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Employment – ADA — ADEA

By: WISCONSIN LAW JOURNAL STAFF//October 18, 2012//

Employment – ADA — ADEA

By: WISCONSIN LAW JOURNAL STAFF//October 18, 2012//

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United States Court of Appeals For the Seventh Circuit

Civil

Employment – ADA — ADEA

Where an employer continued to employee an employee after he suffered a brain aneurism, his subsequent termination based on the quality of his work was not discrimination.

“Fleishman also contends Continental regarded him as having a disability. To succeed on this claim, he must establish that either (1) ‘the employer mistakenly believe[d] that [he] ha[d] an impairment that substantially limits a major life activity,’ or (2) ‘the employer mistakenly believe[d] that an existing impairment, which is not actually limiting, does substantially limit a major life activity.’ Brunker v. Schwan’s Home Serv., Inc., 583 F.3d 1004, 1008 (7th Cir. 2009). Fleishman suggests that Continental did not believe he could work because, after twenty years of successful employment, its employees began criticizing his work and Izzo asked him if he considered retirement. As the district court explained, the evidence overwhelmingly suggests otherwise—at all times during and after his medical leave Continental continued to employ Fleishman as a workers’ compensation attorney and, in fact, transferred him to the newly created Major Claims Unit designed to handle high-value cases. Fleishman is correct that the evidence suggests Izzo and others knew Fleishman had medical problems related to his aneurism. But nothing suggests that anyone at Continental thought this condition substantially affected his ability to earn a living. Even amidst the performance complaints, Izzo placed Fleishman on a performance improvement plan. This measure indicates that, although Fleishman’s work was suffering, Izzo believed he was capable of performing adequately.”

Affirmed.

11-3754 Fleishman v. Continental Casualty Co.

Appeal from the United States District Court for the Northern District of Illinois, Chang, J., Flaum, J.

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