Seventh Circuit Affirms Dismissal of ADA Suit Seeking Second Chance

Employment Law

December 18, 2024

A second chance is not a reasonable accommodation, according to a decision from the Seventh U.S. Circuit Court of Appeals in an Americans with Disabilities Act (ADA) case.

In January 2015, Sarah Schoper suffered a life-threatening pulmonary embolism that caused a traumatic brain injury. Because of the severity of the illness, she developed high-functioning mild aphasia, a condition that causes difficulty in retrieving words, as well as other physical disabilities.

After her injury, Schoper’s neurologist told her that complex intellectual activities would hasten her recovery. So, the tenure-track assistant professor at Western Illinois University sought to return to teaching as soon as possible.

The University provided her with physical accommodations and allowed her to teach the same courses she had previously taught.

Although Schoper’s students complained about her teaching skills, she did not stop the tenure clock, which was governed by a collective bargaining agreement. The peer committee recommended that she not receive tenure based on her average scores and the negative comments from her students.

The department chair reached a similar conclusion and so did the college personnel committee; Schoper requested reconsideration, which was denied. Ultimately the dean and president of the University agreed that Schoper not be recommended for tenure.

Schoper sued, alleging the University discriminated against her on the basis of her disability and failed to offer her reasonable accommodations in violation of the ADA.

The district court granted summary judgment in favor of the University and Schoper appealed, but the federal appellate panel affirmed.

“Schoper’s failing [scores] and the bearing that had on her tenure decision belie a fundamental problem with her case: the impact that her disability had on whether she was a qualified individual,” the court wrote. “The undisputed evidence demonstrates that the average scores for Schoper’s most recent classes fell below a 4.0, strongly suggesting she failed to meet the essential requirements for the job of tenured professor. If Schoper was not a qualified individual in the meaning of the Act, then the University had no obligation to accommodate her in the first instance.”

Even if she was qualified, however, summary judgment was still appropriate, the court said.

During the application review process, Schoper requested additional time to demonstrate that her scores would once again rise above the 4.0 threshold, where they had been prior to her injury. She told the court that the University should have paused her tenure clock to allow her more time for recovery.

“But what Schoper requested is not a reasonable accommodation,” the court said. “Instead, she effectively requested a do-over. This is evidenced by the fact that she did not request any accommodation until it became apparent that she would receive a negative tenure recommendation.”

Schoper made the conscious decision to return to teaching quickly to hasten her recovery, taking the risk that her teaching scores could fall until she fully recovered, the court said, and it was possible that, given more time, she would have once again met the teaching requirements for tenure.

“Nonetheless, Schoper points us to no authority that requires the University to insulate her from her chosen strategy,” the court wrote. “In fact, we have previously stated that requesting a second chance is not a reasonable accommodation when it does not request that the employer change anything, but rather simply requests an opportunity for the employee to change their behavior.”

The court reached a similar conclusion on Schoper’s disability discrimination claim, as the record suggested that she was not a qualified individual in the meaning of the Act because she could not meet the essential requirements for the job of tenured professor.

Further, her traumatic brain injury was not the determinative factor in the University’s decision to deny her tenure, the court said, as the reviewers highlighted comments identifying shortcomings that didn’t have anything to do with her disability, such as that she played favorites with students, complained about other teachers, focused too much on students liking her, and struggled to handle feedback.

Nor was the court persuaded that negative comments from students were discriminatory.

“[D]rawing discriminatory animus from two student comments—let alone expanding that animus to all the student comments—requires a speculative leap that no reasonable juror could make,” the court said. “And, most importantly, there is no evidence in the record that the reviewers relied on these comments in making their negative recommendations.”

The panel affirmed summary judgment in favor of the University.

To read the opinion in Schoper v. Board of Trustees of Western Illinois University, click here.

Why it matters: The Seventh Circuit was clear: an employee request for an opportunity to change their behavior is not a reasonable accommodation under the ADA and employers are not required to provide do-overs.