Mays, Maxcene v. Principi, Anthony J. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4227
MAXCENE MAYS,
Plaintiff-Appellant,
v.
ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 1418—Suzanne B. Conlon, Judge.
____________
ARGUED MAY 28, 2002—DECIDED SEPTEMBER 5, 2002
____________
Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. This is an appeal from the grant
of summary judgment to the defendant, the Veterans
Administration, in a suit under the Rehabilitation Act of
1973, 29 U.S.C. §§ 701 et seq., the counterpart for federal
agency defendants to the employment provisions of the
subsequently enacted Americans with Disabilities Act. The
plaintiff, a nurse at a VA hospital, injured her back help-
ing to lift a 400-pound patient. After some weeks off work
she returned to duty as a light-duty nurse, a temporary
position (rather than a regular part of the hospital’s table
of organization) requiring less strength than the regular
2 No. 01-4227
nursing job the plaintiff had had when she was injured. A
year and a half later she was removed from the light-duty
job for reasons unrelated to her injury. Shortly before that
a physician had opined that the injury was permanent
and had restricted her (in the words of her opening brief
in this court) to “sedentary work, maximum lifts of 10
pounds, no work at or above shoulder level, and no pa-
tient lifting,” but added that she could return to her job
as a light-duty nurse. The light-duty nurse position hav-
ing evaporated (and the hospital not obliged to recreate
it, that is, to “manufacture a job that will enable the dis-
abled worker to work despite his disability,” Hansen v.
Henderson, 233 F.3d 521, 523-24 (7th Cir. 2000)), the hos-
pital assigned her to a clerical support position that paid
a much lower salary although, with the workers’ compen-
sation that she received for her injury, her after-tax in-
come was (and, so far as appears, will continue to be) the
same as when she had been a nurse. She complains that
in reassigning her to the clerical job the VA failed to provide
a proper accommodation for her disability.
Originally she was complaining about racial discrimina-
tion as well and this has given rise to a procedural issue
pressed by the VA. The plaintiff had filed separate admin-
istrative complaints with regard to racial discrimination
and to disability and had brought this suit after the denial
of her racial-discrimination (and a related retaliation) com-
plaint but while her disability complaint was still wend-
ing its way through the administrative process. Her initial
complaint in the district court did not refer to the admin-
istrative disability claim that she had filed, but before the
district judge ruled on the VA’s motion for summary judg-
ment, the VA denied the plaintiff’s administrative disabil-
ity claim on the ground that it was the subject of her law-
suit.
No. 01-4227 3
The suit was not premature, even though filed before
her administrative complaint was denied, because she had
waited the required 180 days after filing that complaint
before suing. 29 C.F.R. § 1614.407(b). The VA argues that
her initial complaint in the district court should have re-
ferred to the administrative disability complaint to make
clear that she had “exhausted” her administrative remedies
by waiting 180 days before suing (we put the word in
scare quotes because the right to sue is absolute after 180
days even if the agency is still mulling over whether to
grant the individual some administrative remedy). We
cannot see what difference that omission could have
made. The VA can’t complain about being surprised; it
denied the administrative complaint because the subject
of that complaint was the subject of her suit, and so it had
to know about the relation between the administrative
and judicial complaints. And if it was surprised, so what?
It won in the district court and does not argue that it could
defend against the plaintiff’s appeal more effectively if only
she had mentioned the administrative complaint at the
outset of the suit. And anyway when it received the judicial
complaint, the VA would as a matter of ordinary prudence,
and doubtless did, search its records to make sure the
plaintiff had filed an administrative complaint at least 180
days before suing, since otherwise the suit would be
premature.
The VA further argues that the plaintiff cannot complain
about any violation of the Rehabilitation Act that occurred
before December 5, 1999, because to challenge a personnel
action as a violation of the Act an employee must contact
a designated employment discrimination counselor “with-
in 45 days of the effective date of the action.” 29 C.F.R.
§ 1614.105(a)(1). The action of which the plaintiff is com-
plaining is being assigned to the clerical job, and that
occurred on November 16 and, according to the VA, she
4 No. 01-4227
did not contact the counselor until 45 days after December
5 (so January 19, though oddly the VA does not indicate
the date). The plaintiff contends, however, that she con-
tacted the counselor on December 16, which if so placed
the job assignment that she claims violated the Act well
within the 45 days. As the dispute cannot be resolved on
the present record, she gets the benefit of the doubt.
We move on to the substantive issues, where an initial
puzzle is the silence of the briefs and the district judge
on the question whether the plaintiff even has a disability
within the meaning of the Rehabilitation Act. This has
merely been assumed, most surprisingly by the Veterans
Administration. A disability within the meaning of the Re-
habilitation Act and the Americans with Disabilities Act
is a condition that, as we noted recently with reference
to the ADA (but the standard under the Rehabilitation Act
is the same, Toyota Motor Mfg., Kentucky, Inc. v. Williams,
122 S. Ct. 681, 689 (2002); Stein v. Ashcroft, 284 F.3d 721,
725 n. 2 (7th Cir. 2002); Silk v. City of Chicago, 194 F.3d
788, 798 n. 7 (7th Cir. 1999); Vinson v. Thomas, 288 F.3d
1145, 1152 n. 7 (9th Cir. 2002); McDonald v. Pennsylvania,
62 F.3d 92, 94-95 (3d Cir. 1995)), “substantially prevents
a person from engaging in one of the major activities of
life, such as walking, seeing, or reproduction.” Szmaj v.
American Tel. & Tel. Co., 291 F.3d 955, 956 (7th Cir. 2002).
We doubt whether lifting more than 10 pounds is such
an activity. Cf. Stein v. Ashcroft, supra, 284 F.3d at 725-26;
Duncan v. Washington Metropolitan Area Transit Authority,
240 F.3d 1110, 1115 (D.C. Cir. 2001) (en banc); Snow v. Ridge-
view Medical Center, 128 F.3d 1201, 1207 (8th Cir. 1997);
Williams v. Channel Master Satellite Systems, Inc., 101 F.3d
346, 349 (4th Cir. 1996) (per curiam). It is not as if the plain-
tiff were missing an arm. Compare Gillen v. Fallon Ambu-
lance Service, Inc., 283 F.3d 11, 23 (1st Cir. 2002). The physi-
cian who determined the severity and duration of her back
No. 01-4227 5
injury thought she could return to her job as a light-duty
nurse. The number of Americans restricted by back prob-
lems to light work is legion. They are not disabled. See
Contreras v. Suncast Corp., 237 F.3d 756, 762-63 (7th Cir.
2001); Ray v. Glidden Co., 85 F.3d 227, 228-29 (5th Cir. 1996)
(per curiam). Any challenge to the plaintiff’s claim to be
disabled has been forfeited, but we have thought it pru-
dent to register our doubts lest our opinion be assumed by
its silence to endorse the proposition that a back injury
that merely limits a person’s ability to lift heavy objects
creates a disability within the meaning of federal disability
law.
The plaintiff (assuming as we shall in light of the de-
fendant’s forfeiture that she does have a disability) ar-
gues that if only the VA had engaged with her in the
“interactive process” that federal disability law has been
understood to contemplate, see, e.g., Rehling v. City of
Chicago, 207 F.3d 1009, 1015-16 (7th Cir. 2000); 29 C.F.R.
§ 1630.2(o)(3)—that is, if only its human-relations or other
management-level personnel had made suggestions for
accommodating her disability rather than waiting for her
to propose something (“consultative process” strikes us
as a more perspicuous term than “interactive process”)—
it would quickly have discovered that her disability could
be accommodated as she preferred: either by restoring
her to her original nurse’s job stripped of its lifting
duties, or by assigning her to a nurse’s job that involved
no contact with patients, that is, a purely administrative
position but one requiring knowledge of nursing, unlike
the clerical position that she was given.
She acknowledges as she must in light of the cases
that “failure to engage in this ‘interactive process’ cannot
give rise to a claim for relief, however, if the employer can
show that no reasonable accommodation was possible.”
6 No. 01-4227
Hansen v. Henderson, supra, 233 F.3d at 523. (Similar but
more emphatic is Morton v. United Parcel Service, Inc., 272
F.3d 1249, 1256 (9th Cir. 2001); cf. Ballard v. Rubin, 284
F.3d 957, 960 (8th Cir. 2002).) We think the best under-
standing of the brief passage in Hansen concerning bur-
den shifting is that the (only) consequence of the employ-
er’s failing to consult with the employee concerning a
possible accommodation of the employee’s disability
is to shift the burden of production concerning the avail-
ability of a reasonable accommodation from the employee
to the employer. The plaintiff cannot seek a judicial rem-
edy for the employer’s failure to accommodate her disabil-
ity without showing that a reasonable accommodation
existed. But if it existed yet she failed to obtain it be-
cause the employer had not consulted her in order that
“together they can identify the employee’s needs and
discuss accommodation options,” the fault in the failure
to make the accommodation available would be the em-
ployer’s and he would lose. Emerson v. Northern States
Power Co., 256 F.3d 506, 515 (7th Cir. 2001); see also Ozlow-
ski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001). The
purpose of the consultative process is to find a reason-
able accommodation for the particular disabled em-
ployee, and if she proves that such an accommodation
existed, that nevertheless she did not receive it, and
that there was no consultative process, suspicion arises
that the reason her disability was not accommodated was
not that she turned down a reasonable accommodation
but that the employer failed to explain her options to
her and thus did not make it “available” to her in a practical
sense. The burden shifts to the employer to produce
some evidence that even if he failed to consult or “inter-
act” with her, soliciting her suggestions for a reasonable
accommodation, etc., he offered her such an accommoda-
tion with sufficient clarity to make the accommodation
No. 01-4227 7
available to her in a practical sense, so that her rejecting
it was her own fault.
The principal significance of the consultative process
is not that the employee is likely to come up with a rea-
sonable accommodation if only she is consulted, but that
she is quite likely to turn it down and either quit or sue
unless the employer explains why he can’t do more to
enable her to work despite her disability. That can be
presumed from the employer’s failure to consult but he
can meet the presumption with evidence that he said
enough to avoid being blamed for her failure to accept
his offer.
The interpretation that we have offered of the burden-
shifting consequence of the employer’s failure to engage
in a consultative process with a disabled employee recon-
ciles our cases with one another and also brings us into
harmony with the cases from the other circuits (all but
the Ninth) that say that the burden of showing that a
reasonable accommodation existed remains on the em-
ployee. See Shapiro v. Township of Lakewood, 292 F.3d
356, 359-60 (3d Cir. 2002); Frazier v. Simmons, 254 F.3d 1247,
1261 (10th Cir. 2001); cf. Lucas v. W.W. Grainger, Inc., 257
F.3d 1249, 1256 n. 2 (11th Cir. 2001). For present pur-
poses, however, as we are about to see, all that mat-
ters is that every court, as far as we know, agrees with
Hansen that when no reasonable accommodation is pos-
sible the failure to jaw about accommodation is harm-
less. See, e.g., Kvorjak v. Maine, 259 F.3d 48, 53 (1st Cir. 2001).
The question whether the employer engaged in the
required consultative process and the question whether
there was a reasonable accommodation for the plaintiff’s
condition are often and here intertwined. The less that is
available in the employer’s enterprise in the way of rea-
sonable accommodations to the employee’s particular
8 No. 01-4227
disability, the less there is to consult about with a disabled
employee seeking an alternative or reconfigured job with
the employer. It is evident that with no light-duty nurs-
ing positions open our plaintiff could not hold a job
that required contact with patients, because, if they are
heavy, as so many Americans are, she would not, limited
as she is to lifting 10 pounds, be able to support them if
they needed help walking (as they often do), to break
their falls (which are frequent in a hospital), to help them
into and out of bed, or to pick them up from the floor
after they have fallen. The hospital could not be required
to pair her with another nurse, or an orderly, who would
follow her around to help her lift patients. See Hansen v.
Henderson, supra, 233 F.3d at 523 (“the job that Hansen
would like would be a job in which another worker does
the sorting, then gives Hansen the mail to case, and then
when Hansen has done that carries the cases to the
truck, and Hansen then makes just curbside deliveries. . . .
Two new jobs would have to be manufactured, one for
Hansen and one for his helper. The Act does not require
that”); EEOC v. Amego, Inc., 110 F.3d 135, 148 (1st Cir.
1997). There was no reasonable accommodation that
would have enabled the plaintiff to return to her old job
as a regular staff nurse.
A few nursing jobs, however, do not require patient
contact, and of course finding a new job for a disabled
employee is one method of accommodating the employ-
ee’s disability. EEOC v. Humiston-Keeling, Inc., 227 F.3d
1024, 1026 (7th Cir. 2000); see 42 U.S.C. § 12111(9)(B). One
of the nursing jobs that does not involve patient contact is
that of “utilization nurse,” whose responsibility is to “go
to inpatient wards, review charts for appropriateness
of treatment and then make recommendations to the
chief of staff as to whether or not in their opinions these
patients were being treated properly. If they were being
No. 01-4227 9
kept in the hospital for too long for no reason, if they were
given tests that were not really related to their diag-
nosis, those were the kinds of things that utilization re-
view does.” Those tasks the plaintiff had the physical abil-
ity to perform, and openings for such jobs were posted
and she applied for them but was turned down—but
was turned down for reasons unrelated to her physical
condition.
She claims that her supervisor testified that there “were
administrative nursing positions that Plaintiff was able
to perform with her physical limitations.” He had said in
a letter to her that “your [physical] condition does not
eliminate you for administrative Nursing positions, oth-
er than patient care areas.” He testified in his deposi-
tion that what he had meant was “that there were other
administrative nursing positions that may have been
available or would become available, that she was still
eligible to apply for those positions.” She does not take
issue with this explanation, which makes clear that the
supervisor did not testify that she was qualified to be a
utilitization nurse or any other kind of nurse that
does not do any patient care. She was not physically dis-
qualified, but obviously these positions require more
than the ability to sit. They require professional skills and
experience that she may have lacked.
But assuming that she was qualified for such a job,
if nevertheless there were better-qualified applicants—
and the evidence is uncontradicted that there were—the
VA did not violate its duty of reasonable accommodation
by giving the job to them instead of to her. Id. at 1026-29;
Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.
1995); see also Williams v. United Insurance Co. of America,
253 F.3d 280, 282 (7th Cir. 2001). This conclusion is bol-
stered by a recent decision of the Supreme Court which
10 No. 01-4227
holds that an employer is not required to give a disabled
employee superseniority to enable him to retain his job
when a more senior employee invokes an entitlement to
it conferred by the employer’s seniority system. U.S. Air-
ways, Inc. v. Barnett, 122 S.Ct. 1516, 1519, 1524-25 (2002). If
for “more senior” we read “better qualified,” for “seniority
system” we read “the employer’s normal method of filling
vacancies,” and for “superseniority” we read “a break,” U.S.
Airways becomes our case.
As a matter of fact, the VA did accommodate the plain-
tiff’s disability, and the accommodation was reasonable.
The clerical position to which it reassigned her gave her the
same net after-tax salary as she had earned as a nurse
though with fewer fringe benefits and, because it did not
draw on her nursing skills, fewer career advantages. It
was not a perfect substitute. But an employer is not re-
quired to provide the accommodation for a disabled em-
ployee that is ideal from the employee’s standpoint, only
one that is reasonable in terms of costs and benefits. See
Oconomowoc Residential Programs, Inc. v. City of Milwaukee,
2002 WL 1811325, at *7-8 (7th Cir. Aug. 8, 2002); Hoffman
v. Caterpillar, Inc., 256 F.3d 568, 577 (7th Cir. 2001); Vande
Zande v. Wisconsin Dept. of Administration, 44 F.3d 538, 542-43
(7th Cir. 1995); Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259-
60 (1st Cir. 2001); Gaul v. Lucent Technologies, Inc., 134 F.3d
576, 580-81 (3d Cir. 1998); Monette v. Electronic Data Sys-
tems Corp., 90 F.3d 1173, 1183 and n. 10 (6th Cir. 1996);
Borkowski v. Valley Central School District, 63 F.3d 131, 138
(2d Cir. 1995). Neither of the “ideal” accommodations from
the plaintiff’s standpoint—restoring her to a regular nurs-
ing job with patient contact or assigning her an admin-
istrative nursing job without patient contact—was reason-
able. She was not qualified for the first (and it would not
have been a cost-justified accommodation to pair another
No. 01-4227 11
employee with her to do the lifting) and not as well quali-
fied as competing applicants for the second.
She has an ancillary beef, that the district judge granted
the VA’s motion for summary judgment before ruling
on her motion to compel discovery. Ordinarily that would
indeed be a no-no. Farmer v. Brennan, 81 F.3d 1444, 1449-50
(7th Cir. 1996); Dean v. Barber, 951 F.2d 1210, 1213-14 (11th
Cir. 1992). But not in the peculiar circumstances of this
case. The plaintiff’s lawyer had served interrogatories on
VA personnel seeking information about the existence,
requirements, and availability of nursing jobs in the VA
that did not involve patient care. It was because the re-
sponses were so inadequate, implying as they did that
the VA had no information relevant to the inquiry,
that the plaintiff’s lawyer filed a motion to compel fuller
answers. In response the VA offered the lawyer the in-
dividuals who had prepared the interrogatory responses,
for him to depose. The offer was not particularly generous.
The VA employees whom he was being invited to de-
pose were the very ones who had failed to answer his
interrogatories. How likely was it that he would ex-
tract helpful information from them by questioning them
at a deposition? Not very; for he did depose them, and
obtained nothing of value. The VA argues in this court
that there is nothing more in its files that could help him.
He argues that there must be, but that is not an adequate
response.
The district judge did not jump the gun and deny sum-
mary judgment before the plaintiff’s lawyer had an op-
portunity to depose the VA witnesses or present other
evidence obtainable from the VA, in which event the grant
of summary judgment would indeed have been prema-
ture. There is no indication that any such evidence exists.
So what the argument of the plaintiff’s lawyer comes down
12 No. 01-4227
to is that the judge should have punished the VA’s foot-
dragging by denying summary judgment. The failure to
do this was not an abuse of the judge’s discretion. Weeks
v. Samsung Heavy Industries Co., 126 F.3d 926, 943 (7th
Cir. 1997). Indeed, had the judge done what the plaintiff
is asking, the punishment would have been disproportion-
ate to the crime, since the plaintiff has not shown that
she was harmed. It’s not as if she were seeking reimburse-
ment for the expense of depositions that would have been
unnecessary had the VA responded adequately to the in-
terrogatories. She is not.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-5-02