Basith, Abuzaffer v. Cook County

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1656
Abuzaffer Basith,
Plaintiff-Appellant,
v.
Cook County,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 5596--Ann Claire Williams, Judge.
Argued November 2, 2000--Decided March 6, 2001
Before Manion, Kanne, and Evans, Circuit Judges.
Manion, Circuit Judge. Abuzaffer Basith sued
Cook County, his employer, for discriminating
against him in violation of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. sec.
12112(a), and for retaliation in violation of
Title VII, 42 U.S.C. sec. 2000e. The district
court granted summary judgment for Cook County on
both claims. Basith appeals. We affirm.
I.
On July 15, 1987, Abuzaffer Basith was hired for
the position of Pharmacy Technician II in the
Inpatient Division of the Pharmacy Department at
Cook County Hospital. Basith was assigned to the
clean air room, which required him to perform a
variety of tasks, including preparation of
intravenous solutions, and delivery and stocking
of medications.
Unfortunately Basith’s job was interrupted by
several injuries and resulting physical
limitations. On July 12, 1991, Basith injured his
right leg in a car accident. After nearly ten
months of taking medical leave, Dr. Robert
Collins released Basith to return to work with
several restrictions. For ten weeks Basith was
not to stand for more than 10 minutes at a time,
walk more than 50 yards at a time, or lift more
than 10 pounds. He was also restricted from
bending, stooping, crouching, twisting, climbing,
squatting, or kneeling. Upon returning to work,
Basith reported to Dr. Zachary Powell at Employee
Health Services at Cook County Hospital, who
completed a disposition form noting his
restrictions. However, based on these
restrictions, the Associate Director of the
Pharmacy Department, LuAnn Dodini, refused to
allow Basith to return to work. Thus he did not
work from April to June 22, 1992. On June 22,
1992, Dr. Powell established new restrictions, to
be effective through August 4, 1992. Among other
things, these restrictions limited Basith from:
lifting, carrying, pushing and pulling over 20
pounds; lifting fifteen pounds overhead; bending,
stooping and climbing; and spending more than
one-third of a day standing or walking. After
Dodini determined that Basith could return to
work with his new restrictions, he returned to
his original position on June 22, 1992.
About three weeks later, Basith wrote Dodini a
letter requesting a shift change because his
current shift required him to stand and move too
much. At his request he was given a handicapped
parking sticker which required a showing that he
could only walk a maximum of 200 feet at one
time. However, Dodini prohibited Basith from
working as a Pharmacy Technician II on any shift
because of the walking limitation. The hospital
later concluded that Dodini’s concern was "a
bureaucratic issue more than a medical issue,"
and on August 8, 1992 he returned to work as a
Pharmacy Technician II. Basith filed a successful
grievance with Cook County for the salary he lost
during the three-week period he was prohibited
from working.
Then, on August 12, 1992, Basith reported a
second injury when he fell from a chair at work.
He required additional surgery, and took a one-
year medical leave of absence. Basith was finally
released to work on July 12, 1993, with
restrictions in effect until August 4, 1993. The
restrictions prohibited him from more than
minimal walking and from lifting over 10 pounds.
Because of these new restrictions, Dodini
informed Dr. Powell that Basith could not work as
a Pharmacy Technician II; thus he remained on
medical leave of absence. Basith returned to
Employee Health Services on August 4, 1993, with
the same lifting and walking restrictions. But
Dodini told Dr. Powell that Basith could not work
in his old position with these restrictions. Thus
he remained off work.
On December 14, 1993, Basith’s personal
physician issued permanent restrictions. Basith
was restricted from walking, bending, or stooping
more than minimally and from lifting over 10
pounds. On January 19, 1994, Cook County offered
Basith a new Pharmacy Technician II position in
the recently opened operating room pharmacy at
Cook County Hospital. The Director of the
Pharmacy Department, Dennis Hays, agreed to have
storeroom personnel deliver stock to the elevator
outside the operating room pharmacy in light of
Basith’s walking restrictions. Basith accepted
the position on March 14, 1994, but he left a few
days later, claiming that Cook County "wasn’t
accommodating him enough."
On May 20, 1994, Basith and his union
representative met with Hays to discuss Basith’s
desire to return to work in the clean air room.
Hays agreed to create a special assignment for
Basith in the clean air room where he would be
responsible for making intravenous "piggyback"
solutions which did not require him to do
delivery, stocking, or cleaning. Basith accepted
the new position.
But Basith was still not satisfied. On February
28, 1995, Basith filed a grievance because he had
not been offered an opportunity to cover overtime
shifts in the clean air room. But, as Hays
explained, the overtime shifts required employees
to deliver and stock medications (which Basith
could not do with his limitations), and no
overtime was needed to make intravenous piggyback
solutions. Therefore Basith was not offered
overtime.
On January 19, 1996, Basith incurred a third
injury, this time by striking his right knee on a
cart at work. This resulted in another medical
leave of absence. After several weeks Dr. Ira
Kornblatt released Basith to return to his job
without restrictions. On April 4, 1996, Employee
Health Services approved Basith for return to
work but with restrictions that he not crouch,
squat, kneel, or crawl more than one-third of the
day. The same day, Candace Richardson, Hays’
successor as Director of the Pharmacy Department,
informed Basith that she would reevaluate his
assignment in light of the new restrictions. On
April 25, 1996, she informed Basith that she
would expand his assignment to include other
shifts beyond his special assignment, beginning
June 7, 1996.
On June 7, 1996, Basith reported another knee
injury, and he took his fourth medical leave of
absence. Dr. Kornblatt determined that he could
return to the normal job activities of a pharmacy
technician without restrictions. Basith did not
return to work, however. On July 16, 1996, one of
Basith’s attorneys requested that Cook County
reasonably accommodate Basith by assigning him
only profiling tasks, which involve data entry,
for a month until he underwent surgery. Cook
County responded that it could not do so because
only registered pharmacists could perform
profiling tasks, and Basith was not qualified.
On January 3, 1997, Richardson sent a letter to
Basith stating that he had exhausted his sick and
vacation time, and informing him that he should
report to the Department of Human Resources
regarding an appropriate medical leave of
absence. Basith’s attorneys and Cook County
subsequently agreed that Basith should have an
independent medical examination. The parties
selected Dr. Morgenstern, who recommended that
Basith perform a "mostly sitting" job. Cook
County offered Basith a position in the
acquisitions area of the Pharmacy Department,
which he accepted. Basith returned to work on
July 29, 1997, and is apparently still employed
in this position.
As these injuries occurred during his
employment, Basith filed periodic charges with
the Equal Employment Opportunity Commission
("EEOC") which form the basis of this case. On
July 7, 1992, Basith filed his first claim
alleging that in April and May of 1992, Cook
County discriminated against him based on his
physical handicap and sex. At the time of filing
Basith had recently returned from a ten-month
leave of absence due to a leg injury from an
automobile accident. The EEOC issued a right-to-
sue letter on September 8, 1995. In the meantime,
on August 2, 1995, Basith filed another charge
claiming that from September 1994 through May
1995 Cook County discriminated against him based
on race and disability in denying him overtime
opportunities. The EEOC issued a right-to-sue
letter for this charge on January 31, 1996. On
February 18, 1997, Basith filed a charge claiming
that on June 7, 1996, the date of his fourth
reported injury (knee), Cook County discriminated
against him based on race, sex, national origin,
and disability, and retaliated against him. It
appears that the race, sex, and national origin
charges have been dropped. The EEOC issued a
right-to-sue letter for this charge on March 31,
1997.
On August 20, 1997, after filing several
complaints with the district court, Basith filed
a First Amended Consolidated Complaint, which
combined claims from all of the charges he had
filed with the EEOC. Basith sought relief under
the ADA for discrimination based on a disability
and under Title VII for retaliation. The district
court granted Cook County’s Motion for Summary
Judgment on both claims. We affirm.
II.
"We review the district court’s entry of summary
judgment de novo," Miller v. American Family
Mutual Insurance Co., 203 F.3d 997, 1003 (7th
Cir. 2000), and we will view all of the facts and
draw all reasonable inferences in favor of the
nonmoving party. See id. Summary judgment is
proper if the evidence shows that "there is no
genuine issue as to any material fact and that
the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). The
plaintiff "cannot merely allege the existence of
a factual dispute to defeat summary judgment."
McPhaul v. Bd. of Comm’rs of Madison County, 226
F.3d 558, 563 (7th Cir. 2000). Instead, he must
supply evidence sufficient to allow a jury to
render a verdict in his favor. See id.A. ADA Claim
The ADA prohibits discrimination "against a
qualified individual with a disability because of
the disability of such individual in regard to
job application procedures, the hiring,
advancement, or discharge of employees, . . . and
other terms, conditions, and privileges of
employment." 42 U.S.C. sec. 12112(a). In
addition, "[t]he Act also provides that an
employer discriminates against a qualified
individual with a disability by ’not making
reasonable accommodations to the known physical
or mental limitations of an otherwise qualified
individual with a disability.’" McPhaul, 226 F.3d
at 563 (quoting 42 U.S.C. sec. 12112(b)(5)(A)).
Thus, under the ADA, there are two distinct
categories of disability discrimination claims:
failure to accommodate and disparate treatment.
See Sieberns v. Wal-Mart Stores, Inc., 125 F.3d
1019, 1021-22 (7th Cir. 1997). In a reasonable
accommodation case, like the present one, the
plaintiff must first show that: 1) he was
disabled; 2) his employer 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 position. See McPhaul, 226 F.3d at
563.
The district court concluded that Basith
presented sufficient evidence to suggest he was
disabled from June, 1991 forward. Nevertheless,
the district court granted summary judgment to
Cook County on the ADA claim, concluding that
Basith was unable to perform the essential
functions of the Pharmacy Technician II position
with or without reasonable accommodation. Basith
argues that he presented sufficient evidence to
establish that he was a qualified individual with
a disability, and that Cook County violated the
ADA by failing to provide him with a reasonable
accommodation. We address each argument in turn.
1. Qualified individual with a disability.
The ADA only protects a "qualified individual
with a disability." To determine whether someone
is a "qualified individual with a disability," we
apply a two-step test. See 29 C.F.R. app. sec.
1630.2(m). "First, we consider whether ’the
individual satisfies the prerequisites for the
position, such as possessing the appropriate
educational background, employment experience,
skills, licenses, etc.’" Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.
1996) (quoting 29 C.F.R. app. sec. 1630.2(m)).
"If he does, then we must consider ’whether or
not the individual can perform the essential
functions of the position held or desired, with
or without reasonable accommodation.’" Id.(quoting same). There is no question in this
appeal about Basith’s background. At issue is
Basith’s ability to perform the essential
functions of his job.
Basith argues that, with reasonable
accommodation, he could perform all of the
essential functions of the Pharmacy Technician II
position. The district court, however, found that
delivery and stocking of medication were
essential functions of the Pharmacy Technician II
position, and that the job required some walking
and lifting of boxes of medications and supplies
which weighed up to 20 pounds. In light of his
medical restrictions, the district court held
that Basith could not perform these functions,
and was therefore not a "qualified individual
with a disability."
To determine the essential functions of a
position, a court may consider, but is not
limited to, evidence of the employer’s judgment
of a position, written job descriptions prepared
before advertising or interviewing applicants for
the job, the work experience of past incumbents
of the job, and the work experience of current
incumbents in similar jobs. See 29 C.F.R. sec.
1630.2(n)(3).
In April of 1989, Cook County had set forth the
following job description for the Pharmacy
Technician II position:/1
Must be able to work in a sedentary position for
long hours, to walk or stand for 4-8 hours daily,
to do occasional lifting of objects of up to 50
pounds, to climb, stoop, or crouch, and to push
loaded delivery carts and trucks up a 15% grade
on ball casters.
A Cook County "Essential Job Function" form also
described both delivery and stocking as essential
functions. Thus, according to both the job
description and the essential job function form,
delivery of medication was an essential function.
Basith argues that we should not rely on the
Cook County job description forms because these
documents were not "written job descriptions
prepared before advertising or interviewing
applicants for the job," which he alleges is
mandated by 29 C.F.R. sec. 1630.2(n)(3)(ii).
However, this argument overstates the
requirements of the regulation, which itself
states that acceptable evidence "is not limited
to" the listed examples for determining essential
functions. See 29 C.F.R. sec. 1630.2(n)(3). It
does not limit the court’s consideration of
written job descriptions to ones prepared before
advertising or interviewing for the job. To the
contrary, the very first example of acceptable
evidence under the regulation is the employer’s
judgment, and the written job descriptions are
clearly instances of the employer’s judgment as
to which functions are essential. Also, the job
descriptions pre-dated Basith’s first injury.
Moreover, the "Essential Job Function" form was
completed by six Pharmacy Department employees,
and the regulation lists work experience of
current and past incumbents on the job as
examples of acceptable evidence.
Basith contends that the district court erred
because it allegedly did not consider his
affidavit and the affidavit of a co-worker
regarding the functions of the job. These
affidavits, however, do not offer any evidence
that conflicts with the essential job functions
as defined by Cook County. Basith’s affidavit
simply states the following: "That at all times
relevant to my case, the duties of a pharmacy
Technician II in the clean air room were
sedentary or light duty in nature with the
exception of delivery of intravenous piggybacks
which required approximately 45 minutes to one
hour per shift." This general statement does not
provide any evidence that delivery was not
essential, and in fact demonstrates that Basith
himself viewed delivery as part of the job. In
any event, conclusory allegations and self-
serving affidavits, unsupported by the record,
will not preclude summary judgment. See Haywood
v. North Am. Van Lines, Inc., 121 F.3d 1066, 1071
(7th Cir. 1997).
Basith also submitted the affidavit of a co-
worker, Habeeb Al-Aidroos, who stated that "the
task of delivery in the clean air room requires
approximately 45 minutes to one hour during an 8-
hour shift; the remaining tasks of a pharmacy
technician II in the clean air room require
little walking, little standing and little
lifting." This statement does not provide
evidence that delivery was not essential.
Moreover, "[a]lthough we look to see if the
employer actually requires all employees in a
particular 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." See DePaoli
v. Abbott Laboratories, 140 F.3d 668, 674 (7th
Cir. 1998) (citations omitted). See also E.E.O.C.
v. Amego, Inc., 110 F.3d 135, 147 (7th Cir. 1997)
(same). The affidavits Basith presented are
insufficient to overcome this deference. The
plaintiff must offer sufficient evidence to show
the employer’s understanding of the essential
functions of the job is incorrect, and Basith has
not done so. See Martinson v. Kinney Shoe Corp.,
104 F.3d 683 (4th Cir. 1997) (adopting employer’s
judgment of essential function where plaintiff
failed to provide any evidence at summary
judgment stage to dispute employer’s
understanding of essential functions); Milton v.
Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir.
1995) (same).
In addition, Basith argues that delivery is not
an essential function of the Pharmacy Technician
II position because it takes up only 45 minutes
to an hour of an 8-hour day. But an essential
function need not encompass the majority of an
employee’s time, or even a significant quantity
of time, to be essential./2 See, e.g., Miller v.
Illinois Dep’t of Corrections, 107 F.3d 483 (7th
Cir. 1997). Rather, an essential function must be
a fundamental duty of the job. See 29 C.F.R. sec.
1630.2(n).
We addressed a parallel situation in Miller v.
Illinois Dep’t of Corrections. In Miller, this
court held that a blind correctional officer who
could not stand guard or count inmates was not
qualified under the ADA, even though she could
perform other essential functions. As the court
noted, "if an employer has a legitimate reason
for specifying multiple duties for a particular
job classification, duties the occupant of the
position is expected to rotate through, a
disabled employee will not be qualified for the
position unless he can perform enough of these
duties to enable a judgment that he can perform
its essential duties." 107 F.3d at 485. We held
in Miller that the duties were essential
functions because the prison had a valid reason
(the prevention of riots) for requiring all of
its guards to be able to perform them. See id.;
see also Holbrook v. City of Alpharetta, Georgia,
112 F.3d 1522, 1527 (11th Cir. 1997) ("Even
assuming that an Alpharetta police detective
spends a relatively small amount of time
performing the type of field work that Holbrook
concedes he cannot undertake, the record
establishes--and Holbrook has not proven to the
contrary--that the collection of all evidence at
the scene of the crime is an essential function .
. . ."). In this case, the evidence established
that delivery of medication to the patients is
essential to the functioning of the pharmacy, and
Cook County determined that the Pharmacy
Technician II was the best position to fulfill
this need. Cook County’s valid reason for
treating delivery as an essential function--the
needs of the pharmacy’s patients--renders the
limited time devoted to delivery irrelevant.
Basith also argues that delivery is not an
essential function of the Pharmacy Technician II
position because there are other ways to deliver
medication, namely that other hospital employees
deliver the medication. In other words, if Basith
can’t deliver, someone else must do so. It is
possible that any function, whether or not
essential, could be assigned to additional
employees. The mere fact that others could do
Basith’s work does not show that the work is non-
essential.
Cook County is allowed to determine the job
responsibilities of its pharmacy technicians, and
it is not this court’s duty to second-guess that
judgment so long as the employer’s reasons are
not pretextual. See Depaoli, 140 F.3d at 674. In
effect, Basith is asking to assign to someone
else the duties of his position. However, "[a]n
employer need not reallocate the essential
functions of a job, which a qualified individual
must perform." Benson v. Northwest Airlines,
Inc., 62 F.3d 1108, 1112-13 (8th Cir. 1995). See
also Gile v. United Airlines, Inc., 95 F.3d 492,
499 (7th Cir. 1996) ("Nor is an employer
obligated to create a ’new’ position for the
disabled employee."). In fact, Basith’s
suggestion would result in a restructuring of
both his job and the jobs of other employees.
This is not required by the ADA. See Hansen v.
Henderson, 233 F.3d 521, 523 (7th Cir. 2000)
(Rehabilitation Act case affirming summary
judgment for defendant because "[t]wo new jobs
would have to be manufactured, one for [the
employee] and one for his helper.").
Finally, Basith claims that delivery was not an
essential function because Hays had created a
position for him in May 1994 which did not
require delivery. But this evidence merely shows
the job could be restructured, not that delivery
was non-essential. In fact, at the time Hays
created a position for Basith, he stated he felt
he was going beyond ADA requirements. See Def.
Ex. 27 ("Although this is a change in the job
functions, which is not required, I will agree to
it."). Absent independent evidence that the
function was non-essential, we do not believe it
wise to consider the special assignment as proof
that delivery was not an essential function
because it would punish Cook County for going
beyond the ADA’s requirements. See, e.g.,
Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019,
1023 (7th Cir. 1997) ("Employers should not be
discouraged from doing more than the ADA
requires. . . ."); Vande Zande v. State of Wis.
Dep’t. of Admin., 44 F.3d 538, 545 (7th Cir.
1995) ("[I]f the employer . . . bends over
backwards to accommodate a disabled worker--goes
further than the law requires . . . it must not
be punished for its generosity by being deemed to
have conceded the reasonableness of so far-
reaching an accommodation."). The fact that
restructuring is feasible, in itself, is not
persuasive evidence one way or the other that a
function is essential to a job.
In sum, the evidence established that delivery
was an essential function. The evidence also
established that Basith could not perform the
delivery function without some kind of
accommodation, although Basith suggests he could
perform deliveries with a motorized wheelchair
with a carrying basket, and the regulation does
define a "qualified individual with a disability"
as an individual who can perform the essential
functions of the job with or without
accommodation./3
Basith provides no evidence to substantiate this
claim, such as a report from his doctor that he
could fully perform the delivery function with
his proposed wheelchair. Compare Whitbeck v.
Vital Signs, Inc., 116 F.3d 588 (D.C. Cir. 1997)
(denying summary judgment under similar statute
where plaintiff provided evidence that employer
rejected accommodation of a motorized cart and
plaintiff’s doctor believed she could perform
work duties with this accommodation). There is no
evidence in the record that a motorized
wheelchair has ever been used for this purpose at
the pharmacy, and we have no indication whether a
wheelchair would actually allow Basith to
surmount the various hurdles of the delivery
function--e.g., pushing delivery carts and trucks
up a 15% grade on ball casters. For that matter,
Basith offers no evidence that a wheelchair would
enable him to perform the job within a reasonable
amount of time.
Basith’s bare assertion that a wheelchair would
accommodate his inability to perform delivery of
medications is sheer speculation. Standing alone,
Basith’s allegation that he could perform the
essential function of delivery with a wheelchair
is not enough to create a material issue of fact.
Accordingly, we affirm the district court’s
conclusion that Basith was not a "qualified
individual with a disability" because he could
not perform the essential function of delivery.
We also affirm the district court’s conclusion
that Basith could not perform the essential
function of stocking medications due to his
lifting restrictions. On appeal, Basith does not
dispute that stocking was an essential function.
Instead, Basith claims that he could do all of
the lifting needed to perform the Pharmacy
Technician II position.
In addressing Basith’s argument, we initially
note that the plaintiff has the burden of showing
that he can perform the essential functions of
the job, with or without a reasonable
accommodation. See Bultemeyer v. Fort Wayne
Community Schools, 100 F.3d 1281, 1284 (7th Cir.
1996). On appeal, Basith argues that to perform
the stocking function he only needed to be able
to lift 20 pounds, which Basith contends he could
do. Hays did testify that Cook County reduced the
lifting requirement to 20 pounds in the late
1980’s.
The question is thus whether Basith presented
evidence that he could lift 20 pounds. It is
clear that Basith could not perform the 20-pound
lifting requirements of his stocking duties
during the times when his restrictions limited
him to no more than 10 pounds, from April 1992
through June 22, 1992, from July 12, 1993 through
August 4, 1993, and from December 14, 1993
forward. Moreover, we have Basith’s own
affidavit, which states:
That at each time I requested to return to work
for the defendant from March, 1992 through the
present I was physically able to perform all of
the tasks of a Pharmacy Technician II assigned to
either the clean air room or the pediatric
pharmacy including deliveries but with the
exception of the occasional lifting for a large
supply bottle. . . .
Pl. Ex. 1. Although Basith claims he could
perform all of the tasks of a Pharmacy Technician
II, including the lifting requirements, he has
not met his burden of showing he could perform
the essential function of stocking medication
during the time periods when his medical
restrictions limited him to lifting no more than
10 pounds. His own affidavit suggests he was
incapable of performing the essential task of
stocking medications at that time, and the mere
statement that he could perform all tasks is not
sufficient evidence to survive the summary
judgment motion. See Haywood, 121 F.3d at 1071.
Accordingly, Basith was not a "qualified
individual with a disability" during those time
periods because he was restricted from lifting
more than ten pounds and thus could not perform
the essential functions of a Pharmacy Technician
II.
From June 22, 1992 through August 4, 1992,
Basith’s medical restrictions permitted him to
lift up to 20 pounds. However, Basith never filed
a charge with the EEOC respecting that time
period. He complained to the EEOC that he was
discriminated against in April and May of 1992,
and he complained to the EEOC that he was
discriminated against beginning August 5, 1992,
but he did not file a charge with the EEOC
regarding his treatment between June 22 and
August 4 when his restrictions permitted him to
lift up to 20 pounds./4
Assuming that Basith’s argument that he could
lift 20 pounds and thus perform the stocking
function is based on the time period when his
restrictions permitted him to lift 20 pounds,
this failure to exhaust his administrative
remedies by filing an EEOC claim is fatal to
Basith’s argument. See, e.g., Stewart v. County
of Brown, 86 F.3d 107, 110 (7th Cir. 1996) ("In
order to recover for violations of Title I of the
ADA, a plaintiff must file a charge of
discrimination with the EEOC within 180 days of
the alleged violation (if he does not file an
initial charge with a state agency)."). Since the
only time Basith arguably was able to perform the
essential function of stocking is barred, we
affirm the district court’s holding that Basith
was not a "qualified individual with a
disability."
2. Reasonable accommodation.
Basith argued that Cook County violated the ADA
because it failed to provide him with a
reasonable accommodation for his disability. We
need not decide whether Basith was denied
reasonable accommodation in light of his failure
to show a question of fact existed as to whether
he was a "qualified individual with a
disability." See Bombard, 92 F.3d at 563.
Assuming, arguendo, that Basith were able to
perform the essential functions of the Pharmacy
Technician II position with a reasonable
accommodation, however, we would still affirm the
district court’s decision that Cook County
accommodated Basith’s disability.
During much of the time at issue in this case,
Basith was on medical leave of absence, and the
district court held that this qualifies as a
reasonable accommodation. See 29 C.F.R. sec.
1630(o), App. We agree with this holding. Basith
challenges the district court’s holding that when
he was not on medical leave the special
assignment in the clean air room was a reasonable
accommodation. Basith argues that the clean air
room assignment was not a reasonable
accommodation because he did not have overtime or
holiday shift opportunities (the overtime and
holiday shifts would have required Basith to
perform deliveries), and contends that Cook
County should have restructured the job so that
other employees could perform the delivery
function during an overtime shift, or else
allowed him to use a wheelchair for deliveries.
We find that Cook County went above and beyond
the requirements of the ADA in creating Basith’s
special assignment. As noted above, an employer
is not required to reallocate the essential
functions of a job. See Gile, 95 F.3d at 499. Yet
Cook County did so, and thus Basith was able to
work a regular shift in the clean air room
without performing the deliveries which his
disability precluded. Cook County need not
restructure further (especially when evidence
suggests there was no need for overtime
performance of Basith’s duties), so that Basith
could work an overtime shift. As the district
court noted, "[Cook County] should not be held
liable for its reasonable refusal to create
special assignments that would include overtime
and holiday work for Basith." Basith, 2000 WL
246255 at *11. And, since the clean air room
assignment accommodated Basith’s disability, Cook
County was under no duty to provide a different
accommodation, such as the proposed wheelchair.
Accordingly, even if Basith were able to perform
the essential functions of the Pharmacy
Technician II position with accommodation, his
ADA claim would fail.
B. Title VII Retaliation Claim
Basith also claims that Cook County retaliated
against him for his charges of discrimination
with the EEOC by refusing to allow him to return
to work and by refusing to allow him to work
overtime in his special assignment. It is
unlawful under Title VII "for an employer to
discriminate against any of his employees . . .
because he has opposed any practice made an
unlawful employment practice by [Title VII]." 42
U.S.C. sec. 2000e-3(a). Absent direct evidence of
discriminatory intent, "a claim of retaliation is
examined ’using the familiar McDonnell Douglas
burden shifting analysis.’" Gleason v. Mesirow
Financial, Inc., 118 F.3d 1134, 1146 (7th Cir.
1997) (quoting McKenzie v. Illinois Dep’t. of
Transp., 92 F.3d 473, 483 (7th Cir. 1996)). See
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
800-06 (1973). Under McDonnell Douglas, Basith
must first establish a prima facie case of
retaliation. If he succeeds, Cook County must
present a legitimate, non-retaliatory reason for
its actions. If Cook County provides a
legitimate, non-retaliatory reason, then Basith
must show that Cook County’s reasons were
pretextual. See Gleason, 118 F.3d at 1146.
To establish a prima facie case of retaliation,
Basith must establish that 1) he reported or
otherwise opposed conduct prohibited by Title
VII; 2) he suffered an adverse, job-related
action; and 3) there is a causal link between his
opposition to unlawful discrimination and the
adverse action. See id. The district court found
that Basith had met the first element needed to
establish a prima facie case, but that he failed
at step two because his allegations of adverse
job-related actions were unsupported by the
record.
Basith argued before the trial court that he
suffered two adverse, job-related actions in
retaliation for his protected speech: Cook
County’s refusal to allow him to return to work
for several periods between April 1992 and July
1997, and Cook County’s refusal to allow him to
work overtime in his special assignment. Basith’s
argument on appeal is cursory at best. He does
not explain how these were adverse, job-related
actions. Basith simply argues that Cook County’s
refusal to allow him to return to work, its
refusal to accommodate his disability by allowing
him to use a wheelchair or by restructuring his
work assignment, and its refusal to allow him to
work overtime in his special assignment, could be
seen by a trier of fact as retaliation.
"The question whether a change in an employee’s
job or working conditions is materially adverse,
rather than essentially neutral, is one of fact .
. . and so can be resolved on summary judgment
only if the question is not fairly contestable."
Williams v. Bristol-Myers Squibb Co., 85 F.3d
270, 273-74 (7th Cir. 1996). We need not decide
whether the alleged adverse employment actions
cross this line, however, in light of Basith’s
clear failure to show a causal link between his
speech and the retaliation he charges.
To prove the third element of his prima facie
case, causation, Basith must show that Cook
County would not have taken the adverse
employment actions "but for" his protected
expression. See McKenzie, 92 F.3d at 483. It does
not appear from the record that Cook County’s
actions meet this standard. More importantly,
Basith makes no attempt to show that Cook
County’s employment actions would not have
occurred but for his protected expression, and
this is fatal to his claim.
In addition, even had Basith established a prima
facie case, Cook County had provided legitimate
non-retaliatory reasons for requiring Basith to
take medical leave and for refusing to schedule
him for overtime and holiday work. In particular,
Basith could not perform the essential functions
of his job, and there was no need to perform
overtime or holiday work under his special
assignment. Basith has provided no evidence that
these reasons were pretextual. Thus, his
retaliation claim must fail.
III.
We conclude that Basith’s ADA claim must fail
because he was not a "qualified individual with a
disability" under the ADA, and, moreover, Cook
County accommodated his disability. His Title VII
retaliation claim also fails because he failed to
show that Cook County’s alleged adverse
employment actions were caused by his protected
speech, and because Cook County provided
legitimate nondiscriminatory reasons for these
actions. The district court is AFFIRMED.
FOOTNOTES
/1 A revised job description prepared in April 1991
included the following requirements for
technicians:
1) Must be able to tolerate prolonged
walking/standing.
2) Must be able to lift and carry objects
weighing up to 60 pounds.
3) Must be able to push medication carts over
prolonged distances and up ramps.
Hays testified, however, that the lifting
requirement had been decreased to 20 pounds in
the late 1980’s.
/2 Whether a task requires a large or small portion
of an employee’s time could be evidence that it
is or is not an essential function. See 29 C.F.R.
sec. 1630(n)(3)(iii) (providing example of "[t]he
amount of time spent on the job performing the
function" as evidence that function is
essential). It is but one factor, and in this
case someone--if not the technician--would have
to devote one hour to the essential function of
delivering the piggybacks.
/3 The parties dispute whether Basith made one
request or repeatedly asked to be able to use a
motorized wheelchair. Cook County, which contends
Basith only asked once, claims that his request
was rendered moot by the special assignment in
the clean air room for purposes of determining
whether Cook County provided a reasonable
accommodation. We need not address this question
to determine whether Basith was a "qualified
individual with a disability."
/4 Basith had also filed a charge with the Illinois
Department of Human Rights, which was
subsequently withdrawn. That charge also
addressed a different time period.