Emerson, Loretta M. v. Northern States ( 2001 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 00-3746
    Loretta M. Emerson, formerly known
    as Loretta M. Rubenzer,
    Plaintiff-Appellant,
    v.
    Northern States Power Company,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Western District of Wisconsin.
    No. 99 C 809--Barbara B. Crabb, Judge.
    Argued March 26, 2001--Decided June 26, 2001
    Before Flaum, Chief Judge, and Bauer and
    Rovner, Circuit Judges.
    Bauer, Circuit Judge. Loretta
    Emerson/1 sued her former employer,
    Northern States Power Company ("NSP") for
    firing her in violation of the Americans
    with Disabilities Act ("ADA") 42 U.S.C.
    sec. 12101 et seq. The district court
    granted summary judgment in favor of NSP
    on the ground that Emerson was not a
    qualified individual. We affirm.
    I.   Background
    Emerson began working in NSP’s Eau
    Claire Customer Information Center in
    1994. She began as a part-time "student
    operator," but was promoted to a part-
    time "associate consultant" position
    within six months. Despite the part-time
    classification, Emerson generally worked
    40 hours per week. As an associate
    consultant, Emerson mainly handled
    routine customer calls, but by her
    estimate roughly 5% to 10% of her job
    entailed processing customer calls about
    gas and electrical emergencies, such as
    gas leaks and downed power lines. The job
    description designated handling such
    calls as an "essential job function," and
    estimated the volume of calls to comprise
    20% of an associate consultant’s work. On
    average, Emerson handled 2 to 5 gas
    emergencies per week and 2 to 5
    electrical emergencies per week. This
    number generally increased when
    thunderstorms occurred. In 1994 and most
    of 1995, Emerson performed her job at or
    above the satisfactory level. However,
    for reasons the record does not
    elucidate, Emerson had strained relations
    with one of her supervisors, Lori Krigs.
    Then, on October 1, 1995, Emerson fell
    and hit her head while rollerblading. The
    fall caused head trauma, including two
    skull fractures and a hematoma. Dr.
    Michael Murphy treated Emerson,
    hospitalizing her twice. He referred her
    to a speech/language therapist who
    conducted two therapy sessions with
    Emerson and evaluated her condition using
    cognitive tests. The therapist concluded
    in part that Emerson experienced
    difficulty learning new information and
    had moderate memory impairments. At the
    end of October, relying on the tests the
    therapist administered, Dr. Murphy
    released Emerson to return to her
    associate consultant position with no
    medical restrictions.
    Upon her return, Emerson had difficulty
    learning NSP’s new telephone and computer
    systems. Her supervisors complained that
    she asked many questions more than once
    and seemed unable to retain information.
    Her supervisors also noted that she made
    mistakes when working on complex, yet
    routine tasks and was much more emotional
    than she had been before the accident.
    Emerson’s supervisors evaluated her job
    performance in 1996 as needing
    improvement in the areas of problem-
    solving, information retention, and
    communication. Emerson continued to have
    difficulties with Krigs, a situation
    which caused her stress.
    On Saturday, April 27th, Emerson
    experienced an anxiety attack at work.
    The attack, Emerson’s first, included
    symptoms characteristic of a heart
    attack. Emerson spent the rest of her
    shift at the emergency room, but was able
    to return to work on Monday. Dr. Murphy
    prescribed anti-anxiety medication for
    Emerson to take when she felt the onset
    of an attack, but she took it
    infrequently. Rather, she tried to reduce
    stress at work by avoiding contact with
    Krigs. Emerson suffered another panic
    attack at work on June 6th. She took her
    medication and, with permission from NSP,
    went home for the day. Emerson was not
    handling calls when she experienced
    either of the attacks.
    NSP was concerned that Emerson’s panic
    attacks might prevent her from adequately
    handling safety-sensitive calls. It
    required her to be evaluated by the
    company’s occupational medicine
    physician, Dr. Donald Bodeau, regarding
    her ability to safely perform her job,
    and she saw him several times during the
    summer of 1996. Dr. Bodeau believed that
    the panic attacks were related to
    Emerson’s head trauma. After Emerson’s
    first evaluation, Dr. Bodeau recommended
    placing Emerson on a paid leave of
    absence, which NSP did. After a follow-up
    exam on June 19th, Dr. Bodeau cleared
    Emerson to return to work in a non-
    safety-sensitive position. NSP placed her
    in a billing position for two months to
    fill in for an employee on maternity
    leave. Emerson worked the same number of
    hours and received the same pay as she
    did in her associate consultant position.
    She performed well in the billing
    department.
    NSP asked Emerson to be re-evaluated by
    Dr. Bodeau on July 17th. Dr. Bodeau noted
    that Emerson felt relaxed in the billing
    position, but when she spoke of returning
    to her position as an associate
    consultant, she became agitated and
    believed that Krigs was conspiring
    against her. Emerson continued to show
    signs of memory loss and difficulty
    communicating. Dr. Bodeau sent Emerson to
    Dr. Thomas, a psychologist, for further
    neurological testing. Dr. Thomas
    concluded that while her test results
    were within normal limits, she suffered
    from acute anxiety disorder and probable
    panic attacks. He noted that Emerson’s
    condition would likely improve over the
    next one to two years, although he could
    not offer assurances that she would
    recover fully, and recommended that NSP
    reinstate her to the associate consultant
    position. Dr. Murphy and Dr. Bodeau
    agreed that Emerson suffered from an
    anxiety disorder, although Dr. Bodeau
    thought it was fairly mild.
    On August 16th, Emerson met with her
    supervisors from NSP to discuss returning
    to work as an associate consultant. At
    that meeting, NSP gave Emerson a written
    warning, the second step in the
    disciplinary process, memorializing its
    concern about her performance. NSP had
    not given Emerson a level one warning,
    but had the discretion to skip
    disciplinary steps. Emerson indicated
    that in case of a panic attack, she would
    need to talk to her supervisor and take a
    break. At Dr. Bodeau’s recommendation,
    NSP allowed Emerson five minutes to
    collect herself in case of a panic
    attack. Emerson consulted Dr. Murphy who
    informed NSP that a five minute break
    might be insufficient time for Emerson to
    regain her composure. He could not,
    however, specify how much time she would
    need. Because of NSP’s concern, Emerson
    suggested that safety-sensitive calls
    could be routed away from her, or that a
    co-worker could take over for her in case
    she had a panic attack while dealing with
    a safety-sensitive call. NSP rejected
    these options because of the uncertainty
    that another consultant or supervisor
    would be available to take the call.
    Further, Emerson suggested that her
    stress level would be reduced if Krigs
    stopped supervising her. NSP declined to
    make this arrangement.
    Dr. Bodeau unsuccessfully attempted to
    reach Dr. Murphy to discuss his
    recommendation that five minutes was not
    enough time for Emerson to recover from a
    panic attack. Dr. Bodeau then recommended
    that Emerson be transferred out of her
    safety-sensitive position. Further, based
    on his prediction that it would take
    Emerson up to two years to fully recover,
    NSP concluded Emerson would have to leave
    her consultant position. NSP identified
    an available full-time administrative
    assistant job, but required Emerson to
    apply for it because Emerson’s associate
    consultant position was classified as
    part-time despite its usual full-time
    hours. Emerson was not interviewed or
    hired for this position. NSP offered
    Emerson a temporary, part-time cash
    processor position, which she turned
    down. Toward the end of October, a
    supervisor notified Emerson that an
    associate consultant position with no
    safety-sensitive calls was available in
    Minnesota. Emerson did not apply.
    Emerson’s employment was terminated
    effective October 31, 1996. NSP did not
    notify Emerson about any other available
    positions for which she qualified,
    although some existed. A vocational
    rehabilitation expert who later evaluated
    Emerson concluded that her head injury,
    which sensitized her to stress and
    increased her need for routine, precluded
    her from 47% of all occupations and
    rendered her disabled.
    After Emerson’s termination, she worked
    briefly scheduling factory workers, but
    left because scrambling every morning to
    find substitute workers for absent
    employees was too stressful. Emerson
    subsequently performed office work and
    maintenance for a housing management com
    pany for three years, and supplemented
    her income by working temporary jobs as a
    booking agent and order processor.
    Emerson left these jobs to become a
    property manager. She has had difficulty
    finding a job that pays as much as NSP
    paid her.
    Emerson sued NSP for monetary and
    injunctive relief under the ADA, arguing
    that NSP failed to offer her a reasonable
    accommodation and fired her because she
    was disabled. The district court found
    that an issue existed as to Emerson’s
    disability in the major life activities
    of learning and working. However, the
    court granted summary judgment in favor
    of NSP finding that Emerson was not a
    qualified individual under the ADA
    because she was unable to handle safety-
    sensitive calls with or without
    reasonable accommodation.
    II.   Discussion
    We review the district court’s grant of
    summary judgment de novo. See Sinkler v.
    Midwest Property Mgmt., Ltd. P’ship., 
    209 F.3d 678
    , 682 (7th Cir. 2000). To
    persuade us to reverse the district
    court, Emerson must marshal the
    pleadings, depositions, answers to
    interrogatories, and affidavits to create
    an issue of material fact regarding the
    challenged factors, or she must show that
    NSP is not entitled to judgment as a
    matter of law. See 
    id. at 683
    . The ADA
    prohibits covered entities such as NSP
    from discriminating against a qualified
    individual with a disability on the basis
    of the disability. See 42 U.S.C. sec.
    12112(a). In this case, Emerson defends
    the district court’s holding that she has
    created a material issue of fact
    regarding whether she was disabled at the
    time she was terminated, but she attacks
    the district court’s determination that
    she was not a qualified individual as
    defined by the ADA.
    A.   Was Emerson Disabled?
    The ADA defines "disability" as:
    (A) a physical or mental impairment that
    substantially limits one or more major
    life activities of such individual;
    (B) a record of such an impairment; or
    (C) being regarded as having such an
    impairment.
    42 U.S.C. sec. 12102(2). Emerson
    endeavors to show that she meets all
    three definitions. We initially tackle
    the first definition by following the
    procedure in Bragdon v. Abbott, 
    524 U.S. 624
    , 632-42 (1998). We determine whether
    (1) Emerson has a physical or mental
    disability (2) that impacts a major life
    activity and (3) whether the impairment
    substantially limits those activities.
    See 
    id.
    Emerson argues that her head injury
    resulted in mental impairments including
    anxiety, panic attacks, learning
    difficulties, and increased emotionality.
    She garners proof of these effects from
    the reports of Drs. Murphy, Bodeau, and
    Thomas. The Department of Health and
    Human Services defines a "mental
    impairment" as "any mental or
    psychological disorder, such as mental
    retardation, organic brain syndrome,
    emotional or mental illness, and specific
    learning disabilities." 29 C.F.R. sec.
    1630.2(h)(2). "[M]edically diagnosed
    mental conditions are impairments under
    the ADA." Krocka v. City of Chicago, 
    203 F.3d 507
    , 512 (7th Cir. 2000) (internal
    quotation omitted). Emerson’s diagnoses
    provide evidence that precludes summary
    judgment on the disability issue for NSP.
    At the time of her injury, the speech
    therapist found that Emerson suffered
    from a moderate impairment in her ability
    to learn, to retain new information, and
    to concentrate. During the summer of
    1996, three separate doctors diagnosed
    Emerson with anxiety disorders of varying
    seriousness. Further, in June of 1996,
    Dr. Bodeau noted that he found evidence
    of "mood alteration, sudden personality
    change, learning ability and panic
    attacks." NSP counters with Dr. Bodeau’s
    ultimate conclusion that of Emerson’s
    test results were in the normal range.
    While this evidence could persuade a jury
    to find that Emerson suffers from no
    impairment, it does not remove the issue
    of fact.
    Emerson contends that her impairment
    effects the established major life
    activities of learning and working. See
    29 C.F.R. sec. 1630.2(i). She further
    argues that memory, concentration, and
    interacting with others are major
    lifeactivities that her brain injury
    impairs, but offers no legal precedent to
    support her assertion. Emerson has not
    sufficiently developed her contentions on
    appeal, and we will not decide the issue.
    Rather, we will adopt the district
    court’s approach and treat memory,
    concentration, and interacting with
    others as activities that feed into the
    major life activities of learning and
    working.
    The parties hotly dispute whether
    Emerson’s impairments substantially
    limited her major life activities.
    According to the Code of Federal
    Regulations, a person is "substantially
    limited" if compared to the average
    person in the general population she
    cannot perform or is limited in the
    manner, duration, or condition in which
    she can perform a major life activity.
    See 29 C.F.R. sec. 1630.2(j)(ii). Emerson
    points to several pieces of evidence to
    show her substantial limitation in the
    area of learning. She had excessive
    difficulty learning NSP’s new telephone
    and computer systems, and frustrated her
    supervisors with repetitive questions and
    her inability to remember the answers.
    One supervisor noted that Emerson made
    mistakes when she attempted to complete
    routine, yet complex aspects of her job
    that she performed competently before the
    accident. To establish the severity of
    her impairments, Emerson relies on Dr.
    Bodeau’s June 7th conclusion that Emerson
    had difficulty learning and his June 19th
    report finding cognitive difficulties.
    Further, on July 19th, Emerson failed a
    test that required her to count by threes
    and sevens. This evidence, compiled from
    both her employer and doctor’s reports is
    more than sufficient to create an issue
    of material fact.
    NSP counters that cognitive tests
    administered by Dr. Thomas showed that
    Emerson’s cognitive function fell in the
    normal range, prompting Dr. Bodeau to
    recommended returning Emerson to her
    consultant position. Further, NSP argues
    that Emerson’s work performance problems
    revolved primarily around her panic
    attacks and her bad relationship with
    Krigs, not her ability to learn.
    Emerson’s evidence clearly disputes NSP’s
    assertions. Such an issue of material
    fact cannot be resolved at the summary
    judgment stage.
    Emerson also argues that she is
    substantially impaired in the major life
    activity of working. To show a
    substantial limitation in this activity,
    Emerson must offer proof that she is
    "significantly restricted in the ability
    to perform either a class of jobs or a
    broad range of jobs in various classes as
    compared to the average person having
    comparable training, skills and
    abilities." 29 C.F.R. 1630.2(j)(3)(i);
    Webb v. Choate Mental Health & Dev. Ctr.,
    
    230 F.3d 991
    , 998 (7th Cir. 2000)
    (quoting Weiler v. Household Fin. Corp.,
    
    101 F.3d 519
    , 525 (7th Cir. 1996)). We
    evaluate impairments on an individual
    basis to determine if they substantially
    limit a person’s ability to work. See
    Moore v. J.B. Hunt Transp., Inc., 
    221 F.3d 944
    , 952 (7th Cir. 2000) (citation
    omitted). In support on her argument,
    Emerson presents her vocational
    rehabilitation specialist’s conclusion
    that Emerson is foreclosed from a broad
    range of jobs--47% of all occupations.
    NSP challenges the report, arguing that
    it does not describe how Emerson’s
    anxiety and need for routine foreclose
    her from this range of jobs, that the
    vocational rehabilitation specialist
    called her impairment "minor," and that
    he failed to consider the potential
    effect of Emerson’s medication when
    determining the effect of her impairment
    on her ability to work. NSP’s arguments
    call the report into question, but do not
    discredit it to the extent that we can
    disregard its conclusions. Emerson has
    created a question regarding whether she
    is disabled that precludes summary
    judgment on this issue. Given our
    holding, we decline to address the
    remaining definitions of "disabled."
    B.   Was Emerson a qualified individual?
    To be a "qualified individual," a
    plaintiff must be "an individual with a
    disability who, with or without
    reasonable accommodation, can perform the
    essential functions of the employment
    position that such individual holds or
    desires." Weiler, 
    101 F.3d at 525
    (quoting 42 U.S.C. sec.12111(8). Emerson
    disputes the district court’s conclusion
    that she was not a qualified individual
    in four ways.
    First, she argues that handling safety-
    sensitive calls was not an essential
    function for an associate consultant. An
    essential function is a fundamental job
    duty required of a person in the job the
    plaintiff holds or desires; a marginal
    duty is not an essential function. See 29
    C.F.R. sec. 1630.2(n)(1). Factors that
    may be taken into account when
    determining whether a job duty
    constitutes as essential function include
    job description, employer’s opinion,
    amount of time spent performing the
    function, consequences for not requiring
    the individual to perform the duty, and
    past and current work experiences. See
    Basith v. Cook County, 
    241 F.3d 919
    , 927
    (7th Cir. 2001); 29 C.F.R. sec.
    1630.2(n)(3).
    NSP considers, and its associate
    consultant job description designates,
    handling safety-sensitive calls as an es
    sential job function. Emerson argues that
    the relative rarity of such calls (5% of
    the job, by her estimate) shows that they
    are only a marginal duty. Although we
    accept Emerson’s estimate of the safety-
    sensitive call volume, it fails to rebut
    the essential function status.
    Consultants clearly receive safety-
    sensitive calls which are crucial as they
    have potentially dangerous consequences
    if handled poorly. Emerson suggests that
    the calls could have been routed to
    another consultant, but this does not
    change their essential function status.
    See Basith, 
    241 F.3d at 929
     (holding that
    employer’s ability to assign delivery
    duties to another employee does not make
    them nonessential).
    Second, Emerson contends that she could
    handle the calls without reasonable
    accommodation. To be a "qualified
    individual," the plaintiff must prove (1)
    that she possesses the prerequisites for
    the job, such as educational background,
    skills, and experience, and (2) that she
    can perform the job with or without
    reasonable accommodation. See Bay v.
    Cassens Transp. Co., 
    212 F.3d 969
    , 974
    (7th Cir. 2000) (citations omitted). NSP
    contests only whether Emerson can handle
    safety-sensitive calls. Emerson notes
    that after her accident, she never had
    trouble dealing with a safety-sensitive
    call and that she never had an anxiety
    attack while on any call. She believes
    this demonstrates that there is no
    evidence to establish that she cannot
    handle safety-sensitive calls. We
    disagree. NSP is concerned about the
    potentially disabling effect a panic
    attack, such as the two Emerson has
    experienced at work, and her need for an
    indeterminate recovery time could have on
    her ability to handle emergency calls.
    Indeed, it emphasizes Dr. Bodeau’s
    recommendation that Emerson be removed
    from her position:
    [g]iven these considerations as well as
    the job description provided for a
    consultant in the customer information
    center, it is my opinion that [Emerson]
    should be reassigned out of the gas-
    sensitive activities that she found so
    stressful.
    Given Emerson’s need for an indeterminate
    recovery time and the potentially
    dangerous effects of a mishandled or
    tardily handled safety-sensitive call,
    Emerson’s evidence fails to create an
    issue of fact regarding whether she can
    adequately perform her job.
    Emerson contends, however, that the
    district court improperly analyzed NSP’s
    argument under the routine "qualified
    individual" framework. Rather, Emerson
    asserts that the "direct threat" rubric
    is more appropriate because NSP’s
    arguments are better characterized as
    concern that Emerson posed a direct
    threat to the safety of its customers.
    Emerson and NSP disagree about the role
    this test should play, and unfortunately,
    this leads their appellate briefs to be
    underdeveloped. Emerson believes it was
    NSP’s burden to present it as an
    affirmative defense; NSP believes it was
    Emerson’s duty to advance it as a theory
    of the case. We agree that the direct
    threat test can be applied appropriately
    here, but the results are no different
    than under "qualified individual"
    analysis.
    An employee is not a qualified
    individual if she poses "a significant
    risk to the health or safety of others
    that cannot be eliminated by reasonable
    accommodation." 42 U.S.C. sec. 12111(3).
    Under the direct threat framework, the
    employee shoulders the initial burden of
    proof and may proceed in one of two ways.
    First, she may present direct or
    circumstantial evidence that the employer
    discriminated on the basis of her
    disability. See Bekker v. Humana Health
    Plan Inc., 
    229 F.3d 662
    , 670 (7th Cir.
    2000) (citation omitted). The employer
    must then prove, with medical or
    objective evidence, see Bragdon, 
    524 U.S. at 649
     (citation omitted); 29 C.F.R. sec.
    1630.2(r), that it would have made the
    same decision absent the discrimination.
    See Bekker, 
    229 F.3d at 670
     (citation
    omitted). Alternatively, the employee
    could opt for the McDonnell-Douglas
    burden-shifting test. It requires the
    employee to create an inference of
    discrimination by bringing a prima facie
    case. See 
    id. at 672
    . The employer then
    must provide a legitimate business reason
    for its action, whereupon the burden
    shifts back to the employee to show by a
    preponderance of the evidence that the
    proffered reason is pretextual. See 
    id.
    Emerson focuses her efforts on
    contending that NSP has failed to
    shoulder its burden of proof.
    Consequently, we are unsure under which
    option she proceeds. It is unnecessary
    for us to guess at Emerson’s choice,
    however, because NSP meets its burden
    under either framework. NSP’s decision
    would have been the same absent
    discrimination and was a legitimate
    business decision.
    To determine whether an individual poses
    a direct threat, we must consider factors
    including: (1) the duration of the risk;
    (2) the nature and severity of the
    potential harm; (3) the likelihood that
    potential harm will occur; and (4) the
    imminence of potential harm. See
    Borgialli v. Thunder Basin Coal Co., 
    235 F.3d 1284
    , 1291 (10th Cir. 2000). NSP
    presented unchallenged doctors’ opinions
    that Emerson suffered from an anxiety
    disorder that might disappear in one to
    two years, but might never improve.
    Consequently, she required unpredictable
    breaks of indeterminate time to recover
    from a condition she exhibited at work
    previously. Emerson worked at a job which
    required prompt, accurate handling of
    emergencies such as gas leaks and downed
    power lines that could pose significant
    danger to the public. Although Emerson
    argues that she is unlikely to suffer a
    panic attack at work, she has already
    suffered two. By its very nature, the
    consultant job could be stressful, and
    Emerson would be in contact with a
    supervisor who caused her further stress.
    This evidence is enough for us to find
    that Emerson posed a direct threat in the
    consultant position. See, e.g., Bekker,
    
    229 F.3d at 671-72
     (holding that doctor
    who was suspected of drinking on the job
    posed a direct threat although she had
    not injured any patients); Borgialli, 
    235 F.3d at 1294
     (determining that an
    employee who had a good record in his job
    as a blaster, but who suffered from
    dizziness, held a grudge against his
    supervisor, and threatened harm to
    himself and others was a direct threat).
    NSP could not reduce its risk by
    reasonably accommodating Emerson. NSP
    considered allowing Emerson breaks to
    recover from her panic attacks. It found
    five minute breaks to be acceptable, but
    the indeterminate time Emerson requested
    simply introduced too much uncertainty
    into NSP’s handling of emergency calls.
    NSP appropriately declined Emerson’s
    suggestion to route safety-sensitive
    calls away from her. An employer is not
    obligated to change the essential
    functions of a job to accommodate an
    employee. See Cochrum v. Old Ben Coal
    Co., 
    102 F.3d 908
    , 913 (7th Cir. 1996)
    ("In short, reasonable accommodation does
    not encompass reallocation of essential
    job functions."). Emerson further
    suggested that in case of a panic attack,
    a supervisor could handle her safety-
    sensitive calls. NSP rejected this option
    because it did not always staff a
    supervisor and would have had to create
    new supervisor shifts to accommodate
    Emerson, which the ADA does not require.
    See 
    id. at 912
     (holding it is not
    reasonable to require an employer to hire
    a helper to do overhead work for a miner
    who cannot perform this essential job
    function alone). Emerson does not bring
    any evidence tending to show that NSP’s
    business reason for terminating her was
    pretextual. Therefore, Emerson is not a
    qualified individual, and NSP is entitled
    to summary judgment on this ground.
    Third, Emerson contends that NSP failed
    to offer her reasonable accommodations
    because it failed to participate in the
    interactive process the ADA requires. As
    part of the reasonable accommodation
    duty, the ADA requires employers to
    engage in an interactive process with
    disabled employees needing accommodation
    so that together they can identify the
    employee’s needs and discuss
    accommodation options. See Hendricks-
    Robinson v. Excel Corp., 
    154 F.3d 685
    ,
    693 (7th Cir. 1998). However, an
    employer’s failure to engage in the
    interactive process or causing the
    process to breakdown by itself is
    insufficient to support employer
    liability. See Rehling v. City of
    Chicago, 
    207 F.3d 1009
    , 1015-16 (7th Cir.
    2000). Rather, the employee must further
    show that the breakdown of the
    interactive process led to the employer’s
    failure to provide a reasonable
    accommodation. See 
    id. at 1016
    .
    Emerson criticizes Dr. Bodeau for
    failing to discuss Dr. Murphy’s break
    recommendation with him before
    recommending that NSP remove Emerson from
    her consultant position, and NSP for
    following this recommendation. However,
    the evidence shows that NSP engaged in
    the interactive process in good faith. It
    considered numerous medical diagnoses and
    recommendations to determine the effect
    of Emerson’s disability. It offered to
    retain her as a consultant with the
    understanding that she could take a five
    minute break in the event of a panic
    attack. However, NSP felt that it could
    not offer Emerson breaks of indeterminate
    time that Dr. Murphy opined she needed.
    After an unsuccessful attempt to
    communicate with Dr. Murphy, NSP offered
    to accommodate Emerson by transferring
    her to a temporary position. Further, NSP
    allowed Emerson to submit a late
    application for a full-time job. Emerson
    was not selected for the full-time job
    and she rejected the part-time job offer.
    NSP offered Emerson a reasonable
    accommodation.
    Finally, Emerson argues that NSP should
    have relocated her within the company
    rather than fire her because she
    expressed interest in remaining at NSP.
    Reassigning disabled employees to vacant
    positions that they can perform is a
    reasonable accommodation. See Hendricks-
    Robinson, 
    154 F.3d at 693
    . However, the
    employee is not entitled to her preferred
    accommodation. See Gile v. United
    Airlines, Inc., 
    95 F.3d 492
    , 499 (7th
    Cir. 1996). NSP offered to reassign
    Emerson to an available position as a
    temporary cash processor, which she
    refused. NSP did not simply transfer
    Emerson into the available full-time
    position because it would have been a
    promotion from part-time status to full-
    time status. After evaluating the job
    applications, NSP opted not to hire
    Emerson for the job. Before Emerson was
    terminated, NSP also alerted her to an
    associate consultant position that was
    available in Minnesota, which would not
    have required her to field safety-
    sensitive calls. Emerson opted not to
    apply. NSP satisfied its duty. Emerson
    contends that NSP had a continuing duty
    to notify her of available positions even
    after she was terminated, but did not do
    so. She cites no legal support for this
    position.
    III. Conclusion
    Because we hold as a matter of law that
    Emerson is not a qualified individual, we
    AFFIRM the grant of summary judgment in
    favor of NSP.
    FOOTNOTES
    /1 Between the time of the events and the time the
    case went to trial, plaintiff changed her last
    name from "Rubenzer" to "Emerson." For the sake
    of consistency, we refer to plaintiff as "Emer-
    son."