Kimberly Bilinsky v. American Airlines, Inc. ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3107
KIMBERLY BILINSKY,
Plaintiff-Appellant,
v.
AMERICAN AIRLINES, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 4253 — Virginia M. Kendall, Judge.
____________________
ARGUED MARCH 27, 2019 — DECIDED JUNE 26, 2019
AMENDED AUGUST 9, 2019
____________________
Before EASTERBROOK, KANNE, and HAMILTON, Circuit
Judges.
KANNE, Circuit Judge. American Airlines employed Kim-
berly Bilinsky for more than two decades. That employment
continued without issue after Bilinsky contracted multiple
sclerosis (“MS”) in the late 1990s. American provided a “Work
from Home Arrangement” (“WFHA”), which permitted
Bilinsky to do her job from her home in Chicago, even though
2 No. 18-3107
her colleagues operated out of the company headquarters in
Dallas. But after a 2013 merger, American restructured its op-
erations and informally repurposed Bilinsky’s department.
The executives determined that the new duties required the
in-person involvement of the employees, so the company re-
scinded the arrangement and demanded that Bilinsky relo-
cate to Texas to work face-to-face. Once negotiations col-
lapsed, American terminated Bilinsky.
This lawsuit under the Americans with Disabilities Act
(“ADA”) followed. 42 U.S.C. § 12111 et seq. The district court
granted summary judgment to American, finding that Bilin-
sky was no longer qualified for the position in light of the
changes in her responsibilities. Because Bilinsky’s evidence
does not counter that assertion, we affirm.
I. BACKGROUND
American hired Bilinsky in 1991. She served in several po-
sitions, taking on a role in 2007 as a communications specialist
in the Flight Service Department, located in Dallas at the com-
pany’s headquarters. But according to Bilinsky’s medical rec-
ords, excessive heat aggravates her MS symptoms and causes
her discomfort and reduced functioning. Under the WFHA,
American permitted Bilinsky to work from Chicago, where
hot weather is less of a concern. She usually traveled to Dallas
one day per week to meet with colleagues and perform tasks
that required a physical presence.
Bilinsky’s duties included participating in conference
calls, administering an internal website used to distribute in-
formation to flight attendants, publishing articles intended for
consumption by flight attendants, producing e-mail commu-
nications to employees, and preparing remarks for her boss’s
No. 18-3107 3
weekly internal video announcement. The position had no
formal, written job description. Bilinsky performed success-
fully for several years, and there is no record of complaints or
disciplinary action against her.
American merged with US Airways in 2013. The resulting
company (still American Airlines) had to integrate the opera-
tions of both airlines into a single entity with common policies
and procedures. Hector Adler, the Flight Service Depart-
ment’s Vice President at that time, testified that “[i]t was a
very extensive and significant task that involved nearly every
person in the department.” As the process dragged on, Adler
felt that existing work arrangements were insufficient to meet
the demand. The department expanded its workload, transi-
tioning from primarily producing written communications to
putting on live events and performing crisis management
functions. The additional work caused the Dallas employees
to feel “spread very thin at times.”
Under the circumstances, Adler unilaterally decided to re-
quire all employees to be physically present at headquarters.
This decision affected two employees other than Bilinsky: one
relocated to Dallas, but the other refused and was terminated.
Upon learning of the impending changes, Bilinsky spoke with
her immediate supervisor, Cathy Scheu, on May 20, 2014.
Bilinsky emphasized that her WFHA was a necessary accom-
modation for her disability and that relocating to Dallas was
not an option. Scheu communicated the information to Adler,
but Adler indicated his intent to deny the request.
Later that year, Scheu and Human Resources representa-
tive Rhonda Nicol-Perrin approached Bilinsky to determine
whether the company could make alternative accommoda-
tions that would permit Bilinsky to relocate. Bilinsky
4 No. 18-3107
responded that the company would need to provide “a tube
of air conditioning around [her] at all times.” She stressed that
working at American’s Dallas office was not a problem, but
living in a hot part of the country year-round and trying to
engage in activities outside the office would create a concern.
Scheu and Nicol-Perrin then looked for other positions for
Bilinsky. They identified a few jobs in Chicago, but Bilinsky
was either not qualified for them or not interested in them.
Bilinsky separately applied for a technical writer job in the
Flight Service Department. That job was also located in Dal-
las, but the incumbent had worked remotely. Although the
interviewer indicated that she wanted to hire Bilinsky for the
position, the company declined to allow Bilinsky to work re-
motely in the new capacity. The position was vacant precisely
because the incumbent had been working from home and was
affected by the same policy shift that affected Bilinsky.
Throughout 2014 and early 2015, Bilinsky continued to
work as before. Linda Carlson took over as Bilinsky’s imme-
diate supervisor after Scheu was promoted. Carlson ex-
pressed no complaints about Bilinsky’s performance. The is-
sue came to a head in February 2015, when the department
helped to produce the American Airlines Leadership Confer-
ence in Dallas. Bilinsky was not asked to attend the event or
assist with preparations, but Carlson otherwise called upon
“anybody who was a warm body” to help with the event.
Carlson acknowledged that “if you asked [Bilinsky] to pick
up the slack or to do a project, she was always willing.” But
she immediately qualified that statement: “She just wasn’t
able to do things that you needed to do to support an event.
You can’t drive to the hotel that’s in Dallas if you’re in Chi-
cago.” One month after the conference, Scheu and Nicol-
No. 18-3107 5
Perrin informed Bilinsky that she would need to complete her
relocation or leave her job. On May 1, 2015, American termi-
nated Bilinsky’s employment.
Bilinsky filed a complaint with the Equal Employment
Opportunity Commission and received a “right to sue” letter.
She then filed this suit in the federal district court in Chicago.
Her complaint alleged three counts: (I) that American failed
to accommodate her disability under the ADA; (II) that Amer-
ican retaliated against her for insisting on an accommodation
by denying her the technical writer position; and (III) that
American failed to accommodate her disability under the Illi-
nois Human Rights Act (“IHRA”), 775 Ill. Comp. Stat. 5 § 1-
102 et seq. After discovery, the district court granted summary
judgment to American on all three counts, finding that Bilin-
sky was not a “qualified individual” for the position in light
of the changes in her responsibilities, and was therefore ineli-
gible for the ADA’s protection. Bilinsky appealed the award
of summary judgment on counts I and III.
II. ANALYSIS
We review summary judgment de novo, considering the
evidence in the light most favorable to Bilinsky and drawing
all reasonable inferences in her favor. Miller v. Ill. Dep’t of
Transp., 643 F.3d 190, 192 (7th Cir. 2011). Illinois courts “have
looked to the standards applicable to analogous federal
claims” when evaluating IHRA claims, so we consolidate our
analysis of both counts. Sangamon Cty. Sheriff’s Dep’t v. Ill. Hu-
man Rights Comm’n, 908 N.E.2d 39, 50 (Ill. 2009); Teruggi v. CIT
Grp./Capital Fin., Inc., 709 F.3d 654, 659 (7th Cir. 2013).
Bilinsky believes the district court erred in finding that she
was not a “qualified individual” under the statute and
6 No. 18-3107
therefore not entitled to protection. The ADA prohibits a cov-
ered employer from “discriminat[ing] against a qualified in-
dividual on the basis of disability in regard to … the … dis-
charge of employees … .” 42 U.S.C. § 12112(a). Discrimination
includes “not making reasonable accommodations to the
known physical … limitations of an otherwise qualified indi-
vidual with a disability who is an … employee, unless [the
employer] can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of
[the employer].” Id. § 12112(b)(5)(A). A “qualified individual”
is one who “can perform the essential functions of the em-
ployment position.” Id. § 12111(8). The statute directs that
courts shall give “consideration … to the employer’s judg-
ment as to what functions of a job are essential.” Id.
The EEOC has defined “essential functions” as “the fun-
damental job duties of the employment position”; they do not
include “marginal functions.” 29 C.F.R. § 1630.2(n)(1). In in-
terpretive guidance, the EEOC has noted that, when assessing
the essential functions of a job, “the inquiry will then center
around whether removing the function would fundamentally
alter that position.” Id. § 1630 App. “To determine whether a
job function is essential, we look to the employer’s judgment,
written job descriptions, the amount of time spent on the func-
tion, and the experience of those who previously or currently
hold the position.” Rooney v. Koch Air, LLC, 410 F.3d 376, 382
(7th Cir. 2005) (citing 29 C.F.R. § 1630.2(n)(3)). We also con-
sider “[t]he consequences of not requiring the incumbent to
perform the function.” Miller, 643 F.3d at 198.
The district court’s judgment rested on its conclusion that
Bilinsky was not a “qualified individual” under the ADA.
“[A] worker has no claim under the ADA if she, even with a
No. 18-3107 7
reasonable accommodation, cannot do the job for which she
was hired.” DePaoli v. Abbott Labs., 140 F.3d 668, 674 (7th Cir.
1998) (citing Matthews v. Commonwealth Edison Co., 128 F.3d
1194, 1195 (7th Cir. 1997)). When defining a job’s essential
functions, “consideration shall be given to the employer’s
judgment as to what functions of a job are essential, and if an
employer has prepared a written description … for the job,
this description shall be considered evidence of the essential
functions of the job.” 42 U.S.C. § 12111(8). “Although we look
to see if the employer actually requires all employees in a par-
ticular position to perform the allegedly essential functions,
we do not otherwise second-guess the employer’s judgment
in describing the essential requirements for the job.” DePaoli,
140 F.3d at 674 (citing, among other sources, 42 U.S.C.
§ 12111(8) and 29 C.F.R. Pt. 1630, App. § 1630.2(n)). But we’ve
also cautioned that although “the employer’s judgment is an
important factor, … it is not controlling.” Miller, 643 F.3d at
198. “The ADA does not give employers unfettered discretion
to decide what is reasonable.” Id. at 199.
“The essential-function inquiry is a factual question, not a
question of law.” Brown v. Smith, 827 F.3d 609, 613 (7th Cir.
2016). The plaintiff “bears the initial burden of establishing
that she was a qualified individual who could perform the es-
sential functions of her position.” Taylor-Navotny v. Health All.
Med. Plans, Inc., 772 F.3d 478, 493 (7th Cir. 2014). Both parties
agree that Bilinsky’s MS is a qualifying disability under the
statute, and American concedes that Bilinsky was qualified to
do the job with her accommodation prior to the 2013 merger.
But it argues that the merger fundamentally changed the po-
sition’s nature and that consistent, physical presence on site
became an essential function of the position at some point af-
ter 2013. Because Bilinsky could not perform that function
8 No. 18-3107
from her home in Chicago, and because she was unable to re-
locate to establish a physical presence, American contends
that she was not qualified for the transformed position.
In Miller, a highway worker suffered a panic attack while
working on a bridge suspended high above a river. 643 F.3d
at 193. Diagnosed with acrophobia, he requested an accom-
modation that he not be assigned to any jobs requiring him to
work more than 25 feet in the air. Id. The employer deter-
mined that such work was an essential function of his job and
terminated him. Id. at 193–94. The district court agreed and
granted summary judgment. But we reversed, believing that
there was a genuine dispute of material fact over whether
such work was truly essential to Miller’s job. Applying the
EEOC regulations, we thought it important to “look to evi-
dence of the employer’s actual practices in the workplace.” Id.
at 198. Because the bridge crew had a history of divvying up
tasks to crew members based on their “individual abilities,
preferences, and limitations,” “Miller’s request for reasonable
accommodation did not ask [the employer] to do anything it
was not already doing.” Id. at 200. There was a genuine dis-
pute over whether conducting work high in the air was essen-
tial, and it should have been left to a jury to resolve.
But we came to the opposite conclusion in Taylor-Navotny.
There, an employee’s MS symptoms kept her from maintain-
ing a regular schedule. 772 F.3d at 483. She came into the office
at varied hours and could not plan her schedule in advance.
Id. She requested a work-from-home arrangement, but even
then, she failed to sign online at regular hours or attend meet-
ings by phone consistently. Id. at 486–87. The employer let her
go, and the district court granted summary judgment to the
employer because Taylor-Navotny could not perform the
No. 18-3107 9
job’s essential functions, such as regular attendance. We af-
firmed. Although we had sometimes observed that regular at-
tendance and punctuality are not essential functions of every
job, we stressed that “an employer is generally permitted to
treat regular attendance as an essential job requirement and
need not accommodate erratic or unreliable attendance.” Id.
at 489 (quoting Basden v. Prof’l Transp., Inc., 714 F.3d 1034, 1037
(7th Cir. 2013)). Working from home was not the issue; in-
stead, wherever the employee might be, she needed to be
available and participating during normal working hours. Id.
at 490. We affirmed summary judgment. Id.
This case falls somewhere between those two poles. Bilin-
sky makes the same claim as the plaintiff in Miller: she was
able to do the job successfully for years, and her termination
resulted merely from a change in her boss’s preferences about
working arrangements that did not accurately state the posi-
tion’s essential functions. Although American acknowledges
that Bilinsky was once able to perform the essential functions
with a reasonable accommodation prior to the 2013 merger, it
contends that those functions changed upon restructuring.
The nature of her team’s work evolved from independent ac-
tivities (curating content on a website, responding to written
questions from employees, etc.) to team-centered crisis man-
agement activities, involving frequent face-to-face meetings
with team members on short notice to coordinate work.
Those facts distinguish this case from Miller. There, the
highway construction crew’s work continued as it had before;
there were no changes in their duties due to intervening
events. The plaintiff’s medical condition was the only factor
that changed over time. We reversed a grant of summary
judgment because the plaintiff produced evidence showing
10 No. 18-3107
that his request for an accommodation “did not ask [his em-
ployer] to do anything it was not already doing.” 643 F.3d at
200. The accommodation he requested was already something
that occurred in “the normal course” of the crew’s duties. Id.
See also EEOC v. McLeod Health, Inc., 914 F.3d 876 (4th Cir.
2019) (reversing summary judgment for employer where
there was no evidence of a change in the plaintiff’s job duties,
but only a possible deterioration in her medical condition).
Bilinsky faces a different problem: evidence of a change in
job responsibilities for everyone in her department. The dis-
trict court determined that “[d]eference to American’s judg-
ment as the employer is required in the absence of an ade-
quate factual legal basis to abandon that deference.” Bilinsky
v. Am. Airlines, Inc., No. 16-c-4253, 2018 WL 4181481 at *7
(N.D. Ill. Aug. 31, 2018) (citing Gratzl v. Office of Chief Judges,
601 F.3d 674, 679 (7th Cir. 2010); DePaoli, 140 F.3d at 674).
American produced testimony from several employees stat-
ing that the nature of the work slowly evolved after the mer-
ger and changed the essential functions of Bilinsky’s job.
Those employees included Adler (VP of Flight Service), Scheu
(Bilinsky’s first supervisor), and Carlson (Bilinsky’s subse-
quent supervisor). They all uniformly testified about the
unique stress the merger caused, the changing day-to-day re-
sponsibilities of employees in the department, and the in-
creased demand for services that only local employees could
provide. Those with personal knowledge of Bilinsky’s cir-
cumstances testified that she performed as well as she could
given her accommodation, but that there remained a gap that
Bilinsky (and the other remote employees) could not fill.
To counter American’s assertions, Bilinsky points primar-
ily to her experience in the position prior to the merger, as
No. 18-3107 11
well as her continued success after the merger occurred.
Those are important considerations in the EEOC’s list of fac-
tors, but as the district court correctly noted, Bilinsky’s suc-
cess prior to the merger does not address whether the essen-
tial functions of her job changed some time after the merger.
Similarly, while evidence that Bilinsky performed success-
fully post-merger would be probative of her qualification for
the updated position, testimony from her co-workers did not
support that proposition. Bilinsky’s best evidence is testi-
mony from Linda Carlson, her manager after Cathy Scheu de-
parted in late 2014. Carlson testified that Bilinsky willingly
agreed to take on extra work for other employees when live
events were taking place and they could not be at their desks:
“If you asked Kimberly to pick up the slack or to do a project,
she was always willing. I don’t recall her ever not being will-
ing to help or pick up slack.” But in the same breath Carlson
gave testimony that undermines Bilinsky’s case: “[Bilinsky]
just wasn’t able to do things that you needed to do to support
an event. You can’t drive to the hotel that’s in Dallas if you’re
in Chicago. You can’t go check out [AV] equipment in Chi-
cago. You can’t meet with subject matter experts to directly,
you know, get photographs.” “[Other employees] would be
frustrated they didn’t have another set of hands to divide and
conquer work that had to be done there. … And I[,] like the
team[,] felt spread very thin at times.” The testimony estab-
lishes Bilinsky’s willingness to perform, but it does not create
a genuine dispute over her ability to fill the gap.
At best, Bilinsky’s evidence shows that the job responsibil-
ities evolved slowly. That partially distinguishes this case
from Gratzl. There, a court reporter suffered from inconti-
nence and required frequent, unplanned bathroom breaks.
12 No. 18-3107
601 F.3d at 676–77. That made her ill-suited to working in a
courtroom, so she worked in a central control room in a spe-
cialist position. Id. at 677. But the state later eliminated the
specialist position and put all court reporters in the same job
category. Id. The county’s chief judge determined that all
court reporters would henceforth participate in a rotation
through all courtrooms, an arrangement that did not accom-
modate Gratzl’s needs. Id. After negotiations broke down,
Gratzl sued. Id. at 678. The district court granted summary
judgment to the employer, and we affirmed. We determined
that Gratzl could not “prove that she [was] qualified for her
current job simply by citing evidence that she was qualified
for a previous job, with different essential functions, that
ha[d] been eliminated.” Id. at 680.
Bilinsky’s case is not quite so black-and-white, as Ameri-
can never eliminated her position and did not have a written
job description that it updated to reflect new circumstances.
But the fact that American transitioned the department to new
responsibilities slowly rather than all at once does not mean
that the job’s essential functions didn’t change at some point
after the merger. To that extent, the rule in Gratzl applies
equally to this case: “Just as an employer is not required to
create a new position or strip a current job of its essential func-
tions [under the ADA], an employer is not required to main-
tain an existing position or structure that, for legitimate rea-
sons, it no longer believes is appropriate.” Id.
Bilinsky’s remaining challenges focus on the sufficiency of
American’s evidence. But at the summary judgment stage, the
district court’s job was not to weigh the evidence but merely
No. 18-3107 13
to determine whether there was a genuine dispute of fact.1
American’s witnesses specifically identified only one major
event for which Bilinsky was absent: the 2015 Leadership
Conference. Bilinsky argues that a single event is not enough
to establish a pattern, but she offered no countervailing evi-
dence to show that the conference was an isolated event rather
than one example of a regular occurrence.
We stress that our holding today is confined to the unique
facts of this case. The ADA’s purpose is “to provide a clear
and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.” 42
U.S.C. § 12101(b)(1). The statute “does not give employers un-
fettered discretion to decide what is reasonable.” Miller, 643
F.3d at 199. Absent some change in circumstance, an em-
ployer may not rescind an accommodation simply because it
is inconvenient or burdensome—the statute requires the em-
ployer to make reasonable sacrifices to keep disabled persons
in the work force. But American faced a unique intervening
event: a major merger between two large corporations. The
process of synchronizing their former policies and procedures
would necessarily lead to some evolution in individual re-
sponsibilities, and an employee cannot create a dispute of fact
merely by pointing to her ability to perform in the job before
the merger occurred (or as the changes evolved). That’s
1 The district court did briefly discuss weighing the evidence between
the two parties. See Bilinsky, 2018 WL 4181481 at *6 (“But these facts do not
sufficiently outweigh American’s judgment and so Bilinsky does not pro-
vide the Court with an adequate factual dispute.”) (emphasis added). But
the court seems to have used the term while determining whether Bilinsky
had enough evidence to overcome the presumption that an employer’s
understanding of the essential factors of a job is correct. See Basith v. Cook
Cty., 241 F.3d 919, 928 (7th Cir. 2001). The district court did not err.
14 No. 18-3107
especially true when the revocation of WFHAs applied to all
remote employees, not only to the disabled plaintiff.2
Finally, we offer a note of caution to future ADA litigants.
We once said that “[a]n employer is not required to allow dis-
abled workers to work at home, where their productivity in-
evitably would be greatly reduced. … [I]t would take a very
extraordinary case for the employee to be able to create a tri-
able issue of the employer’s failure to allow the employee to
work at home.” Vande Zande v. State of Wis. Dep’t of Admin., 44
F.3d 538, 545 (7th Cir. 1995). But we also acknowledged that
“[t]his will no doubt change as communications technology
advances.” Id. at 544. Technological development and the ex-
pansion of telecommuting in the twenty-four years since
Vande Zande likely mean that such an accommodation is not
quite as extraordinary as it was then. That inquiry is context-
specific; a work-from-home arrangement might be reasonable
for a software engineer but not for a construction worker.
“[T]here is a general consensus among courts … that reg-
ular work-site attendance is an essential function of most
jobs.” Credeur v. Louisiana, 860 F.3d 785, 793 (5th Cir. 2017)
(collecting cases). The position’s nature will often require
face-to-face collaboration. EEOC v. Yellow Freight Sys., Inc., 253
F.3d 943, 948 (7th Cir. 2001) (en banc). But not in every in-
stance. See, e.g., Mosby-Meachem v. Memphis Light, Gas & Water
Div., 883 F.3d 595, 603–05 (6th Cir. 2018). Here, the parties
agree that telecommuting was reasonable for years before
2Bilinsky produced evidence that some employees were permitted to
remain in Arizona after the new policy went into effect. The record shows
that those employees’ positions were not based out of Dallas (as was Bilin-
sky’s) and that they were using legacy operating systems that had not yet
been imported to the Dallas facility.
No. 18-3107 15
intervening events transformed Bilinsky’s duties so that
physical presence became an essential function of her job. Lit-
igants (and courts) in ADA cases would do well to assess
what’s reasonable under the statute under current technolog-
ical capabilities, not what was possible years ago.
Because it based summary judgment on the finding that
Bilinsky was not a qualified individual, the district court did
not reach the issue of whether American engaged in the inter-
active process to afford Bilinsky an alternative accommoda-
tion. We do not reach that issue, either.
III. CONCLUSION
Bilinsky’s condition prevented her from living in Texas.
American accommodated that disability for several years by
permitting her to work from her home in Illinois. But after a
major merger, her employer determined that its remote ar-
rangements were insufficient to meet business demands, and
it uniformly rescinded those arrangements with all its em-
ployees, disabled and non-disabled alike. For the foregoing
reasons, the judgment of the district court is AFFIRMED.
16 No. 18‐3107
HAMILTON, Circuit Judge, dissenting. This case raises the
kind of issue about flexible working arrangements under the
Americans with Disabilities Act that we are likely to see more
often. I agree with a good deal of the majority’s opinion but
respectfully dissent on the bottom line in this case. Whether
working five days a week in American Airlines’ Dallas head‐
quarters was an “essential function” of plaintiff Kimberly
Bilinsky’s job may well present a close question for a jury. It
is not a close call on summary judgment. We should reverse
the district court’s grant of summary judgment and let a jury
decide the issue.
First, though, the points of agreement: the majority cor‐
rectly points out that the ADA’s affirmative duty of reasona‐
ble accommodation requires employers to make an effort to
hire and retain employees with disabilities. Courts do not and
should not merely take at face value an employer’s claims
about a job’s essential functions. Ante at 13–14. This caution
is consistent with our case law, which shows, as the majority
also acknowledges, how fact‐sensitive these questions about
essential functions and reasonable accommodations can be.
See Brown v. Smith, 827 F.3d 609, 613–14 (7th Cir. 2016) (af‐
firming jury verdict for plaintiff who could not obtain com‐
mercial driver’s license even where written job description
said such license was required for job; evidence of actual du‐
ties undermined claim of essential function); Taylor‐Navotny v.
Health Alliance Medical Plans, Inc., 772 F.3d 478, 489 (7th Cir.
2014) (affirming summary judgment for employer, who was
not required to tolerate “erratic or unreliable attendance”);
Miller v. Illinois Dep’t of Transportation, 643 F.3d 190, 198–99
(7th Cir. 2011) (reversing summary judgment for employer
where evidence of actual work practices indicated accommo‐
dations plaintiff needed were reasonable).
No. 18‐3107 17
Further, the majority opinion correctly and helpfully
warns that our comments in Vande Zande about working from
home as a reasonable accommodation require a fresh look to‐
day, almost a quarter of a century later, as technology and
working patterns have changed. Ante at 14–15, quoting Vande
Zande v. Wisconsin Dep’t of Administration, 44 F.3d 538, 545 (7th
Cir. 1995).
But returning to the specifics of this case, this record shows
a genuine issue of material fact as to whether working in Dal‐
las five days a week was actually an essential function of Kim‐
berly Bilinsky’s job. Her job had no written job description.
Viewed through what should be the plaintiff‐friendly lens of
summary judgment, the thrust of defendant’s evidence is
simply that the vice president of Bilinsky’s department pre‐
ferred to have all employees work at the Dallas headquarters
five days a week. I assume that arrangement would be easiest
for him and other managers, but that’s not the standard under
the ADA.
Bilinsky has presented substantial evidence that working
from home four days a week, with a weekly trip to spend the
day in the Dallas office, let her perform the essential functions
of her job both before and after the merger. Bilinsky continued
her work‐from‐home arrangement for fifteen months follow‐
ing the merger. She received good evaluations and no criti‐
cism. The only specific evidence American managed to offer
was a claim that Bilinsky’s work‐from‐home arrangement
prevented her from helping the team organize and manage
one special event, a leadership conference in Dallas in
18 No. 18‐3107
February 2015. Bilinsky counters that American never even
asked her to help with the event.1
The unusual absence of a written job description here
should raise our eyebrows about this grant of summary judg‐
ment. I agree with the majority that the absence of a job de‐
scription distinguishes Bilinsky’s case from Gratzl v. Office of
Chief Judges, where a position was eliminated and we held that
the plaintiff could not prove she was qualified for her current
job simply because she was qualified for a previous job. 601
F.3d 674, 679–80 (7th Cir. 2010); cf. Brown, 827 F.3d at 613–14
(affirming jury verdict for plaintiff despite written job descrip‐
tion identifying as essential one qualification he could not
meet; evidence showed qualification was for marginal, not es‐
sential, job functions). Bilinsky had performed successfully
for years. There is no new position or new job description that
American can point to as evidence that the essential functions
of her job changed. American’s evidence of management pref‐
erences simply does not distinguish between job functions that
are essential and those that are only marginal. Its evidence
does not show the absence of a genuine issue of material fact.
While the merger may have posed new challenges for the
department, the ADA requires employers to make reasonable
sacrifices to keep disabled persons in the workforce. I view
Bilinsky’s situation as much more in line with the plaintiff in
Miller v. Illinois Department of Transportation. Bilinsky worked
on a team, and according to her immediate supervisor, Linda
Carlson, Bilinsky was “always willing” to “pick up the slack
1
We should not assume that Bilinsky would have refused a request
or order to work in Dallas for a few days to help with that conference.
Dallas in February is unlikely to be hotter than Chicago in the summer.
No. 18‐3107 19
or to do a project.” The only qualification Carlson offered was
that Bilinsky’s work‐from‐home arrangement meant she
“wasn’t able to do things that you needed to do to support an
event,” referring to the one conference that American, we
must assume, did not even ask Bilinsky to help with. Ameri‐
can did not offer conclusive evidence of essential functions
that were inconsistent with Bilinsky’s successful work‐from‐
home arrangement.
As the Sixth Circuit recently explained, “full‐time pres‐
ence at work is not an essential function of a job simply be‐
cause an employer says that it is.” Hostettler v. College of
Wooster, 895 F.3d 844, 857 (6th Cir. 2018) (reversing summary
judgment for employer; facts disputed as to whether em‐
ployee could do job’s essential functions on modified work
schedule). As in Hostettler, American may have preferred that
Bilinsky
be in the office 40 hours a week. And it may have
been more efficient and easier on the depart‐
ment if she were. But those are not the concerns
of the ADA: Congress decided that the benefits
of gainful employment for individuals with dis‐
abilities—dignity, financial independence, and
self‐sufficiency, among others—outweigh sim‐
ple calculations of ease or efficiency. To that
end, the ADA requires that employers reasona‐
bly accommodate employees with disabilities,
including allowing modified work schedules.
Id. at 857.
Bilinsky’s situation is much like that of the employee in
EEOC v. McLeod Health, Inc., 914 F.3d 876, 881–82 (4th Cir.
20 No. 18‐3107
2019), where the Fourth Circuit reversed summary judgment
for the employer, finding among other points a genuine issue
of material fact concerning whether it was an essential func‐
tion of the employee’s job to travel around to different job
sites. Like Bilinsky, the employee in McLeod Health wrote and
edited an internal newsletter. The employer there at least had
a written job description, but it did not mention traveling to
and from company events or conducting in‐person inter‐
views. Id. at 881. In reversing summary judgment for the em‐
ployer, the Fourth Circuit explained that, while the record
contained evidence supporting the employer’s position, the
written job description’s silence on the supposedly essential
function provided substantial evidence that it was not in fact
an essential function. Id. at 881–82.
In this case, the majority sidesteps delicately around the
district judge’s erroneous reference to “weighing” the evi‐
dence on summary judgment, ante at 13 n.1, but the majority
then makes essentially the same mistake. On summary judg‐
ment, it is not our job to decide which party’s evidence is more
persuasive. A jury should weigh the evidence and determine
whether working from Dallas five days a week was actually
an essential function of Bilinsky’s job after the merger.