Michael Dunderdale v. United Airlines, Inc. , 807 F.3d 849 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2911
MICHAEL DUNDERDALE,
Plaintiff-Appellant,
v.
U NITED AIRLINES , INC.,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 4440 — Edmond E. Chang, Judge.
ARGUED S EPTEMBER 30, 2015 — DECIDED DECEMBER 03, 2015
Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-appellant, Michael Dunder-
dale (“Dunderdale”), filed a discrimination action against
defendant-appellee, United Airlines, Inc. (“United”), under the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.,
(“ADA”), for failure to accommodate. The district court
granted summary judgment in favor of United, and Dunder-
dale appealed. For the reasons that follow, we affirm the
district court’s ruling.
2 No. 14-2911
I. BACKGROUND
Dunderdale began working for United in April 1997 as a
ramp serviceman at O’Hare International Airport. The Collec-
tive Bargaining Agreement (“CBA”) between United and the
International Association of Machinists and Aerospace
Workers (the “Union”) governs the terms and conditions of
employment as a United ramp serviceman. Ramp servicemen
bid for placement to different work areas throughout United.
Once ramp servicemen bid on their desired work areas, the
CBA requires United to place them according to their seniority.
United has a written job description that applies to all ramp
servicemen, regardless of their work area. The “Job Functions”
of a ramp serviceman are:
Load[s], stows, unloads mail, cargo and baggage from
conveyor belts, carts; trucks and aircraft. Cleans; ser-
vices aircraft interiors and removes, assembles and
installs passenger cabin supplies. Loads unloads buffet
and food supplies. Performs aircraft service duties
including cleaning win dsh ields, engine oil
checks/servicing and deicing functions. Receives posi-
tions and dispatches aircraft. Operates and cleans
various mechanical machines and ramp equipment
related to aircraft services such as radios, aircraft air
conditioners, cargo and belt loaders, fork lifts, trucks,
tractors, vans and related automotive equipment.
Operates computers and printers to enter, access and
manage aircraft load manifest data and instructions,
color-coded baggage/transfer systems, aircraft fueling
or other service information.
No. 14-2911 3
The written job description also states that a ramp service-
man’s duties involve “pulling, pushing of carts and containers;
performs duties in walking, standing, bending, kneeling and
stooping positions; lifts freight, baggage and other heavy
items - up to 70 pounds.”
In December 2002, Dunderdale injured his back at work.
Due to his injuries, he did not return to work until February
2004. At that time he did not have any work restrictions, but
two weeks after he returned, he injured his back again. As a
result, Dunderdale went on leave until June 2005. When he
returned, he had several permanent work restrictions. He
could not lift more than 30 pounds, he was unable to drive
United’s vehicles, and he could not bend, stoop, or kneel.
Because of Dunderdale’s work restrictions, United assigned
him to the Matrix position. At that time, the Matrix position
was part of the Product Sort work area. It involves sitting at a
computer next to a conveyor belt, scanning the tags on luggage
coming down the conveyor belt, and then processing the scans
on the computer. In 2005, United’s policy was that all ramp
servicemen with permanent work restrictions could bid for
positions in the Product Sort work area, and then United
would assign them to the Matrix position.
In 2007, United decided to separate the Matrix position
from the Product Sort work area. As a result, ramp servicemen
had to specifically bid for the Matrix position. But, the position
was only available to ramp servicemen with permanent work
restrictions.
In 2010, United decided to change the bidding policy
regarding the Matrix position. Starting in May 2011, all ramp
4 No. 14-2911
servicemen could bid for the Matrix position, not just those
with permanent work restrictions. Debra DiSantis (“DiSantis”),
United’s Manager of Performance and Labor, recommended
the change. DiSantis stated that the “overarching” reason for
the change was to “improve the [bidding] system” by having
the Matrix position match the language of the CBA regarding
work area placement based on seniority, thereby creating
“clear, concise guidelines and directions on the process and
policy [of the bidding system].” Although no one had filed a
formal grievance prior to this decision, DiSantis was notified
by the Union that other ramp servicemen had questioned their
inability to bid for the Matrix position.
On April 21, 2011, Sheila Siggal (“Siggal”), United’s Super-
visor for Performance and Labor Relations, met with Dunder-
dale. Siggal informed Dunderdale that he no longer had
sufficient seniority to retain his position at the Matrix since all
ramp servicemen could bid on the position beginning May
2011. As a result, Siggal stated that effective May 2011, United
would place Dunderdale on Extended Illness Status (“EIS”).
While on EIS, Dunderdale would continue to receive various
benefits as a United employee, such as health insurance and
access to United’s intranet, Skynet, for up to three years.
United employees can use Skynet to search and apply for open
positions at United.
During the April 21, 2011, meeting, Dunderdale told Siggal
that he believed he was able to perform the positions of the
Auditor, Bulls-eye, and the Manpower Office. All three are no-
bid positions, which means that they are not open for bidding,
nor are they placed based on seniority. However, Siggal
No. 14-2911 5
informed Dunderdale that there were no open positions for
the Auditor, Bulls-eye, or the Manpower Office.
In May 2011, Dunderdale went on EIS. While on EIS, he did
not apply for any other position at United. On August 24, 2011,
and on November 22, 2011, United sent Dunderdale letters
inviting him to participate in Reasonable Accommodation
Process (“RAP”) sessions. Dunderdale failed to respond to
both letters and did not participate in either proposed RAP
session.
In October 2011, Dunderdale met with a human resources
manager at United because he believed that United had
discriminated against him. During this meeting, Dunderdale
requested appointment to a no-bid position, but the request
was denied.
On June 7, 2012, Dunderdale filed suit against United for
discrimination and retaliation under the ADA. On April 15,
2013, Dunderdale had a RAP session with representatives of
United and the Union. At this meeting, Dunderdale again
requested appointment to a no-bid position, but was again
denied. Apart from these two requests, Dunderdale did not
seek any other accommodation from United while he was on
EIS.
On September 26, 2013, United informed Dunderdale that
he had sufficient seniority to regain the Matrix position.
Dunderdale returned to work in October 2013 in the Matrix
position. On October 18, 2013, United moved for summary
judgment on Dunderdale’s discrimination and retaliation
claims. In response, Dunderdale waived his retaliation claim
and instead focused solely on whether United discriminated
6 No. 14-2911
against him by failing to reasonably accommodate his disabil-
ity. On August 4, 2014, the district court granted summary
judgment in favor of United. Dunderdale appealed.
II. DISCUSSION
The issue before this court is whether it was appropriate to
grant summary judgment in favor of United on Dunderdale’s
ADA claim for failure to accommodate. Summary judgment is
appropriate if there is no genuine dispute as to any material
fact, and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). We review the district court’s
ruling de novo, and examine the record in the light most
favorable to the non-moving party. Kotwica v. Rose Packing Co.,
Inc., 637 F.3d 744, 747 (7th Cir. 2011) (citations omitted).
In order to establish a prima facie ADA claim for failure to
accommodate, a plaintiff must establish that: (1) the plaintiff is
a qualified individual with a disability; (2) the employer was
aware of the disability; and (3) the employer failed to reason-
ably accommodate the plaintiff’s disability. James v. Hyatt
Regency Chicago, 707 F.3d 775, 782 (7th Cir. 2013) (citation and
quotation omitted); see also 42. U.S.C. § 12112(b)(5)(A).
United admits Dunderdale was disabled and that it was
aware of his disability, so the two issues before the court are:
was Dunderdale a “qualified individual” with a disability, and
did United fail to reasonably accommodate his disability.
A. Whether Dunderdale was a Qualified Individual with
a Disability
The ADA defines a “qualified individual” as “an individual
who, with or without reasonable accommodation, can perform
No. 14-2911 7
the essent ial functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis
added). To determine what constitutes an essential function of
the position, courts consider “the employer’s judgment,” as
well as a “written job description” of the position. Id. Also, the
United States Equal Employment Opportunity Commission
(“EEOC”) regulations provide that the essential functions are
the “fundamental job duties” of a position, rather than the
position’s “marginal functions,” and that courts should
examine several factors to determine essential functions.1
29 C.F.R. § 1630.2(n)(1)-(3).
In this case, lifting more than 70 pounds was an essential
function of the ramp serviceman position. United’s written job
description for ramp servicemen expressly states the lifting
requirement, as well as illustrates how heavy lifting is a
fundamental duty of the position. For example, it lists that
ramp servicemen are expected to load and unload mail, cargo,
baggage, freight, cabin supplies, buffet supplies, and food
supplies, all of which may weigh up to 70 pounds. Thus,
Dunderdale’s inability to lift more than 30 pounds prevented
him from performing the essential functions of the ramp
serviceman position without a reasonable accommodation.
1
Specifically, the EEOC regulations list: (i) the employer’s judgment;
(ii) written job descriptions; (iii) amount of time spent per for ming the
function; (iv) consequences of not requiring the employee to perform the
function; (v) terms of a collective bargaining agreement; (vi) work
experience of pr ior employees in the position; and (vii) current work
experience of employees in similar jobs. 29 C.F.R. § 1630.2(n)(3).
8 No. 14-2911
However, Dunderdale could perform the essential func-
tions of the ramp serviceman position with a reasonable
accommodation. After Dunderdale was injured in 2005, United
transferred him to the Matrix position. He successfully held
this position for over five years and only lost it due to the
change in United’s bidding policy, rather than any inability to
perform the position’s tasks. Thus, Dunderdale was able to
perform the essential functions of a ramp serviceman with a
reasonable accommodation. See Mobley v. Allstate Ins. Co., 531
F.3d 539, 545 (7th Cir. 2008) (plaintiff could perform essential
functions with a reasonable accommodation because she
successfully met her performance standards when given an
accommodation).
As a result, Dunderdale established he was a qualified
individual with a disability. The key issue, then, is whether
United failed to reasonably accommodate his disability.
B. Whether United Failed to Reasonably Accommodate
Dunderdale’s Disability
Dunderdale argues that United failed to reasonably
accommodate his disability because: (1) United did not allow
him to remain in the Matrix position; and (2) United did not
assign him to one of the no-bid positions for which he believed
he was qualified.
1. The Matrix Position
Dunderdale claims United accommodated his disability
from 2005 through 2011 by placing him in the Matrix position,
but ceased accommodating him in May 2011 when he was
removed from the position. We hold that United did not have
No. 14-2911 9
to maintain Dunderdale in the Matrix position after May 2011
because it would have violated United’s seniority system.
In US Airways, Inc. v. Barnett, the United States Supreme
Court held that it is unreasonable to assign an employee to a
position as an accommodation if doing so would violate the
employer’s seniority system. 535 U.S. 391, 403 (2002). The
Court reasoned that, “to require the typical employer to show
more than the existence of a seniority system might well
undermine the employees’ expectations of consistent, uniform
treatment–expectations upon which the seniority system’s
benefits depend.” Id. at 404. The Court noted, however, that an
employee may demonstrate that “special circumstances” exist
that justify assigning an individual to a position even if it
violates the employer’s seniority system. Id. at 405.
In this case, both parties agree that United’s CBA estab-
lished a seniority system for bidding on ramp servicemen work
areas, and that in May 2011, the Matrix position became subject
to the seniority bidding system. Dunderdale lost his position
because he did not have sufficient seniority; maintaining
Dunderdale in the Matrix position after May 2011 would have
violated United’s seniority system.
In response, Dunderdale provides two arguments for why
these facts should constitute “special circumstances” warrant-
ing the exception to the Barnett holding.
First, he argues that since United previously restricted the
Matrix position for ramp servicemen with permanent work
restrictions, it would not be “unduly burdensome” to maintain
the status quo. This does not warrant the “special circum-
stances” exception. In Barnett, the Court found that special
10 No. 14-2911
circumstances exist when the facts show that the employer
does not maintain a consistent and uniform seniority system on
which employees rely. See Barnett, 535 U.S. at 405. The Court
gave two examples illustrating when this may occur: when an
employer unilaterally and frequently changes the seniority
system such that there is no reasonable expectation among the
employees that the system will be followed; or where a
seniority system contains significant exceptions such that an
additional exception is “unlikely to matter.” Id. Neither of
these apply here.
We initially note that there is no evidence of global disre-
gard for the seniority system at United, nor is there a record
that United regularly ignored Union complaints that the
Matrix position should be subject to bidding during that time
period. Instead, the company was consistent in its policy of
using the Matrix position to accommodate certain employees
with disabilities during that time. Only when members of the
Union began to question their inability to bid for the position
did United decide that it should strictly adhere to the terms of
the CBA. There is no evidence that this decision was a pretext
for disability discrimination. Disabled employees remained
able to bid for the Matrix position on the basis of seniority.
Neither the decision to accommodate disabled employees in
the Matrix position, nor the later decision to strictly adhere to
the CBA, affected employee expectations in the manner
contemplated by the Supreme Court in Barnett.
Prior to May 2011, the Matrix position was not open to
United’s seniority bidding system for all ramp servicemen.
Therefore, the fact that United previously accommodated
Dunderdale before May 2011 by restricting the Matrix position
No. 14-2911 11
for ramp servicemen with permanent work restrictions does
not affect the other ramp servicemen’s reliance on the bidding
system. Once United opened the Matrix position to the
seniority bidding system, all of the ramp servicemen received
an expectation of unilateral, consistent treatment regarding
bidding for that position. In fact, Dunderdale himself benefit-
ted from that unilateral and consistent treatment because he
bid back into the Matrix position once he reclaimed seniority
in September 2013. His argument fails.
Second, Dunderdale argues that this case presents “special
circumstances” because United changed the bidding system for
the Matrix position without anyone first filing a formal
grievance. However, employers do not have to maintain
positions or job structures that provide reasonable accommo-
dations if the employer finds, for legitimate business reasons,
that the position or job structure should be eliminated. See
Gratzl v. Office of the Chief Judges of the 12th, 18th, 19th, and 22nd
Judicial Circuits, 601 F.3d 674, 680 (7th Cir. 2010). Here, United
decided to change the structure of the Matrix position’s
bidding system so that it would conform to the seniority
bidding system language of the CBA. Increasing reliability and
consistent application of the seniority bidding system is a
legitimate business purpose. We will not second-guess
United’s decision merely because Dunderdale believes United
should have waited for a formal grievance filing. See Ptasznik
v. St. Joseph Hospital, 464 F.3d 691, 697 (7th Cir. 2006) (“Federal
courts have authority to correct an adverse employment action
only where the employer’s decision is unlawful, and not
merely when the adverse action is unwise or even unfair.”).
12 No. 14-2911
2. The No-Bid Positions
Dunderdale also argues that he was qualified to perform
several no-bid positions despite his work restrictions: Auditor,
Bulls-eye, Safety, and the Manpower Office. Further, because
they were no-bid positions, Dunderdale argues United could
have assigned him to them without violating the seniority
bidding system. Since United failed to assign him to any of the
positions, Dunderdale claims United failed to provide him
with a reasonable accommodation.
The fatal flaw in Dunderdale’s argument, as the district
court correctly found, is that he failed to establish that any
vacancies existed in those positions. Under the ADA, while an
employer may have to assign an employee to a different
position as a reasonable accommodation, this duty extends
“only to vacant positions; an employer is not required to ‘bump’
other employees to create a vacancy so as to be able to reassign
the disabled employee.” Gile v. United Airlines, Inc., 95 F.3d 492,
499 (7th Cir. 1996) (emphasis added) (citation omitted); see also
Stern v. St. Anthony’s Health Center, 788 F.3d 276, 291 (7th Cir.
2015) (“Although the ADA requires an employer to consider
reassigning a disabled employee … the employer’s reassign-
ment obligation is nonetheless limited to vacant positions.”)
(emphasis in original) (citation omitted). It is the employee’s
burden to demonstrate that a vacant position exists. Jackson v.
City of Chicago, 414 F.3d 806, 813 (7th Cir. 2005) (citations
omitted).
Dunderdale argues vacant positions were available because
all of the no-bid positions he identified “changed hands” while
he was on EIS. Specifically, during the nearly two years that
No. 14-2911 13
Dunderdale was on EIS, the Auditor position was filled by two
new ramp servicemen, the Bulls-eye position was filled by two
new ramp servicemen, the Safety position was filled by two
new ramp servicemen, and the Manpower Office position was
filled by one new ramp serviceman. Thus, Dunderdale claims
this evidence satisfies his burden to demonstrate that a vacant
no-bid position existed.
We disagree. This court has previously found that the
employee must demonstrate that a vacant position exists at the
time of the adverse employment decision. See McCreary v.
Libbey-Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997) (“[the
employee] needed to show that a vacant position in quality
control was available at the time [the employer] fired him.”)
(citation omitted). Under McCreary, the no-bid positions had to
be vacant on April 21, 2011, when United informed Dunder-
dale that he had insufficient seniority to retain the Matrix
position and would be placed on EIS. At that meeting, Siggal
informed Dunderdale that there were no vacancies in any of
the identified no-bid positions. In addition, there is also
precedent suggesting that the employee has to identify that a
vacant position exists at the time the employee requests
reassignment to that position. See Rehling v. City of Chicago, 207
F.3d 1009, 1014–15 (7th Cir. 2000) (finding the employee failed
to produce sufficient evidence that a vacancy in the desired
position existed at the time the employee requested reassign-
ment). Here, Dunderdale made two additional requests for
assignment to a no-bid position in October 2011 and in April
14 No. 14-2911
2013. But, again, he presented no evidence that there were any
vacancies available at the time of either request.2
Dunderdale relies on Johns v. Laidlaw Education Services, 199
F. App’x 568 (7th Cir. 2006), to argue that the fact that the
positions changed hands satisfies his burden to show that a
vacancy existed. However, there are two problems with
Dunderdale’s reliance on Johns. First, it is an unpublished order
issued before January 1, 2007, it is not a precedential decision,
and should not have been cited. 7th Cir. R. 32.1. Second, Johns
is factually distinguishable. The employee in that case, a bus
driver on light duty due to an injury, received a letter from her
employer stating that she no longer qualified for light duty and
instead “will be assigned as a [bus] monitor … until driving
routes were available.” Johns, 199 F. App’x at 569–70 (quotation
omitted). On appeal, the employee argued the employer
should have assigned her to the bus monitor position. Id. at
570. The court found the employee satisfied her burden to
show there was a vacancy because the letter stated that since
there were no bus routes available, the employer will assign the
employee to the bus monitor position; inferring that the bus
monitor position was available at that time. Id. at 570–71. By
contrast, Dunderdale fails to present any evidence indicating
that there was a vacant no-bid position available when he was
removed from the Matrix position, or when he made his two
2
United also claims that Dunderdale was not qualified for any of the no-
bid positions at issue because they involved periodic heavy lifting. Since we
are deciding this case on the basis of Dunderdale’s failure to show that a
vacant position existed, we will not address whether he was qualified for
the no-bid positions.
No. 14-2911 15
requests for reassignment to a no-bid position while he was on
EIS.
In addition, it is undisputed that Dunderdale failed to
apply for any other position with United while he was on EIS.
Other than repeating his request for a no-bid position in
October 2011 and April 2013, he made no effort to obtain any
other reasonable accommodation, and even refused to partici-
pate in the proposed RAP sessions on August 24, 2011, and
November 22, 2011. Furthermore, it was Dunderdale’s duty to
search Skynet for job openings while he was receiving benefits
on EIS, and his failure to do so does not establish that United
failed to reasonably accommodate his disability. See Weiler v.
Household Finance Corp., 101 F.3d 519, 526 (7th Cir. 1996)
(employer reasonably accommodated employee by granting
her requested time off work, short-term disability benefits,
extended leave, and allowed her to use company’s “posting”
procedure to apply for available positions).
III. CONCLUSION
For the foregoing reasons, the ruling of the district court is
AFFIRMED.
16 No. 14-2911
RIPPLE, Circuit Judge, dissenting. Because I believe that the
summary-judgment record reveals genuine issues of material
fact concerning United’s failure to reasonably accommodate
Mr. Dunderdale’s disability and United’s responsibility for
the breakdown in the interactive process, I respectfully dis-
sent.
I.
As my colleagues note, Mr. Dunderdale submits that
United could have accommodated him by allowing him to re-
main in a Matrix position—an option they reject based on US
Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Barnett does not
require this result.
In Barnett, the Court was asked “how the [ADA] resolves
a potential conflict between (1) the interests of a disabled
worker who seeks assignment to a particular position as a
‘reasonable accommodation,’ and (2) the interests of the other
workers with superior rights to bid for the job under an em-
ployer’s seniority system.” 535 U.S. at 393–94. The Court held
that, in the mine run of cases, if a request to transfer disrupts
an established seniority system, it is not a “reasonable” ac-
commodation: “The statute does not require proof on a case-
by-case basis that a seniority system should prevail. That is
because it would not be reasonable in the run of cases that the
assignment [of the disabled employee] in question trump the
rules of a seniority system. To the contrary, it will ordinarily
be unreasonable for the assignment to prevail.” Id. at 403. The
court then offered the following explanation:
Most important for present purposes, to require the
typical employer to show more than the existence of a
seniority system might well undermine the employees’
No. 14-2911 17
expectations of consistent, uniform treatment—expec-
tations upon which the seniority system’s benefits de-
pend. That is because such a rule would substitute a
complex case-specific “accommodation” decision
made by management for the more uniform, imper-
sonal operation of seniority rules. Such management
decisionmaking, with its inevitable discretionary ele-
ments, would involve a matter of the greatest im-
portance to employees, namely, layoffs; it would take
place outside, as well as inside, the confines of a court
case; and it might well take place fairly often. We can
find nothing in the statute that suggests Congress in-
tended to undermine seniority systems in this way.
And we consequently conclude that the employer’s
showing of violation of the rules of a seniority system
is by itself ordinarily sufficient.
Id. at 404–05 (citation omitted).
The Court observed, however, that the plaintiff “re-
main[ed] free to show that special circumstances warrant[ed]
a finding that, despite the presence of a seniority sys-
tem … the requested ‘accommodation’ is ‘reasonable’ on the
particular facts.” Id. at 405. For instance, the Court suggested,
a plaintiff might show “that the employer, having retained the
right to change the seniority system unilaterally, exercises
that right fairly frequently, reducing employee expectations
that the system will be followed—to the point where one
more departure, needed to accommodate an individual with
a disability, will not likely make a difference.” Id. The plaintiff
also “might show that the system already contains exceptions
such that, in the circumstances, one further exception is un-
likely to matter.” Id. The Court expressly noted that it did “not
18 No. 14-2911
mean these examples to exhaust the kinds of showings that a
plaintiff might make.” Id.; cf. Tobin v. Liberty Mut. Ins. Co., 553
F.3d 121, 127–28 (1st Cir. 2009) (holding that the plaintiff had
met his burden of showing that employer’s “performance el-
igibility criteria” for assignment of accounts fell within the
“special circumstances” exception of Barnett because criteria
were not strictly followed and, therefore, deviating from
those criteria would not have “frustrated any individual’s ex-
pectation of receiving” an assignment); Office of the Architect of
the Capitol v. Office of Compliance, 361 F.3d 633, 642 (Fed. Cir.
2004) (holding that plaintiff had established “sufficient evi-
dence that special circumstances warrant[ed]” a deviation
from “AOC’s wage grade classification system” where “the
evidence show[ed] that AOC ha[d] the authority to make ex-
ceptions to the wage grade classification system and that it
ha[d] repeatedly exercised that authority”).
Here, Mr. Dunderdale has established such special cir-
cumstances. From (at least) the time that Mr. Dunderdale re-
turned to work with restrictions in 2005, until United imple-
mented the new bidding process in 2011, United made excep-
tions to the seniority system for employees with physical re-
strictions by reserving the Matrix positions for them. The ex-
pectation of ramp service employees, therefore, was that there
was one area that was not subject to the general seniority bid
process. It was United’s action in changing that approach that
disrupted the employees’ expectations.
According to the majority, however, “[o]nce United
opened the Matrix position to the seniority bidding system,
all of the ramp serviceman received an expectation of unilat-
eral, consistent treatment regarding bidding for that posi-
No. 14-2911 19
tion.” Slip op. at 11. At bottom, the opinion suggests that, de-
spite an employer’s established practice of deviating from a
seniority system, it may decide, at any time, to require strict
adherence to that system. 1 Moreover, when an employer
makes that unilateral decision, an employee may not point to
the employer’s history of deviations to establish special cir-
cumstances for purposes of Barnett. I do not believe this ap-
proach can be reconciled with Barnett. The Court in Barnett
clearly anticipated that an employer’s past practice of deviat-
ing from a seniority system could establish special circum-
stances. If an employer were able to negate the impact of its
past practices simply by announcing a new policy of strict ad-
herence to a seniority system, the exception created by Barnett
would be illusory.
My colleagues also rely on our decision in Gratzl v. Office
of the Chief Judges of the 12th, 18th, 19th, and 22nd Judicial Cir-
cuits, 601 F.3d 674, 680 (7th Cir. 2010), for the proposition that
1 The majority states that United made the decision to adhere strictly to
the seniority system “[o]nly when members of the Union began to ques-
tion their inability to bid for the [Matrix] position[s].” Slip op. at 10. The
record reveals, however, that Debra DiSantis, former Manager of Perfor-
mance and Labor for United’s O’Hare operation, received questions from
employees with physical restrictions about how they could bid into the Ma-
trix area; she testified that “[t]he union would ask questions, employees
would come in and say, ‘I wanna work in there because I can’t do this or
that,’ so lots of people came to see me about things, and that was a topic I
got questions about.” R.52-3 at 13 (DiSantis Dep. 48). Her actions were not
in response to any specific grievances; indeed, she could not remember
any grievances being filed with respect to the prior bidding process for the
Matrix. Moreover, she was “not being pressured by anybody” to change
the bidding process. Id. at 16 (DiSantis Dep. 59). She simply “found a pro-
cess that was not following the guidelines as it should and was not work-
ing well and I looked for a way to fix that.” Id. (DiSantis Dep. 60).
20 No. 14-2911
“employers do not have to maintain positions or job struc-
tures that provide reasonable accommodations if the em-
ployer finds, for legitimate business reasons, that the position
or job structure should be eliminated.” Slip op. at 11. Gratzl,
however, has little bearing on the case before us.
In Gratzl, a court reporter, who suffered from inconti-
nence, had been employed as a “Court Reporting Specialist,”
a position that did not require her to perform courtroom re-
porting duties. A few years later, “[t]he State of Illinois elimi-
nated the ‘Court Reporting Specialist’ job title and consoli-
dated all reporters under the title ‘Official Court Reporter,’”
id. at 677, a position that required courtroom reporting duties.
Gratzl refused numerous accommodations offered by the
court and, instead, brought an ADA action in which she
claimed that her employer had failed to reasonably accommo-
date her when it refused to assign her only to non-courtroom
duties. In evaluating her claim, we first determined that
Gratzl was not a qualified individual with a disability. In do-
ing so, we rejected Gratzl’s argument that, because she could
perform the functions of a “Court Reporting Specialist,” she
also could perform the duties of an “Official Court Reporter”:
Gratzl cannot prove that she is qualified for her current
job simply by citing evidence that she was qualified for
a previous job, with different essential functions, that
has been eliminated. Gratzl is unable to sit in the court-
room during proceedings without disrupting court;
she has offered no evidence to the contrary and, in fact,
her refusal to consider any accommodation that re-
quired that she do in-court reporting strongly suggests
that she believed she was incapable of performing this
function. Therefore, she is not qualified for the job.
No. 14-2911 21
Id. at 680. Looking at the question another way, we held that
Gratzl’s requested accommodation—“exclusive assignment
to the control room”—was not reasonable because “[a]n em-
ployer need not create a new job or strip a current job of its
principal duties to accommodate a disabled employee.” Id.
(citing Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809,
819 (7th Cir. 2004)).
Putting aside the myriad of other factual distinctions be-
tween Gratzl and the present case, Mr. Dunderdale is not re-
questing that United create a new job or strip a current job of
its principal duties; the Matrix position continues to exist, and
Mr. Dunderdale is not requesting any change in its duties. In-
stead, the accommodation that he seeks is to be allowed to bid
for that existing position on the same terms as he did prior to
2011.
II.
I also would hold that Mr. Dunderdale has raised a genu-
ine issue of material fact with respect to the breakdown in the
interactive process. The majority opinion faults Mr. Dunder-
dale for simply “repeating his request for a no-bid position,”
for failing to respond to two invitations to participate in
“RAP” sessions in August and November of 2011, and for fail-
ing to “search Skynet for job openings while he was receiving
benefits on EIS.” Slip op. at 15. As we have noted, however,
“[t]he last act in the interactive process is not always the cause
of a breakdown, … and the courts must examine the process
as a whole to determine whether the evidence requires a find-
ing that one party’s bad faith caused the breakdown.” EEOC
v. Sears, Roebuck & Co., 417 F.3d 789, 806 (7th Cir. 2005). Under
the circumstances presented here, I believe a jury reasonably
22 No. 14-2911
could conclude that United, not Mr. Dunderdale, was respon-
sible for the breakdown in the interactive process.
Mr. Dunderdale was informed in April 2011 that, because
of his lack of seniority, he had not won the bid to work in the
Matrix. Thereafter, he met with a United representative and
expressed his interest in transferring to another position, spe-
cifically one of the “no-bid” positions. Mr. Dunderdale was
informed, however, that “the only place [he] was able to work
was the Matrix.” R.52-1 (Dunderdale affidavit) at 3.
Following this meeting, United invited Mr. Dunderdale to
participate in two “RAP” sessions, one in August 2011 and
one in November 2011. Mr. Dunderdale, however, previously
had participated in “RAP” sessions. Mr. Dunderdale states—
and United does not contest—that the RAP sessions consisted
of Mr. Dunderdale’s receiving “technical instruction on how
to perform searches” on United’s Skynet. Id. at 4. As Mr. Dun-
derdale already had received this instruction, he did not re-
spond to the invitations in August and November.
An employer must take “an active, good-faith role in the
interactive process.” Sears, Roebuck & Co., 417 F.3d at 806. To
invoke the interactive process, an employee simply needs to
say “‘I want to keep working for you—do you have any sug-
gestions?’’’ Miller v. Ill. Dep’t of Corr., 107 F.3d 483, 487 (7th
Cir. 1997). At that point, “the employer has a duty under the
Act to ascertain whether he has some job that the employee
might be able to fill.” Id. Specifically,
[f]irst, an employer is required to “identify the full
range of alternative positions for which the individual
satisfies the employer’s legitimate, nondiscriminatory
prerequisites.” Next, he must “determine whether the
No. 14-2911 23
employee’s own knowledge, skills, and abilities would
enable her to perform the essential functions of any of
those alternative positions, with or without reasonable
accommodations.” We underscored that an “em-
ployer’s duty to accommodate requires it to consider
transferring the employee to any of these other jobs, in-
cluding those that would represent a demotion.”
Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694–95 (7th Cir.
1998) (quoting Daltan v. Subaru-Isuzu Auto., Inc., 141 F.3d 667,
678 (7th Cir. 1998)).
United’s efforts on Mr. Dunderdale’s behalf fell far short
of these marks. There simply is nothing in the record to sup-
port a conclusion that United undertook a comprehensive
search for available, alternative positions. United’s response
to Mr. Dunderdale was a perfunctory “no” to his request for
a transfer. 2
My colleagues point to our decision in Weiler v. Household
Finance Corp., 101 F.3d 519 (7th Cir. 1996), to support their con-
trary conclusion—that “it was Dunderdale’s duty to search
Skynet for job openings while he was receiving benefits on
EIS.” Slip op. at 15. I do not believe Weiler supports such a
broad proposition.
2 Although United does not make this argument, it is possible that it did
undertake the comprehensive analysis anticipated by Hendricks-Robinson
v. Excel Corp., 154 F.3d 685, 694–95 (7th Cir. 1998), but concluded that there
were no other positions available for which Mr. Dunderdale was quali-
fied. If that is the case, however, then it also cannot fault Mr. Dunderdale
for failing to conduct a search for available positions on its Skynet because
such a search would have been futile.
24 No. 14-2911
In Weiler, the plaintiff suffered from physical symptoms as
well as depression and anxiety, which she attributed to work-
ing for a specific supervisor. We held that the plaintiff had not
established that she was “disabled” for purposes of the ADA
because “[t]he major life activity of working is not ‘substan-
tially limited’ if a plaintiff merely cannot work under a certain
supervisor because of anxiety and stress related to his review
of her job performance.” Id. at 524. Even assuming, however,
that she were disabled, we concluded that her employer had
reasonably accommodated her condition. We noted that, in
addition to granting her short-term disability, applying for
long-term disability benefits on her behalf, and “allow[ing]
her to post for a new position in the company in the same sal-
ary grade,” her employer’s personnel manager also “searched
for a similar position for her in the company under a different
supervisor, but none was available. … [It] even contacted her
and offered her alternative available positions within her sal-
ary grade and invited her to interview for them.” Id. at 526.
In contrast to the efforts of Weiler’s employer, however,
there is no evidence in this record that United management
attempted to locate positions for which Mr. Dunderdale was
qualified or to facilitate his placement in those positions. On
the record before us, a jury reasonably could conclude that
United made no effort to transfer Mr. Dunderdale, but simply
pointed him to a website and required him to do the rest. Un-
der our case law—including Weiler—this is not a sufficient re-
sponse.
We have noted that “[n]o hard and fast rule will suffice”
for attributing blame for the breakdown of the interactive pro-
cess. Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th
Cir. 1996). “Rather, courts should look for signs of failure to
No. 14-2911 25
participate in good faith … . A party that fails to communi-
cate, by way of initiation or response, may also be acting in
bad faith.” Id. Here, there is evidence from which a jury rea-
sonably could conclude that United’s lack of response to Mr.
Dunderdale’s request to be transferred caused the breakdown
in the interactive process.
For these reasons, I respectfully dissent.