Nunn v. Illinois State Board of Education

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 20, 2006*
Decided December 22, 2006
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-3368
MAY F. NUNN, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of
Illinois
v.
No. 3:04-CV-03244-RM-BCG
ILLINOIS STATE BOARD OF
EDUCATION, Richard Mills,
Defendant-Appellee. Judge.
ORDER
May Nunn worked for the Illinois State Board of Education for over 25 years
and was, as her former employer puts it, a “valued employee whose services were in
great demand” for most of that time. However, in late 2002, Nunn began acting out
of character. For example, in the office she was observed crying hysterically,
skipping around her cubicle and chanting, falling into a trance-like state and
becoming unresponsive to coworkers, and running through the office exclaiming
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-3368 Page 2
“Praise Jesus.” At times she stopped answering her phone. She also exhibited
unusual behavior in the field (her duties included making visits to schools and
occasionally attending conferences) such as once during a meeting in January 2003
when she isolated herself in a corner, closed her eyes, and chanted prayers.
Following this incident, Nunn’s supervisors restricted her from all field work and
instructed her to work only at her office in Springfield until further notice.
Nunn’s supervisors also ordered her to undergo a psychiatric evaluation to
determine her fitness to work. In February 2003 she met with a psychiatrist who
diagnosed her with severe bipolar disorder, manic type, with auditory hallucinosis.
The psychiatrist opined that, although Nunn was not a danger to herself or others,
she was disruptive, had “no insight” into her disorder, and could be expected to get
worse without treatment. The psychiatrist recommended that Nunn immediately
begin treatment and not return to work until she stabilized. On March 3, 2003,
Nunn met with her supervisors to discuss the psychiatrist’s report. They advised
her that she had one year to seek treatment for her illness and return to work, and
they suggested that she use her 144 paid sick days and then take unpaid leave as
necessary. Nunn, however, insisted that she was not sick and refused to take any
sick leave. Her supervisors asked her to reconsider and tell them within a few days
whether she had changed her mind; otherwise, they said, they would have to
terminate her employment. After a week passed, the Board scheduled a
predisciplinary meeting at which Nunn again stated that she was not ill and did not
need medical treatment. Shortly thereafter, on March 23, 2003, Nunn was fired.
In November 2004 Nunn sued the Board, alleging that she was terminated
because of a disability in violation of the Americans with Disabilities Act, 42 U.S.C.
§§ 12101-13. The Board unsuccessfully moved to dismiss the case on the ground
that Nunn had not exhausted her administrative remedies because a charge she
had filed with the Illinois Department of Human Rights and the Equal Employment
Opportunity Commission alleged retaliation and discrimination based on religion,
not disability. After discovery the Board moved for summary judgment; it argued
that Nunn was not a “qualified individual with a disability” protected by the ADA,
and that, in the alternative, it had terminated Nunn for nondiscriminatory reasons.
The district court granted summary judgment for the Board, and Nunn appeals.
Nunn primarily argues that the district court erroneously concluded that she
was not a “qualified individual with a disability” because, she maintains, an issue of
fact remains about whether she was performing the essential functions of her job.
She contends that, at the time of her discharge, she was performing the tasks
required of her in her “reassigned” position, and that the district court should not
have considered the job description for Principal Performance Consultant, the title
she held from 2001 until her termination. Viewing the evidence and drawing all
No. 06-3368 Page 3
reasonable inferences in Nunn’s favor, we review the grant of summary judgment
for the Board de novo. See Dyrek v. Garvey, 334 F.3d 590, 597-98 (7th Cir. 2003).
Under the ADA, an employer may not “discriminate against a qualified
individual with a disability because of the disability.” 42 U.S.C. § 12112(a); see
Duda v. Bd. of Ed., 133 F.3d 1054, 1058 (7th Cir. 1998). The Board does not dispute
that Nunn is disabled within the meaning of the ADA, see 42 U.S.C. § 12102(2)(A),
(C), but it maintains that she is not a “qualified individual with a disability,” that
is, someone who “with or without reasonable accommodation, can perform the
essential functions of the employment position that [she] holds or desires,” see id.
§ 12111(8). The inquiry has two parts: whether the plaintiff “satisfies the requisite
skill, experience, education and other job-related requirements” and whether she
“can perform the essential functions” of her position. 29 C.F.R. § 1630.2(m). Nunn’s
qualifications are not at issue, so we turn to the second requirement.
We conclude that Nunn did not a raise a genuine issue of material fact about
whether, at the time she was fired, she could perform the essential functions of her
job. From 2001 on, Nunn held the title of Principal Performance Consultant.
According to her job description, about 40% of her time was to be spent in the field
“conducting on-site reviews and technical assistance visits to districts/schools” and
another 5% “coordinating with regional, state, and national organizations.” After
Nunn’s behavior became erratic, the Board concluded that she could no longer be an
effective representative in the field. Apparently Nunn never challenged the
decision to eliminate her field work, and she does not argue now that she was able
to perform all the duties of a Principal Performance Consultant. See Rooney v. Koch
Air, LLC, 410 F.3d 376, 382 (7th Cir. 2005). Instead, she asserts that in February
2003 she was “reassigned” to a new position at the Springfield office, and so the job
description for Principal Performance Consultant is the wrong benchmark.
However, we must consider the employer’s assessment of what the essential
functions of Nunn’s job were, and treat her written job description as evidence. See
42 U.S.C. § 12111(8); Jackson v. City of Chi., 414 F.3d 806, 811 (7th Cir. 2005).
Nunn submitted no evidence to bear out her assertion that she was transferred to a
new position with different duties; instead, the record shows that the Board
essentially halved her existing responsibilities until her fitness to work could be
assessed. That the Board temporarily decreased Nunn’s responsibilities in this way
is not evidence that field duties were not an essential job function. See Rooney, 410
F.3d at 382.
Essentially Nunn argues that she should have been permitted to continue
working in the trimmed-down version of the Principal Performance Consultant
position that she had just prior to her termination. But “the ADA does not require
employers to create new positions.” Watson v. Lithonia Lighting, 304 F.3d 749, 752
(7th Cir. 2002); see Jackson, 414 F.3d at 813 (explaining that employers need not
No. 06-3368 Page 4
manufacture jobs that will allow employee to work despite disability). If Nunn’s
argument is that the Board was obligated to accommodate her by limiting her to
desk work, it still fails: reducing her previously assigned duties is not a reasonable
accommodation. See Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 819
(7th Cir. 2004) (disabled employee’s proposal that entailed altering essential
functions of his job was request for new position, not reasonable accommodation).
The record shows that Nunn’s field duties had to be farmed out to other employees,
and requiring another person to perform an essential function of a disabled
employee’s job also is not a reasonable accommodation. See Peters v. City of
Mauston, 311 F.3d 835, 845 (7th Cir. 2002).
Nunn also challenges the district court’s grant of the Board’s motion to
strike. In her response to the motion for summary judgment, Nunn alleged that the
Board had reneged on a promise to reinstate her with back pay if a psychiatrist
cleared her to work. That offer was made in early 2004 during negotiations to settle
Nunn’s administrative charge before she received her right-to-sue letter. If the
Board entered into a settlement agreement with Nunn and later reneged, Nunn
could sue to enforce the contract. But the evidentiary issue is irrelevant now,
because Nunn argues that the Board’s refusal to rehire her is “additional evidence
of pretext.” We have concluded that Nunn is not a qualified person with a disability
for purposes of the ADA, and so we do not reach the question whether the Board’s
reasons for firing her were pretextual.
AFFIRMED.