July 2010 - Parks & Recreation - 26

LAW REVIEW continued from page 23

part of his job, and Koney brought in a
part-time staff person to help with the
RecWare issues. On May 21, 2007, Foster was assigned solely to Brookdale.
In May 2007, when Foster was assigned to Brookdale full-time, until his
termination date of August 17, 2007,
Koney met with Foster on at least six different occasions for progress meetings.
Foster stated that he told Koney that he
needed help with the budget, which he
received, but he did not tell her that the
budget problems were a result of any
cognitive issues. Foster failed to meet

job expectations when he was over budget on at least two occasions.
On August 7, 2007, Jones-Taylor recommended Foster's dismissal to the city
administrator. On August 17, 2007, Foster
met with Koney and Jones-Taylor, who informed him that he was being released.
Foster protested his termination.
On October 2, 2007, Foster emailed
a note to the City's Office of Parks and
Recreation further explaining his circumstances. On October 13, 2007, Foster wrote another letter to Jones-Taylor
claiming that he had issues related to

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As noted by the federal district court, to
establish his claim of disability discrimination under the ADA, Foster had to allege and ultimately prove the following:
(1) he is a disabled person within the
meaning of the ADA; (2) he is a qualified individual, meaning he can
perform the essential functions of his
job; and (3) the City terminated him
because of his disability.

As described by the federal district
court, a " disability " under the ADA is
defined as " a physical or mental impairment that substantially limits one or more
major life activities, such as working, record of such an impairment or being regarded as having such an impairment. "
42 U.S.C. §12102(1).

Applying this definition to the facts
of the case, the federal court found the
medical evidence indicated Foster's
cognitive difficulties were only " mild, "
but sufficient to call into question whether Foster was disabled under the ADA's
" substantially limits " standard:

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the ongoing recovery from his head injury. On April 11, 2008, Foster filed his
ADA lawsuit.

Foster testified that his cognitive difficulties did not prevent him from doing
his job, but the problems made his job
more difficult. Foster told Koney that
he had speech issues and memory issues, and informed her of his
struggles with focus and retention of
information. He also asked for help
from time to time... Most importantly,
while Foster was managing the Allendale and Brookdale centers, he told
Koney that: " In view of the fact that I'm
still, you know, dealing with post-concussion related issues, [managing

July 2010 - Parks & Recreation

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