Sherlyn Brown v. Milwaukee Board of School Dire , 855 F.3d 818 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1971
SHERLYN BROWN,
Plaintiff-Appellant,
v.
MILWAUKEE BOARD OF SCHOOL DIRECTORS,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13-C-747 — Rudolph T. Randa, Judge.
____________________
ARGUED NOVEMBER 3, 2016 — DECIDED MAY 4, 2017
____________________
Before BAUER, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal under the Americans
with Disabilities Act addresses a disabled employee’s obliga-
tion to participate in identifying reasonable accommodations
for her condition.
Plaintiff Sherlyn Brown was an assistant principal for de-
fendant Milwaukee Public Schools until she badly injured her
knee while restraining a student. When she returned to work
2 No. 16-1971
following surgery, she and her doctor told Milwaukee Schools
that she could not be “in the vicinity of potentially unruly stu-
dents.” Since virtually all students are “potentially” unruly,
Milwaukee Schools understood that limit to bar virtually all
contact with students. It repeatedly communicated that un-
derstanding to Brown as it tried to accommodate her disabil-
ity by finding her a new position. When Brown’s three-year
leave of absence expired before a suitable position was found,
Milwaukee Schools fired her. Brown sued under the Ameri-
cans with Disabilities Act, claiming that her disability had
never prevented interaction with students and that Milwau-
kee Schools failed to accommodate her disability. The district
court granted summary judgment for Milwaukee Schools,
and Brown has appealed.
We affirm. Because Brown and her doctors repeatedly told
Milwaukee Schools that she could not be “in the vicinity of
potentially unruly students,” Milwaukee Schools is not liable
for failing to move her to a position requiring such proximity.
All but one of the other jobs Brown identifies as reasonable
accommodations would have required such proximity. The
lone exception would have been a promotion for which
Brown was not the most qualified candidate. The Act did not
require Milwaukee Schools to promote her as an accommoda-
tion.
I. Legal Framework
We review de novo a district court’s grant of summary judg-
ment. Our account of the facts views the evidence in the light
most favorable to the non-moving party, but we must affirm
if no reasonable trier of fact could find in favor of the non-
moving party. White v. City of Chicago, 829 F.3d 837, 841 (7th
Cir. 2016).
No. 16-1971 3
Our account of the facts will be easier to follow with a brief
outline of the reasonable accommodation duty under the
Americans with Disabilities Act. The Act requires employers
to make “reasonable accommodations that will allow a ‘qual-
ified individual with a disability’ to perform the essential
functions of his or her job.” Miller v. Illinois Dep’t of Transpor-
tation, 643 F.3d 190, 197 (7th Cir. 2011), quoting 42 U.S.C.
§ 12112(b)(5)(A). “Reassigning disabled employees to vacant
positions that they can perform is a reasonable accommoda-
tion.” Emerson v. Northern States Power Co., 256 F.3d 506, 515
(7th Cir. 2001), citing Hendricks-Robinson v. Excel Corp., 154
F.3d 685, 693 (7th Cir. 1998); 42 U.S.C. § 12111(9) (reasonable
accommodation “may include … reassignment to a vacant
position”).
A disabled employee need not be the most qualified appli-
cant for a vacant position, but she must be qualified for it.
EEOC v. United Airlines, Inc., 693 F.3d 760, 764 (7th Cir. 2012)
(holding that deviation from a best-qualified selection policy
does not always represent an undue hardship for the em-
ployer); Jackson v. City of Chicago, 414 F.3d 806, 813 (7th Cir.
2005) (“The employer need only transfer the employee to a
position for which the employee is otherwise qualified.”),
quoting Rehling v. City of Chicago, 207 F.3d 1009, 1014 (7th Cir.
2000). The Act does not, however, require employers to pro-
mote employees to accommodate them. Malabarba v. Chicago
Tribune Co., 149 F.3d 690, 699 (7th Cir. 1998), citing Shiring v.
Runyon, 90 F.3d 827, 832 (3d Cir. 1996).
Identifying reasonable accommodations for a disabled
employee requires both employer and employee to engage in
a flexible, interactive process. See Stern v. St. Anthony’s Health
4 No. 16-1971
Center, 788 F.3d 276, 292 (7th Cir. 2015), citing Kauffman v. Pe-
tersen Health Care VII, LLC, 769 F.3d 958, 963 (7th Cir. 2014).
Both parties are responsible for that process. If a reasonable
accommodation was available but the employer prevented its
identification by failing to engage in the interactive process,
that failure is actionable. Id. On the other hand, if the em-
ployee “does not provide sufficient information to the em-
ployer to determine the necessary accommodations, the em-
ployer cannot be held liable for failing to accommodate the
disabled employee.” Reeves ex rel. Reeves v. Jewel Food Stores,
Inc., 759 F.3d 698, 702 (7th Cir. 2014), citing Beck v. University
of Wisconsin Board of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).
II. Factual and Procedural Background
In light of these principles, the critical facts here concern
(1) the communications between Brown and Milwaukee
Schools about the extent of her restrictions, especially her abil-
ity to be in the vicinity of potentially unruly students; and (2)
the potential reassignments she discussed with Milwaukee
Schools as accommodations for her disability.
A. Brown’s Injuries
In 2006, Brown was an assistant principal for Milwaukee
Schools. She began to experience severe knee pain while per-
forming the duties of that position. Her doctor diagnosed her
with severe arthritis and recommended that she be moved to
a job with limited mobility requirements. For the next few
years, Milwaukee Schools accommodated her by changing
the location of her work and modifying her job duties. It ex-
cused her from breaking up fights and physically intervening
with students, which would normally be an assistant princi-
pal’s responsibility. She arranged those accommodations with
No. 16-1971 5
James Gorton, Milwaukee School’s employment specialist
who continued to work on her case for the remainder of her
employment. During that time, Brown underwent knee re-
placement surgery.
Despite these precautions, Brown injured her knee again
in 2009, not long after her surgery, while restraining an unruly
student. She had another surgery. Her doctor then restricted
her to sedentary work with no student interaction until fur-
ther notice. A few months after her return to work, in May
2010, her doctor clarified that incidental or one-on-one contact
with students “should not be a problem,” but that contact
with out-of-control children or potentially combative stu-
dents should be avoided.
B. Brown’s Leave of Absence
In late July 2010, Brown clarified her medical restriction
again. She had been assigned to a new school building as an
assistant principal. She found that she was expected to “patrol
the halls, [and] be involved in student contact.” She called
Gorton and told him that she still needed to “avoid interaction
with volatile students.” Gorton said he thought her doctor
had changed that limit, and he asked her to have her doctor
confirm that she had that restriction. Two days later, her doc-
tor told Gorton that Brown “should not be in the vicinity of
potentially unruly students.” That restriction, he said, was
“permanent”—it would not be removed for at least three to
four years, if ever. Gorton immediately told Brown that she
could not continue working as an assistant principal and that
she would be on sick pay while he worked with her to find a
new position. He discussed the scope of the search for a re-
placement position with her. She said she was interested in
6 No. 16-1971
positions at or above her pay grade, salary, and number of
working days, and would prefer to remain in her union.
A week later, Gorton sent Brown a list of eight vacant po-
sitions he had considered, including a Student Achievement
Supervisor position, but he explained that he did not believe
any was suitable. For six of the positions, he listed “the job
duties require being in the vicinity of potentially unruly stu-
dents” among the reasons they were unsuitable. For four of
the positions, that was the only listed reason. The Student
Achievement Supervisor position was unsuitable solely be-
cause it required being in the vicinity of potentially unruly
students. Brown did not dispute Gorton’s characterization of
her restriction.
Later that week, Brown expressed interest in two other po-
sitions, including a Charter School Program Officer position.
Gorton told her she was not physically qualified for those po-
sitions because she would “need to be in the schools to inter-
act with students and staff.” Again, Brown did not dispute his
characterization of her restriction.
The next month, Gorton received a letter from an attorney
for Brown’s union. That letter did dispute his understanding
of her restrictions, saying that she was able to “interact[] with
students and staff” but not able to “serve in a position of au-
thority … over potentially unruly students.” Gorton wrote
back disagreeing with the attorney’s characterization and of-
fering to show the attorney the doctor’s specific restrictions.
No one followed up with him, and the conversation ended
there.
Brown had another surgery in late 2010 and was cleared
to return to work in early 2011 with restrictions, including a
No. 16-1971 7
doctor’s instruction to “avoid/no student discipline situa-
tions.” Gorton asked again for clarification and emailed
Brown a questionnaire for her doctor to complete. He also
asked her to review the factual background provided in the
questionnaire, and to let him know if she saw inaccuracies.
That background section quoted the doctor’s earlier statement
that “Ms. Brown should not be in the vicinity of potentially unruly
students.” (Emphasis in original.) It asked the doctor if he was
lifting that restriction and what he meant by “avoid student
discipline situations.” It added parenthetically that “Ms.
Brown does not believe that she should be in the vicinity of
unruly students.”
Brown evidently did not receive that email; two weeks
later, she emailed Gorton to ask why she had not heard from
him to arrange her return to work. He re-sent the email and
asked her to confirm receipt. He then did not hear from
Brown for three weeks, during which he left two voicemails,
sent a certified letter, and finally sent an email indicating he
would deactivate his file if she did not reply. Brown eventu-
ally did reply, and her doctor sent him a response to the ques-
tionnaire. The doctor said that the July 2010 restriction, which
forbade Brown being “in the vicinity of potentially unruly
students,” remained in place. He added that “she should not
be put in a position” to injure her knee “in attempting to sub-
due an unruly student.”
Brown later applied for two positions with Milwaukee
Schools: a GE Grant Administrator Position and a Title I Co-
ordinator position. She was not selected for either position.
She met with Gorton about the reassignment process on Oc-
tober 14, 2011. Each of them later summarized the meeting in
an email to the other. According to Gorton, Brown asked why
8 No. 16-1971
she still had not been given a position, and Gorton told her
that her work restrictions left very few positions with Mil-
waukee Schools available to her: “most jobs in the district re-
quire interaction with students who may be unruly.” Brown’s
account is similar. According to her, Gorton told her that
“every job in the district required individuals to work with
students, except highly specific positions,” and that she
“could not be around potentially unruly students.” Brown
did not disagree with that characterization of her restriction.
Around the same time, Brown was evaluated by a physi-
cian in connection with her disability benefits. That doctor
also imposed “permanent work restrictions,” including in-
structions to “avoid circumstances where unruly behavior
may occur. Avoid contact with unruly individuals and situa-
tions where potentially unruly behavior may occur.” One
month later, in November 2011, Brown asked Gorton about a
Student Achievement Supervisor position, which he ex-
plained involved “working in the presence of potentially un-
ruly students.” A similar conversation occurred in early 2012:
Brown called Gorton to ask about a Student Services Coordi-
nator position, and he said she was not physically qualified
for the position.
C. Brown’s Termination
About two and a half years later, Milwaukee Schools sent
Brown a letter warning her that she had nearly exhausted the
three years of leave of absence to which she was entitled.
Brown’s doctor then called Gorton to ask for a list of the es-
sential functions of the Assistant Principal position. Gorton
replied with a list, adding that the job included “working in
the vicinity of potentially unruly students” and asking for an
update on Brown’s work restrictions. Brown’s doctor replied
No. 16-1971 9
that Brown could return to work with restrictions. He ex-
plained that Brown “should not be put in a position where she
is responsible for monitoring and controlling students that
may become uncontrollable.” The doctor added: “I see no rea-
son why she could not be around students; she just must not
be responsible for controlling those students and it would
seem that Security should be available to handle such things.”
After receiving that evaluation, Milwaukee Schools
searched its available positions and identified four vacant lat-
eral positions, including a Charter School Program Officer
and a Student Services Coordinator position. It concluded
that Brown was not medically qualified to perform either of
those positions because they would involve being around po-
tentially unruly students and potentially monitoring or con-
trolling those students. Because Milwaukee Schools con-
cluded that Brown could not perform the essential functions
of any available position, it terminated her employment.
Brown filed suit in the Eastern District of Wisconsin. Fol-
lowing amendments, her complaint claimed that Milwaukee
Schools had violated the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq., by failing to accommodate her disability
and then terminating her. After conducting discovery, both
parties moved for summary judgment. The district court
granted Milwaukee Schools’ motion and denied Brown’s.
III. Analysis
Brown contends on appeal that Milwaukee Schools should
have accommodated her disability by reinstating her as Assis-
tant Principal or by reassigning her to any one of five vacant
positions: Student Achievement Supervisor, Student Services
10 No. 16-1971
Coordinator, Charter School Program Officer, GE Grant Ad-
ministrator, and Title I Coordinator. Milwaukee Schools ar-
gues that because Brown could not be in the vicinity of poten-
tially unruly students, she was not qualified to perform the
essential functions of either her Assistant Principal position or
the first four vacant positions. It argues that the final vacant
position would have been a promotion for which she was not
the most qualified candidate.
The undisputed facts show that Brown told Milwaukee
Schools that she could not work in the presence of students.
They also show that all but one of the identified vacant posi-
tions required work in the presence of students. Brown there-
fore did not give Milwaukee Schools the information it
needed to accommodate her in those positions, and it is not
liable for not assigning her to them. As for the last possible
position, we agree with Milwaukee Schools that it would have
been a promotion it was not required to offer Brown.
A. Qualified to Perform Essential Functions
Milwaukee Schools believes that, with or without reason-
able accommodation, Brown was not qualified for either the
Assistant Principal position or four of the alternative vacant
positions because those positions required her to be in the vi-
cinity of potentially unruly children, which she was unable to
do. Brown disagrees, arguing that she was able to be near po-
tentially unruly students, and that, in any case, none of the
positions required such contact.
1. Brown’s Restrictions
As noted above, identifying reasonable accommodations
for a disabled employee requires both employer and em-
ployee to engage in a flexible, interactive process. See Stern,
No. 16-1971 11
788 F.3d at 292. The key principle for purposes of this case is
that if the employee “does not provide sufficient information
to the employer to determine the necessary accommodations,
the employer cannot be held liable for failing to accommodate
the disabled employee.” Reeves, 759 F.3d at 702.
Such a situation occurred in Steffes v. Stepan Co., 144 F.3d
1070 (7th Cir. 1998). The plaintiff in that case had a condition
that restricted her breathing. It was dangerous for her to be
exposed to certain chemicals, which limited the jobs she could
perform at the chemical company where she worked. She in-
itially gave her employer a doctor’s note ordering that she not
be exposed to chemicals, a restriction “the company took …
seriously.” Id. at 1072. “Given the blanket nature” of that re-
striction, “the obligation fell” to the plaintiff “to update or fur-
ther clarify the kinds of work she could do.” Id. She did not
do so.
When the company offered Steffes a reassignment condi-
tioned on her doctor’s approval, her doctor’s reply “failed to
address the exposure issues” the company asked about, and
“displayed a poor understanding” of the company’s opera-
tions. Id. at 1072–73. The company explained that to the plain-
tiff and did not offer her the reassignment, but asked her to
update it if her condition changed. The plaintiff “did not pro-
vide any further information to the company,” and thereby
“failed to hold up her end of the interactive process.” Id. at
1073.
Brown’s case parallels Steffes. She repeatedly presented
Milwaukee Schools with a broad restriction for a school sys-
tem: she needed to avoid proximity to potentially unruly stu-
dents. Essentially all students are potentially unruly. Milwau-
kee Schools was always clear about its understanding of her
12 No. 16-1971
restrictions, and Brown never challenged that understanding.
Gorton repeatedly told Brown that she could not perform po-
sitions that required being “in the vicinity of potentially un-
ruly students.” He said that she was not qualified for a posi-
tion because she would “need to be in the schools to interact
with students and staff.” In Brown’s retelling of one meeting,
Gorton told her (not surprisingly, we must add) that almost
“every job in the district required individuals to work with
students.” Nowhere in the record did Brown tell him he had
misunderstood her abilities and limitations. 1
She points out that on four occasions, other people acting
on her behalf challenged Milwaukee School’s understanding.
On three of those occasions, however, the undisputed facts
show that Milwaukee Schools sought clarification and either
did not receive any or was again told that she could not be
near students. On the fourth and final occasion, Milwaukee
1Two points in the record, both in Brown’s deposition, ambiguously
suggest such a correction, but neither would justify denying summary
judgment. In the first, Brown described her 2012 conversation with Gorton
about the Student Services Coordinator position. She said that he told her
she was not physically qualified and that “there was a disagreement … in
the conversation … I told him that I would not be controlling the stu-
dents.” Later in the deposition, discussing a different position, Brown said
that she agreed “at that particular time” that the job duties required being
in the vicinity of potentially unruly students, but that that “has changed
to the degree that I had to explain to him at a later date that not knowing
how he was coming up with it and the information that he was getting in
terms of me not being qualified because of my medical condition, it did
not change, but my interpretation of what he was telling me changed. And
I began—and I challenged him after that in terms of the positions that he
offered me.” It is unclear from those comments what she communicated
to Gorton, and neither comment addressed Brown’s medical restrictions,
focusing instead on the duties of particular positions.
No. 16-1971 13
Schools appropriately interpreted the comment in the context
of earlier exchanges.
The first instance began in May 2010. In that month,
Brown’s doctor modified her work restrictions, which had
previously prohibited student interaction, to allow incidental
contact between Brown and students. But when Milwaukee
Schools assigned Brown to a school where, in her words, she
was expected to “patrol the halls, [and] be involved in student
contact,” she immediately called Gorton and told him that her
restriction had not changed: she still needed to “avoid inter-
action with volatile students.” Two days later, her doctor con-
firmed that, sending Milwaukee Schools a much more restric-
tive letter. The letter said Brown was permanently unable to
be “in the vicinity of potentially unruly students.” It enclosed
the doctor’s recent examination notes, which said Brown
needed to be in a position “that doesn’t require her to deal
with children with lots of movement.”
On the second occasion, Brown’s union’s attorney sent
Gorton a letter explaining that Brown was able to “interact[]
with students and staff” and that Gorton’s contrary belief was
“at best, in error.” If that were correct, that would be im-
portant, of course. Gorton wrote back, disagreeing and offer-
ing to show the attorney the doctor’s letter with its greater re-
strictions. There is no evidence that the union attorney or any-
one else followed up with Gorton.
The third occasion was Brown’s 2011 return to work fol-
lowing a surgery. Her work restrictions did not include the
earlier broad ban on working “in the vicinity of potentially
unruly students,” but instead instructed her to avoid “student
discipline situations.” Gorton asked for clarification, quoting
14 No. 16-1971
the earlier restriction and asking whether the doctor was lift-
ing it. The doctor replied that the earlier restriction “remains
in place.”
The fourth and final occasion was in August 2014, four
days before Brown’s leave of absence expired. Brown’s doctor
sent Gorton a fitness-for-duty certificate. The attached patient
examination notes said that there was “no reason why she
could not be around students; she just must not be responsible
for controlling those students.” They said that she, “as before,
should not be put in a position where she is responsible for
monitoring and controlling students.” The notes did not claim
to change Brown’s restrictions. Some of the language is broad
and ambiguous, referring to situations “where there could be
some question” of controlling a student and noting that secu-
rity should be available to control students.
By then, Milwaukee Schools had believed for four years
that Brown could not be near “potentially unruly” students.
It had been told that restriction was permanent. The 2014 doc-
tor’s note did not say Milwaukee Schools had been wrong,
and it did not say the situation had changed. Milwaukee
Schools had twice before been given doctor’s notes that ap-
peared to loosen the restrictions on Brown, only to be told
later that the strict restriction remained in place. Given that
history, we do not believe a reasonable jury could find that the
last-minute and ambiguous doctor’s note, which did not ad-
dress that history, adequately informed Milwaukee Schools
that Brown’s limitations were no longer as restrictive.
The undisputed facts show that Milwaukee Schools acted
consistently with the restrictions imposed by Brown’s doctors,
which said that Brown simply could not work in the vicinity
of potentially unruly students. To the extent Brown is arguing
No. 16-1971 15
that her restrictions were less severe than Milwaukee Schools
believed, the undisputed facts show that Brown “failed to
hold up her end of the interactive process by clarifying the
extent of her medical restrictions.” Steffes, 144 F.3d at 1073.
Milwaukee Schools accordingly cannot be held liable for fail-
ing to put her in a position it believed would exceed those re-
strictions.
2. Essential Functions
Brown argues that being in the vicinity of potentially un-
ruly students was not an essential function of any of the posi-
tions she requested, for two reasons. First, she asserts, citing
29 C.F.R. § 1630.2(o)(1)(ii), that being in such proximity is a
description of work environment, not a description of a job
function. Second, she argues that such proximity is not an es-
sential function according to any of the factors courts usually
consider: it is not listed on any job descriptions, for example,
nor do any of the positions exist to perform it. See Dunderdale
v. United Airlines, Inc., 807 F.3d 849, 853–54 (7th Cir. 2015)
(courts should examine several factors to determine essential
functions, including the employer’s judgment and the written
job description), citing 42 U.S.C. § 12111(8) and 29 C.F.R.
§ 1630.2(n)(1)-(3).
Brown’s rigid distinction between work environment and
job functions is not realistic. Some job functions can be per-
formed without regard to some aspects of work environment.
In many office environments, for example, it may be possible
to change the temperature, lighting, or desk arrangements to
accommodate someone’s needs. But sometimes a job function
requires a specific work environment. Lawn maintenance
cannot be performed indoors; a jockey must often work atop
a horse; receptionists must be near office visitors. Section
16 No. 16-1971
1630.2(o)(1)(ii) does not say otherwise. It simply lists changes
to work environment as one possible way of accommodating
a disabled employee. Neither Brown’s evidence nor her argu-
ments suggest that the positions she wanted could have been
modified to avoid student contact.
Brown’s second argument is similarly artificial. She fo-
cuses on a narrow framing of her restriction, ignoring the log-
ical consequences of that restriction. If Brown could not be
near students, then she could not meet with students, could
not walk down school hallways during the school day, could
not sit in on classes, etc. Milwaukee Schools argues this means
she could not perform: (1) the Assistant Principal position, be-
cause it would require her to be in schools overseeing their
day-to-day operations; (2) the GE Grant Administrator posi-
tion, because it would require her to attend and lead meetings
at which students were present and in schools in which stu-
dents were present; (3) the Student Achievement Supervisor
position, because it would require her to conduct classroom
observations and work daily in schools; (4) the Charter School
Program Officer, because it would require in-school compli-
ance checks and classroom observations; and (5) the Student
Services Coordinator position, because it would require in-
school meetings with students with serious disciplinary prob-
lems. To support these points, Milwaukee Schools relies on
job descriptions, affidavits from human resources employees,
and Brown’s deposition testimony. Brown offers nothing to
contradict these points, so we must agree with Milwaukee
Schools. See Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487,
490 (7th Cir. 2007), overruled on other grounds by Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016) (non-moving
No. 16-1971 17
party must identify “with reasonable particularity the evi-
dence upon which the party relies”), citing Johnson v. Cam-
bridge Industries, Inc., 325 F.3d 892, 898 (7th Cir. 2003).
B. Promotion
Our discussion so far has eliminated from consideration
four of the five positions Brown requested. The remaining po-
sition, the Title I Coordinator position, did not require prox-
imity to students. Milwaukee Schools contends that it was a
promotion and that Brown was not the most qualified candi-
date, and therefore it was not obligated to give her the posi-
tion. See Malabarba, 149 F.3d at 699 (“[A]n employer does not
have to accommodate a disabled employee by promoting him
or her to a higher level position.”). Brown does not contend
that she was the most qualified candidate but instead argues
that the position would not have been a promotion.
Milwaukee Schools advances three reasons that the Title I
Coordinator position would have been a promotion: (1)
Brown’s pay grade would increase; (2) her salary would in-
crease because of the pay grade change and because she
would be working twelve months per year rather than ten;
and (3) the position involved substantially increased respon-
sibilities. Brown disagrees because she did not consider the
position a promotion when she applied because the position’s
salary range included her salary as an assistant principal and
because Milwaukee Schools had previously moved her be-
tween pay grades without classifying the change as a promo-
tion.
Even accepting these factual assertions, as we must on
summary judgment, they do not present a genuine issue of
material fact. Whether a reassignment would be a promotion,
18 No. 16-1971
demotion, or lateral transfer is not determined by the em-
ployee’s perceptions. See Gile v. United Airlines, Inc., 95 F.3d
492, 497 (7th Cir. 1996) (“Employers should reassign the indi-
vidual to an equivalent position, in terms of pay, status, etc.”),
quoting 29 C.F.R. app. § 1630.2(o). And while Milwaukee
Schools once moved Brown between pay grades without clas-
sifying the change as a promotion, her salary remained the
same despite the change in grade. Brown does not explain
why that happened, nor does she point to evidence that Mil-
waukee Schools could do that again. Most important, Brown
does not dispute that her salary would have increased by
about $20,000 per year if she had taken the Title I Coordinator
position. Cf. Office of the Architect of the Capitol v. Office of Com-
pliance, 361 F.3d 633, 640–41 (Fed. Cir. 2004) (finding substan-
tial evidence that moving an employee into a position nor-
mally accorded a higher wage grade classification was not a
promotion: the employer “frequently move[d] employees be-
tween positions without changing their pay or wage grade
classification”). Brown does not deny that the Coordinator
position involved twelve months of work rather than the As-
sistant Principal’s ten. Cf. Emerson, 256 F.3d at 515 (“NSP did
not simply transfer Emerson into the available full-time posi-
tion because it would have been a promotion from part-time
status to full-time status.”). Nor does she deny that the posi-
tion involved increased responsibilities. A reasonable jury
would be, and we are, forced to conclude that the Coordinator
position would have been a promotion that the Americans
with Disabilities Act did not require be offered to Brown.
This is an unusual case, and our holding is correspond-
ingly narrow. If Milwaukee Schools, rather than Brown’s doc-
tor, had decided that she could not be near students, we
would have a different case. So too if Milwaukee Schools had
No. 16-1971 19
not communicated its understanding of Brown’s restrictions
to her or if it had not sought clarification when it received con-
tradictory information. See EEOC v. Sears, Roebuck & Co., 417
F.3d 789, 808 (7th Cir. 2005) (reversing summary judgment
where employer “did not actively engage in the interactive
process by suggesting possible accommodations or request-
ing information that would help it do so”); Bultemeyer v. Fort
Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996)
(reversing summary judgment where employer could have
called to clarify potentially ambiguous doctor’s note but did
not). But the undisputed facts show here Milwaukee Schools
acted on the basis of restrictions imposed by Brown’s doctors
and that no reasonable accommodation of her disability was
possible. The judgment of the district court is AFFIRMED.