Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—E.D. Wis.: School custodian with foot drop, fired over floor-stripping restriction, advances ADA claims, (Sep 18, 2026)

By Kathleen Kapusta, J.D.

A discussion that does not include the employee until the termination meeting is “not the ‘interactive process’ envisioned—and mandated—by the ADA.”

A school custodian who was fired after providing a doctor’s note restricting him from stripping floors due to foot drop can proceed to trial on his ADA failure-to-accommodate claim, a federal court in Wisconsin ruled. In addition to finding fact issues as to whether he was qualified to perform the essential functions of his job, the court found a jury could conclude that the school district failed to engage in the interactive process and that the custodian’s requested accommodation of not stripping floors was reasonable and did not create an undue hardship. The court also allowed his disparate treatment claim to advance to trial (Chic v. Waterford Union High School District, No. 25-CV-991 (E.D. Wis. Sept. 11, 2026)).

As a full-time custodian for the district since 2007, the employee, among many other duties, mopped floors, shoveled snow, and sealed and buffed floors. In 2011, he underwent a laminectomy surgery on his lower lumbar spine. During the procedure, a nick in his spinal nerve caused him to develop foot drop. As a result, his foot would drag and catch a little bit and he had to concentrate on picking it up off the ground. Despite this, he did not seek any work-related restrictions until July 2021.

Avoid stripping floors. On July 9, 2021, he fell twice while stripping the floors at school. A week later, he went to a clinic for treatment and a doctor prepared a report stating that he could return to work without restrictions but should “avoid stripping floors (due to pre-existing issue) in order to avoid further injury.” Although the employee claimed he gave the note to the building and grounds director, the director claimed he did not see the note until two years later.

In July 2023, the operations supervisor, and the employee’s new supervisor, asked him to strip floors. When he told her he could not, she stated that she was unaware of any restriction. He then brought in a copy of the note from two years ago. The district requested that he provide updated information and asked him to complete a fitness-for-duty form.

New doctor’s note and termination. In response, the employee’s primary care physician, on July 24, provided a new doctor’s note that stated, “no stripping floors due to foot drop; avoid slippery or uneven surfaces, caution on snow/ice or with ladders.” On August 2, the superintendent told the employee that the district could not accommodate him without undue hardship and fired him.

Essential job functions. Turning first to the employee’s failure-to-accommodate claim, the court, citing the relevant custodial contract, noted that shoveling snow and other winter-related work, as well as preparing, sealing, and buffing the floor, were listed as job duties. While the employee argued that shoveling snow and other winter-related work were not essential because he was never asked to perform those duties, the director’s failure to ask, said the court, did not, in and of itself, establish the task was nonessential. Further, the employee testified that he assisted in snow removal at times of heavy snowfalls or when help was needed. Given that he worked at a building in Wisconsin and that snow removal was listed in the custodian’s job description, a reasonable jury, the court stated, could find these tasks “essential.”

As to the employee’s assertion that preparing, sealing, and buffing the floor was not an essential job function because it was performed only during the summer months, a jury, the court explained, could reasonably determine that these tasks were limited to the summer months, not because they are unessential, but because they are more time-consuming and needed to be done when students were generally not in the building. Thus, the court found a fact issue as to whether these tasks were essential to the custodian position.

Whether the employee could perform the tasks. Addressing whether the employee could perform his job’s essential functions, the court noted that the parties did not dispute that, despite suffering from foot drop since 2011, he was able to perform all of his custodial duties without incident until his July 2021 falls. The district, however, argued that the doctor’s 2023 note stating that he should not strip floors, should avoid slippery or uneven surfaces, and should use caution on snow, ice, and with ladders provided clear and unambiguous restrictions and an employer is entitled to rely on a physician’s recommendation that the employee is unable to safely perform an essential job function.

Finding that the restrictions were not so clear, the court noted floor stripping was the only specific task the doctor prohibited the employee from doing. The restrictions on avoiding slippery or uneven surfaces did not describe a specific task. Further, the employee, describing floor stripping as making the floor like “grease on top of ice on top of... grease... it’s just so super slippery,” testified that he understood floor stripping to be the only task he could not perform. On this record, a reasonable jury could find the district knew about this restriction in July 2021 and the employee performed the custodian job for two years without performing this function.

While the district claimed it interpreted the restriction on avoiding slippery or uneven surfaces as a prohibition against the possibility of encountering water or chemicals and 40 to 50 percent of a custodian’s job consists of the possibility of encountering slippery floors, a reasonable jury could find this interpretation overbroad and unreasonable. “Afterall, simply because a surface is wet does not necessarily mean it will also be slippery,” said the court, pointing out again that the employee was performing all custodial tasks but for floor stripping for two years with no incident. Moreover, the court observed, he has successfully been working as a custodian for another school district since December 2023 performing all assigned tasks and duties with the exception of stripping floors, from which he was exempted.

Nor did the district give him a chance to clarify his understanding of the extent of his medical restrictions. The director testified that the decision to fire him was made before he met with the employee and this complete lack of communication, the court stated, could support a reasonable jury verdict in favor of the employee.

Reasonable accommodation. Rejecting the district’s contention that the employee was responsible for the breakdown in the interactive process because he asked if he could amend his fitness-for-duty form and failed to do so, the court pointed out that from the time he first provided the form until his termination, the district had no discussions with him regarding what job duties he believed he could perform. Though the director and superintendent testified that they relied on his doctor’s form, this was not a substitute for the interactive process.

And while they claimed to have consulted with other districts regarding whether they would have meaningful work for someone with the employee’s restrictions, the employee was not part of those conversations and a discussion that does not include the employee until the termination meeting is “not the ‘interactive process’ envisioned—and mandated—by the ADA.” As to the district’s faulting the employee for his inaction, he was not given an opportunity to address the restrictions until the termination meeting. It was unclear, said the court, what further action the district claimed he should have done when the decision to fire him had already been made. Accordingly, a jury could find the district failed to engage in the interactive process.

Undue hardship. The district next argued that accommodating the employee would have caused an undue hardship because there would be insufficient work for him to do and it would require other custodians to help him perform the lion’s share of his duties. But if a jury were to determine that his only restriction was an exemption from floor stripping, the employee, observed the court, presented sufficient evidence he was capable of performing all of his other custodial tasks. Thus, a reasonable jury could find his requested accommodation was reasonable and did not create an undue hardship on the district.

Discriminatory termination. As to his discriminatory termination claim, the district argued the employee failed to show it harbored discriminatory animus toward him because of his disability. Finding disputed fact issues as to whether the district terminated him because of his disability, the court noted that the district did not dispute that it did not follow-up with the employee regarding his doctor’s restrictions even though he had successfully performed the custodian job for a decade with foot drop. Further, after he fell, he continued to perform the job without issue for another two years.

Moreover, the superintendent admitted that the district decided to terminate the employee before it ever met with him and thus there was no discussion about whether any reasonable accommodation could be made. Given the employee’s evidence that he currently performs a substantially similar job with the exemption of no floor stripping, as well as the evidence that he worked successfully for the district for two years without being asked to strip the floors, coupled with the district’s decision to fire him with no interactive process, which occurred approximately one week after the district received his fitness-for-duty form, a reasonable jury, said the court, could find that his disability was the “but for” cause of his termination. Accordingly, the court denied both parties motions for summary judgment on the employee’s ADA claims.

The case is No. 25-CV-991.

Judge: Joseph, N.

Attorneys: Alan C. Olson (Alan C. Olson & Associates) for Mr. Thomas Chic. Ashley E. McNulty (Godfrey & Kahn) for Waterford Union High School District.

Companies: Waterford Union High School District

Cases: DisabilityDiscrimination Discrimination Discharge WisconsinNews