Mark Mlsna v. Union Pacific Railroad Compan ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐2780
MARK MLSNA,
Plaintiff‐Appellant,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 18‐cv‐37‐wmc — William M. Conley, Judge.
____________________
ARGUED MAY 27, 2020 — DECIDED SEPTEMBER 14, 2020
____________________
Before EASTERBROOK, HAMILTON, and BRENNAN, Circuit
Judges.
BRENNAN, Circuit Judge. When the Federal Railroad Ad‐
ministration put in place new regulations related to hearing,
a train conductor—who has been hearing‐impaired since
youth and has worn hearing aids for years—was caught in a
bind. He passed a hearing acuity test, but only when using
hearing aids without additional hearing protection.
2 No. 19‐2780
According to the railroad, this placed him in violation of a
policy which requires that protection be worn if the employee
is exposed to noise above a certain level. The railroad and the
conductor could not agree on an accommodation for him to
use other hearing devices. The railroad would not recertify
the conductor, and he lost his job.
The conductor sued arguing that the railroad discrimi‐
nated against him because of his hearing disability. The dis‐
trict court granted summary judgment to the railroad, finding
that the conductor “failed to marshal enough evidence for a
reasonable jury to conclude that he could fulfill the essential
functions of the train conductor position with a reasonable ac‐
commodation.” We view the record differently. Issues of fact
exist as to whether wearing hearing protection is an essential
function of the plaintiff’s work as a conductor, as well as
whether reasonable accommodations for the conductor were
properly considered. So we reverse and remand for further
proceedings.
I
A. Factual Background
Mark Mlsna has experienced hearing loss since youth. Alt‐
hough the precise cause is not known, at an early age he was
exposed to loud farming equipment. He began working as a
train conductor in the late 1990’s, and in 2006 he was hired by
Union Pacific. At that time, Mlsna had worn hearing aids for
more than 10 years. Union Pacific was aware of Mlsna’s hear‐
ing impairment when he was hired.
In 2012 the Federal Railroad Administration implemented
regulations to ensure that train conductors possessed hearing
acuity, and to confirm that railroads appropriately protected
No. 19‐2780 3
and conserved their employees’ hearing. A grandfather
clause granted thirty‐six months after which Union Pacific re‐
quired all conductors to comply with the hearing acuity reg‐
ulation. 49 C.F.R. § 242.105(c). In February 2015 Union Pacific
had Mlsna’s hearing tested a number of different ways: with
hearing aids and without, using an amplified hearing protec‐
tion device1 called the “Pro Ears–Gold” with the sound
turned off, and using that device with the sound turned on.
Without his hearing aids and without hearing protection,
Mlsna did not pass the hearing acuity test. The results showed
that he “had an average loss of 65 decibels” in his better ear.
Mlsna also did not pass the audiological test using the Pro
Ears–Gold. Rather, he passed only when he relied on his hear‐
ing aids with no additional hearing protection. Later Mlsna
was retested with the same results: he passed, but only while
wearing hearing aids without hearing protection.
After receiving the test results, Union Pacific decided it
could not recertify Mlsna to work as a conductor. When he
wore hearing aids and passed the hearing acuity requirement
he was in violation of Union Pacific’s hearing conservation
policy, which required additional hearing protection. And
when he complied with that policy by wearing the Pro Ears–
Gold, he could not pass the hearing acuity test.
To address this problem, Mlsna proposed he use a custom‐
made hearing protection called the E.A.R. Primo. But Union
Pacific rejected his proposal because that device did not have
a factory‐issued or laboratory‐tested noise reduction rating,
as required by 49 C.F.R. Pt. 227 App. B. Union Pacific never
1 Such a device simultaneously amplifies safe noise and blocks harm‐
ful and excessive noise.
4 No. 19‐2780
identified an alternative to the device it had suggested, the
Pro Ears–Gold. Union Pacific declined to recertify Mlsna as a
conductor and his employment was terminated.
B. Federal Railroad Administration regulations
To elucidate the parties’ dispute and their arguments,
more detail is necessary on the 2012 revisions to the Federal
Railroad Administration regulations. Under the hearing acu‐
ity regulation, 49 C.F.R. § 242.117(i), all railroads must test the
hearing of their conductors. Each conductor must pass a hear‐
ing test showing he or she “does not have an average hearing
loss in the better ear greater than 40 decibels with or without
the use of a hearing aid.” Id.
Under the hearing protection regulation, 49 C.F.R.
§ 227.115, railroads must establish a hearing conservation pol‐
icy with programs to protect the hearing of vulnerable em‐
ployees. Subsection (d) of that regulation sets the default rule,
requiring employees wear hearing protection if they are ex‐
posed to a time‐weighted average of 90 decibels or higher.
Subsection (c), with an 85‐decibel standard, applies only if no
audio test has been performed on an employee, or if that em‐
ployee has experienced hearing loss while employed with the
railroad.
The hearing protection regulation sets a floor, not a ceiling.
49 C.F.R. § 227.1 (“This part prescribes minimum Federal
health and safety noise standards for locomotive cab occu‐
pants. This part does not restrict a railroad … from adopting
and enforcing additional or more stringent requirements.”).
Union Pacific set a stricter standard in its hearing conserva‐
tion policy. All of its employees must wear hearing protection
if they “may be subjected to noise exposures equal to or
No. 19‐2780 5
exceeding an 8‐hour time weighted average sound level of 85
decibels” or if they work “in identified hearing protection ar‐
eas” or within 150 feet of a locomotive. The railroad also re‐
quired all employees subject to its policy to wear a device
with a published noise reduction rating.
To measure decibel levels, railroads are required to
conduct either “area sampling,” which takes several noise
measurements at different locations within a workplace, or
“representative personal sampling,” which measures the ex‐
posures of employees who operate similar equipment under
similar conditions. 49 C.F.R. § 227.103(b). The latter, which
Union Pacific employed, must be used where there are “cir‐
cumstances such as high worker mobility, significant varia‐
tions in sound level, or a significant component of impulse
noise.” Id.
If the hearing protection regulation (§ 227.115(c) or (d)) ap‐
plies, the employer “must select one of … three methods by
which to estimate the adequacy of hearing protector attenua‐
tion.” 49 C.F.R. Pt. 227 App. B. One of these methods requires
the employee to wear a device with a published noise reduc‐
tion rating, which is a unit of measure to assess the effective‐
ness of hearing protection devices to decrease sound exposure
within a working environment.
C. Procedural Background
Back to this case: Mlsna sued Union Pacific, claiming the
railroad terminated him because of his hearing impairment
and so violated the Americans with Disability Act. 42 U.S.C.
§ 12101 et seq. Although Mlsna’s complaint characterized his
sole claim as for disparate treatment, that claim also contained
elements of a reasonable accommodation claim.
6 No. 19‐2780
A disparate treatment claim arises from ADA language
prohibiting covered entities from “limiting, segregating, or
classifying a job applicant or employee in a way that ad‐
versely affects the opportunities or status of such applicant or
employee.” 42 U.S.C. § 12112(b)(1). To prevail on a disparate
treatment claim, a plaintiff must show (1) he was disabled, (2)
he was qualified to perform essential functions with or with‐
out reasonable accommodation, and (3) his disability was the
“but for” cause of the adverse employment action. Scheidler v.
Indiana, 914 F.3d 535, 541 (7th Cir. 2019).
A failure‐to‐accommodate claim is grounded in ADA lan‐
guage defining discrimination in part as “not making reason‐
able accommodations to the known physical or mental limi‐
tations of an otherwise qualified individual.” 42 U.S.C.
§ 12112(b)(5)(A). To succeed on a reasonable accommodation
claim, a plaintiff must show (1) he was disabled, (2) his em‐
ployer was aware of his disability, and (3) he was a qualified
individual who, with or without reasonable accommodation,
could perform the essential functions of the employment po‐
sition. Basith v. Cook Cty., 241 F.3d 919, 927 (7th Cir. 2001).
Whether Mlsna’s complaint is read as claiming disparate
treatment, as seeking a reasonable accommodation, or both,
these claims share the element that the plaintiff be able to per‐
form the essential functions of the job with or without reason‐
able accommodations. On that element, the district court
granted summary judgment to Union Pacific, concluding that
Mlsna failed to present evidence for a reasonable jury to find
that he could fulfill the essential functions of the train conduc‐
tor position with a reasonable accommodation.
In considering whether Mlsna was a qualified individual
able to perform essential functions, the district court ruled
No. 19‐2780 7
that no jury could conclude that the railroad acted unreason‐
ably in making the use of hearing protection an essential func‐
tion of the conductor position. The court also decided that no
reasonable accommodation existed for Mlsna. While Mlsna
offered the E.A.R. Primo as an accommodation, the court
decided that he had not presented evidence from which a rea‐
sonable jury could conclude that Union Pacific’s stated rea‐
son—the lack of a noise reduction rating—was pretext, or that
the E.A.R. Primo would permit him to fulfill the essential
functions of a conductor. So the district court found that the
railroad’s rejection of the E.A.R. Primo was reasonable.2
Mlsna appeals. We “review summary judgment de novo,
and will affirm when—viewing the evidence in the light most
favorable to the nonmovant and drawing all reasonable infer‐
ences in its favor—there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law.”
Scheidler, 914 F.3d at 540.
II
The parties do not dispute that Mlsna had the requisite
background, experience, and knowledge to work as a train
conductor. They also agree that his hearing impairment is a
qualifying disability under the ADA, and that his disability
was the reason he was not recertified to continue as a conduc‐
tor. In dispute is whether Mlsna can perform the essential
functions of the position of train conductor with or without
reasonable accommodation.
2 Mlsna moved to reconsider these rulings, which the district court
denied.
8 No. 19‐2780
A. Essential Functions
When deciding whether a qualified individual is able to
perform essential functions, “consideration shall be given to
the employer’s judgment as to what functions of a job are es‐
sential, and if an employer has prepared a written description
… , this description shall be considered evidence of the essen‐
tial functions of the job.” 42 U.S.C. § 12111(8). Federal labor
regulations define “essential functions” generally as “the fun‐
damental job duties of the employment position the individ‐
ual with a disability holds or desires.” 29 C.F.R. § 1630.2(n).
Those regulations give reasons why a function may be essen‐
tial and list the types of evidence which may be considered to
determine if a function is essential. Id.
The district court agreed with Union Pacific that wearing
hearing protection is an essential function of the train conduc‐
tor position. In so concluding, the court considered various
pieces of evidence:
 the job description of conductor
 the requirement to use hearing protection if
exposed to an eight‐hour time weighted av‐
erage of 90 decibels or more in 49 C.F.R.
§ 227.115(d);
 Union Pacific’s representative sampling
data, which the court said revealed a reason‐
able likelihood that conductors will be ex‐
posed to excessive noise;
 Mlsna’s amended complaint, in which he
stated “Train Crewm[e]n work in a noisy en‐
vironment and are therefore required to
wear hearing protection;” and
No. 19‐2780 9
 Mlsna’s deposition, in which he acknowl‐
edged the importance that conductors wear
appropriate hearing protection.
“Whether a function is essential is a question of fact, not
law.” Tonyan v. Dunham’s Athleisure Corp., 966 F.3d 681, 687
(7th Cir. 2020) (citing Brown v. Smith, 827 F.3d 609, 613 (7th
Cir. 2016)). “We usually do not ‘second‐guess the employer’s
judgment in describing the essential requirements for the job.’
But this deference is not unqualified.” Id. (quoting DePaoli v.
Abbott Labs., 140 F.3d 668, 674 (7th Cir. 1998). Our examination
of this record yields fact questions as to whether wearing
hearing protection is an essential function of Mlsna working
as a conductor.
Union Pacific’s job description for train crew includes the
position of conductor, and it lists essential job functions.
While a hearing acuity requirement is not included, some of
the functions do involve hearing. The job description includes
accountabilities (“[c]ommunicating clearly with co‐workers
and train dispatchers via radio”), preferred education, train‐
ing, experience or skills (“[a]ctive [l]istening: [a]ttending to
and understanding key pieces of spoken information”), and
work conditions (“[m]ust wear personal protection equip‐
ment such as … hearing protection where the company re‐
quires.”) If the only evidence on this topic were the job de‐
scription, the district court’s conclusion that wearing hearing
protection is an essential function of working as a conductor
would not be “second guessed.”
But the regulatory requirement to use hearing protection
exposes a factual dispute. The default rule under the hearing
protection regulation, 49 C.F.R. § 227.115(d), requires employ‐
ees to wear hearing protection if they are exposed to a time‐
10 No. 19‐2780
weighted average of 90 decibels or higher. On this standard,
the only evidence which shows the sound level that Union
Pacific conductors are exposed to is a dosimetry data set that
stretches back to 1980.3 That data was collected using repre‐
sentative personal sampling under 49 C.F.R. § 227.103(b)(2).
That dosimetry data shows that about 36% of the conductors
(62 of 172) were exposed to an 8‐hour time weighted average
of 85 decibels or greater, and about 13% (22 of 172) were ex‐
posed to an 8‐hour time weighted average of 90 or more dec‐
ibels.
Mlsna points out that “[t]he single most recent measure‐
ment meeting or exceeding the 90‐decibel threshold was
taken in 2001.” According to Mlsna, all measurements taken
before 2007 should be disregarded because that year the
Federal Railroad Administration began mandating the use of
quieter locomotives. If Mlsna’s suggestion is followed, no
conductors in his position would be subject to an 8‐hour time
weighted average of 90 decibels or higher, and the hearing
protection regulation would not apply to him. Union Pacific
disagrees and recommends that the entire data set be consid‐
ered instead of accepting Mlsna’s “novel theory” of reviewing
some but not all the data.
We decline to adopt Mlsna’s suggestion that the analysis
be limited to data after 2007. Doing so would require that a
3A noise dosimeter is a specialized sound level meter that measures
a person’s exposure to noise over a period of time. It can be used to assess
compliance with health and safety regulations such as the occupational
noise exposure standard of the Occupational Safety and Health Act, 29
C.F.R. 1910.95. It measures and stores sound pressure levels and provides
a cumulative noise‐exposure reading for a given period of time, such as
an 8‐hour workday.
No. 19‐2780 11
bright line be drawn without the guidance of expert testi‐
mony. Mlsna is correct, however, that much of the data Union
Pacific provided are not relevant, and reasonable inferences
from the data run in Mlsna’s favor as the nonmovant on
whether the hearing protection regulation applies to him.
Under the 90‐decibel threshold detailed in 49 C.F.R.
§ 227.115(d), railroads must “require the use of hearing pro‐
tectors” only “when an employee is exposed to sound levels
equivalent to an 8‐hour [time weighted average] of 90 d(B)(A)
or greater.” (emphasis added). The term “is” in the regulation
must be read with a meaning it can bear. See ANTONIN SCALIA
& BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 31 (2012). “Is” denotes the present tense. See Mer‐
riam‐Webster Dictionary, Is, https://www.merriam‐web‐
ster.com/dictionary/is (last visited August 20, 2020); see also
Stanton v. Paul Revere Life Ins. Co., 37 F. Supp. 2d 1159, 1166
(S.D. Cal. 1999) (noting “is” as the present tense). The dosim‐
etry data provided by Union Pacific are only relevant to the
extent they show whether conductors at the time of Mlsna’s
termination were exposed to a time‐weighted average of 90
decibels or higher. But “is” is not “was.”4 Fourteen years
elapsed between the last data point showing a conductor for
Union Pacific was exposed to a time‐weighted average of
more than 90 decibels in 2001, and Union’s Pacific’s decision
to not recertify Mlsna in 2015. The data show no dangerous
noise levels to which Mlsna was exposed in his time as a con‐
ductor. So a reasonable fact finder could conclude that if
4 While, for example, the Dictionary Act states “words used in the pre‐
sent tense include the future tense as well as the present,” 1 U.S.C. § 1, it
does not state that words used in the present tense also include the past
tense.
12 No. 19‐2780
Mlsna was never exposed to that noise level, Union Pacific’s
more stringent policy of 85 decibels over the same time frame
does not mandate that Mlsna wear hearing protection.
While a bright line does not separate obsolete data points
from useful ones, the representative sampling dosimetry data
permit a reasonable jury to conclude that when Mlsna was
terminated in 2015, conductors working for Union Pacific
were not exposed to time‐weighted averages of 90 decibels or
higher. Simply put, a genuine fact issue exists as to whether
the data are a basis for the hearing conservation policy to ap‐
ply to Mlsna. He was not even hired as a conductor by Union
Pacific until 2006, five years after the last data showing a con‐
ductor for Union Pacific was exposed to a time‐weighted av‐
erage of more than 90 decibels.
Mlsna argues that by including measurements from be‐
fore 2000, the railroad places its thumb on the scale to present
dosimetry data falling within the regulation’s parameters.
Union Pacific calls this “historical monitoring,” which is done
to achieve statistical significance; that is, to show the data are
not due to random or chance events. But drawing all reason‐
able inferences in Mlsna’s favor, Scheidler, 914 F.3d at 540,
sampling that includes measurements from over 20 and 30
years ago is not “representative” of Mlsna’s noise exposure or
the exposures of other conductors who operate similar equip‐
ment under similar conditions.
Mlsna’s pleading or deposition responses do not support
summary judgment for the railroad either. Mlsna’s admission
in his amended complaint that hearing protection is required,
and his deposition statement that hearing protection is im‐
portant, just echo the Federal Railroad Authority regulations.
Even if those regulations capture the essential functions of the
No. 19‐2780 13
conductor job generally, there are genuine issues of material
fact as to whether Union Pacific’s more stringent policy was
an essential function of Mlsna’s position.
A job function also may be considered essential because
“the position exists … to perform that function.” 29 C.F.R.
§ 1630.2(n)(2)(i). But nobody would argue the reason the po‐
sition of conductor exists is to wear hearing protection. A fact
question exists as to whether hearing protection was part of
serving as a conductor for Union Pacific. Mlsna testified that
while he worked as a conductor he wore his hearing aids
without earmuffs or other hearing protection, and that he
never saw anybody else wear earmuffs. His former supervi‐
sor testified to the contrary, averring that Mlsna always wore
hearing protection when required. This fact dispute further
cuts against summary judgment for Union Pacific on this
topic.
The parties also dispute whether the essential function of
a conductor should be considered more narrowly—as
whether Mlsna met the hearing acuity standards while wear‐
ing hearing protection. But if characterized that way, then the
grant of summary judgment to Union Pacific has even less
support. The district court concluded that meeting the hear‐
ing acuity standards while wearing hearing protection was an
essential function of the conductor job. But the plain text of
the hearing acuity regulation does not mention wearing hear‐
ing protection. Rather, the hearing test must show, without
qualification, that “[t]he person does not have an average loss
in the better ear greater than 40 decibels with or without the
use of a hearing aid, at 500 Hz, 1,000 Hz, and 2,000 Hz.” 49
C.F.R. § 242.117(i). If the hearing acuity regulation was meant
to require hearing protection, it could have said so, but it does
14 No. 19‐2780
not. See Russello v. United States, 464 U.S. 16, 23 (1983)
(“[W]here Congress includes particular language in one sec‐
tion of a statute but omits it in another … it is generally pre‐
sumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.”)
This case presents a two‐edged problem. The regulations
require that conductors have hearing acuity, as well as that
their hearing be protected and conserved. But from this rec‐
ord it does not appear that Union Pacific can test hearing acu‐
ity under noisy working conditions. The railroad does not
have dosimetry data that encompass the generation of loco‐
motives currently in use or a plaintiff such as Mlsna. So on
this record it does not follow as a matter of law that an essen‐
tial function of Mlsna’s job as a conductor was to pass the
hearing acuity test while wearing compliant hearing protec‐
tion.
Whether the essential function is defined as Mlsna wear‐
ing hearing protection, or Mlsna passing the hearing test
while wearing hearing protection, the analysis leads to the
same conclusion: this record presents questions of fact.
B. Reasonable Accommodation
In addition to a claim of disparate treatment, Mlsna’s com‐
plaint can be read as seeking a reasonable accommodation
from Union Pacific as to his hearing disability. Recall that
when Mlsna’s hearing was tested, one of the iterations in‐
cluded him wearing an amplified hearing protection device
called the Pro Ears–Gold. Union Pacific did not identify any
alternatives to the Pro Ears–Gold. Mlsna proposed he use a
custom‐made hearing protection called the E.A.R. Primo. Un‐
ion Pacific rejected his proposal because that device did not
No. 19‐2780 15
have a factory‐issued or laboratory‐tested noise reduction rat‐
ing, as required by 49 C.F.R. Pt. 227 App. B.
Federal labor regulations define “reasonable accommoda‐
tion” as “[m]odifications or adjustments to the work environ‐
ment, or to the manner or circumstances under which the
position held … is customarily performed, that enable an in‐
dividual with a disability who is qualified to perform the es‐
sential functions of that position … .” 29 C.F.R.
§ 1630.2(o)(1)(ii). The district court rejected Mlsna’s argument
that Union Pacific failed to reasonably accommodate his hear‐
ing disability. The court concluded that the railroad’s rejec‐
tion of the E.A.R. Primo was reasonable, and that Union
Pacific cannot be held responsible for the breakdown of the
“interactive process.”5
This reasonable accommodation evaluation is affected by
the essential function analysis. As concluded above, fact
issues exist as to whether Mlsna was subject to the hearing
protection regulation, § 227.115. If it does not apply to Mlsna,
neither would the requirement that a device considered for
reasonable accommodation include a published noise reduc‐
tion rating. That is, if Mlsna is not within the requirement of
§ 227.115(d), then the narrow attenuation rules of Pt. 227 App.
B. do not apply. This means that the reasonable accommoda‐
tion assessment here was artificially restrained. Curtailing the
5 The definition of “reasonable accommodation” includes: “To deter‐
mine the appropriate reasonable accommodation it may be necessary for
the [employer] to initiate an informal, interactive process with the individ‐
ual 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) (emphasis supplied).
16 No. 19‐2780
search was the conclusion that the hearing protection regula‐
tion necessarily applied. Union Pacific rejected all devices
other than the Pro Ears–Gold, possibly based on an overly‐
broad interpretation of the hearing protection regulation. Be‐
cause Union Pacific doggedly insisted that the device it con‐
sidered have a published noise reduction rating to determine
noise attenuation, the Pro Ears–Gold device was the only de‐
vice the railroad considered. Without that constraint, Union
Pacific could offer more than just the Pro Ears–Gold device to
accommodate Mlsna, and a reasonable jury could find that
Union Pacific could offer more than it did as a reasonable ac‐
commodation.
Potential reasonable accommodations were not consid‐
ered which could have permitted Mlsna to wear hearing pro‐
tection while also meeting the requirements of the hearing
acuity regulation. There is no shortage of devices without
published noise reduction ratings which could be considered
as possible accommodations for Mlsna’s disability, whether
the E.A.R. Primo or others. Once an employee commences the
interactive process to find a reasonable accommodation, em‐
ployers have an “affirmative obligation to seek the employee
out and work with her to craft a reasonable accommodation.”
EEOC v. Sears Roebuck & Co., 417 F.3d 789, 807 (7th Cir. 2005)
(citation and internal brackets omitted). Viewing the evidence
in the light most favorable to Mlsna, if 49 C.F.R. § 227.115(d)
may not apply to him, then a material factual dispute exists
as to whether Union Pacific satisfied its duty to craft an ac‐
commodation, and a reasonable jury could find that Mlsna
may have been accommodated with other devices. Whether
Union Pacific fulfilled its obligation to provide Mlsna with a
reasonable accommodation of his hearing disability can be
No. 19‐2780 17
addressed on remand without the constraint that the accom‐
modating device carry a published noise reduction rating.
The record reveals another fact question on this point. Un‐
ion Pacific told Mlsna that it engaged in an “extensive search”
for adaptive devices, but discovery showed that no such
search occurred. The railroad’s director of disability manage‐
ment asked others to look for other devices for Mlsna, but the
chief medical officer said he did not do so, and the senior man‐
ager of industrial hygiene said he had no responsibility to
look for other devices. So after Union Pacific rejected Mlsna’s
proposal of the E.A.R. Primo, nobody at the railroad took any
additional steps to explore reasonable accommodations.
Because genuine issues of fact exist as to whether Union
Pacific reasonably accommodated Mlsna’s hearing disability,
Union Pacific should not have received summary judgment,
and this case should return to the district court for further
proceedings on this determination as well. On remand of the
reasonable accommodation evaluation, at least three topics
warrant consideration.
The first concerns the district court’s application of a pre‐
text analysis in its reasonable accommodation evaluation.
Pretext is the third step in the three‐step burden shifting pro‐
cess established in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 804–07 (1973). This Court has held that “the McDonnell
Douglas burden‐shifting method of proof is unnecessary and
inappropriate” in a failure‐to‐accommodate claim. Bultemeyer
v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1283–84 (7th Cir. 1996);
see also Lenker v. Methodist Hosp., 210 F.3d 792, 799 (7th Cir.
2000) (“Because Lenker’s claim was based on reasonable ac‐
commodation … the district court was correct to reject
Lenker’s proposed pretext instruction.”); Weigel v. Target
18 No. 19‐2780
Stores, 122 F.3d 461, 464 (7th Cir. 1997) (“[I]n failure to
accommodate claims the McDonnell Douglas framework is
‘unnecessary and inappropriate.’”). Instead, “if the plaintiff
demonstrated that the employer should have reasonably ac‐
commodated the plaintiff’s disability and did not, the em‐
ployer has discriminated under the ADA and is liable.”
Lenker, 210 F.3d at 799. While evidence of pretext may be rel‐
evant in such a case, a pretext analysis need not be part of the
reasonable accommodation evaluation.
The second involves the railroad’s obligation to engage in
an interactive process with the disabled individual to deter‐
mine an appropriate reasonable accommodation. During
such a process, the defendant employer must consider more
than just what the plaintiff employee proposes. EEOC v. Sears,
417 F.3d at 807 (noting an employer’s duty to work with em‐
ployee to “craft a reasonable accommodation”). A proposed
accommodation is not limited to what the plaintiff introduced
into the process, here the E.A.R. Primo. Lawler v. Peoria Sch.
Dist. No. 150, 837 F.3d 779, 786‐787 (7th Cir. 2016) (employer
must do more than “s[i]t on its hands” when employee re‐
quests accommodation). Union Pacific was obliged to do
more than just conclude that Mlsna’s proposal must fail be‐
cause it is contrary to the railroad’s policy.
Third, the parties previously debated and the district court
ruled on the timeliness of a supplemental expert report Mlsna
submitted which referenced devices that would satisfy Union
Pacific’s hearing conservation policy. Given this remand, the
court and the parties have a new opportunity to review that
report and consider those other devices.
With these items noted, this case is returned to the district
court for further consideration.
No. 19‐2780 19
III
For the reasons above, the grant of summary judgment to
Union Pacific is REVERSED and this case is REMANDED for fur‐
ther proceedings consistent with this opinion.