindy L. Meyer, Jr., the undersigned 3 Court Reporter and Notary Public residing in the 4 City of Shelbyville, Shelby County, Indiana, do 5 hereby certify that the foregoing is a true and 6 correct transcript of the proceedings taken by me 7 on Friday, August 26, 2016 in this matter and 8 transcribed by me. 9 10 _________________________ 11 Lindy L. Meyer, Jr., 12 Notary Public in and 13 for the State of Indiana. 14 15 My Commission expires October 27, 2016. 16 17 18 19 20 21 22 23