July 2010 - Parks & Recreation - 25

By James C. Kozlowski, J.D., Ph.D.

law re vie w

ADA Claim After
Recreation Center Assault

n the case of Foster v. City of Oakland (N.D. Calif. 8/11/2009), plaintiff Michael

Foster alleged that his former employer, defendant City of Oakland violated the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ( " ADA " ) when he was
terminated from his recreation director position.

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Facts
On June 3, 2006, Foster had been hired by the City's
Office of Parks and Recreation as a part time Recreation Specialist I at the Allendale Recreation Center.
On August 7, 2006, Foster was promoted to the position of acting Program Director at Allendale.
On November 14, 2006, Foster was attacked with
a metal chair and a wrench at Allendale by a young
person and her family. He was treated at the emergency room, where he was assessed with a closed
head injury with loss of consciousness and multiple
lacerations, and was released.
After the attack, Foster alleged that he suffered
severe cognitive impairment, was unable to return
to work for five weeks, felt more irritable and emotional when he returned to work, and suffered bouts
of anger and sadness. He also claims to have experienced a total memory loss initially, followed by a
partial memory loss that persists.
On January 5, 2007, Foster returned to his regular work. After that date, the director of a local children's group advised him that the group would no
longer be participating in after-school programs at
Allendale because of multiple errors in transporting children.
On January 27, 2007, Foster was formally appointed recreation program director at Allendale. At that
time, Foster did not communicate to his supervisor
(Koney) that he had any limitations that were caused
by lingering effects of the assault. Koney observed
that Foster needed a lot of coaching, especially on
organizational skills, meeting deadlines, preparing
paperwork and developing programs.
Koney did not recall any conversations with Foster from January through March 2007 in which he

stated that he was having memory issues, any problems with concentration, difficulty articulating or remembering words, or other difficulties that were
caused by the assault.
On February 14, 2007, Foster met with Koney to
discuss his concerns about Allendale, including
safety in the aftermath of the assault and asbestos.
The notes of that meeting do not mention any cognitive impairment that Foster experienced as a result of his injuries.
On March 26, 2007, Foster was assigned to be
the Director at Brookdale Recreation Center. During a transition period, Foster was scheduled to continue to work three days as the Recreation Program
Director at Allendale as well as two days as the Director at Brookdale.
Foster states that when he was assigned to both
Allendale and Brookdale, he told the parks and recreation director (Jones-Taylor) that his mental condition and the aftermath of the assault would make
it difficult for him to run two centers at once. Foster
testified that he told Koney that running two centers
would be difficult for him. But he agreed to the assignment, although he states that he did not think he
had the option of turning it down because he was
on probation. Foster found it difficult to focus on all
of the specific assignments because of the need to
resolve basic issues at each center.
During this time, Foster believed his job performance was adequate. From April 9 through May 21,
2007, Koney met with Foster regularly to provide
support and assistance. One of Foster's main shortcomings was his inability to master RecWare (the
City's program to track attendance at and participation in recreation programs), which was a critical

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July 2010 - Parks & Recreation

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