Jackson, Vendetta v. City of Chicago ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4266
VENDETTA JACKSON,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 C 3057—Milton I. Shadur, Judge.
____________
ARGUED OCTOBER 28, 2004—DECIDED JULY 12, 2005
____________
Before RIPPLE, WOOD and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. Vendetta Jackson brought this action
against her former employer, the City of Chicago (“the
City”), for violations of Title II of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq., and of
section 504 of the Rehabilitation Act of 1973 (“Rehabilitation
Act”), 29 U.S.C. § 794. The district court granted the City’s
motion for summary judgment on the ground that
Ms. Jackson could not raise a genuine issue of material fact
as to whether she was a “qualified individual with a disa-
2 No. 03-4266
bility” as defined in 42 U.S.C. § 12111(8). Ms. Jackson
appealed to this court. For the reasons set forth in the fol-
lowing opinion, we now affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
Beginning in 1985, Ms. Jackson was employed by the City
as a police officer. Shortly after beginning work, she injured
her right knee in a training exercise and underwent an
outpatient arthroscopy, but she continued to work as a
police officer on convalescent duty status. In 1987,
Ms. Jackson returned to full duty status with no restrictions.
She underwent knee surgery in 1992 and, in 1993, success-
fully applied for total duty disability benefits from the
Retirement Board of the Policemen’s Annuity and Benefit
Fund (“the Board”). In 1995, the Board found that Ms.
Jackson’s disability had terminated and ceased her total
duty disability benefits. She then returned to active duty in
a limited duty capacity.
In 1998, Ms. Jackson applied again to the Board for dis-
ability benefits. She claimed that her knee injury, along with
back pain and fibromyalgia, prevented her from performing
even limited police duties. In conjunction with Ms. Jackson’s
1998 application for disability benefits, the Board heard
testimony from Dr. David Demorest, the Board’s medical
advisor who reviews medical claims for disabilities. Dr.
Demorest testified that he had reviewed Ms. Jackson’s file,
which included the report of her orthopedic surgeon, Dr.
Bernard Bach. Dr. Demorest concluded that Ms. Jackson was
No. 03-4266 3
able to continue to perform limited duty with the police
department. The Board then denied Ms. Jackson’s disability
claim.
While administrative review of her claim for benefits was
still pending, Ms. Jackson sought to be reinstated at the
police department. She was directed to contact the police
department’s Medical Service Section (“MSS”), which ar-
ranged for Ms. Jackson to undergo a physical examination
conducted by United States Occupational Health (“USOH”).
USOH administered a resting electrocardiogram (“EKG”)
but, due to Ms. Jackson’s injury, did not administer a stress
EKG. MSS also received correspondence from another of
Ms. Jackson’s treating physicians, Dr. Carey Dachman.
Dr. Dachman’s letter stated that, due to Ms. Jackson’s back
pain and fibromyalgia, she could not resume her duties as
a police officer.
The City did not allow Ms. Jackson to be reinstated. The
City corresponded with Ms. Jackson, through her attorney,
to explain what needed to be done in the reinstatement
process. Beginning in September of 2000, the City wrote
several letters to Ms. Jackson’s counsel, outlining the steps
Ms. Jackson would need to take in order to be reinstated.
In April 2002, the City informed Ms. Jackson that, because
her benefits claim was no longer pending, the City would
accept her resignation unless she took some action. Ms.
Jackson did not respond. She filed the complaint in this
action on April 30, 2002. The City made her resignation
formal in May 2002.
B. District Court Proceedings
The district court granted the City’s motion for summary
judgment on the ground that Ms. Jackson had not raised a
4 No. 03-4266
genuine issue of material fact as to whether she is a “quali-
fied individual with a disability” as defined by the ADA. See
42 U.S.C. § 12111(8).
The court concluded that Ms. Jackson’s fibromyalgia
constitutes a physical impairment for purposes of the ADA
and determined that a reasonable jury could conclude that
her fibromyalgia substantially limits Ms. Jackson in the
1
major life activity of walking. The court then turned to the
question of whether Ms. Jackson is a qualified individual
with a disability; that is, whether she could perform the
essential functions of the job with or without reasonable
accommodation.
The district court looked to the City’s designation of the
“essential functions” of the job, in particular the require-
ment that police officers be “able to handle a firearm
adequately.” R.30 at 13. The district court determined that
Ms. Jackson could not perform the essential functions of the
job without reasonable accommodation, noting that
Ms. Jackson had “fail[ed] to demonstrate her ability to
handle a firearm as part of her reinstatement evaluation
in 2000,” and that Ms. Jackson’s physician, Dr. Dachman,
had “expressly testified that it would be hazardous to her
health and the health of those around her” if Ms. Jackson
carried a gun. Id.The district court also considered whether Ms. Jackson
could perform the essential functions of the job with rea-
sonable accommodation as defined by the ADA. See 42
U.S.C. § 12111(9)(B). The court noted that the ADA “allows
for the possibility” that Ms. Jackson could be given “the
reasonable accommodation of reassignment to another posi-
1
The district court determined that Ms. Jackson’s knee injury, on
the other hand, did not support a finding that she was disabled.
No. 03-4266 5
tion within [the] City where handling a firearm is not an
essential function.” Id. at 14. However, the court determined
that the City had fulfilled any obligation it had to provide
Ms. Jackson with a reasonable accommodation “by repeat-
edly notifying Jackson that she could apply for reassign-
ment pursuant to [the] City’s standard policy.” Id. at 15. The
court concluded that Ms. Jackson was responsible for any
breakdown in the dialogue between the parties regarding
reassignment.
Ultimately, the district court held, no reasonable jury
could conclude Ms. Jackson is a qualified individual with a
disability under the ADA because she could not perform the
essential functions of the job without accommodation and
because she had failed to participate in “the standard
reassignment process offered to her by [the] City more than
once.” Id. at 17. Thus, the district court granted summary
judgment for the City.
II
ANALYSIS
A. Standard of Review
We review de novo a district court’s grant of summary
judgment. See Branham v. Snow, 392 F.3d 896, 901 (7th Cir.
2004). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c).
6 No. 03-4266
B. Statutory Framework
“The ADA and Rehabilitation Act prohibit an employer
from discriminating against a qualified individual with a
disability because of the disability.” Silk v. City of Chicago,
194 F.3d 788, 798 (7th Cir. 1999). In order to make out a
prima facie case of discrimination under both the ADA and
the Rehabilitation Act, a plaintiff must show: (1) that she
suffers from a disability as defined in the statutes; (2) that
she is qualified to perform the essential functions of the job
in question, with or without reasonable accommodation;
and (3) that she has suffered an adverse employment action
2
as a result of her disability. See id. at 798 n.6. In order to
determine whether the Rehabilitation Act has been violated
in the employment context, we refer to the provisions and
standards of the ADA. See 29 U.S.C. § 794(d); see also
Branham, 392 F.3d at 902.
The district court determined that Ms. Jackson is an indi-
vidual with a disability: A reasonable jury could find that
Ms. Jackson’s fibromyalgia substantially limited her in the
major life activity of walking. This analysis is unchallenged.
Thus, in this appeal, the parties dispute only whether
Ms. Jackson was “qualified.” We shall confine our discus-
sion to that aspect of the prima facie case.
2
The showing required to make out a prima facie case under the
Rehabilitation Act differs from the showing required under the
ADA only in that a plaintiff must, in order to prove a violation of
the Rehabilitation Act, make the additional showing that she was
involved in a program which received federal financial assis-
tance. See Silk v. City of Chicago, 194 F.3d 788, 798 n.6 (7th Cir.
1999). The parties do not dispute that this description applies to
the City.
No. 03-4266 7
C. Qualified Individual with a Disability
The ADA defines a qualified individual with a disability
to mean “an individual with a disability who, with or with-
out reasonable accommodation, can perform the essential
functions of the employment position that such individual
holds or desires.” 42 U.S.C. § 12111(8). The statute explicitly
gives “consideration” to “the employer’s judgment as to
what functions of a job are essential.” Id. Furthermore, “if an
employer has prepared a written description . . . , this
description shall be considered evidence of the essential
functions of the job.” Id.We agree with the district court that the City has estab-
lished that, among other considerations, the ability to handle
safely a firearm is an essential function of the position of a
sworn police officer. The “MINIMUM ELIGIBILITY RE-
QUIREMENTS” of the “SWORN LIMITED/
CONVALESCENT DUTY PROGRAM” show that even a
police officer assigned to “limited/convalescent duty” must
be able to “safely carry, handle, and use [her] Department
approved, prescribed firearm.” R.19, Tab G, Ex.1 at 1. A
police officer, including one on “limited/convalescent
duty,” also must be able to “maintain an independent and
stable gait.” Id. We shall not “second-guess the employer’s
judgment as to the essential functions” of a position. Peters
v. City of Mauston, 311 F.3d 835, 845 (7th Cir. 2002). In any
event, Ms. Jackson does not appear to dispute that being
able to maintain an independent and stable gait and to carry
safely a firearm are essential functions of the police officer
position.
1.
Ms. Jackson contends that she is capable of performing the
essential functions of the job without any accommodations.
8 No. 03-4266
The City, on the other hand, contends that Ms. Jackson has
failed to raise a genuine issue of material fact as to whether
she can perform the essential functions of the job without
any accommodation.
Dr. Dachman, Ms. Jackson’s own physician, notified MSS
in writing that Ms. Jackson was being treated for fibro-
myalgia. In that correspondence, he included the handwrit-
ten message that, “due to her ongoing pain/fatigue—she
cannot resume her dutys [sic] as a police officer.” R.19, Tab
B, Ex.6 at 1.
Later, in deposition testimony, Dr. Dachman stated that
he did not believe that “somebody with fibromyalgia and
back pain would be safe in the streets either to herself or to
a civilian in reference to . . . trying to pull the trigger.” R.19,
Tab N at 11. He further stated that Ms. Jackson “would be
both a danger to herself and to me as a civilian because of
her diffuse pain, her instability of gait, her fatigue, the ef-
fects of fatigue and cognition.” Id. Dr. Dachman also spe-
cifically noted his opinion that Ms. Jackson is not able to
carry a gun, regardless of any of the other duties of her
position: “[I]t’s irrelevant to my mind what she is assigned
to do on a daily basis in that if she has to carry a gun, to me
that would be hazardous to her health and those around
her.” Id. at 24. He felt that a gun would be too heavy for Ms.
Jackson to wear on a regular basis.
Ms. Jackson contends that Dr. Dachman’s opinion re-
garding her ability to handle safely a firearm should not be
dispositive of the question whether she can perform the
essential functions of the job without accommodation. She
contends that the opinions of other physicians show that she
is capable of returning to work. For instance, she contends
that Drs. Bach and Demorest opined that she could perform
light duty. She submits that the district court cannot, on
No. 03-4266 9
summary judgment motion, weigh conflicting evidence. See
Babrocky v. Jewel Food Co. & Retail Meatcutters Union, 773 F.2d
857, 861 (7th Cir. 1985).
However, as the City points out, the opinions of Drs. Bach
and Demorest do not contradict Dr. Dachman’s opinion
regarding Ms. Jackson’s ability to handle a firearm; they
both conclude that she may return to some form of light
duty but do not discuss her fibromyalgia. Thus, we cannot
be certain that they even considered it. On this record, we
must conclude that Ms. Jackson has failed to show that there
is a genuine issue of material fact as to whether she can
perform, without accommodation, the essential function of
3
safely handling a firearm.
3
Ms. Jackson submits that Buttitta v. City of Chicago, 9 F.3d 1198(7th Cir. 1993), required the City to give her a full medical exam-
ination or to ask her to qualify with a weapon at a firing range.
However, we do not believe that Buttitta controls our review in
this case. In Buttitta, which concerned an officer’s claim that he
had been denied due process in connection with the deprivation
of a property interest, this court held that, after the Board makes
a finding that an officer’s disability has ceased, the officer must
be returned to the police department for an opportunity to
“demonstrate [her] fitness for active duty.” Id. at 1204. This court
construed a provision of Illinois’ pension code to mean that “a
disability ceases only if the Board and the [police] department
agree to that effect.” Id. As we shall discuss in greater detail
below, Ms. Jackson failed to participate in the interactive process
which would have allowed the police department to conclude
whether she was fit for active duty. However, she had the op-
portunity to demonstrate her fitness and, therefore, the principles
underlying Buttitta have not been offended.
Ms. Jackson also contends that Terrano v. Retirement Board of the
Policemen’s Annuity and Benefit Fund, 733 N.E.2d 905 (Ill. App. Ct.
(continued...)
10 No. 03-4266
The City also contends that Ms. Jackson has failed to raise
a genuine issue of material fact regarding her ability to
maintain a stable and independent gait. In light of our
conclusion that Ms. Jackson has not raised an issue of fact as
to her ability to handle safely a firearm, we need not
consider whether there is an issue of fact as to her ability to
maintain a stable gait.
2.
We next shall consider whether Ms. Jackson can perform
the essential functions of the position with reasonable ac-
commodation. An individual with a disability falls within
the definition of a “qualified individual with a disability” if
she can perform the essential functions of the desired
position with reasonable accommodation. 42 U.S.C.
§ 12111(8). The ADA obligates an employer to provide a
qualified individual with a reasonable accommodation. See,
e.g., Rehling v. City of Chicago, 207 F.3d 1009, 1014 (7th Cir.
2000); see also 42 U.S.C. § 12111(9)(B) (listing examples of
reasonable accommodations). For instance, an employer
may be required to reassign a disabled employee to a vacant
position if the employee no longer can perform the essential
functions of the job she holds. See Rehling, 207 F.3d at 1014.
However, the employer is not required to “manufacture a
job that will enable the disabled worker to work despite his
disability.” Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir.
2000). “The employer need only transfer the employee to a
3
(...continued)
2000), required the City to identify a position to which she could
return. However, as the City points out, that case did not concern
an employer’s obligation to engage in the interactive process
contemplated by the ADA.
No. 03-4266 11
position for which the employee is otherwise qualified.”
Rehling, 207 F.3d at 1014 (internal quotation omitted).
The language of the ADA itself demonstrates that a rea-
sonable accommodation is connected to what the employer
knows about the specific limitations affecting an employee
who is a qualified individual with a disability. See 42 U.S.C.
§ 12112(b)(5)(A) (defining the term “discriminate” to in-
clude “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability” (emphasis added)); see also Beck
v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th
Cir. 1996) (“By the statutory language, ‘reasonable accom-
modation’ is limited by the employer’s knowledge of the
disability.”). Thus, the federal regulations implementing the
ADA contemplate an interactive process between employer
and employee in order to determine the appropriate
accommodation for a qualified individual with a disability:
To determine the appropriate reasonable accommoda-
tion it may be necessary for the [employer] to initiate an
informal, interactive process with the qualified indi-
vidual with a disability in need of the accommodation.
This process should identify the precise limitations
resulting from the disability and potential reasonable
accommodations that could overcome those limitations.
29 C.F.R. § 1630.2(o)(3); see also Rehling, 207 F.3d at 1015-16.
Typically, the burden of “exploring” reasonable accom-
modation lies with the employer. Hansen, 233 F.3d at 523.
However, this court also has held that, when considering
the success of the interactive process, we “first look at
whether there is a genuine issue of material fact regarding
the availability of a vacant position to accommodate” the
employee. Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir.
2001). “It is the plaintiff’s burden to show that a vacant
12 No. 03-4266
position exists for which [s]he was qualified.” Id. If such a
position is available, then the court may consider whether
“failure to provide that accommodation was due to a
breakdown in the interactive process.” Id.We have recognized that there is no “hard and fast rule”
for assigning responsibility when a “breakdown” in the
interactive process occurs. Beck, 75 F.3d at 1135. However,
this court has held that, when the parties are “missing infor-
mation . . . that can only be provided by one of the
parties, . . . the party withholding the information may be
found to have obstructed the process.” Id. at 1136.
Ms. Jackson contends that the City failed fully to engage
in the interactive process with her, “thereby making it
impossible for her to identify what, if any, accommodation
she may require.” Appellant’s Br. at 15. The City, on the
other hand, submits that it was not obligated to engage in
an interactive process with Ms. Jackson because she is not a
qualified individual with a disability in light of the fact that
she cannot safely carry and handle a firearm. The City also
contends that Ms. Jackson did not properly assert her right
to the interactive process.
The record in this case reveals that Ms. Jackson knew of
the City’s willingness to engage in the interactive process.
She received, through her counsel, several letters from the
City requesting clarification of Ms. Jackson’s ability to
return to duty. In a letter dated September 27, 2000, the City
explained that, “if Ms. Jackson is claiming that she can
perform her position as a police officer with limitations,
please describe the nature and extent of her limitations and
we will evaluate her for return to duty under the depart-
ment’s limited duty policy.” R.19, Tab R, Ex.1 at 2. As well,
the City noted that,
No. 03-4266 13
if Ms. Jackson contends that she is unable to perform
any duties as a police officer, but can perform some
other vacant job for the City, please advise and we will
forward to her the City’s reasonable accommodation
request forms and determine whether she is qualified to
perform any other currently vacant positions.
Id.In a letter dated October 5, 2000, the City informed Ms.
Jackson, through her counsel, that, “[i]f she is requesting to
return to work with limitations, she needs to submit medical
information from her physicians as to the nature and extent
of her limitations.” Id., Ex.2 at 1. In a letter dated October 20,
2000, the City advised, “[a]s soon as [she] clarifies whether
she can work, and submits medical documentation from her
physician . . . , the department will be able to make a
decision.” Id., Ex.3 at 1.
Ms. Jackson replied to the City’s requests only with con-
clusory statements such as the following: “Officer Jackson
is not claiming that she is physically unable to return to
work. She is asking to be reinstated.” R.19, Tab Q, Ex.3 at 1.
Furthermore, Ms. Jackson’s counsel’s letter of September 29,
2000, did not state Ms. Jackson’s physical limitations and
did not forward medical records to the City, but noted that
“[s]omebody in the Department should be able to make a
decision or reinstatement based upon the information that
is already available and in the Departments [sic] file,” and
also noted that “[i]t is . . . the Department, not Officer
Jackson, that knows the types [of] positions that may be
available to Officer Jackson given any physical limitations
she may have.” Id. In light of this evidence, we must agree
with the district court’s determination that Ms. Jackson was
responsible for the breakdown in the interactive process and
with the court’s subsequent conclusion that she could not
claim that the City failed to accommodate her.
14 No. 03-4266
In sum, on the record before us, we must conclude that
Ms. Jackson is not a person with a disability who, subject to
reasonable accommodation, can perform the essential
functions of the police officer position. It is clear that being
able to carry a firearm safely is an essential function of the
police officer position; it is equally clear that, due to her
fibromyalgia, Ms. Jackson is not capable of handling safely
a weapon. Furthermore, to the extent that Ms. Jackson is
claiming that the City has abandoned its obligation to find
her a position working for the City outside of the Chicago
Police Department, we must conclude that Ms. Jackson
failed to engage in the interactive process.
Conclusion
For the reasons set forth in the foregoing opinion, the
judgment of the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-12-05