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LAW REVIEW continued from page 25

trouble focusing and verbalizing. Foster
stated that in March 2007, when he was
given management responsibility for
both Allendale and Brookdale, he told
Jones-Taylor that: " my mental condition
and the aftermath of the concussion I
suffered would make it difficult for me to
run two centers at once. "

Legitimate Business Reasons?
Assuming Foster was a qualified individual with a disability and the City had
knowledge of his disability when he was
terminated, as noted by the court, " the
burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory or
retaliatory conduct. "
While " [a]n employer need not persuade the court that it had convincing
objective reasons for the termination, "
the federal court found " undisputed evidence that Foster failed to fulfill many of
the requirements for his job " :
(1) he did not remain within budget;
(2) he did not develop a projected
budget; (3) he failed to establish a tennis program requested by the
community; (4) he failed to complete
Program Planners for Fall 2007 programs due in April 2007; (5) he failed
to initiate a partnership with Laurel
School; (6) he failed to initiate a landscaping care program; (7) he failed to
market Brookdale as a rental facility;
(8) he failed to develop tennis and
swim teams for two centers; (9) he
failed to provide participants in a track
meet; (10) he failed to recruit and retain participants in the Allendale
passport program; (11) he enrolled
only forty-five participants in a summer camp program that had capacity
of 135; (12) he initiated a partnership
with California Arts and Development
for a $2,500 program without approval; (13) he had an unauthorized
volunteer at Brookdale; (14) he failed
to submit an incident report and failed
to submit several key assignments and
a business plan; and (15) he was late
for meetings with Koney.

In response to these shortcomings,

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Assuming Foster was a qualified individual with a disability
and the City had knowledge of his disability when he was
terminated, as noted by the court, " the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason
for its allegedly discriminatory or retaliatory conduct. "
the court noted that Foster offered " excuses or reasons for each of these job
deficiencies, " but he did " not dispute
many of them. " Accordingly, even examining the evidence in the light most
favorable to Foster, the federal district court concluded " defendants have
met their burden of showing legitimate
non-discriminatory reasons for Foster's
termination. " As a result, the federal
district court granted the City's motion
for summary judgment " with respect to
Foster's claim for disability discrimination based on his release from probation " and termination.

process for finding a reasonable accommodation may be triggered by the employer's recognition of the need for such
an accommodation, even if the employee
does not specifically make the request. "
This exception to the general rule that an
employee must make an initial request
would, however, only applies when the
employer " knows or has reason to know "
the following:

Failure to Accommodate?

Under the circumstances of this case,
Foster had argued that the City had failed
to accommodate him and had " failed to
engage in the interactive process once
they knew of his disability " when the City
unilaterally assigned him to manage both
the Allendale and Brookdale centers on a
temporary basis. Specifically, Foster had
told his supervisor Koney that it " might
be too much " for him to manage two centers in view of the fact that " I'm still, you
know, dealing with concussion-related
issues. " He had also told Koney at least
once that managing two centers was a
problem for him, and that the assignment
was " extremely difficult, " and that he did
not know if he could do it. In response to
Foster's claims that he felt that his workload was too heavy when he was managing two centers, Koney had told Foster the
department was short-handed so there
was no one else to assist him.
In March 2007, Foster also told the
parks and recreation director, JonesTaylor, that his " mental condition and
the aftermath of the concussion I suffered
would make it difficult for me to run two
centers at once. "
In light of such evidence, the federal
district court found Foster had alleged
sufficient facts to support his failure to
accommodate claim.

While legitimate business reasons may
have existed for terminating Foster's employment, the court still had to determine
whether Foster could " prevail on a failure to accommodate claim " under the
ADA. To do so, once again, Foster had to
" establish that he suffers from a disability covered by the ADA, that he is a qualified individual, " and there was a " failure
to accommodate. "
Under the ADA, discrimination on the
basis of disability includes " not making reasonable accommodations to the
known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant or employee,
unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation
of the business of such covered entity. "
Further, once an employer becomes
aware of the need for accommodation,
an employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to
identify and implement appropriate reasonable accommodations.
Generally, the initial request for accommodations must be made by the employee. On the other hand, the federal
court acknowledged that " the interactive

w w w . N R P A . ORG

(1) the employee has a disability, (2)
the employee is experiencing workplace problems because of the
disability, and (3) the disability prevents the employee from requesting a
reasonable accommodation.
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