NONPRECEDENTIAL DISPOSITION

To cited only accordance with Fed. R. App. P. 32.1 United States Court of Appeals

For Seventh Circuit

Chicago, Illinois Argued September Decided October

Before

DANIEL A. MANION, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge DAVID F. HAMILTON, Circuit Judge Marytza Golden, Appeal United States

Plaintiff Appellant District Court Southern District Indiana, Indianapolis v . Division.

Indianapolis Housing Agency, 1:15 cv

Defendant Appellee .

Richard L. Young, Judge .

O R D E R

Indianapolis Housing Agency police officer Marytza diagnosed breast cancer November After took sixteen unpaid say able work, so terminated her. sued, arguing violated Americans Disabilities (ADA) Act failing granting leave. judgment IHA. Because circuit precedent precludes claim, affirm.

I. Background

Golden became IHA police officer June 1999. IHA officers full fledged police officers “whose main functions include responding calls service, investigating crimes, protecting public, protecting IHA assets, responding calls, providing emergency aid, protecting and serving public.” Golden Indianapolis Hous. Agency 1:15 cv 766, 283481, at *1 (S.D. Ind. Jan. 23, 2017). Her position was federally funded within meaning Section November 2014, after fifteen years on job, Golden was diagnosed breast cancer. She successfully requested Family Medical Leave (FMLA) on December 11. A week later, Golden underwent right side mastectomy had five lymph nodes removed. On December doctor described her condition “ongoing” her period incapacity as “until released,” was unsurprising considering Golden still had go through chemotherapy anticipated future surgeries.

Realizing she wouldn’t able return after her twelve weeks FMLA Golden applied benefits on March 2015. On application form, represented she “cannot perform [her] job descriptions safely” “needed hands on help safely perform activities daily living.” at *2. Her direct supervisor certified on application her job modified her disability. Her application was approved on April

Also on March Golden received letter IHA human resources informing her her FMLA soon expire. letter indicated custom permitted take additional four weeks even though her doctor had indicated end date her treatment. took thus April automatically terminated. On March her returned updated form listed duration condition “ongoing” her incapacity “until release.”

On April (the day before slated end), showed up unannounced human resources office had meeting HR director ‐ 1359 3 Kathy Walden generalist Richard Simmons. They discussed March letter well Golden’s retirement long ‐ term disability benefits, Golden didn’t ask for additional or any other accommodations. However, after Golden left office, sent after hours email Walden Simmons explaining she was “requesting unpaid per city policy.” Walden interpreted Golden’s request pursuant IHA’s “General Leave Absence (Unpaid Leave)” policy, permits specified (not exceed six months) no other form appropriate. Walden rejected Golden’s last minute leave. Thus, Golden effectively terminated on April At point, her had provided expected date. then filed suit alleging IHA’s actions violated

Rehabilitation Act. She argued federal law her disability providing her leave. She also argued termination per se violation Rehabilitation The parties filed cross motions judgment, dismissed case. timely appealed.

II. Discussion

The Rehabilitation Act says “[n]o otherwise qualified ... shall, solely reason or his disability ... subjected discrimination under any program or activity receiving Federal financial assistance ....” U.S.C. § 794(a). The legal standards identical. § 794(d). So prevail claim either statute, must “otherwise qualified individual,” someone “who, without accommodation, perform essential functions employment position [she] holds desires.” U.S.C. § 12111(8). This true both failure ‐ per se claims. Kotwica v. Rose Packing Co. , F.3d 747–48 (failure accommodate); Steffen v. Donahoe 2012) ( ).

The “qualified individual” requirement fatal We recently reaffirmed “[a]n needs thus ‘qualified individual’ ADA.” Heartland Woodcraft, *1 Sept. (citing Byrne Avon Prods., 2003)). We expressly declined overrule Byrne concluded “A multimonth beyond scope ADA.” Severson requires us hold addition twelve FMLA removes protected class Rehabilitation Act. short, because qualified individual, district court correctly judgment IHA.

III. Conclusion

While sympathize plight, clear circuit precedent controls Under Byrne multi month qualified Therefore, judgment AFFIRMED. 17 ‐ 1359 5

R OVNER , Circuit Judge , concurring. I agree that bound the holdings in Byrne v. Avon Prod., Inc. , 328 F.3d 379 (7th Cir. 2003), now Severson v. Heartland Woodcraft, Inc. , 15 ‐ 2017 WL 4160849 Cir. Sept. 2017), which have declared— without any support from the text of the Americans with Disabilities Act—a per se rule that “a long term leave of absence cannot be a reasonable accommodation.” Severson , 4160849 *3. I question the holdings of these cases. The ADA, its terms, meant be flexible require individualized assessments of both the reasonableness of an employee’s requested accommodation the burden employers. Holding that a long medical leave can never be part of a reasonable accommodation does reflect flexible nature the protections under

It undisputed that ADA allows for part time modified work schedules individuals disabilities. U.S.C. § 12111(9). And so, for example, may require an employer a flexible work force offer part ‐ time work a work you can schedule an employee undergoing chemotherapy cannot a full day every day during a course treatment may last many months. But our cases have declared a per se rule would exclude from seeking accommodation which full off chemotherapy treatment then can full without restriction. This per se rule applies regardless whether cause any hardship employer. distinction nonsensical.

This others have interpreted ADA’s reasonable accommodation requirement including paid subject employer’s demonstration undue hardship. See, e.g. , Haschmann v. Time Warner Entm ʹ t Co. , F.3d 1998) (stating there sufficient evidence a reasonable juror conclude second medical weeks, requested—following earlier three a modified schedule three weeks—would have been reasonable accommodation a question fact jury). Other courts have rejected per se rule extended never reasonable accommodation ADA. See, e.g Garcia Ayala Lederle Parenterals, (1st (rejecting rule extended leaves reasonable accommodations citing other cases have held some circumstances). fact both Byrne point out may appropriate allow intermittent short leaves absence—a couple days or even a couple of weeks—for someone a condition at various times renders completely unable to work, such as arthritis or lupus. at *3, Byrne, But what sense does it make the require an employer to accommodate an employee lupus who requires one week leaves, several times a year, every year, but can never require employer accommodate who needs a one leave of five recuperate from, example, a kidney replacement? Whether employer can reasonably a either the first second type a factual determination can be made latter case just easily in former. It might be a particular employer has ever authorized a more than a few weeks; but it might also be case employer historically has permitted take multi month leaves non reasons. There no reason think meant one type over another fact intensive assessments determine undue hardship can applied some forms but others. indefinite lengthy nature indeed may have

been undue hardship Housing Authority, this determination made facts I continue believe rule declaring never ADA, opposed one requiring factual determination undue hardship, contrary language But because now law circuit, I must concur judgment.

[1] policy also give two weeks’ notice before requesting such leave.