The Court of Appeals for the 7th Circuit recently issued a decision in a claim filed under the Rehabilitation Act where a former Wisconsin Department of Health Services employee, Joyce Whitaker, filed suit after she was fired for failing to return to work after several strings of leaves of absences, claiming an accommodation of "finite, unpaid leave" should have been given instead of termination.
To prevail on a claim under the Rehabilitation Act, the plaintiff had to show: (1) she is disabled within the meaning of the statute; (2) that she was otherwise qualified for the job in question; (3) that she was discharged or subject of other adverse action solely because of her disability; and (4) the employment program of which her job was a part received federal financial assistance. An employee is "otherwise qualified" when she is capable of performing the "essential functions" of the job with or without a reasonable accommodation. The Court found that Whitaker could not establish that she could perform the essential functions of her job, which makes her Rehabilitation Act claim fail.
The key take away from this case, however, is the 7th Circuit discussion of the evidence Whitaker offered to show she was an "otherwise qualified" employee and her use of a "self-serving affidavit," which the 7th Circuit has held can "indeed be a legitimate method of introducing facts on summary judgment." The Court emphasized the point that they "have taken pains to reject 'the misconception that evidence presented in a 'self-serving' affidavit is never sufficient to thwart a summary judgment motion." However, the Court found Whitaker's self-serving affidavit/declaration was insufficient to avoid summary judgment because it did not provide sufficient evidence to allow a trier of fact to find that, if the Department had given her additional unpaid leave, she likely would have been able to return to work on a regular basis. The Court noted that, while Whitaker said she was receiving treatment, she did not explain the effectiveness of this treatment or the medical likelihood that it would enable her to return to work regularly. Thus, summary judgment was affirmed.
The case is Whitaker v. Wisconsin Department of Health Services, No. 16-1807 (7th Cir. 2017)