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Make sure attorney coordinates your response to disability retirement claim and ADA defense

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in Discrimination and Harassment,Human Resources

Employees who want to retire early on disability sometimes turn around later and sue for ADA violations. The legal argument they try to make in court: They may be too disabled to work without an accommodation, but could work with one.

Employees who manage to win both disability retirement benefits and an ADA case get the best of all possible worlds—a regular retirement check, plus a lump-sum jury award for their employer’s failure to accommodate their disability.

Employees can pursue both claims if they can show that, with an accommodation, they could have performed their jobs. But if it’s very clear from their testimony in the disability retirement case that they couldn’t possibly perform their jobs under any circumstances, then their ADA cases will be dismissed.

That’s why it is crucial for you to coordinate any litigation over retirement benefits with the attorneys handling your ADA and employment discrimination litigation.

In the retirement proceedings, your lawyer can ask the employee pointed questions about his condition, perhaps getting him to admit he wouldn’t be able to perform his old job under any circumstances. With that admission, his ADA case falls apart.

Recent case: For many years, Patrick Butler worked as a police officer for the village of Round Lake. Then Butler’s health began deteriorating and he was diagnosed with chronic obstructive pulmonary disease, an incurable lung condition that makes breathing difficult.

Butler was unable to walk up a flight of stairs or run even 50 feet. He was unable to walk more than four blocks, much less catch and restrain a fleeing suspect.

Butler applied for an early retirement based on his disability. During the hearing, he testified that he was completely unable to perform the job of a police officer. His doctors also said he could not engage in police activities. He got the benefits.

Then he filed an ADA lawsuit, alleging that he should have been reasonably accommodated. The court said his testimony in the retirement hearing precluded him from now claiming he could do the job if only he got accommodations. The court said it was clear Butler couldn’t perform a police officer’s job under any circumstances—based on his own earlier testimony. (Butler v. Village of Round Lake Police Department, No. 08-3856, 7th Cir., 2009)

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