Marytza GOLDEN, Plaintiff-Appellant, v. INDIANAPOLIS HOUSING AGENCY, Defendant-Appellee, 698 F. App'x 835

ORDER Indianapolis Housing Agency police officer Marytza Golden was diagnosed with breast cancer in November 2014. After Golden took sixteen weeks of unpaid medical leave, her doctor still could not say when she would be able to return to work, so IHA terminated her. Golden sued, arguing that IHA violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act by failing to accommodate her by granting six additional months of unpaid leave. The district court granted

summary judgment to IHA. Because circuit precedent precludes Golden’s claim, we affirm. I. Background Golden became an IHA police officer in June 1999. IHA officers are full-fledged police officers “whose main functions include responding to calls for service, investigating crimes, protecting the public, protecting IHA assets, responding to 911 calls, providing emergency aid, and protecting and serving the public.” Golden v. Indianapolis Hous. Agency, No. 1:15-cv-766, 2017 WL 283481, at *1 (S.D. Ind. Jan. 23, 2017). Her position was federally funded within the meaning of

Section 504 of the Rehabilitation Act. In November 2014, after fifteen years on the job, Golden was diagnosed with breast cancer. She successfully requested leave under the Family and Medical Leave Act of 1993 (FMLA) on December 11. A week later, Golden underwent a right-side mastectomy and had five lymph nodes removed. On December 19, Golden’s doctor described her condition as “ongoing” and her period of incapacity as “until released,” which was unsurprising considering that Golden still had to go through chemotherapy and anticipated future surgeries.

Realizing that she wouldn’t be able to return to work after her twelve weeks of FMLA leave, Golden applied for long-term disability benefits on March 13, 2015. On the application form, she represented that she “cannot perform [her] job descriptions safely” and “needed hands-on help to safely perform the activities of daily living.” Id. at *2. Her direct supervisor certified on the application that her job could not be modified to accommodate her disability. Her application was approved on April 21.

Also on March 13, Golden received a letter from IHA human resources informing her that her FMLA leave would soon expire. The letter indicated that IHA custom permitted Golden to take an additional four weeks of unpaid medical leave even though her doctor had not indicated an end date for her treatment. Golden took the additional four weeks of leave and was thus required to return to work on April 14 or be automatically terminated.

On March 31, her doctor returned an updated form that still listed the duration of her condition as “ongoing” and her period of incapacity as “until release.” On April 13 (the' day before her leave was slated to end), Golden showed up unannounced at the IHA human resources office and had a meeting with HR director Kathy Walden and generalist Richard Simmons. They discussed the March 13 letter as well as Golden’s retirement and long-term disability benefits, but Golden didn’t ask for additional leave or any other accommodations.

However, after Golden left the office, she sent an after-hours email to Walden and Simmons explaining that she was “requesting an unpaid leave of absence per city policy.” Walden interpreted Golden’s request as pursuant to IHA’s “General Leave of Absence (Unpaid Leave)” policy, which permits leave for a specified period of time (not to exceed six months) when no other form of leave is appropriate. Walden rejected Golden’s last-minute request for leave. Thus, Golden was effectively terminated on April 14, 2015. At that point, her doctor still had not provided an expected return-to-work date.

Golden then filed this suit alleging that IHA’s actions violated the ADA and the Rehabilitation Act. She argued that federal law required IHA to accommodate her disability by providing her an additional six months of unpaid medical leave. She also argued that her termination was a per se violation of the Rehabilitation Act. The parties filed cross-motions for

summary judgment, and the district court granted it to IHA and dismissed the case. Golden timely appealed. II. Discussion The Rehabilitation Act says that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability ... be subjected to discrimination under any program or activity receiving Federal financial assistance.... ” 29 U.S.C. § 794(a). The legal standards under the Rehabilitation Act and the ADA are identical. Id. § 794(d).

So to prevail on a claim under either statute, Golden must be an “otherwise qualified individual,” or someone “who, with or without reasonable accommodation, can perform the essential functions of the employment position that [she] holds or desires.” 42 U.S.C. § 12111(8). This is true for both the failure-to-aeeommodate and the per se claims. Kotwica v. Rose Packing Co., 637 F.3d 744, 747-48 (7th Cir. 2011) (failure to accommodate); Steffen v. Donahoe, 680 F.3d 738, 748 (7th Cir. 2012) (per se). The “qualified individual” requirement is fatal to Golden’s case.

We recently reaffirmed that “[a]n employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 478-79 (7th Cir. 2017) (citing Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003)). We expressly declined to overrule Byrne and concluded that “A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.” Id.

Sev-erson requires us to hold that a request for six months of medical leave in addition to the twelve weeks required by the FMLA removes an employee from the protected class under the ADA and the Rehabilitation Act. In short, because Golden is not a qualified individual, the district court correctly granted

summary judgment to IHA. III. Conclusion While we sympathize with Golden’s plight, clear circuit precedent controls this case. Under Severson and Byrne, an employee who requires a multi-month period of medical leave is not a qualified individual under the ADA or the Rehabilitation Act. Therefore, the judgment of the district court is AFFIRMED. . The policy also requires that employees give two weeks’ notice before requesting such leave.