By:  Linda Sackey

In Conners v. Wilkie, No. 19-2426, the Seventh Circuit addressed what can be a thorny issue in employment law, namely, when an employee will be considered a “qualified individual with a disability” under the Rehabilitation Act.

Beginning in 2006, Priscilla Conners was employed as a licensed practical nurse (“LPN”) at a facility operated by the United States Department of Veterans Affairs (“VA”). Among her duties were to treat and monitor patients, give immunizations, manage the front desk, teach classes, and complete paperwork. Conners also was expected to handle medical emergencies. Her job description specified that an LPN should have the physical ability to, among other things, lift, stand, bend, stoop, stretch, and pull without help from another patient care provider.

In October 2011, Conners was struck by an automobile. She suffered severe injuries that required surgery and that hindered her performance of most of her nursing duties. At first, Conners’s supervisor limited her responsibilities to teaching and paperwork. But in March 2013, senior management at the healthcare facility discovered the full impact of her disability on her work and directed her to submit a formal accommodation request. Conners asked for five accommodations. She requested a private office, the option to elevate her leg for roughly 15 minutes every hour or so, a footstool, no standing for more than 15 minutes at a time, and a limitation on walking for more than 25 yards absent an emergency.

Although it agreed to provide a footstool, the VA did not grant the other accommodations because a major component of an LPN’s job is to see patients and to administer immunizations, which require standing and walking. In June 2013, the VA determined that she could not perform the essential functions of an LPN even with reasonable accommodations. Conners later declined the VA’s proposed reassignment to a different position and its option of a medical-disability retirement. In January 2014, her employment was terminated.

Thereafter, Conners sued the Secretary of the VA, claiming in part that the agency failed to accommodate her disability in violation of the Rehabilitation Act. The district court granted summary judgment in the VA’s favor, reasoning that Conners had not presented evidence that she was a qualified individual with a disability, an essential element of a failure to accommodate claim.

On appeal, the Seventh Circuit observed that an employer may be liable for disability discrimination under the Rehabilitation Act if it fails to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee,” unless the employer can show that “the accommodation would impose an undue hardship on the operation of the [employer’s] business.” 42 U.S.C. § 12112(b)(5)(A). Further, the employer’s duty to reasonably accommodate a disabled employee may require a reassignment to a vacant position. Id. § 12111(9)(B).

The Seventh Circuit noted that assessing whether an employee was a qualified individual with a disability generally involves a two-step inquiry. Courts first ask whether the plaintiff possesses the basic qualifications for the job. Next, courts ask whether the plaintiff can perform the essential functions of the job—as reflected in, for example, the employee’s written job description and the amount of time the employee spends performing the function—with or without reasonable accommodations.

In this case, the Seventh Circuit found it undisputed that Conners satisfied the basic prerequisites for the position. However, the physical limitations that followed her accidence in 2011 prevented Conners from performing most of the responsibilities of an LPN. Her inability to stand or walk more than 25 yards at a time made it impossible for her to perform the physical requirements set forth in her job description. The Seventh Circuit rejected Conners’s argument that her ability to perform a reduced set of duties after the accident meant that she could perform the essential elements of the LPN position. The court found that an employer is not required to either create a new job or reduce the principal duties of an existing job to accommodate a disabled employee.

Although she was not qualified to work as an LPN, the Seventh Circuit noted that Conners also could have shown that she was qualified to perform the essential duties of a different vacant position at the VA. Her failure to do so, the court concluded, meant that no reasonable jury could conclude that the VA discriminated against Conners when it failed to reassign her.

On January 18, 2021, retired Illinois Supreme Court Justice James D. Heiple, passed away in Peoria from complications following a brain hemorrhage.  He was 87.  During his time on the Illinois Supreme Court, Justice Heiple authored 175 majority opinions, 98 dissents, 27 special concurrences and 18 partial concurrences/partial dissents.

Justice Heiple was born in Peoria in 1933, the son of attorney and banker Rae Crane and Harriet Birkett Heiple.  He received his undergraduate degree from Bradley University and and his law degree from the University of Louisville Law School.  Following service in the Army at Fort Knox, he joined the family law firm of Heiple & Heiple in Washington.  In 1959, he opened an office in Pekin, developing a practice in municipal law and as corporation counsel for several municipalities. He also served as an appellate law clerk, a public defender, and a Special Master in Chancery.

In 1970, Justice Heiple won election to fill a vacancy on the Tazewell County Circuit Court and was retained in 1972 and 1978.  In 1980, he became a Justice of the Third District Appellate Court.  In 1990, Justice Heiple won election to the Third Judicial District seat on the Illinois Supreme Court.  Justice Heiple assumed a three-year term as Chief Justice in January 1997, succeeding Justice Michael A. Bilandic.  He did not seek retention at the conclusion of his 10-year term in December 2000.

During his career, Heiple served as the Illinois Judges Association president, Tazewell County Bar Association president, held memberships in the Illinois, Kentucky, and federal bar associations, and chaired councils of the Illinois State Bar Association.

The Illinois Supreme Court's statement on Justice Heiple's passing may be found here.  Justice Heiple’s memorial website is available at http://www.deitersfuneralhome.com where condolences may be sent to his family.

The Alliance of Illinois Judges is celebrating the historic election of Judge Jill Rose Quinn, the first transgender elected official in Illinois. Its video program "From Chiola to Quinn," celebrating LGBTQ judges in Illinois, will air on YouTube January 26 at 5 p.m. Featured Speakers include: Hon Tom Chiola (Ret), Hon. Nancy Katz (Ret), Hon. Mary Rowland, and of course, Judge Jill Rose Quinn. Tickets are $10 and are available at theaij.com/events/ 

The program will open with congratulatory messages for Judge Quinn, which may be sent to theaij@gmail.com before January 20th.

The Illinois Supreme Court will hold its January 2021 term oral arguments via Zoom videoconferencing.  In May 2020, the Court held oral argument via Zoom in light of the COVID-19 pandemic, but resumed in-person arguments in the fall.

The Court's January 2021 docket, as well as a link to livestream the arguments, may be found here.  As always, summaries of the cases scheduled for argument are available to ALA Members through Cases Pending.

Greetings ALA friends!

Some of you might recall that I was an appellate law clerk for Justice Susan Fayette Hutchinson for nearly 20 years. But it was not until I joined the Appellate Lawyers Association in 2007 that I truly experienced both camaraderie and professionalism within an organization. Each month, I looked forward to the ALA luncheons and the other activities, where I met some of the best lawyers and jurists in the state and where I learned to be a better appellate practitioner.

I relocated to South Florida five years ago, whereupon I seized an opportunity to take a painting class. I used my love of Gregg Shorthand, which I learned before law school, and began to create artworks using the shorthand as a narrative abstraction.  To my complete surprise, people seemed to like my work. Within months, I was exhibiting in group shows. Since then I have had two solo exhibitions, a special guest exhibition at a new hotel, representation with the finest gallery in South Florida, commissioned requests for public art projects, and some wonderful media exposure. You can see some of my work on Instagram; Facebook; my website; and the Paul Fisher Gallery website.

As appellate lawyers, we are readers, researchers, critical thinkers, writers, and collaborators. As a text-based artist, much of my inspiration and practice was borne through my experience as an appellate lawyer. Before I pick up my paintbrush, I research my subject to attain a better depth of knowledge and understanding. I think about how best to express my feelings about the subject. I create a number of prototypes, akin to editing a draft, even engaging in discussions with other artists to gain a different perspective. The skills I learned as an appellate lawyer continue to shape my work in this new endeavor.

My most recent work shown here, The Constitution, is a complete transcription of the U.S. Constitution and all of the amendments into Gregg Shorthand. I painted the text in shades of gray, but I also breathed new life into it with a touch of turquoise. The canvas is linen and approximately 7’ x 9.5’ in size. Living in Florida, a swing state, politics consumed our attention over the past two years. Misinformation and disinformation polluted our consciousness. It seemed as if political theater moved from the stage to the U.S. Capitol. So this past year I reacquainted myself with the U.S. Constitution. Doing so reminded me of the many conversations with my ALA friends, especially my former coworker and ALA member, Charlie Ingrassia, about cases and decisions, old and new.

Since I finished the work, I have garnered serious inquiries for prints. So I am going to have a limited number of prints made. The process entails high-resolution digital scan-back photography, a color-correcting proofing process with multiple proofs, and printing on acid-free archival fine art paper. Each print will be approximately 36” x 44” and signed by me with the particular print number. I am offering the print for $500, but for any ALA member, I would like to share with you a 20 percent reduction in cost, so each print would run $400.

If you would like a print or have any questions or concerns, I invite you to email me. My email is stacey.mandell.art@gmail.com.

Thank you so much, and I hope you have a happy and healthy 2021.

Warmest regards,

Stacey Mandell

The Illinois Supreme Court's January Term begins Tuesday, January 12, 2021.  Oral arguments are scheduled for January 12, 13 and 14, 2021.  A total of 11 cases will be heard -- 5 civil and 6 criminal.  The following criminal cases are scheduled for argument this Term:

January 12, 2021

People v. Charles Wise, No. 125392

People v. Cordell Bass, No. 125434

People v. Charles Palmer, No. 125621

People v. Chaleah Burge, No. 125642

January 13, 2021

People v. Recardo Johnson, No. 125738

In re Br. M., No. 125969

Below is a summary for one of those cases, People v. Charles Wise.  Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website. 

People v. Charles Wise, No. 125392

The issue in this case is whether the appellate court erred in vacating defendant’s conviction for unlawful possession of a weapon by a felon upon concluding that the State failed to prove, beyond a reasonable doubt, that firearm found in back seat of minivan he was driving was “on or about his person” as required by 720 ILCS 5/24-1.1(a) because, although he constructively possessed it, it was not within his reach.

The People, as appellant, assert several reasons why the offense of unlawful possession of a weapon by a felon should include constructive possession of a weapon in a vehicle.  First, unlike the offenses of unlawful use of a weapon and aggravated unlawful use of a weapon, the offense of unlawful possession of a weapon is not focused on the location of the possession but on possession of weapons by felons, so it would be absurd to exclude constructive possession in a weapon in a vehicle from the latter offense.  Further, the "on or about his person" should not be construed as signifying "immediately accessible" because the legislature has specified immediate accessibility in other provisions by using exactly that language.  Additionally, for decades before the decision below, the appellate court construed the offense to include constructive possession in vehicles, so the legislature acquiesced to that interpretation.  Finally, the appellate court's reasoning supporting its contrary conclusion failed to consider the relevant UUW scheme as a whole.

In response, defendant contends that the plain and unambiguous meaning of "on or about his person" in the provision does not include constructive possession of a weapon not within arm's reach, so it must be given effect (and the State's arguments relying on sources beyond statutory language should not even be considered).  Even if considered, applying statutory construction principles supports defendant's interpretation.  By using different language for this offense, the legislature intended a different result compared to the UUW and AUUW offenses.  In addition, the People's interpretation would render the phrase in question superfluous.  Further, that same phrase has been interpreted to mean within arm's reach in the context of the armed violence statute.  Finally, defendant's construction still serves the purpose of protecting the public.  To the extent there is uncertainty or ambiguity on this point, the rule of lenity requires accepting defendant's construction.

Appellate Court Decision: 2019 IL App (3d) 170252.  McDade, J., with O'Brien, J., concurring; Carter, J., dissenting.

The Illinois Supreme Court's January Term begins Tuesday, January 12, 2021.  Oral arguments are scheduled for January 12, 13 and 14, 2021.  A total of 11 cases will be heard --5 civil and 6 criminal.  The following civil cases are scheduled for argument this Term:

January 13, 2021

Beaman v. Freesmeyer, No. 125617

Indeck Energy Services, Inc. v. DePodesta, No. 125733

January 14, 2021

Ciolino v. Ekl, No. 126024

Eighner v. Tiernan, No. 126101

In re Application for a Tax Deed, No. 126150

Below is a summary for one of those cases, Eighner v. Tiernan.  Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website

Eighner v. Tiernan, No. 126101

The issue in this case is whether a voluntarily-dismissed action under Section 2-1009 of the Code of Civil Procedure (735 ILCS 5/2-1009) can be reinstated as the original action or must be recommenced by filing a new action.

Plaintiff Stanley Eighner filed suit against Defendant Patricia J. Tiernan seeking damages arising from a motor vehicle collision. Plaintiff subsequently moved to voluntarily dismiss the complaint with leave to reinstate pursuant to Section 2-1009 of the Code of Civil Procedure.  735 ILCS 5/2-1009. Less than one year later, Plaintiff attempted to reinstate the action under the original case number by filing a “Notice of Refiling Complaint Being Reinstated Within One Year of Voluntary Dismissal” along with a copy of the complaint being refiled. When this case did not receive a case management hearing date, Plaintiff commenced a new action by filing another complaint with the clerk’s office, now more than one year after the voluntary dismissal.

Defendant moved to dismiss the new action pursuant to Section 2-619(a)(5), arguing that the complaint was refiled more than one year after the initial complaint was voluntarily dismissed, in violation of Section 13-217.  735 ILCS 5/13-217. The circuit court denied the motion to dismiss, but certified the following question for appeal pursuant to Supreme Court Rule 308: “Whether refiling a complaint in a previously dismissed lawsuit as opposed to filing a new action satisfies the language of 735 ILCS 5/13-217, which states a plaintiff may commence a new action after the case is voluntarily dismissed pursuant to 735 ILCS 5/2-1009.”

The Illinois Appellate Court, First District, answered the certified question in the negative. The appellate court, interpreting Section 13-217 which states that a plaintiff “may commence a new action” after the case is voluntarily dismissed, held that the unambiguous language requires a plaintiff to refile the complaint under a new case number. The appellate court expressly did not opine on whether reinstatement of a case upon plaintiff’s motion qualifies as a “new action” under Section 13-217 because Plaintiff did not file such a motion. The appellate court then reversed the judgment of the circuit court and remanded with directions to grant Defendant’s motion to dismiss.

In his petition for leave to appeal, Plaintiff argues that the voluntary dismissal order that provided for dismissal “without prejudice and with leave to reinstate within one year of this Order…” intended for the circuit court to retain jurisdiction, after entry of a non-final order, so the commencement of a new action was unnecessary and prohibited by Section 2-619(3). Plaintiff asks the Illinois Supreme Court to adopt appellate court decisions requiring an analysis of the circuit court’s order to determine if the court intended to retain jurisdiction. Plaintiff further argues that the language “with leave to reinstate” signifies the circuit court’s intention to retain jurisdiction to permit a plaintiff to “reinstate” the voluntarily dismissed action, rather than “refile” the complaint in a new action. Thus, Plaintiff argues that the appellate court’s decision should be reversed and he should be permitted to proceed under his reinstated complaint in the original action.

Appellate Court Decision: 2020 IL App (1st) 191369.  Reyes, J., with Gordon, P.J. and Lampkin, J., concurring.

As part of her consultation with all area bar associations, Cook County Board President Toni Preckwinkle has asked the Appellate Lawyers Association to nominate one to three of its members for consideration as the next Cook County Public Defender effective April 1, 2021. 

The Public Defender manages a large and complex office with a budget of more than $80,000,000. The office employs 495 attorneys, 61 investigators, and 135 social workers, clerical staff, and other support staff. The office represents both juveniles and adults at different courthouses located throughout the county. Specialized units include the Homicide Task Force and the Multiple Defendants Division. The office has continued to undertake new challenges including representation at police stations and in immigration proceedings.

ALA members interested in being nominated for the position should send their resumes and cover letters to ALA President John Fitzgerald no later than January 15, 2021, at jfitzgerald@tdrlawfirm.com.

On December 15, the United States Senate voted to confirm Thomas L. Kirsch II as a United States Circuit Judge for the Seventh Circuit.  Mr. Kirsch will fill the vacancy created by Justice Amy Coney Barrett's confirmation to the U.S. Supreme Court.

Mr. Kirsch currently serves as the U.S. Attorney for the Northern District of Indiana.  Before serving as U.S. Attorney, Mr. Kirsch was a partner at Winston & Strawn, where he litigated commercial and civil matters in trial and appellate courts.  He also served as an Assistant U.S. Attorney in the Northern District of Indiana, focusing on white collar investigations and prosecutions, and as a law clerk to the Honorable John D. Tinder in the Southern District of Indiana.  Mr. Kirsch received a B.A. from Indiana University and a J.D. from Harvard Law School.

The Office of the State Appellate Defender (OSAD) is presenting a five-week online training course for the Illinois Supreme Court's Volunteer Pro Bono Program for Criminal Appeals from January 4 through February 5, 2021.  The free program will provide participants with 11.25 hours of MCLE credit, including one hour of professionalism credit. 

The course will walk participants through a criminal trial in Illinois, discussing various points of Illinois law and procedure. The course will also familiarize participants with relevant Supreme Court and Appellate Court Rules, will advise participants about client relations, and will teach participants how to use OSAD’s resources to efficiently research criminal law. Completion of this course will qualify participants for the Supreme Court’s pro bono progra.

Please register no later than December 31st by emailing mailto:probono@osad.state.il.us.  More information may be found here.