In Wheatley v. Factory Card & Party Outlet, 826 F.3d 412 (7th Cir. 2016), the Seventh Circuit upheld the district court’s grant of summary judgment to the employer, Factory Card & Party Outlet (Factory Card) on a former-employee’s claim that she was wrongly terminated in violation of the Americans with Disabilities Act, 42 U.S.C. §12111(8) and 12112(a) because there was evidence that the employee was unable to perform the required functions of her position due to the necessity of a medical boot which did not permit her to walk or stand for a sufficient amount of time.

The plaintiff, Lora Wheatley (Wheatley), injured her foot in 2009 in an incident at her home. As a result of the injury, she was off work for several days but returned to work on March 27, 2009, with a note from her primary care physician stating that she was able to return to work “without restrictions.” At the end of her shift on the first day, however, Wheatley could not walk and returned to her doctor who provided her with a note stating that she could not return to work for a week and recommended that she see an orthopedist.

Wheatley remained off work for several months and in April 2009, Factory Card sent her a letter acknowledging her request for leave under the Family Medical and Leave Act (FMLA) to commence April 8, 2009 and stating that she had 9.3 of her allotted 12 weeks of FMLA remaining to use. Factory Card requested Wheatley have her physician complete and return a “Certification of Healthcare Provider for Employee’s Serious Health Condition” form within 15 days. Factory Card also provided Wheatley with the necessary documentation to seek disability benefits through Aetna insurance, if she chose.

During her time off, Wheatley had several appointments with her orthopedist and a podiatrist. Wheatley’s FMLA leave was set to expire on June 13, 2009, but Factory Card provided her with an additional 4 weeks of leave, lasting up to July 11, 2009. Factory Card also informed Wheatley that in the event she could not return to work before her FMLA time expired, she would be terminated but would be eligible for rehire if she subsequently recovered from her injury.

On June 22, 2009, Wheatley was seen by her orthopedist who provided her with a note indicating she could return to work on July 6, 2009, without restrictions. Wheatley did not agree with the assessment and sought a second opinion from her podiatrist on July 1, 2009. As a result, her podiatrist checked a box on her insurance form noting that Wheatley had “No ability to work. Severe limitation of functional capacity, incapable of minimal activity.” Wheatley, 826 F.3d at 415. The podiatrist further recommended that Wheatley be restricted to complete immobilization of her foot and would need to be absent from work due to her disability from July 1, 2009 through August 15, 2009.

Wheatley, for her part, submitted an affidavit stating that she recalled a conversation with her podiatrist in which he stated he would have allowed her to return to work prior to the expiration of her FMLA leave on July 11, 2009. Wheatley also stated her podiatrist released her to return to work by July 11, 2009, if her foot was immobilized in a medical boot.

Wheatley claimed she informed Factory Card’s Regional Resource Manager that she needed an additional two weeks off of work. In response, she claimed she was told that if she could not return by July 11, 2009, she would be terminated, though she would still be eligible for rehire. Wheatley then informed her direct supervisor that she could return to work, but needed to wear a medical boot. On July 2, 2009, Factory Card’s Regional Resource Manager sent Wheatley a letter memorializing their earlier conversation regarding her termination in the event she could not return to work prior to July 11, 2009. The letter also requested that Wheatley have her physician fill out and return a Fitness for Duty Certification, which contained a space on the form for the physician to indicate when the employee was eligible to return to work, whether the employee would have any restrictions and how such restrictions would impact the time and duties of the employee.

Upon receipt of that letter, Wheatley called the Regional Resource Manager and informed her that she was able to return to work, but needed a medical boot. The Regional Resource Manager expressed her doubt as to whether Wheatley could perform her duties since she would be required to climb a ladder. As a result of that conversation, Wheatley concluded she would not be permitted to return to work due to her medical boot and she never returned the Fitness for Duty Certification or provided any further documentation concerning her ability to return to work by July 11, 2009. Instead, Wheatley applied for disability benefits and Aetna determined she was totally disabled from her occupation.

Wheatley then filed her lawsuit against Factory Card claiming she should have been accommodated through the use of her medical boot and been allowed to return to work and that other employees should have been delegated the tasks which required use of a ladder. Factory Card filed its motion for summary judgment arguing that Wheatley failed to show she was a qualified individual within the definition of the ADA because she did not demonstrate that she was capable of performing essential functions of the job with or without reasonable accommodations. Factory Card also argued that Wheatley was not actually released to return to work on the date of her request for an accommodation, July 7, 2009, or on July 11, 2009, the date of her termination. The district court initially denied the motion finding that Wheatley had alleged sufficient facts to show she was a qualified individual under the ADA. In particular, the district court relied on the testimony of her podiatrist and found that the competing opinions of the various physicians created an issue of fact for trial.

After its motion was denied, Factory Card filed a motion in limine seeking to bar the testimony of the podiatrist who had only been disclosed as a lay witness and not an expert witness. The court denied that motion, but required Wheatley to disclose, in detail, a description of the podiatrist’s testimony at trial. Wheatley then filed a notice stating that she did not intend to call the podiatrist at trial. After that, Factory Card renewed its motion for summary judgment and the district court granted the motion noting that the question of whether Wheatley could perform her essential job functions required expert testimony as to whether her foot could withstand the pressure and exertion of performing her job in a walking boot. The district court also noted that Wheatley’s primary care physician and orthopedist stated that Wheatley was free to return to work without restrictions and therefore was not disabled under the ADA.

In upholding the district court’s ruling, the Seventh Circuit Court of Appeals noted that the only basis for challenging the grant of summary judgment was premised on Wheatley’s own personal observations of her ability to return to work which essentially consisted of her affidavit statements that she had been wearing the medical boot for two months and was aware of her job duties and what her limitations were if she had returned to work. This was deemed insufficient to meet her burden of demonstrating to a jury that she was capable of performing the essential functions of her job, though it was noted that a party need not always produce expert testimony to demonstrate that he or she is a qualified individual within the meaning of the ADA.

The Seventh Circuit also relied on the fact that Wheatley chose to forego testimony and evidence from her podiatrist as to the necessity of the medical boot and any medical evidence that the boot provided relief to her. Wheatley failed to present evidence of the utility of the medical boot or her capabilities in the boot. Further, while personal observations can be sufficient to survive a motion for summary judgment, in this case, Wheatley’s “mere hope or belief,” without further support, were deemed insufficient to permit a jury to perform her essential job functions with a reasonable accommodation. This conclusion was supported by the fact that when Wheatley initially attempted to return to work, she lasted only one day and, as discussed supra, her podiatrist noted that she was unable to return to work until August 15, 2009, when he completed her disability insurance documentation.